S.B. Sinha, J. - (1.) - This appeal is directed against a judgment and decree dated 18th April, 1995 passed by the learned Judge, 4th Court of the City Civil Court at Calcutta in Ejectment Suit No. 421 of 1983, whereby and whereunder the said learned Court decreed the suit for eviction filed by the respondents against the defendants/appellants. The aforementioned suit for eviction was filed on the ground that the plaintiffs and the pro forma defendants are owners of the property in suit and the appellants are joint tenants. Various grounds relating to the player for eviction of the defendant had been taken in the plaint namely (1) default, (2) user of the premises for a purpose other than residential purpose, (3) sub-letting and (4) reasonable requirement. The plaintiff in paragraph 9 of the plaint made averments as regards service of notice, which reads thus:- "That the aforesaid tenancy was been duly determined by a notice dated 11.1.83 calling upon the defendants to give up possession of the portion of premises No. 320, Beniatola Lane, Calcutta, mentioned in the schedule on the expiry of the last day of the month of tenancy following the month of tenancy on which the notice is served. The notice under registered cover has duly served on the 17th January, 1983 on the defendants who failed to comply with the said notice and are still in wrongful occupation of the said portion of premises mentioned in the schedule." Before the learned Trial Judge a written statement was filed denying the ownerships of the plaintiffs as also relationship of the landlord and tenant. Thereafter the plaintiffs filed an application for amendment of plaint which was allowed. The defendant also filed an additional written statement. The learned Trial Judge, keeping in view the rival pleadings of the parties framed the following issues: "1. Are the defendants defaulter in payment of rent as alleged? 2. Have the defendants sublet, assigned and/or transferred the suit premises or any portion thereof without the written consent of the landlords? 3. Are the defendants using the suit premises for non-residential purpose and/or for the purpose other than the purpose for which the same was let out? 4. Was the premises let out to the defendants for doing business therein as alleged? 5. Do the plaintiffs require the suit premises for their own use and occupation? 6. Are the plaintiffs entitled to a decree for possession? 7. To what relief or reliefs the plaintiffs are entitled? 8. (Additional issue)--Are the plaintiffs owners of the suit premises? 9. (Additional issue)--Do the plaintiffs reasonably require the suit premises for their own use and occupation and whether they have any other accommodation elsewhere? 10. (Additional issue)--Has the tenancy of the defendant been determined by a notice to quit?"
(2.) The learned Trial Judge took up issues No. 5, 8, and 9 together and decided the said issues in favour of the-plaintiffs. The learned Trial Judge also decided issue No.10 in favour of the plaintiffs. Other grounds of eviction as pleaded by the plaintiffs were not accepted by the learned Trial Judge.
(3.) The learned counsel appearing on behalf of the appellant has principally raised three contentions in support of this appeal. The learned counsel, submits that service of notice under Section 106 of the Transfer of Property Act read with Section 13 (6) of the West Bengal Premises Tenancy Act had not been proved. The learned counsel further submits that although the plaintiffs exhibited certain documents for the purpose of showing that he is one of the co-owners, the same cannot be said to have been proved. It was further submitted that in any event keeping in view the requirements of the plaintiffs, the learned-Trial Judge ought to have considered the question as to whether requirement of thee plaintiffs would be sufficiently met by granting a decree of partial eviction.;