SWAPAN DAS Vs. NAMITA DAS

JUDGEMENT

(1.) This application is at the instance of the defendants and is directed against the judgment and order dated March 25, 2008/June 9, 2008 passed by the learned Judge, Presidency Small Causes Court, Sixth Bench, Calcutta in S.C.C. Case No.614 of 2003 thereby decreeing the said S.C.C. suit and directing the defendants/petitioners to delivery vacant and khas possession of the suit property in favour of the plaintiff within 90 days from the date of the order.

(2.) The short fact is that the predecessors-in-interest of the parties, namely, late Nilmoni Das and late Manik Lal Das, were the two brothers and they were in joint possession of the property in suit being no.147A, Amherst Street, P.S. Amherst Street, Kolkata ? 700 009. There was an agreement dated September 16, 1969 for sale of such property by Manik Lal Das in favour of Nilmoni Das at a consideration money of Rs.16,000/-. Accordingly, a sum of Rs.1,001/- was paid as earnest money but the deed of conveyance was not executed by Manik Lal Das and for that reason Nilmoni Das filed a suit for specific performance of contract before the City Civil Court, Calcutta being Title Suit No.1086 of 1981. Ultimately, the suit was decreed and the decreeholder filed the Title Execution Case being No.15 of 1998 and the suit property was registered in favour of the decreeholder by the Registrar, City Civil Court on behalf of the judgment debtor. Thus, the plaintiffs/opposite parties became the absolute owners of the suit property at 147A, Amherst Street, P.S. Amherst Street, Kolkata ? 700 009. It may be noted herein that the predecessors-in-interest of both the parties died in the meantime and substitution had taken place according to the situation. The defendants/petitioners requested the plaintiff to allow three months? time to surrender their possession so that they might get alternate accommodation in the meantime. The time was granted up to June 30, 2003. But, in spite of lapse of such time, the defendants/petitioners did not deliver vacant possession of the premises under their occupation. 2. So, the suit was filed before the S.C.C. Court for recovery of possession against the licencee. That suit was decreed by the impugned order. Being aggrieved, this application has been filed. Upon hearing the learned Advocate of both the sides and on perusal of the materials on record, I find that admittedly the suit for specific performance of contract being Title Suit No.1086 of 1981 was decreed on September 8, 1997 ex parte. The contention of the petitioners is that Manik Lal Das died before passing of the preliminary decree and all the heirs have not been made parties to the suit. The plaintiffs/opposite parties sought for eviction against the persons who were residing in the suit premises and all of them have been made parties in the suit.

(3.) The instant suit is one for eviction of a licencee and these so-called heirs of Manik Lal Das did not challenge the decree of the Title Suit No.1086 of 1981 at all. So, the ex parte decree was put into execution and ultimately the deed of conveyance was executed by the Registrar, City Civil Court on behalf of the judgment debtor. This being the position, I am of the view that the learned Trial Court has rightly observed that any grievance relating to Title Suit No.1086 of 1981 cannot be agitated in the suit for recovery of possession against the licencees. The learned Trial Court has analysed the evidence adduced by the parties before the lower court and come to a conclusion that notice of revocation of licence was sent upon the petitioners and copy of the said notice has been marked exhibits 2 & 2B. The A/D card bears the signature of Swapan Das, petitioner no.1, of the application. Thus, I find that the learned Trial Judge has analysed the evidence on record and come to the conclusion that notice of revocation of licence has been duly served upon the defendants.