Jayanta Kumar Ghose vs Sovana Rani Deb

P.N. Mookerjee, J.—This appeal is by three of the Defendants of the instant suit for ejectment out of which it has arisen. The Appellants before us were Defendants Nos. 1, 3 and 4 in the trial Court. They, along with pro-forma Defendant Respondent No. 4 who was Defendant No. 2 in the trial Court, were the tenants under the Plaintiffs (Respondents Nos. 2 and 3) in respect of the disputed promises No. 9 Dehi Entally Road. The tenancy bore a rental of Rs. 32 per month payable according to the English calendar.

According to the Plaintiffs the said tenancy was determined by the service of appropriate notices of ejectment on the Defendants and as the Plaintiffs,, according to them (Plaintiffs), required the disputed premises reasonably for their own use and occupation after building and rebuilding, they claimed to be entitled to a decree.

The material defence was of a two-fold character, viz., (i) that there was no valid or proper service on the Defendants of the requisite notice or notices of ejectment and (ii) that the Plaintiffs'' case of reasonable requirement of the disputed premises for their own use and occupation was not true.

The learned trial Judge overruled the defences and decreed the Plaintiffs'' suit. On appeal, the'' said decision has been affirmed by the learned Additional District Judge. Hence this second appeal by the Appellants (Defendants Nos. 1, 3 and 4).

As we have said above, three of the Defendants out of four in the trial Court are the Appellants before us, the remaining Defendant (No. 2) not having appealed has been impleaded as pro-forma Respondent No. 4 in this Court. The appeal was argued with great force by Mr. Mukherjee on behalf of the Appellants, challenging the findings of the two Courts below, both on the question of service of the requisite notice or notices of ejectment and also the point of reasonable requirement of the disputed premises by the Plaintiffs for their own use and occupation. Both these points were argued as points of law as they were put by Mr. Mukherjee in the form that there was no service in law, at least upon two of the Defendants, namely Defendants Nos. 3 and 4, who are tenants in common of the disputed premises along with their brother Defendants Nos. 1 and 2, all of them having inherited the tenancy in question from their father, who was the original tenant.

It is arguable at least on the authority of the decision in the case of Kailash Ch. Mitra v. Brojendra Kr. Chakravartti (1925) 29 C.W.N. 1000 : ILR (1925) 53 Cal. 197 (F.B.) that, by inheritance in a Dayabhaga family, the heirs get the tenancy as tenants in common and the principle of joint tenancy, strictly so called, would not be applicable, as there would be no question of survivorship in a matter of such inherited tenancy. It was accordingly argued by Mr. Mukherjee, appearing for the Appellants, that the judicial decisions lending countenance to the view that, in the case of joint tenants, service on one of them would be sufficient on the principles stated in the judgment of the Judicial Committee in the case of Harihar Banerjee v. Ramsashi Roy L.R. 45 I.A. 222, or the recent decision of the Supreme Court in the case of Kanji Manji Vs. The Trustees of The Port of Bombay, or, in the more recent decisions of this Court in the cases of N.D. Kripalini v. The New India Assurance Co. Ltd. (1964) 69 C.W.N. 313 and Bhusan Chandra Paul and Others Vs. Bengal Coal Co. Ltd., would not be applicable to such cases and the distinction made or pointed out in the last of the above cited cases or in the earlier case of Syed Badardoja v. Ajijuddin Sarkar (1929) 33 C.W.N. 559 so far as the previous decision of this Court in the case of Bejoy Chand Mahatab v. Kali Prasanna Seal (1925) 29 C.W.N. 620 is concerned would not be relevant. It was further contended that, on the principles laid down in the decision of this Court in the case of Anwarali Bepari v. Jamini Lal Roy Chowdhury (1939) 43 C.W.N. 797, the instant case must be held to be a case where there has been no valid or proper service of any notice of ejectment to determine the instant tenancy.

Mr. Ghose, appearing for the Plaintiffs Respondents, strongly opposed Mr. Mukherjee''s above submissions.

In the view, which we are taking, it will not be necessary for us to go into the above distinction or the points of law arising on the same or the merits of the submissions of the learned Advocates for their respective clients.

