SMT. ILA DAS Vs. NURUL AFSAR

JUDGEMENT

(1.) This is an appeal against the judgment and decree passed by the learned Additional District Judge, 10th Court, Alipore in Title Appeal No. 398 of 1982 dated 20.8.1982 reversing those of the learned Munsif, 6th Court, Alipore in Title Suit No. 243 of 1978 dated 8th March, 1982.

(2.) The plaintiff-appellant instituted the said suit for eviction of the defendant-respondent from the suit premises upon the allegation that the defendant was allowed to occupy the suit premises for two months from 1.6.1976 as a licence upon payment of licence fee of Rs. 200.00 per month. The defendant was asked to vacate the suit premises on the expiry of May, 1978 but the defendant did not vacate the suit premises. The defence case was that he was never a licensee under the plaintiff in respect of the suit premises but he was a tenant. The suit premises was previously occupied by a tenant Mr. S. Francis at the same rental of Rs. 2Q0.00 per month and the defendant was inducted by the said tenant in the suit premises with knowledge of the plaintiff. Thereafter the plaintiff recognise the defendant as tenant and accordingly she used to take rent at the rate of Rs. 200.00 per month.

(3.) Relying upon a letter of the defendant (Ext.l) wherein the defendant under-took to vacate the suit premises on the expiry of July, 1976 and admitted that he was in occupation as a licensee and not as a tenant and the counter-foils of receipts showing payment of licence fees, the learned Munsif held that the defendant was a licensee and not a tenant and accordingly decreed the suit. The appellate court, however, set aside the judgment and decree passed by the learned Munsif on the ground that the facts and circumstances of the case and the conduct of the parties lead to the irresistible conclusion that the defendant was a tenant and not a licence and as such he allowed the appeal and dismissed the suit. Being aggrieved the plaintiff has preferred this second appeal. Mr. Guha, learned Advocate for the appellant has contended that the circumstances on which the lower appellate court has relied do not necessarily prove that the defendant was a tenant and in view of the clear averment in Ext. 1. The finding of the trial court ought not to have been disturbed.