BIMAL CHANDRA MITRA Vs. NEMAI PALIT

JUDGEMENT

(1.) The Court: The plaint case in brief is that Rabindra Nath Mukherjee and his brother Nemai Mukherjee being the owners of undivided one third share in premises No. 24/1A, Balaram Ghosh Street, Calcutta executed and registered a deed of lease on 25.7.1964 for a period of 21 years commencing from 1.7.1964 in respect of an open portion of the land measuring about three cottahs at the back side of the premises mentioned above in favour of the defendant for the purpose of business. In terms of that deed of lease defendant agreed to pay a monthly rent of Rs. 100/- and to make over and deliver up peaceful and vacant possession of the said land on the expiry of stipulated period of 21 years. Subsequently, on the request of the defendant a further additional space of about 30 sq. ft. was given to the defendant and the monthly rent thereby was increased from Rs. 100/- to Rs. 110/- per month. Thereafter in the year 1966 all the co-owners of the said premises sold the said premises to Nirmal Chandra Mitra, Amiya Kumar Ghose and Dr. Aloke Kumar Ghose for valuable consideration by several deeds. The defendant duly atoned his tenancy to the said purchasers. On 10.3.1984 Nirmal Chandra Mitra instituted a suit in this High Court being Suit No. 169 of 1983 against the other co-owners for partition of the said premises by metes and bounds. The suit was decreed on consent whereby the present plaintiff was appointed the Receiver in respect of the premises mentioned above and started realising rents, issues and profits from the tenants. As the deed of lease in question expired on 30.6.1985 the plaintiff by a notice called upon the defendant to quit, vacate and deliver up the vacant and peaceful possession of the land in his occupation. In reply to that notice, the defendant instead of vacating the suit premises claimed that by virtue of the provisions contained in the West Bengal Thika Tenancy and Bustee Improvement Act, 1982 the owners of the said premises had ceased to be the owners as the same vested in the State of West Bengal. The plaintiff thereafter issued further notice on 19.10.1989 asking the defendant to quit, vacate and deliver the peaceful and vacant possession of the premises on the expiry of the month of November 1989 which was duly received by the defendant on 24.10.1989 but the defendant failed to vacate the premises for which the present suit was filed by the plaintiff-learned Receiver.

(2.) The defendant has contested the suit by filing a written statement in which all the material allegations are denied and it is inter alia stated that the defendant is not a trespasser and as such he is not liable to pay any mesne profit. It is further stated that the land in question had already vested in the State of West Bengal and as such there is no question to vacate and deliver up the vacant and peaceful possession of the land in question in favour of the plaintiff. It is also challenged in the written statement that the suit is not at all maintainable as the land and structures thereon are governed by the provisions of the Calcutta Thika Tenancy (Acquisition & Regulation) Act, 1981 and Bustee Improvement Act, 1982 and as the defendant is a thika tenant, the plaintiffs cannot be treated as the owners or as the landlords.

(3.) Upon the pleadings of the parties the following issues were framed: