S.K.Datta, J. - (1.) This appeal is against the judgment and decree of Chittatosh Mookerjee, J. dated 15th May, 1974 whereby Ejectment Suit No. 1594 of 1961 was decreed in reversal of the decision of the learned Judge, Tenth Bench, City Civil Court at Calcutta dated 28th Sept., 1966.
(2.) The facts, in short, as stated in the plaint are as follows. The suit premises being flat No. 54, Queens Mansions at 12, Park Street, Calcutta, was let out to the defendant No. 1 as a monthly tenant by the plaintiff respondent. The tenancy commenced from 25th May, 1959 and the monthly rent payable was Rs. 225/-. There was a tenancy agreement which is an Annexure 'A' to the plaint and under terms of Clause (3) of the agreement, the tenant defendant No. 1 had no right to assign or transfer or sublet or part with the possession of the tenancy or any part thereof. The defendant No. 2 started occupying the said premises with his family without any consent or permission of the plaintiff. The defendant No. 2 claimed to be an authorised attorney of the defendant No. 1 but he had no relation with him. It was stated that this power of attorney was a dodge for creating a sub-tenancy in his favour. The plaintiff determined the tenancy by a notice to quit dated 20th April, 1961 calling upon the defendant No. 1 to quit and vacate the said premises on the expiry of 24th May, 1961 "or in the alternative, on the expiry of the calendar month of tenancy, which will expire next after the end of one month from the date of service of this notice". This notice was addressed to the defendant No. 1 and also to defendant No. 2. It was further stated in the notice that unless vacant possession was given on the expiry of the tenancy, a suit for eviction would be instituted for non-compliance with the ejectment notice. This notice was sought to be served on the defendants by registered post, which notice on defendant No. 2 was duly received on April 24, 1961, while the notice on defendant No. 1 came back with the remark 'left'. A copy of the notice was sent by certificate of posting on 22nd April, 1961. A copy of the notice was also served by affixation on the suit premises. As the defendants failed to vacate and deliver possession, this suit was instituted for a decree for delivery of khas and vacant possession on ejectment of the defendant from the suit premises. The suit was instituted on 16th Aug., 1961.
(3.) The suit was contested by the defendants who filed separate written statements. It may be noted that the written statement on behalf of the defendant No. 1 was signed by the defendant No. 2 as his agent and constituted attorney. In the written statement of defendant No. 1, it was stated in para. 8 that although the tenancy at its inception was created on the 25th of the English Calendar month but by mutual agreement the rent was being paid to the plaintiff according to English calendar month and the plaintiff accepted the said arrangement and used to issue rent bill according to English calendar month. It was further stated that the tenancy was stated by the plaintiff from the 1st day of the month to the last day of the month according to English calendar and rent for the suit premises used to be collected and the rent-receipts used to be issued according to English calendar month. It was also stated that the rent for odd days of May, 1959 was collected separately and receipt for the same was granted and since thereafter the tenancy is continuing as a monthly tenancy according to English calendar month.;