M.M. Dutt, J.
1. This appeal is at the instance of the defendant and it arises out of a suit for eviction.
2. The suit premises comprises three rooms in the ground floor and three rooms in the first floor besides a verandah, privy and water-tap of premises No. 17, Chidam Mudi Lane, Calcutta, which is a three storied building. The said premises belonged to three brothers, namely, Sujit, the plaintiff No. 1 Sudam and the plaintiff No. 2 Salil. The defendant was a monthly tenant under the said three brothers at a monthly rent of Rs. 75. In a partition suit between them the said premises No. 17, Chidam Mudi Lane was partitioned by metes and bounds. The plaintiff No. 1 was allotted lot No. C ,and the plaintiff No. 2 was allotted lot No. B as shown in the plan which formed part of the decree for partition. Lot No. A was allotted to Sujit. Thereafter, a suit for apportionment of rent being Title Suit No. 743 of 1965 was instituted by the co-sharers including the present plaintiffs against the defendant. In that suit, the rent was apportioned and the rent payable to the plaintiffs jointly was fixed at Rs. 68 per month and that payable to Sujit was fixed at Rs. 7 for his portion, that is, in respect of lot No. A, which measures only 150 sq. ft. The tenancy of the defendant seems to have been sub-divided into two tenancies namely, one in respect of lots Nos. B and C allotted to the plaintiffs Sudam and Salil at a rent of Rs. 68 per month and another in respect of lot No. A allotted to Sujit at a monthly rent of Rs. 7. The defendant also accepted Sujit as his sole landlord in respect of lot No. A which is apparent from the joint petition of compromise and the decree passed thereon in the ejectment suit brought by Sujit against the defendant in respect of his portion.
3. The plaintiff's also reside in a portion of the said premises No. 17, Chidam Mudi Lane. The plaintiff No. 1 possesses only one room in the first floor and a small room in the second floor and the plaintiff No. 2 has in his possession only a small partitioned room in the second floor. The members of the family of the plaintiff No. 2 consist of himself, his wife, two grown-up daughters, two minor daughters and two minor sons. It was the case of the plaintiffs that the accommodation available to them was quite insufficient for their residence. Moreover, the plaintiff No. 1 was unable to marry for want of accommodation. Accordingly, it was the case of the plaintiffs that they reasonably required the suit premises in occupation of the defendant. The plaintiffs determined the tenancy of the defendant by the service of a notice to quit, but the defendant not having vacated the suit premises, they instituted the suit for his eviction.
4. The defendant contested the suit by filing a written statement denying that the plaintiffs reasonably required the suit premises. He also denied the service of a notice to quit upon him and the legality thereof.
5. The suit was decreed by the learned judge, 5th Bench, City Civil Court, Calcutta on Aug. 13, 1970. The defendant preferred an appeal to this Court being F. A. No. 47 of 1971. The said appeal succeeded and the judgment and decree of the learned Judge were set aside and the suit was sent back on remand for a fresh disposal on all the points. This time the learned Judge came to findings that the plaintiff No. 2 reasonably required the suit premises for his own use and occupation. He, however, found that the plaintiff No. 1 had failed to prove his requirement. Further, he found that the requirement of the plaintiff No. 2 would be satisfied by the partial eviction of the defendant from the suit premises. As to the notice to quit, he held that the same was served upon the defendant by affixation thereof on the sadar door of the suit premises, and that the same was legal and valid. Upon the said findings, he decreed the the suit in part by directing eviction of the defendant from the first floor rooms in his occupation and allowing him to continue as a tenant in respect of the ground floor rooms. He also decreed the plaintiffs' claim for mesne profits as prayed for. Hence, this appeal. The plaintiffs have also filed a cross-objection contending that the learned Judge should have decreed the suit directing eviction of the defendant from the whole of the suit premises.
