B.N. Maitra, J.
1. The plaintiffs have alleged that previously they were the owners of premises No. 2, Bysack Street Calcutta. On the 1st September, 1972, there was a decree by the Calcutta High Court in the Partition and Administration suit No. 162 of 1967. On the basis of that decree, the plaintiffs Nos. 1 to 4 have 1/6 share in the premises No. 6, Bysack Street and they have in their possession two rooms on the 1st floor, one room on the second floor and one small room on the 3rd floor. The room on the second floor is in possession of a tenant. There are nine members in the plaintiffs' family. They have also a maid servant and a servant. There are six rooms in the disputed premises. They reasonably require the same for their own use and occupation and for the occupation by the members of their family. The defendant is a defaulter. He sublet the entire premises and lived at 23, Mandeville Gardens, Calcutta. The defendant's tenancy was determined by a notice to quit. The suit is for ejectment.
2. After the institution of the suit, the defendant died. His two sons were substituted. Their father filed a written statement. The substituted defendants also put in a written statement. The defence, inter alia, is that the notice to quit is not valid in law. There was no default of subletting. The plaintiffs' case of reasonable requirement is not true.
3. The learned Judge of the City Civil Court has believed the plaintiffs' version and held that the defendant sublet the entire premises in question without the knowledge and consent of the plaintiff-landlord. The plaintiffs reasonably require the premises in question for their use and occupation. The case of default was not accepted. In the result the suit was decreed. The present appeal is by the defendants.
4. Three-fold submissions have been made for the appellants. It has been first contended that the case of subletting is not true. The learned Judge placed reliance on the Bench case reported in (1976) 1 Cal LJ 500. That decision was arrived at on the basis of a ruling of the Bombay High Court and is erroneous. A commission was issued. The report of the Pleader Commissioner, Ext. 1, clearly shows that the defendants have full control and possession regarding the premises in question and their friends and relatives live there. Defendant No. 1 and his wife are in occupation of one room. The other five rooms are in the actual possession of the defendants' friends and relatives. The plaintiffs did not examine the actual occupants of the premises in question in order to prove their case that they actually were sublessees under the defendants and paid any rent.
5. The learned Judge of the City Civil Court rightly referred to the Bench case reported in (1976) l Cal LJ 500. It has been stated in that case that where the allegedSub-tenant was in exclusive possession of the property in question and there is nothing to indicate that the tenant retained any control over the premises in question, it can be presumed in spite of the landlord's failure to lead evidence that theSub-tenant's occupation was for consideration, that there had been transfer of the interest and the tenant has sublet or transferred his interest in the premises.
6. Let us now deal with the evidence on the record. P. W. 1, Mukundlal Kothari, is plaintiff No. 1. It has been stated in the plaint that out of six rooms, two are in possession of one Omprakash Saraf, one in possession of Bhanwarlal Patni, one in possession of Sagarmal Sethi and two in the occupation of Raj Kumar Barjatya. Of course there is some deviation in the evidence because the aforesaid witness has stated that the defendants have been living at Ballygunge by letting out the entire premises to Omprakash Saraf, Nathmal Sharma, Bhanwarlal Patni, Sagarmal Sothi and Raj Kumar Barjatya. The learned lawyer, appearing on behalf of the appellants, was laying emphasis on the point that the name of Nathmal does not find place in the plaint. Let us now see what D. W. 1, Shantilal Saraogi, defendant No. 1, has stated in his evidence.
He has clearly stated that his father used to reside with his younger brother at 23, Mandeville Gardens. He also says that in the disputed premises, he is in occupation of one room along with his wife and the other rooms are in the possession of his relatives. Thereafter he changes his statement and says that Omprakash Saraf, who is a friend of his, Sagarmal Sethi, his cousin, Nathmal, his friend, and Raj Kumar Barjatya, who is related to him, are in actual possession of one room, one room and two rooms respectively in the premises in question. He is constrained to admit in his cross-examination that their ration cards are of the address of 23, Mandeville Gardens and the ration cards of all the members of their family are of the said address for the last 3 or 4 years. It has been suggested to P. W. 1, Mukundlal, that Bhanwarlal Patni has become a direct tenant under the plaintiffs.
