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CASE NO.: Appeal (civil)  7116 of 2004

PETITIONER: Ranju @ Gautam Ghosh

RESPONDENT: Rekha Ghosh  & Ors.

DATE OF JUDGMENT: 14/12/2007

BENCH: R.V. Raveendran & P. Sathasivam

JUDGMENT: JUDGMENT

P. Sathasivam, J.

1)      Challenge in this appeal is to the judgment and final  Order dated 30.1.2004 passed by the High Court at Calcutta  in S.A. No. 212 of 1992 whereby the High Court dismissed the  second appeal filed by the appellant herein. 2)      Brief facts in nutshell are as follows:      Originally one Anil Kumar Ghosh was a tenant in respect  of the shop situated at 50-C Richi Road, Kolkata and  respondent Nos. 1-6/plaintiffs are the landlords of the  premises in dispute.  The predecessor-in-interest of  respondent Nos. 1-6 purchased the said property from one  Smt. Manjusree Shyam Chowdhury.  The predecessor-in- interest of the appellant was paying a rent of Rs. 20/- per  month.  The predecessor-in-interest of respondent 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, Ist 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 @ Rs.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 before  this Court by way of special leave petition.   3)      Heard Mr. Ranjan Mukherjee, learned counsel appearing  for the appellant and Mr. Jaideep Gupta, learned senior  counsel appearing for the respondents. 4)      The following points arise for consideration in this  appeal:-      1)  Whether notice to quit was legal, valid and sufficient;  2) Whether the tenant did any act which violated clauses  (m), (o) and (p) of Section 108 of the Transfer of Property  Act, 1882; 3) Is the tenant guilty of causing act of nuisance and  annoyance?

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             5)      Let us consider the first issue which relates to notice.  It  is not in dispute that the respondent-landlord filed a suit for  eviction and mesne profits in title suit No. 78 of 1976 under  Section 13 of the West Bengal Premises Tenancy Act, 1956 (in  short the \021Tenancy Act\022).  The trial Court on the issue of notice  disbelieved the service under certificate of posting and failed to  accept the tender of the ejectment notice to the defendant by  peon on 27.06.1973 and thereby concluded that there was no  valid notice to quit.  In respect of other two issues, the trial  Court concluded that the plaintiff failed to prove any damage  to the suit premises.  Based on the said finding it arrived at a  conclusion that the defendant did not violate the provisions of  sub-section (m), (o) and (p) of Section 108 of the Transfer of  Property Act, 1882 (in short \023T.P Act\024).  In the last issue the  trial Court came to the conclusion that the plaintiff has failed  to prove that the defendant is guilty of causing nuisance or  annoyance.  With the said findings, the trial Court dismissed  the suit.  6)      The appellate Court on appreciation of oral and  documentary evidence came to the conclusion that notice to  quit was duly served on the defendant and he was well aware  of the contents of the same.  In respect of other two issues, the  learned Assistant District Judge found that the  defendant/tenant caused damage to his collapsible gate and  also caused nuisance and created annoyance.  After arriving  such conclusion set aside the judgment and decree of the trial  Court and ordered eviction.  In the second appeal filed by the  defendant/tenant, the High Court accepted those factual  findings, confirmed the same and dismissed the second  appeal.  Aggrieved by the judgment, the tenant has filed this  appeal. 7)      Before going into the merits of the claim on the above  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:  \023S. 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:-              (a) xxx xxxx  

(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) xxx xxxx        xxx xxx xxx              (2) xxx xxx xxx       (3) xxx xxx xxx        (4) xxx xxx xxx       (5) xxx xxx xxx (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\022s notice  expiring with a month of the tenancy.\024               Sub-sections (m) (o) and (p) of Section 108 of the Transfer

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of Property Act, 1882 reads thus: \023108. Rights and liabilities of lessor and lessee.- In the  absence of a contract or local usage to the contrary, the  lessor and the lessee of immovable property, as against one  another, respectively, possess the rights and are subject to  the liabilities mentioned in the rules next followed, or such of  them as are applicable to the property leased:-

(m) the lessee is bound to keep, and on the termination of  the lease to restore, the property in as good condition as it  was in at the time when he was put in possession, subject  only to the changes caused by reasonable wear and tear or  irresistible force, and to allow the lessor and his agents, at  all reasonable times during the term, to enter upon the  property and inspect the condition thereof and give or leave  notice of any defect in such condition; and, when such defect  has been caused by any act or default on the part of the  lessee, his servants or agents, he is bound to make it good  within three months after such notice has been given or left;  

(o) the lessee may use the property and its products (if any)  as a person of ordinary prudence would use them if they  were his own; but he must not use, or permit another to use,  the property for a purpose other than that for which it was  leased, or fell or sell timber, pull down or damage buildings  belonging to the lessor, or work mines or quarries not open  when the lease was granted, or commit any other act which  is destructive or permanently injurious thereto;

(p) he must not, without the lessor\022s consent, erect on the  property any permanent structure, except for agricultural  purposes;\024  

8)      Under Section 13, a tenant is protected from eviction and  in sub-section (1) of Section 13 certain grounds have been  specified which would made the tenant liable to be evicted.   Such grounds have to be proved by the landlord and on the  proof of any such ground, the tenant will loose protection  against eviction.  In such circumstances, the suit by the  landlord against the tenant governed by the Act will be  maintainable only when any of these grounds are proved.  To  put it clear insistence of one or more grounds as stated in  Section 13(1) is mandatory for a decree for eviction.  9)      As mentioned above, first we have to determine whether  there was valid notice to quit.  We have already referred to  sub-section (6) of Section 13 of the Tenancy Act which makes  it clear that unless the landlord has given to the tenant one  month\022s 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\022s 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  \023one month\022s notice expiring with a month of the tenancy to  the tenant\024.  Neither in sub-section 6 nor in any other  provision mandates that notice \023to be served by registered