6. It is contended on behalf of the defendant that as the learned Judge has found that the plaintiff No. 1 has no requirement, no decree can be passed at the instance of the plaintiff No. 2 in respect of lot No. C not belonging to him but allotted to the plaintiff No. 1 and accordingly, the suit should be dismissed on that ground. This contention, in our opinion, has no substance at all. Under Clause (ff) of Section 13 (1) of the West Bengal Premises Tenancy Act, 1956 one of the conditions that should be fulfilled before a decree for eviction is passed is that the plaintiffs must be the owner of the suit premises. In the instant case, though the suit premises has been allotted to both the plaintiffs by metes and bounds, yet there can be no doubt that they are the owners of the whole of the suit premises. As soon as it is found that the plaintiffs are the owners of the suit premises, the said condition is fulfilled, and there will be no bar to the Court passing a decree for eviction of the tenant from the suit premises on the ground of reasonable requirement of one of the plaintiffs to whom a portion of the suit premises belongs, the remaining portion belonging to the other plaintiff or plaintiffs. If the contention of the defendant is accepted, in that case, after partition and allotment of a property to different co-sharers in occupation of a tenant, no decree for eviction can ever be passed on the ground of reasonable requirement of one or some of them. It is, however, contended by Mr. Das Gupta, learned Advocate appearing on behalf of the defendant that in such a case the remedy of the co-sharers after partition is by a suit for the sub-division of the tenancy. This contention is equally devoid of any merit, for without the consent of the tenant, he cannot be compelled to accept the division of his tenancy. There is no provision of law providing for such a suit for the sub-division of the tenancy. Mr. Das Gupta has placed reliance on an unreported judgment of Chit-tatosh Mukherjee J. in Kisholay Sen Gupta v. Kalipada Basu, S A. No, 1709 of 1969 disposed of on May 11, 1973 (Cal). The facts of that case are different from those of the instant case before us. In that case, the suit premises was allotted to the plaintiff and his brother who was not a party to the suit, and it was rightly held that the plaintiff not being the owner of the whole of the suit premises, was not entitled to a decree for eviction. In the instant case, the plaintiffs are the owners of the suit premises and there is no difficulty in passing a decree for eviction in favour of the plaintiffs. This contention of the defendant, therefore, falls.
7. Mr. Das Gupta has also challenged the service of the notice to quit. The plaintiffs served a copy of the notice by registered post with acknowledgment due. The notice came back undelivered. It appears from the endorsements on the envelope that the postal peon visited the suit premises on two different dates and on both these occasions, the endorsement was 'not claimed'. Further, there is an endorsement 'mis-sent'. The learned Judge has observed that there is no evidence that the envelope containing the notice was actually tendered to the defendant by the postal peon and accordingly, it cannot be said that the notice was served. It is not disputed before us that the members of the family of the defendant had been present in the suit premises at the time the peon visited the same on two days. It is the case of the defendant that he was not present in the house at that time. It is, however, difficult for us to accept the said evidence of the defendant. Even assuming that he was not present at that time, still the peon would not make an endorsement as 'not claimed'. The words 'not claimed' imply that there was no person by the name of the addressee and so the letter was not claimed by the inmates of the house. If that had been the circumstance, the peon would not call at the suit premises on the second day for the second jme. The words 'mis-sent' as endorsed on the envelope on Dec. 4, 1968 is significant. It seems to us that by that endorsement it was meant that there was no necessity for the postal peon to call at the suit premises on the second day when it was not claimed on the first day. Considering the first endorsement, we are of the view that the letter was refused giving rise to the presumption of due service. The view which we take finds support from a Bench decision of this Court in Satya Charone Roquitter v. Suresh Chandra Pal, (1961) 65 Cal WN 1239. It has been observed by P. N. Moo-kerji, J. who delivered the judgment of the Bench that 'not claimed' may amount to refusal, in which case it would be good service according to law; but it may also be that nobody was found at the relevant address to claim the letter which may be consistent with the defendant's case that the defendant was away or absent from the place and there was nobody there who could accept the letter on his behalf.
