JUTHIKA BASU Vs. LT COL A N SHARMA

JUDGEMENT

(1.) THIS is a second appeal filed by the plaintiff/appellant against the judgment and decree passed by the second Additional District Judge, Alipore in Title Appeal No. 5 of 1990 dated 19th December 1990 whereby the judgment and decree passed by the teamed trial Judge dated 28th November 1989 passed in Title Suit No. 127 of 1985 decreeing the suit in favour of the plaintiffs/appellants was set aside and the suit was sent on remand for fresh decision as per provisions of law. The Lower appellate Court also directed that the specimen signature of the father and brother of the plaintiff/appellant should be taken in court and the same should be sent to the handwriting expert for verification with the signatures as appearing in the cheques which had been sent to them earlier. It was farther held that the Trial Court should take necessary measures to secure the attendance of the father and brother of the plaintiff /appellant in this behalf.

(2.) THE fact of this case is that the plaintiff/appellant is the owner of the premises no. 7f, S. R. Das Road, Calcutta-28 and that the plaintiff/appellant with her husband was staying at the relevant time at Pondicheri and at the relevant time she had kept the second and third floors of the said premises vacant and her father Dr. A. S. Ghosh used to look after the entire house. When the plaintiff/appellant and her husband were staying in Pondicheri, the defendant /respondent who is stated to be a close friend and well-wisher of the plaintiff/appellant's family, approached the plaintiff's father Dr. A. S. Ghosh for permitting him to reside as a licensee without payment of any license fee in the portion of the second and third floor of the premises no. 7f, S. RDas road. Calcutta-26 which is the suit premises. It is the case of the plaintiff/ appellant that the defendant/opposite party was allowed to stay in the said premises by her father as licensee on condition that the defendant would vacate the same as and when the same would be necessary for the plaintiff appellant. It is stated that, the said licence was granted sometime in August 1976. The husband of the plaintiff/appellant died at Pondicheri on 17th April 1980 and the she came back to Calcutta and revoked the licence of the defendant by serving upon him a letter under registered post in that regard. The defendant received the notice for vacating the suit premises on revocation of the licence but failed to vacate the said premises and consequently the suit was filed for eviction of the defendant from the suit premises.

(3.) THE case of the defendant/respondent was that the defendant was inducted by the father of the plaintiff as a monthly tenant at a monthly rental of Rs. 250/- which has been stated to have been increased to Rs. 300/- per month from September/1990. It is the case of the defendant that after refusal to receive the rent for the month of May 1983 which was sent by Money Order to the father of the appellant Dr. A. S. Ghosh, the defendant started to deposit the rent with the Rent Controller in the name of Dr. A. S. Ghosh, the father of the plaintiff/appellant. The defendant stated to have sent two bearer cheques for a sum of Rs. 1200/- after revocation, of licence. Both sides adduced evidence and the learned Trial Judge on the basis of the evidence on record and on consideration of the case held that there was no evidence on record that the plaintiff/appellant had authorized her father induct the defendant as a tenant. The plaintiff/appellant in her evidence also stated that she had never let out the second and third! floors of the said premises and the defendant was permitted to reside in the suit premises as a licensee without any licence fee and this fact was corroborated by other witnesses. The Trial Court also found that the defendant/respondent who claimed to be the tenant, failed to produce any rent receipt in support of his case that the defendant was a tenant under the father of the plaintiff/appellant. It was also found by the learned Trial judge that Exhibit 4 and 4a viz. counter foils of two self drawn cheques both dated 15th March 1983 which were issued by the defendant/respondent reveal that there is endorsement in both the cheques "rent of second and third floors of premises no. 7f, S. R. Das Road Cal-26, for the month of January to april 1983", and that the said cheques bear a date which is after the plaintiff/ appellant asked the defendant to vacate the suit premises by expiry of month of March 1983 and that the two self-cheques were issued after revocation of the licence. The learned Trial Judge also found that there is no agreement of tenancy and/or any authority by the plaintiff/appellant authorizing her father to induct the defendant as tenant in the said premises. It is not the case of the defendant that the defendant had paid rent to the plaintiff appellant and the father of the plaintiff/appellant used to collect rent on her behalf. On the basis of the evidence on record the learned Trial Judge found that the plaintiff/ appellant permitted the defendant to reside in the suit premises as a licencee without any licence fee on condition that the defendant would vacate the suit premises when ever the same would be required by the plaintiff/appellant. On her return from Pondichery to Calcutta after the demise of her husband, the plaintiff/appellant duly revoked the licence. The Trial Court also found that the plaintiff/appellant has been able to prove that she was the owner of the entire suit premises. Accordingly, the court below decreed the suit on contest and passed a decree for has possession off the suit premises after eviction the defendant/respondent and his men and agent therefrom.