We will, therefore, refrain from making any observation on Rajoni Bibi v. Hafisonnissa (1900) 4 C.W.N. 572 and Ramubai Vs. Jiyaram Sharma, cited by Mr. Ghose in support of his argument that, in the matter of service of notice of ejectment ''joint tenancy'' and ''tenancy in common'' stand on the same footing and are really interchangeable terms and that the principles relating to such service as found in Harihar v. Ramsashi L.R. 45 I.A. 222, Kanji Manji Vs. The Trustees of The Port of Bombay, N.D. Kripalini v. New India Assurance (1964) 69 C.W.N. 313 and Bhusan Chandra Paul and Others Vs. Bengal Coal Co. Ltd., are equally applicable both to joint tenancies and tenancies in common. We need not also consider whether the Defendants here may be held to be ''joint tenants'' as distinguished from ''tenants in common'' for the above purpose in the light of the case of this Court, referred to in Shaikh Sahad v. Krishna Mohan Basak 24 C.L.J. 371 and Krishnadas Roy v. Kalitara Chowdhurani (1917) 22 C.W.N. 289. We would only say that the instant case has this distinctive feature that it can be decided without reference to any of the above aspect of law.

Before us, as we got it from the records before us, we have a case where the notice of ejectment, so far as Defendants Nos. 1 and 2 are concerned, were served on them, sufficiently in law to be effective, as they were sent by registered post to those two Defendants and on the peon''s relevant endorsements as written on the returned envelopes, they were apparently refused in one case and accepted in the other, Such refusal and acceptance would in the circumstances of this case be good service so far as the above two Defendants are concerned.

With regard to Defendant No. 4, the relevant service appears to have been by registered post, under which the notice was sent to him and Defendant No. 2 jointly, and the relative peon''s endorsement shows that after several days'' attempts of service the notice was refused. This endorsement in the circumstances of this case appears to relate to both the above addressees and, accordingly, must be deemed to be good service as regards both of them. The penal rule, relied on by Mr. Mukherjee for the purpose, does not support his extreme contention that in the matter of despatch by registered post there cannot be joint addressees.

As regards Defendant No. 3 a notice was sent to him to the care of Defendant No. 1 who, according to the Defendants'' own evidence, was the karta of the family and was, as such, looking after Defendant No. 3''s affairs and, on the said envelope or cover the peon''s endorsement, after several attempts of service, appears as follows: "Party unwilling to take delivery. Hence refused." This, in our opinion, would be good service so far as Defendant No. 3 is concerned.

It is also clear that there was good service on Defendants Nos. 1 and 2 and, according to the Defendants'' evidence, either Defendant No. 1 or Defendant No. 2 would be the karta of the family and was entrusted with looking after the said Defendants'' affairs. In the circumstances, service on them would be good and sufficient service on Defendants Nos. 3 and 4 also. We would accordingly hold that, on the materials on record, there was good and proper service valid in law, of the requisite notice or notices of ejectment on all the Defendants and, in the premises, this point must be found in favour of the Respondents and against Mr. Mukherjee''s clients.

On the question of reasonable requirement the concurrent finding of the two Courts below appears to be that, in their own ancestral house, the Plaintiffs have actually one bed-room. In any event they cannot have more than two or three bed-rooms. It is also clear from the evidence before us and the size of the Plaintiffs'' family, which is not disputed and which appears to be well established, that the minimum requirement of the Plaintiffs for themselves would be 4 or 5 rooms. In this view, we hold, agreeing with the two Courts below, that the Plaintiffs have also been able to make out a case of reasonable requirement of the disputed premises for their own use and occupation.

The further allegations that the disputed premises was required to be rebuilt and reconstructed for purposes of such use and occupation is also amply supported by the evidence on record, which shows that it is in a somewhat dilapidated condition and is very old being over a century and a half old. In the circumstances, in the light of the other concurrent findings made by the Courts below on the point, the Plaintiffs must be held to have made out a case of reasonable requirement of the disputed premises for their own use and occupation after building and re-building as claimed by them.

As we have overruled both the contentions of Mr. Mukherjee this appeal must fail and it will be dismissed and the decrees of the two Courts below will be affirmed, subject to this that, in the circumstances of this case and having regard to the conditions of the parties, we will give the Defendants time in the first instance till the end of September next unconditionally, such time to be enlarged till the end of June 1968 on condition that the Appellants or any two of them give an undertaking to this Court, within a fortnight from date, to quit and vacate the disputed premises and make over vacant and peaceful possession of the same to the Plaintiffs decree-holders before the expiry of the said month of June 1968 and on the further condition that they go on depositing in the Court below to the credit of the Plaintiffs decree-holders a sum of Rs. 32 per month, month by month, regularly according to the English calendar, within the 15th of the next succeeding month according to the same calendar, on account of current mesne profits, and in case of default in the making of any two of such deposits, this relative provisions for grace period, namely the longer one, would automatically lapse.

The Plaintiffs decree-holders will be entitled to withdraw the deposits, if any, made under this order, without furnishing any security therefore.

There will be no order as to costs of this appeal.

A.C. Gupta, J.

I agree.