8. The plaintiffs have also proved that there was service of the notice by affixation on the outer door of the suit premises. It is the evidence of the plaintiff No. 1 that he went to the suit premises on November 13, 1968 to serve a notice upon the defendant. He had tendered the notice to the defendant personally, but the defendant refused to accept the same. He thereafter affixed the notice on the sadar door of the suit premises. The plaintiff No. 1 has also submitted a report (Ext. 7) stating therein the fact of the tender of the notice to the defendant personally, the refusal by the latter to accept the same and affixation of the same on the sadar door of the suit premises. P. W. 5 Anil Chandra De is a Civil Engineer. He says that he was present at the time the plaintiff No. 1 Sudani tendered the notice to the defendant. He corroborates the evidence of the plaintiff No. 1 that the defendant refused to accept the notice and thereafter the. same was affixed by the plaintiff No. 1 on the eadar door of the suit premises. The report Ext. 7 also contains the signature of P. W. 5. The learned Judge believed the evidence of the plaintiff No. 1 and P. W. 5 and held that the notice was served by affixation. In spite of some discrepancy in the evidence of the plaintiff No. 1 .as pointed out by Mr. Das Gupta we do not find any reason to disagree with this finding of the learned Judge. We hold, therefore, that the notice was served by registered post and also by affixation in accordance with law. It is a combined notice under Section 106 of the Transfer of Property Act and Section 13 (6) of the West Bengal Premises Tenancy Act, 1956. It is quite legal and valid.
9. Now we may consider whether the plaintiffs have been able to prove their requirement of the suit premises. The learned Judge has not accepted the case of the plaintiff No. 1 that for want of accommodation he is unable to marry. It has been observed by the learned Judge that there is no evidence that any marriage negotiation was going on. This argument of the learned Judge does not at all impress us. The plaintiff No. 1 has in his evidence categorically stated that he intends to marry, but on account of want of accommodation he is unable to marry. We do not find any reason why his evidence should not be accepted. It is not expected that though he has not sufficient accommodation in his possession, yet he would go on negotiating for his marriage. So far as the plaintiff No. 2 is concerned, he has as many as 8 members including 4 daughters and 2 sons. All the daughters are grown-up excepting the youngest daughter. We are told that the eldest daughter has since been married. Still the number of members of the family of the plaintiff No. 2 is 7. He is in possession of two rooms in the second floor by arrangement with the plaintiff No. 1. One of these rooms measures 21' 4'X10' 9', but the other room is small and measures 9' 10' X 8' 4'. The plaintiff No. 1 is in possession- of one room in the first floor measuring 9' 10' X 10' 3'. The two rooms in the possession of the plaintiff No. 2, in our opinion, are not sufficient for the accommodation of all the members of his family.
10. The plaintiffs, therefore, reasonably require the suit premises and they are not in possession of a reasonably suitable accommodation. The learned Judge has found that the plaintiff No. 2 required three additional rooms. In any event he requires two more rooms. Considering the requirement of both the plaintiffs we are of the view, that they require three additional rooms. The learned Judge was, therefore, justified in holding that the requirement of the plaintiffs would be satisfied by the partial eviction of the defendant. The decree that has been passed by the learned Judge is one for partial eviction. It does not, however, appear from the judgment of the learned Judge that the defendants agreed to a decree for partial eviction. Mr. Das Gupta has stated before us that the learned Judge did not try to ascertain from the defendant whether he was agreeable to a decree for partial eviction. Be that as it may, we are of the opinion that the requirement of the plaintiffs will be satisfied by the partial eviction of the defendant from the suit premises, and he may be evicted from the first floor rooms. It has, however, been stated before Us by Mr. Das Gupta that his client is not agreeable to such a decree for partial eviction. In the circumstances, there is no other alternative than to pass a decree for eviction of the defendant from the whole of the suit premises. No other point has been argued in this appeal.
11. For the foregoing reasons, the judgment and decree of the learned Judge are modified to this extent that instead of the decree for partial eviction of the defendant from the suit premises, the suit is decreed in full. The defendant shall vacate and deliver up vacant and peaceful possession of the suit premises to the plaintiffs on or before the expiry of the month of July 1977. In default, the plaintiffs shall be entitled to recover khas [possession of the suit premises in execution of this decree. The decree for mesne profits as passed by the learned Judge will stand, and it will be adjusted against the amounts stated to have been deposited by the defendant with the Rent Controller and in the Court below.
12. The appeal is dismissed, but tha cross-objection is allowed. In view of the facts and circumstances of the case, there will be no order for costs in tha appeal or in the cross-objection or in the suit.
13. I agree.