TMI Blog2007 (12) TMI 537X X X X Extracts X X X X X X X X Extracts X X X X ..... Nos. 1-6 instituted a suit against the predecessor-in-interest of the appellant for recovery of possession and mesne profit in respect of the premises in question which was dismissed by the learned Munsif, 1st Additional Court, Alipore, District 24 Parganas on 29.9.1986. Aggrieved by the said order, the predecessor-in-interest of the respondents filed an appeal before the Court of Assistant District Judge, 4th Court Alipore, 24 Parganas. During the pendency of the appeal the original tenant Anil Kumar Ghosh passed away and his L.Rs were brought on record. The said appeal was allowed with cost and the respondents therein were directed to give the vacant possession of the suit premises and also granted a decree for mesne profit @ ₹ 1/- per diem till the recovery of the possession. Being aggrieved by the said order, the tenants preferred a second appeal being S.A. No. 212 of 1992 before the High Court of Calcutta. On 30.1.2004, the High Court dismissed the appeal and confirmed the order of the first appellate Court and directed to vacate the premises within 90 days from the date of the delivery of judgment. Challenging the said order, Ranju @ Gautam Ghosh filed this appeal befor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e issues, it is useful to refer to the relevant provisions: Section 13(1) (b) and (6) of the West Bengal Premises Tenancy Act, 1956 reads thus: Section 13. Protection of tenant against eviction. - (1) Notwithstanding anything to the contrary in any other law, no order or decree for the recovery of possession of any premises shall be made by any Court in favour of the landlord against a tenant except on one or more of the following grounds, namely: x x x (b) where the tenant or any person residing in the premises let to the tenant has done any act contrary to the provisions of Clause (m), Clause (o) or Clause (p) of Section 108 of the Transfer of Property Act, 1882 (IV of 1882); (c) x x x (2) x x x (3) x x x (4) x x x (5) x x x (6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that sub-section shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy. Sub-sections (m) (o) and (p) of Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 13 of the Tenancy Act which makes it clear that unless the landlord has given to the tenant one month's notice expiring with a month of the tenancy he cannot avail any of the provisions either under the Tenancy Act or the T.P Act for eviction. The language used in Sub-section 6 makes it clear that it is obligation on the part of the landlord to issue one month's notice expiring with the month of the tenancy to the tenant. Learned Counsel appearing for the appellant placing reliance on Section 28 of the Bengal General Clauses Act, 1899 (Bengal Act 1 of 1899) submitted that the notice shall be by registered post. He further contended that in view of the fact that notice to quit was sent only under certificate of posting, the same is not valid in terms of Section 28 of the Bengal General Clauses Act, 1899, hence the eviction order cannot be sustained. On going through the relevant provisions, we are unable to accept the said contention. First of all, the language used in Sub-section (6) of Section 13 is 'one month's notice expiring with a month of the tenancy to the tenant'. Neither in Sub-section 6 nor in any other provision mandates that notice to be se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the High Court accepted the evidence of PW 1-plaintiff No. 1, PW 6 his neighbour and physician and other documentary evidence such as complaint to the police, entry in general diary, Ex. 17 and accepted the case of the plaintiff. Learned Counsel appearing for the appellant submitted that in the light of the report of the Advocate Commissioner which has been marked as Ex. 13 the defendant neither caused any damage to collapsible gate nor put up any additional construction as claimed by the plaintiff. We also perused the evidence of PW 1, PW 6 Ex. 13 and 17 and accept the factual finding of the appellate Court affirmed by the High Court. As rightly pointed out by the Assistant District Judge, the suit premises was inspected by an Advocate Commissioner only on 12.03.1971 i.e. about 1= years after the alleged occurrence, hence no credence be attached to the Commissioner's report. The appellate Court based on the evidence of PW 1, PW 6 complaint, entry in General Diary, Ex 17 came to the conclusion that the collapsible gate had been cut by 5/6 and again it was replaced without the consent and permission of the plaintiffs/landlords. In the light of the abundant material, factual con ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