7. In the case of Siddik Mohamed v. Mt. Saran in (AIR 1930 PC 57 (1)) it has been stated that where a claim has never been made in the defence, no amount of evidence can be looked into upon a plea which was never put forward. The written statement is silent on the point that D. W. 1, Shantilal Saraogi, possessed only one room with his wife and the rest are in the occupation of their friends and relatives. So, the aforesaid statements of D. W, 1, Shantilal, ought not to have been admitted in evidence by the learned Judge. In that view of the matter, the conjectures made by the Pleader Commissioner in his report, Ext. 1, in this respect are of no importance. Hence, the arguments advanced on behalf of the appellants, that the other five rooms are in the occupation of the defendant's friends and relatives and defendant No. 1 is in actual possession of only one room with his wife, cannot be accepted.
8. It would have been suicidal for the plaintiffs to call the actual occupiers of the rooms in question as P. Ws. because they would have no right of cross-examining them. Evidently they would have deposed against the plaintiffs and thereby placed the plaintiffs in an awkward position. It is not possible for the plaintiffs to adduce any further evidence to show what was actually paid by the aforesaid occupiers to the defendants. In such circumstances, we believe the plaintiffs' version, reject the evidence of the D. W. 1, Shantilal, and hold that after the enactment of the West Bengal Act XII of 1956 the defendants sublet the whole of the premises in question without the prior consent in writing of the landlords and they live at 23, Mandeville Gardens, Ballygunge Calcutta, and they have no control over the disputed premises.
9. The second submission made on behalf of the appellants is that the plaintiffs' version of reasonable requirement was not established. Now, the plaintiffs have put in the necessary documents of the Partition and Administration Suit No. 162 of 1967 of the High Court, vide Exts. 7 & 8. P. W. 1, Mukundlal, has stated that after the decree was passed in that suit, they are in possession of three rooms at 6, Bysack Street and one room at 2, Bysack Street, which is a tenanted one.
10. It appears from the statement of P. W. 1, Mukundlal, that he, his wife, his widowed daughter, the latter's son and daughter, plaintiff No. 5, his grandchildren, servant and maid servant live at 6 Bysack Street. He has stated that one room is actually required for his wife and himself, one room for his widowed, daughter, one room for his son and daughter-in-law, who figure as plaintiffs Nos. 3 and 4 respectively, and one room for plaintiff No. 5. He also says that a grandson and a grand-daughter, who are aged 5 and 9 respectively and school-going students, live with them. His widowed daughter has a son and a daughter, who are aged 15 and 12 respectively. A study room, a 'guddi ghar', a kitchen, a store room and two rooms for the servants will be required.
11. One room is required for the plaintiff No. 1 and his wife, plaintiff No. 2, and one room for his son and daughter-in-law, who are plaintiffs Nos. 3 and 4 respectively. One room is required for the widowed daughter of plaintiff No. 1, who lives in that family with her son and daughter. Plaintiff No. 5, Ramesh Kumar Kothari, P. W. 2, who is 24, is a commerce graduate and has been studying company secretaryship. One room is required for him. One other room is required where plaintiff No. 5 and the children living in that house can prosecute their studies. We hold that all of them are the members of the plaintiffs' family. A store room, a kitchen and some space are also required where the whole time maid servant can be accommodated.
12. The learned Judge has stated that the plaintiffs have only three rooms in their possession at 6, Bysack Street and one of the rooms on the 3rd floor of that building is a very small one. This has not been challenged on behalf of the appellants.
13. The learned lawyers appearing on behalf of the appellants has placed reliance on the case of Abdul Hamid v. Noor Mohammad in : AIR1976Delhi328 and Provash Chandra v. Chand Mohan in : AIR1978Cal224 and stated that the plaintiff is required to plead and prove that he requires the disputed premises for his own use and occupation and he is not in possession of any reasonably, suitable accommodation apart from the premises in question. There is no pleading or proof in this respect and hence, the plaintiffs' case of reasonable requirement must fail.
