ACHINTYA KUMAR SAHA Vs. NANEE PRINTERS

JUDGEMENT

(1.) Ashok Kumar Bose (since deceased) was the owner of the premises No. 119/1A, Harish Mukherjee Road, Bhowanipore, Calcutta-700 026. He died leaving behind him his wife Smt. Madhuri Bose, (since deceased), Shri Ajoy Kumar Bose (son) and a daughter. Ashok Kumar Bose left a Will dated 1st March, 1974 bequeathing all his properties to his widow Smt. Madhuri Bose for the period for her natural life, but with no right to alienate the property and thereafter to his son Ajoy Kumar Bose (respondent No. 4 herein). On 5th July, 1976 Smt. Madhuri Bose executed an agreement of licence for 11 years in favour of M/s. Nanee Printers, a proprietary firm carried on by one Ranaji Ganguly (respondents Nos. 1 and 2 herein). On 10th October, 1980, the appellant herein bought the entire property No. 119/1A including the suit premises consisting of a Printing Press in a Katcha shed from Ajoy Kumar Bose (respondent No. 4) to which the deceased-Smt. Madhuri Bose was a confirming party. On 7th July, 1981, the present appellant filed a title suit for eviction against respondents Nos. 1 and 2 herein and sought possession of the suit premises. In the title suit, a declaration was sought to the effect that M/s. Nanee Printers were in unauthorised occupation of the suit premises as trespassers on revocation of the leave and licence agreement dated 5th July, 1976. M/s. Nanee Printers contested the title suit. In the written statement, they alleged that they were monthly tenants in the suit premises; that the purported agreement dated 5th July, 1976 was a tenancy in disguise of a licence; that Shri Ajoy Kumar Bose (respondent No. 4 herein) was a consenting party to the agreement dated 5th July, 1976 and since respondent No. 2 herein was in need of accommodation, he had no option but to sign the agreement dated 5th July, 1976. By the written statement, M/s. Nanee Printers denied that Smt. Madhuri Bose (since deceased) had no right to let out the suit premises on rent. It was further alleged by M/s. Nanee Printers that under the agreement dated 5th July, 1976, M/s. Nanee Printers were permitted to install electricity and telephone in the premises and under the circumstances they were tenants in respect of the premises. In the alternative it was alleged that even if they were held to be licensees, the said licence was irrevocable and, therefore, the suit was liable to be dismissed with costs.

(2.) In the said suit, the following issues were framed by the trial Court :

(3.) By judgment and order dated 29th August, 1992, the trial Court came to the conclusion that respondents Nos. 1 and 2 herein were licensees and not tenants; that the licence was for 11 years for running a Printing Press with liberty to the licensor to renew the licence for further 11 years and, therefore, respondents Nos. 1 and 2 were not trespassers as alleged by the appellant (plaintiff) herein. The trial Court further found that Shri Ajoy Kumar Bose (respondent No. 4) was fully aware of the agreement dated 5th July, 1976 between his mother Smt. Madhuri Bose on one hand and respondents Nos. 1 and 2 herein on the other hand and that he had consented to the agreement dated 5th July, 1976 by his conduct. However, the trial Court found that respondents Nos. 1 and 2 have failed to prove monthly tenancy. The trial Court further found that the licence was irrevocable as respondents Nos. 1 and 2 had raised a permanent construction and extension over the existing structure by 50 feet with the consent of Smt. Madhuri Bose and her son respondent No. 4. The trial Court further found that Shri Ajoy Kumar Bose (respondent No. 4) was an important witness and yet he was not examined by the appellant herein. In the circumstances, the trial Court dismissed the title suit filed by the appellant.