RAM LAKSHMAN SINGH Vs. GIRINDRA MOHAN HAZRA

JUDGEMENT

(1.) This is an application for a certificate in respect of a decision of a Division Bench of this Court (in A. F. Order D. No. 301 of 1959), D/- 21-11-1961, affirming the decree of the trial Court dated the 22nd April, 1959.

(2.) On 15th April, 1954, the respondent Girindra Mohan Hazra granted settlement of plots Nos. 23, 24 and 25 of the Calcutta Improvement Trust Scheme No. ZL. IV at Gray Street now known as P. 23. B. K. Paul Avenue measuring approximately 14 cottahs 2 chittaks 35 sq. ft of vacant land to the petitioner at rent of Es. 140,'-per month for a period of ten months, for the purpose of starting a timber business and the petitioner was given a right to build temporary structures thereon. For this settlement the petitioner executed a registered Kabuliat on 12th April, 1944. It is alleged that after the expiry of the said settlement the respondent assented to the petitioner continuing in possession, and accepted rent from. him and the petitioner held over as tenant on the same terms and conditions under which the lease was originally granted. In 1954 the respondent filed a suit against the petitioner and others in the Original Side of this Court for possession of the' said land at p. 23, B. K. Paul Avenue. The case made in the plaint was that the respondent had let out to the petitioner vacant land for ten months at a monthly rent of Rs. 140/-, and after the expiry of the lease he had let out the disputed land on a daily rent basis, and in August 1948 the petitioner vacated the premises. In early 1949 the respondent started construction of 16 or 17 rooms but in April 1949, owing to his illness he left for Memari where he lay ill for one and a half years. In December 1950 he found the land in the wrongful occupation of the petitioner and others. The petitioner's defence to the said suit was that since 1944 he had been and still continued to be a monthly tenant under the plaintiff and he had lawfully constructed certain structures thereon for residential, manufacturing and business purposes. In 1949 he wanted to give facilities to the plaintiff to make the construction in the land but after constructing five rooms up to the lintel level the plaintiff gave up construction. The case of the petitioner further is that he took advantage of the pillars and walls and himself completed the structures by spending large sums of money.

(3.) Certain issues were raised before Datta J. before whom the suit came up for hearing and one of such issues was, -- "Is the defendant No. a monthly tenant under the plaintiff as alleged in paragraph 3 of the written statement?" On 15th July, 1957, Datta, J. dismissed the suit holding that the petitioner had been holding over, after the expiry of the lease, and the plaintiff had assented to the continuance of such possession and there was no agreement to the contrary as contemplated by Section 116 of the Transfer of Property Act. He held that the petitioner was a monthly tenant under the plaintiff, as alleged in paragraph 3 of the written statement.