JACOB CHERIAN Vs. HIMANSHU KUMAR MUKHERJEE

JUDGEMENT

(1.) THIS appeal is directed against the judgement and decree dated 26th June, 1988 passed by the learned Additional District Judge, 7th Court, Alipore, in Title Appeal No. 197/87 affirming those dated 27th january, 1987 passed by the learned Munsif, 2nd Court, Baruipur in Title Suit no. 223/86.

(2.) THE plaintiff-respondents instituted the said suit against the tenant-defendant for eviction upon determination of the tenancy by a notice to quit under Section 106 of the Transfer of Property Act. The tenancy was governed by the Transfer of Property Act and not by the West Bengal Premises Tenancy act. The defendant was a monthly tenant in respect of the suit premises at a monthly rate of Rs. 80 payable according to English Calendar month. Though redundant, the plaintiff pleaded default in payment of rent since January, 1974, unauthorised construction by way of addition or alteration in the suit premises without knowledge and consent of the plaintiffs and reasonable requirement of the suit premises for their own use and occupation as grounds of ejectment.

(3.) THE defendant contested the suit toy filing a written statement. The defence case was that on 27. 9. 84 S. D. Mukherjee received a sum of rs. 10,251/ - by way of advance for sale of the suit premises at the agreed price of Rs. 30,000/- and he executed an agreement for sale of the suit property. In the said agreement for sale it was stipulated that the purchaser would continue to enjoy the possession and raise kitchen garden and take the yield from the trees already there pending registration of the sale deed. Late S. D. Mukherjee died without the conveyance being completed. Though specific plea under Section 53a of the Transfer of Property Act was not taken in the written statement, it appears that this plea was raised both at the time of trial and at the time of hearing of first appeal. Both the Courts below negatived the plea and the decree passed by the Trial Court was upheld by the lower Appellate court.