ABDUL RAHAMAN Vs. ANGUR BALA MANNA

JUDGEMENT

(1.) This is an appeal by the defendant against a decree passed by the City Civil Court, Calcutta. The plaintiff instituted the suit on the following allegations. The plaintiff obtained a settlement from the pro forma defendant Kashinath Auddy, the managing trustee to the Trust Estate of Gurudas Auddy deceased, of a piece and parcel of vacant land of premises No. 94, Dharamtalla Street, Calcutta, measuring more or less 120 sq. ft. as delineated in the plan attached to the plaint, on 15-4-65 at a monthly rent of Rs. 25/- according to English calendar month. She also obtained delivery of possession of the demised area on the said date. The defendant who is also a tenant under the pro forma defendant in respect of other portions' of the said premises, squatted on the suit land on the morning of 16th April, 1965 and failed to remove his materials stacked at the site in spite of requests both , of the plaintiff and the pro forma landlord. Accordingly, the suit was instituted on 2-9-65 claiming (a) a decree for declaration that the plaintiff is a tenant in respect of the suit land and has right to use and occupy the same and (b) a decree for ejectment of the defendant from the suit land and (c) mesne profits.

(2.) The defendant contested the suit by filing a written statement contending, inter alia, that the plaintiff was not entitled to institute the suit. It was alleged that the pro forma defendant was not the sole managing trustee in respect of 94, Dharamtalla Street belonging to the Trust Estate of Gurudas Auddy which had four trustees, each working for one year by rotation in terms of order dated 4-6-56 in Suit No. 2289 of 1953, commencing from 15th June, 1956. The managing trustee was to work under the supervision and control of the trustees under the Deed of Trust. The pro forma defendant had made this collusive settlement without knowledge, consent or approval of other trustees and this settlement was not accepted by other trustees. The defendant denied that the plaintiff ever was a tenant in the suit land and the plan showing the suit land was imaginary and had no reference to locale and no delivery of possession was ever made to the plaintiff. The defendant was in exclusive occupation of 793 sq. ft. of vacant land on the east, apart from 222 sq. ft. of vacant land on the west, and the remaining 123 sq. ft. was the common passage for the tenants of the premises. The suit land, shown in plan, was in exclusive possession of the defendant as part of his tenancy under the Trust Estate since last 20 years where he had been carrying on his business as Bright Spray Painting at the said premises. The defendant had three garages on the east and two rooms on the west of the premises in two separate tenancies under the Trust Estate at a rental of Rs. 100/- (old rate Rs. 90/-) and Rs. 32/- (old rate Rs. 20/-) respectively. Except the' common passage the entire vacant land in the compound was included under the defendant's tenancies whereof as already stated, 793 sq. ft. appertained to the tenancy on the east and 222 sq. ft. appertained to the tenancy on the west. The vehicles of the customers of the defendant were received, cleaned and painted and other operations were done at the vacant land on the east as aforesaid till work was completed. The pro forma defendant with the motive of destroying defendant's business had taken recourse to the purported settlement in favour of the plaintiff. The suit accordingly should be dismissed. A written statement was filed by the pro forma defendant who supported the plaintiff's case of tenancy under him and it was stated that the defendant wrongfully prevented the plaintiff's possession in the suit land under her tenancy. (After considering the evidence in paras 3 and 4 on record the judgment proceeded).

(3.) The trial Court rightly disbelieved the case of the defendant that he was originally a Sub-tenant, as such case was not made in the written statement and his tenancy, it was held, was created by Ext. AA (5) which was duly proved. Defence case of receipt creating his tenancy wherein, it was stated, the tenancy was described by the area was not filed or produced in the Court. The defendant did not take any local investigation for determining the extent of his tenancy and it was held that the suit land never appertained to his tenancy. The suit land being vacant it was used by the defendant and his customers when they liked and merely keeping of cars and vans of his customers for repair and spray painting would not mean that the suit land was comprised within his tenancy. The trial Court also believed the evidence of the plaintiff's husband and of the pro forma defendant that she was given possession of the suit land on 15-4-65. It was further held that the plaintiff had valid tenancy and the suit was accordingly decreed. The present appeal is against this decision.