Bankim Chandra Ray, J. - (1.) These two appeals are directed against the common judgment and decree passed in Ejectment Suit Nos. 296 and 297 of 1973 by the 12th Bench City Civil Court, Calcutta decreeing Ejectment Suit No. 296 of 1973 and dismissing Ejectment Suit No. 297 of 1973. The plaintiffs were directed to get a decree for khas possession after evicting the defendant therefrom and the defendant was allowed three months time to vacate the suit premises failing which the plaintiff would be at liberty to put the decree into execution.
(2.) The facts of the case in short are as follows:- The plaintiffs Achal Pada De and his brothers Bejoy Krishna De and Dulal Krishna De and the other plaintiff Nos. 2 and 5 to 10 who are the sons of Panchu Gopal De, one of the brothers of plaintiff Nos. 1, 3 and 4 purchased the suit premises No. 4B and 4C, Jagannath Sur Lane by a registered Deed of Sale on 8th March, 1957 from the previous owner. The defendant principal respondent Rathindra Naih Hazra was a tenant in respect of two bed rooms in second floor with kitchen and bath and privy at premises No. 4C, Jagannath Sur Lane, Calcutta-6 at a rental of Rs. 110/- per month payable according to English calender under the plaintiffs. The said tenancy of the defendant was terminated by the plaintiffs by a combined notice of ejectment under section 106 of the Transfer of Property Act and under section 13(6) of the West Bengal Premises Tenancy Act, 1956 This notice was dated 9th October, 1972 and it was served under registered cover with acknowledgement due through their Advocate and agent Sri S. P. Bagchi whereby the tenant was asked to quit and vacate and deliver possession of the suit premises on the expiry of last day of November, 1972. The notice sent by registered post was manipulated by the defendant with the result that it came back with the remark 'left'. It was also pleaded that the defendant was served with a copy of the said notice dated 9.10.72 through Peon on 14.10.72 when the defendant was present at 4C, Jagannath Sur Lane. The defendant after reading the contents of the notice refused to accept the same and so the notice was affixed on the main door of the suit premises in presence of two gentle men present in the locality and the identified. The plaintiff reasonably require the suit premises for their own use and occupation and for use and occupation of the members of their family. The defendant was a defaulter in payment of rent since May, 1972 and as such he was not protected under the West Bengal Premises Tenancy Act, 1956. It has also been stated that the plaintiff No. 1's family consisted of himself, his wife, his son and daughter-in-law, three daughters and plaintiffs mother-in-law. The plaintiff No. 1 requires one room for himself and his wife, one room for his married son, one room for his eldest married daughter, one room for the two unmarried daughters, one room for the aged mother-in law and ere drawing room, one study room, one store room and one dining room and a kitchen. The plaintiff No. 2 who has attained marriageable age requires one room for himself. One room for his mother and unmarried sister, one kitchen and one store-cum-dining room. The plaintiff No. 3 employed in Calcutta requires one room for himself and his wife, two rooms for his two sons who carried on their study at Calcutta and one kitchen and one store-cum-dinning room. The plaintiff requires two bed rooms for his two sons one of whom has attained marriageable age and is employed in Calcutta and one kitchen. The plaintiff further stated that the 8 rooms in premises 4B, Jagannath Sur Lane which are in their possession are not sufficient to meet their requirements.
(3.) The defendant filed a written statement questioning the validity and legality and sufficiency of the alleged notice to quit. Defendant further stated that no notice was served or tendered to the defendant on 14.10.1972 through peon and as such the question of affixing the said notice in his presence and in the presence of the two gentlemen in the locality did not arise at all. The defendant also denied that a notice to quit was served on him in the manner or manners as alleged in the plaint. The report of the peon is a fabricated document created by the plaintiff for the purpose of the case. The defendant denied that the plaintiffs reasonably require the suit premises for their own use and occupation. The defendant further stated that the plaintiff Nos. 3 to 10 do not require the suit premises for their own use and occupation as they resided in their native village in Vestara, District Hooghly very near to Calcutta and it was very convenient for them to live there for purpose of looking after their joint properties and business. It has also been stated therein that plaintiff No. 4 is a Government employee whose Office is very near to his village and plaintiff Nos. 5 and 6 have their lucrative sweetmeat business in their said village and the plaintiff Nos. 7 and 10 are studying in the Higher Secondary School of their native village. The plaintiff Nos. 8 and 9 are to stay in their native village and to look after their family and also their joint business. An additional written statement was also filed on 26.6.80 by the defendant in Ejectment Suit No. 296 of 1973 wherein it has been stated that the plaintiffs previously filed an ejectment suit on same grounds of reasonable requirement being Ejectment Suit No. 216 of 1957 before the 5th Judge, Small Causes Court, Calcutta and the said suit was decreed and the plaintiff obtained possession of the suit premises, but the plaintiffs relet the suit premises to the different tenants within a few months. The plaintiff had no complied with the provisions of a section 18 of the Wes Bengal Premises Tenancy Act, 1956 and so this suit is liable to be dismissed. It has also been stated that the plaintiff No. 4 constructed a new building in his village Vastara after filing the suit and he resides there separately arid permanently. The plaintiff No. 9 is married and he has residing with her husband in village Dasgorea, District Hooghly. The mother-in-law of plaintiff No. 1 was living with her son A. P. Dutta who has a lucrative sweet meat shop and as such the plaintiff do not require the suit premises for their own use and occupation.;