ARATI PURAKAIT Vs. SHYAMAPADA GHOSH

JUDGEMENT

(1.) The present appeal is directed against the judgment and decree dated 29.4.1997 passed by Sri S. Mondal, learned Assistant District Judge, Second Court, Hooghly in connection with Title Appeal No. 161 of 1993 affirming the judgment and decree dated 31.05.1993 passed by Sri T. Uddin, learned Munsif, 1st Court, Hooghly in connection with Title Suit No. 209 of 1990.

(2.) The suit before the learned lower Court was for declaration and permanent injunction filed by the plaintiff/tenant against the defendant/landlady. The fact of the case in brief is that the plaintiff was inducted in the suit premises as a tenant for a term of five years under an agreement of tenancy dated 26.02.1990 and the monthly rent was fixed at Rs. 250/-. The said tenancy was taken for the purpose of starting a grill business from the suit premises. For that purpose the plaintiff took up the re-orientation of the suit premises and in course of that the plaintiff used to keep the key of the suit premises with the landlady as the suit room is a part of the dwelling house of the defendant being connected by a door as well as a shutter. On the basis of such tenancy the plaintiff took all the preliminary steps for starting the grill business including trade licence, electric connection, bank loan etc. The defendant/landlady had also issued rent receipt in favour of the plaintiff. Subsequently, the defendant did not hand over the suit premises to the plaintiff and as such the suit was filed. The defendant contested the suit and denied all the material allegations. It was, inter alia, stated that there is a very close relation between the parties and taking advantage of such relation the plaintiff got some of the documents signed by the defendant in the absence of her husband and son. It is further stated that in fact the son of the defendant who was an unemployed automobile engineer intended to start a business from the suit premises. Both the learned lower Courts rejected the plea of the defendant and decreed the suit.

(3.) In such circumstances, it appears from the record that the substantial question of law was formulated at the time of admission of appeal and the same is as below: Whether the plaintiff/respondent having failed to prove the creation of tenancy in terms of his pleadings, and thus there has been variance between the pleading and proof, the learned Courts below erred in law in decreeing the suit.