DHIRENDRA NATH GHOSH Vs. DEBASIS MUSTAFI

JUDGEMENT

(1.) This is an appeal from an Appellate Decree. It arises out of a suit for declaration of title and injunction, which has been concurrently decreed by the two courts below. The appeal has been preferred by the contesting defendants.

(2.) The property involved is a valuable property, being part of premises No. 16 and part of premises No. 20, Munshipara Lane, Police station Manicktala, District 24-Parganas. Having heard the learned Advocates for the parties we are of the view that this appeal must succeed and the suit must be remanded for rehearing since the two courts below have failed to consider and decide the real issue involved in the suit. We now proceed to give our reasons for taking such a view.

(3.) It is not in dispute that late Motilal Mustafi, the father of the two plaintiffs (respondent Nos. 1 and 2 before us) held two tenancies comprising the suit premises on a monthly rental of Rs. 100/- each under the defendant Nos. 1 and 2 (appellants before us). There is some dispute between the parties as to the nature of the tenancy but it originated in or about the year 1951. Motilal died on August 1, 1958, leaving behind a widow, Tapati Mustafi (defendant No.7) and two sons, the plaintiffs, who were them minors. After the death of Motilal his heirs fell into arrears and defendant Nos. 1 and 2 instituted Title Suit No.371 of 1960 for eviction from that part of premises No. 20, Munshipar lane, which constituted one of the tenancies. This suit was instituted against the present plaintiffs represented by their mother, Tapati, who herself was a party defendant along with two of her husband's brothers. That suit was filed on April 28, 1960. The plaint of that suit (Ext. B) clearly shows that such a suit was instituted under the provisions of the West Bengal Premises Tenancy Act, the tenancy being a premises tenancy and not a thika tenancy.