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post\024.  (emphasis supplied) It is useful to refer to Section 28 of  the Bengal General Clauses Act, 1899 which reads as under:- \02328. Meaning of service by post.- Where any Bengal Act or  West Bengal Act, made after the commencement of this Act  authorizes or requires any document to be served by post,  whether the expression \023serve\024 or either of the expressions  \023give\024 or \023send\024 or any other expression is used, then, unless  a different intention appears, the service shall be deemed to  be effected by properly addressing, prepaying and posting by  registered post, a letter containing the document, and,  unless the contrary is proved, to have been effected at the  time at which the letter would be delivered in the ordinary  course of post.\024  

10)     The above provision makes it clear that after the  commencement of the said Act any document to be served  (emphasis supplied) by post, the service shall be by  mentioning proper address, prepaying and posting by  registered post a letter containing the document.  In our case,  as stated earlier, clause 6 provides mere \023one month notice\024,  in such event, the said notice can be served in any manner  and it cannot be claimed that the same should be served only  by registered post with acknowledgement due.  The plaintiff as  PW 1 has stated that the defendant Anil Kumar Ghosh was  not present in his shop and the notice of eviction was handed  over to his son Ranju who accepted it but refused to put his  signature as a token of acceptance.  In his evidence, PW 1  further asserted that Chittaranjan Ghosh was present at the  time and after a short while he affixed another coy of the  notice in the collapsible gate and that too was endorsed by  Chittaranjan Ghosh.  Both PW 1 and Chittaranjan Ghosh  made an endorsement in Ex. 9.  Chittaranjan Ghosh was  examined as PW 6 and he is a family physician of the  plaintiffs. According to PW 1, PW 6 holds good reputation.   Considering the above materials, the lower appellate Court  found that notice was duly served on the defendant and the  defendant was very well aware about the contents of the said  notice.  On going through the evidence placed before us and  the relevant provisions, we agree with the conclusion of the  Assistant District Judge affirmed by the High Court and hold  that there was valid notice to quit.  11)      Coming to clauses (m) (o) and (p), the appellate Court as  well as 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\022s 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\024 and  again it was replaced without the consent and permission of  the plaintiffs/landlords.  In the light of the abundant material,  factual conclusion arrived by the appellate Court confirmed by  the High Court the same cannot be ignored lightly in the  absence of any contra evidence. On the other hand, we agree

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with the said conclusion.  12)     Coming to the last issue, namely, nuisance and  annoyance, PW 1 Dr. Bhabani Charan Ghosh, in his evidence,  has categorically stated that on 16.09.1975 at about 6.30 p.m.  the tenants dismantled the collapsible gate of southern garage.   He further deposed that when they were cutting the same he  protested for which they threatened to kill him.  He made a  complaint to the police.  According to him, this was witnessed  by Chittaranjan and Sangana.  As observed earlier, PW 1 is  none else than a Surgical Specialist (MS) of Government of  West Bengal. He also specifically referred to the threat made  by Ranju and Sailen.  According to him, both of them  threatened him with dire consequences.  It is further seen  from his evidence that at the time of cutting the collapsible  gate, the same was photographed and produced before the  Court in support of his claim.  It also revealed that pursuant  to his complaint, criminal proceedings under Section 144  Cr.P.C was initiated.  PW 5 - Mahim Biswas resident of No. 65  Motilal Nehru Road, Calcutta \026 29, in his evidence, has stated  that while he was returning to his house, he noticed group of  persons in front of the house of the appellant.  He also referred  to the damage caused to the collapsible gate by the tenants.   PW 9-second plaintiff has stated that on 06.02.1973 Ranju  Ghosh-defendant in the said suit attacked their house.   According to him, at the time he was in his house and  studying in their verandah.  He further deposed that when the  police came Ranju Ghosh and other miscreants set up by  them ran away.  In addition to the above oral evidence, as  stated in the earlier paragraphs, the lower appellate Court and  the High Court adverted to complaint given to the police, the  subsequent criminal proceedings and other relevant materials  and came to the conclusion that the respondents-landlords  made out a case for eviction on the ground of nuisance and  annoyance which we concur with the said factual finding.  13)     In view of the above, we agree with the following  conclusions of the First Appellate Court as affirmed by the  High Court in Second Appeal: (a)     that the activities of threatening to kill the plaintiff,  beating the son of the plaintiff and abusing him  with filthy language would amount to nuisance and  annoyance, furnishing a ground of eviction under  clause (e) of section 13 (1) of the West Bengal  Premises Tenancy Act, 1956; (b)     that causing damage to the collapsible gate of the  tenanted portion and putting up a concrete  elevation of the floor, would amount to doing acts  contrary to the provisions of clauses (m), (o) and (p)  of section 108 of the Transfer of Property Act, 1882,  thereby furnishing a ground of eviction under  clause (b) of section 13(1) of the West Bengal  Premises Tenancy Act, 1956.  

14)     Consequently, we find no merit in this appeal and it is  dismissed accordingly.  However, the appellant is granted two  months\022 time to deliver vacant possession of the suit premises  to the respondents.  No costs.