DEBI PADA GANGULY Vs. BIRESWAR MUKHERJEE

JUDGEMENT

(1.) This second appeal has been preferred challenging the judgment and decree dated 30.5.1996 and 10.6.1996 respectively passed by the learned Addl. District Judge, 3rd Court at Howrah in Title Appeal No. 223 of 1995 reversing the judgment and decree dated 25.7.1995 and 7.8.1995 respectively passed by the learned Munsif, 1st Court at Howrah in Title Suit No. 113/93. This second appeal originates from a suit for eviction and damages. The case as has been made out by the plaintiff in his plaint is inter alia as follows :

(2.) The plaintiff is the absolute owner and occupier in respect of Bally Municipal Corporation holding No. 69/A-1, Santi Ram Rasta (formerly 2/1-A, Krishna Chatterjee Lane), P.S. Bailey, District-Howrah by virtue of a deed of gift executed in the year 1989 and by inheritence from his wife who was the co-owner of the suit property. The suit property consists of two rooms, kitchen, bath room and courtyard in the ground floor within Bailey Municipal holding No. 69/1-A, Santi Ram Rasta, P.S. -- Bailey, District Howrah (hereinafter referred to as suit property). According to the plaintiff the suit property was granted to the defendant as a licensee. The defendant was wellacquainted with the plaintiff and used to live nearby the suit premises. The defendant approached the plaintiff in Aug., 1992 to accommodate him since he has been facing difficulties and he is in trouble and is in search of accommodation. It was also stated by the defendant that as there was dearth of accommodation in his house he proposed to the plaintiff for granting permission to reside in the suit property for six months and he assured the plaintiff that he would vacate the suit premises within six months and the plaintiff out of sympathy agreed to the same. According to the plaintiff in this manner the defendant became a licensee of the suit property. It was also agreed that the defendant would vacate the premises without any notice on the expirty of the month of Jan., 1993. According to the plaintiff from the conduct of the defendant it appeared that he is reluctant to honour the promise and as such the plaintiff gave the defendant a notice requesting him to vacate the suit property by 15th Aug., 1993 but he failed to accede to the request of the plaintiff and as such the plaintiff has filed this suit. The plaintiff prayed for a decree for eviction against the defendant and khas possession in respect of the suit property and also for a decree for damages and for permanent injunction as well as for costs of suit.

(3.) The defendant contested the suit by filing Written Statement. In the Written Statement the defendant made out the following case. The suit is not maintainable, bad for misjoinder and non-joinder of the necessary parties and the suit is totally harassing speculative, malafide and has been filed to put the defendant in unnecessary trouble. The suit is hit of principle of estoppel, waiver and acquiescence. Apart from general denial of the allegations made out in the plaint the defendant denied that the plaintiff is the absolute owner and/or occupier of the suit premises by virtue of a deed of gift executed in the year 1989 and by alleged inheritence from his wife who was the alleged owner of the suit property. The defendant stated that he reserves the right to file additional Written Statement for disproving the ownership of the plaintiff in absolution. The defendant denied that he was an alleged licensee in the manner as alleged by the plaintiff or at all. According to the defendant, he was a monthly tenant at a monthly rental of Rs. 300.00 payable according to English Calendar month. The defendant also denied that he was appointed with the plaintiff or he approached the plaintiff in the month of Aug., 1992 on account of his trouble for accommodation or he is or he was in search of accommodation or he proposed the plaintiff for granting, him promotion to leave in the suit property for a period of six months or he assured the plaintiff that he would vacate the suit premises within the said period of six months. The defendant also denied that he ever told the plaintiff that he would vacate the premises without any notice with the expiry of the month of Jan. 1993. The defendant claim that he was a monthly premises tenant at monthly rental of Rs. 300.00 as stated above and at the time of induction a sum of Rs. 5000.00 was taken at advance by the plaintiff adjustable against future payment of rent. The defendant further stated that at the time of induction the plaintiff stated that as there are income tax problem regarding income from the rent, he would not be able to give any rent receipt to the defendant and as the defendant was in dire need of accommodation he had to agree to the proposal of the plaintiff and he was inducted in the suit property as a monthly tenant and since then he has been residing in the suit property till date. The defendant further stated that prior to his induction in the suit property he was initially staying at holding No. 48, Goswami Para Road, Bailey, Howrah since 1979 to June, 1992. The defendant stated that other allegations are false allegations and the defendant also denied the service of notice by the plaintiff to vacate the suit premises. The defendant since the month of July 1993 used to deposit the monthly rental before the Rent Controller as the plaintiff refused to accept the same and the advance of Rs. 5000.00 is yet to be adjusted.