14. It has also been contended on behalf of the appellants that since there is no such pleading within the meaning of the Clause (ff) of Sub-section (1) of Section 13 of the West Bengal Premises Tenancy Act XII of 1956 that the plaintiffs have no reasonably suitable accommodation elsewhere, the learned Judge fell into an error in framing such issue. It may be pointed out that Order 14, Rule 3 (a) of the Civil Procedure Code says that 'The Court may frame issues from all or any of the following materials:--
Allegations made on oath by the parties, or by any persons present on their behalf, or made by the pleaders of such parties.........' The record shows that on the date of framing the issues, the defendants put in some draft issues, one ofwhich is whether the plaintiffs have sufficient accommodation for their own useand occupation. The order-sheet showsthat on 28-9-1974 the lawyers of the parties were heard and the Court after goingthrough the records and the draft issues,framed the issues. Hence, there is noquestion of any prejudice. The provisions of Section 99 of the Civil Procedure Code are clear on the point becausethe merits of the case were not in anyway affected. The learned Judge wasthus justified in framing such issue, according to the suggestion put forward on behalf ofthe contesting, defendants and in view of the mandatory provisionsof Clause (ff) of Sub-section (1) of Section 13 of the Act.
15. The evidence given by P. W. 1, Mukundlal, has already been dealt with, P.W. 2, Ramesh Kumar Kothari, is plaintiff No. 5. He says that he could not be married for want of sufficient accommodation. D. W. 1, Shantilal, does not state in his evidence that the plaintiff's version of reasonable requirement is not correct. Hence, there is no scope for the application of the principles laid down in the aforesaid cases reported in : AIR1976Delhi328 and : AIR1978Cal224 because the plaintiffs have stated about their previous accommodation and their entire present accommodation in their plaint.
16. It has already been indicated that the plaintiffs actually require all the six rooms in question for their own use and occupation. The submissions advanced on behalf of the appellants cannot, therefore, be sustained. We believe the evidence of the P. Ws. and find that the plaintiffs reasonably require the premises in question for their own use and occupation and they are not in occupation of any reasonably suitable accommodation elsewhere apart from the premises in question.
17. It has been lastly contended on behalf of the appellants that the notice to quit, Ext. 2, is defective because on the face of the plaint itself, the plaintiff No. 5, Ramesh, is a minor. That notice to quit was given by his lawyer, i e., by his agent. A minor cannot appoint an agent. Reference has been made to Sections 183 and 200 of the Indian Contract Act. It has, thus, been urged that since the notice is defective the Court will allow the appeal on this ground alone.
18. Now, this has been urged only at the hearing of this appeal. No such point was taken in the written statement or even in the memo of appeal. No such ground was canvassed before the learned Judge of the City Civil Court. It is a mixed question of law and fact. The question of notice was practically waived in the trial Court.
19. P. W. 1, Mukundlal, has stated that Ramesh is 24 years old. Plaintiff No. 5 (P. W. 2), Ramesh, has supported his claim. There is ho dispute even now that he has a share in the joint family property. The memo, of appeal shows that Ramesh is a major and he has been impleaded as such in the memo, of appeal. The notice to quit was given for his benefit as well. There is no question of saddling him with any liability. This is not a case of any contract, where the question of reciprocity may arise. No question of affecting his interest can arise. There is no question of prejudice either because in the event of success he can be conveniently accommodated. Since he also deposed in this case and did not say anything against the notice, the contention put forward on behalf of the appellants in this respect cannot be accepted. After the decision of the case of V. D. Chettiar v. Y. Ammal in : 1SCR334 no notice under Section 106 of the Transfer of Property Act is necessary. Section 13 (6) of the West Bengal Premises Tenancy Act does not indicate that a notice of such a suit cannot be given on behalf of one of the minor landlords. We, therefore, hold that the notice to quit is valid in law and there is no defect, as alleged.
29. No case of partial eviction was pleaded or argued. No such question can also arise due to the facts of the case.
21. The appeal is, therefore, dismissed.
22. There will be no order as to costs.
23. The appellants are given one month's time to vacate the said premises.
24. The learned Advocate, appearing on behalf of the appellants, has orally asked for certificate for leave to appeal to the Supreme Court. The appeal does not involve any substantial question of law. No question of public importance is required to be decided by the Supreme Court. Hence, the certificate asked for is refused.
Chittatosh Mookerjee, J.
25. I agree.