SRIMATI KAMALADEVI GUPTA Vs. SRIMATI URMILA GUPTA

JUDGEMENT

(1.) This is an application under Sec. 115 of the Code of Civil Procedure against judgement and order dated December 22, 1995 passed by Shri S.L. Biswas, learned Judge, Third Bench, Presidency Small Cause Court of Calcutta in Suit No. 244 of 1994. By the order impugned the learned Judge dismissed the application under Sec. 41 of the Presidency Small Cause Courts Act, 1882 filed by the plaintiff/petitioner. Admittedly, petitioner is the mother while the opposite party is the daughter. It is, also, admitted that the mother of the petitioner. Raj Kumari Devi, was the thika tenant in respect of premises -in -suit.

(2.) The plaintiff/petitioner instituted this proceeding under Sec. 41 of the said Act for eviction of a licensee on the allegation that she has inherited the property from her mother. Raj Kumari Devi, being the only issue and, thus, became the thinka tenant in respect of the suit premises. It is alleged that on February 23, 1993 the opposite party requested for temporary accommodation for six months with effect from March 1993 under leave and licence basis without any licence fees and the petitioner accommodated her daughter, the opposite party, on the assurance that she would vacate the suit premises after the expiry on the month of August, 1993 and as the opposite party did not vacate, a notice was issued through the learned Advocate for the petitioner followed by filing of the present application under Sec. 41 of the said Act on June 24, 1994.

(3.) The opposite party entered appearance in the said proceeding and contested the same by filing a written statement. Her case was that admittedly Raj Kumari Devi was the Thika tenant in respect of the suit premises and the said Raj Kumari Devi, out of her love and affection to the opposite party, allotted on room attached with small kitchen with two doors, attached varandah with right of user of the common privy, bath, guddy, electricity and courtyard etc. to the opposite party and her husband for permanent residence. It was contended that since the rooms under occupation of the defendant/opposite party were allotted by the grandmother, the allegation of granting licence by her mother is concocted by the purpose of the present proceeding. It is, also, contended that the defendant/opposite party has already filed a suit being Title Suit No. 2606 of 1993 in the City Civil Court at Calcutta against the plaintiff/petitioner and others for declaration of her independent right in respect of the suit premises and for permanent injunction and the said suit was pending.