R.Bhattacharya, J. - (1.)This second appeal is by the defendant against the decision of the Additional District Judge in a Title Appeal, affirming the judgment and the decree passed in the original Title suit in the Court of Munsif at Alipore where the plaintiff-respondant obtained a degree for eviction of the defendant an the ground of reasonable requirement for the suit premises for his own use and occupation.
(2.)In the original suit the plaintiff, Kamal Kumar Dutta alleged that the defendant. Apurba Chandra Sen was a monthly tenant in respect of the suit premises under him. The suit premises is 16/1B, Prince Golam Mohammed Road which the plaintiff got as a legatee by virtue of a will executed by his mother, the owner of the said house and other ones. The plaintiff's mother bequeathed another house which is premises no. 51, Lansdowne Terrace to two other sons, Sudhir and Salil. The plaintiff an unmarried person was living in the said premises No. 51. Lansdowne Terrace belonging to Sudhir and Salil as their licensee occupying only one room. It has been further alleged that the plaintiff wants to be married, but for want of accommodation he cannot marry. There is ill feeling between the plaintiff and his brothers, the owners of the premises at Lansdowne Terrace and they want him to vacate the house. The suit premises is the only house of the plaintiff where he wants to shift for his own use and occupation in the first floor and for his business on the ground floor. The plaintiff served an ejectment notice upon the defendant but as the defendant did not vacate the suit premises, he filed the suit for eviction and mesne profits. The defendant appeared in the suit and filed written statement alleging that the plaintiff had no requirement as alleged either for his own use and occupation or for his business. The trial Court accepted the plaintiff's story of use and occupation of the first floor of the suit premises but he was not inclined to believe the allegation that the plaintiff required the ground floor for his business. The learned Munsif was inclined to allow a partial decree for the eviction of the defendant from the first floor of the suit premises, but as the defendant was not willing to the proposal for partial eviction, the learned Munsif allowed a decree for eviction from the entire suit premises. Against that decision, an appeal was preferred and the learned Additional District Judge also accepted the findings of the learned Munsif and dismissed the appeal.
(3.)I have heard Mr. Banerjee, the learned Advocate appearing on behalf of the appellant and Mr. Sett for the respondent. It has been contended by Mr. Banerjee for the appellant that in view of Section 333 of the Indian Succession Act as there fe no evidence of assent of the executor, the specific bequest to the plaintiff has not been, completed and that no perfect title to the suit property has been acquired by the plaintiff. Mr. Banerjee's argument is that in the absence of such assent of the executor and in the absence of a perfect title to the suit property, the plaintiff was not entitled to file the suit against the defendant Mr. Banerjee has contended that for the assent of the executors for the passing of the complete title 'to the legatee, a registered document of transfer ought to have been executed by the executors named in the will and without that registered document, no valid title could come to the plaintiff. It has been argued that although one of the executors has been examined in this case by the plaintiff, the said executor has not in his evidence stated that the executors had given assent to the bequest made in favour of the plaintiff.