S K RAHIMUDDIN Vs. S K SERAJUDDIN

JUDGEMENT

(1.) This appeal is directed against judgment and decree passed by the learned Additional District Judge, 1st Court at Howrah in ,Title appeal No. 5 of 1981 affirming those of the learned Munsif, 4th Court at Howrah in Title Suit No. 183 of 1979.

(2.) The plaintiff-respondent instituted the said Title Suit against the defendant-appellant for declaration and permanent and mandatory injunction. Plaintiff's case is that he is the Mutwali of the Wakf Estate under which the defendant is a monthly tenant in respect of the disputed premises comprising eight rooms from 1960. The tenancy was for residential purpose only. The rate of rent was originally Rs. 10/- per month, which was subsequently enhanced to Rs. 30/- per month by a solenama decree which also empowered the defendant to sublet. The rent was further enhanced to Rs. 50/-. The defendant tried to convert the suit premises into a factory from April 1979, without taking written consent of the plaintiff. The plaintiff opposed the illegal act of the defendant and filed objection to the Howrah Municipality against the trade licence and filed the suit for declaration that the defendant had no right to convert the tenancy for residential purpose into a tenancy for manufacturing purpose without written consent of the plaintiff and permanent injunction restraining the defendant from doing such conversion, from making any addition or alteration or construction in any way and mandatory injunction directing the defendant to remove such illegal construction.

(3.) The defendant contested the suit by filing a written statement in which it was pleaded inter alia that the tenancy was both for the residential as well as factory purposes for which the rate of rent was enhanced from Rs. 30/- to Rs. 501-. The plaintiff gave consent to supply of 440 volt current for factory purpose and signed in the Form of application to the Calcutta Electric Supply Corporation. It was further contended that in the absence of notice u/s. 70 of the West Bengal Wakf Act the suit was not maintainable.