TINKARI DAS Vs. JAMUNA BALA DASI

JUDGEMENT

(1.) This is an appeal by the defendant against a judgment of affirmance. The plaintiff instituted the suit on 26th May, 1965 on the following allegations. The plaintiff had been owner of the tank recorded in C. S. Plot No. 1177 Khatian No. 2268 P. S. Chinsura within the Hooghly Chinsurah Municipality which is the suit property. The defendant executed a deed of lease on 3-11-1961, to which the plaintiff was also a party, taking a settlement of the fishery right of the tank for a period of five years from Baishakh 1368 B. S. to Chaitra 1372 B. S. agreeing to pay rental at the rate of Rs. 525/- per year and municipal taxes. The lease contained a condition that in the event of failure by the lessee to pay annual rental within the year, the lessor will have a right of re-entry on forfeiture of lease without any notice. The defendant did not pay any rent from 1369 B. S. to 1371 B. S. except a sum of Rs. 100/- and under the terms of lease he had no title or interest in the tank and was, therefore, liable to be evicted without notice. The plaintiff accordingly instituted the suit on May 26, 1965 praying for a decree for recovery of possession of the suit property by the plaintiff on eviction of the defendant therefrom.

(2.) The suit was contested by the defendant who filed a written statement contending inter alia that the suit was bad for want of notice under Section 111 (g) of the Transfer of Property Act. It was further contended that the State of West Bengal was a necessary party in the suit and in absence of the State the suit was not maintainable. It was stated that the defendant did not know the contents and purport of the lease as she was an illiterate lady and executed the same without knowing the meaning thereof and if there was any clause of forfeiture for nonpayment of rent the same was without her knowledge. There were further allegations that the rent has been paid regularly upto 1371 B. S. and rent for the year 1372 B. S. was in deposit with the lessor. It was further stated that the plaintiff had no locus standi to evict the defendant from the suit premises as the disputed fishery vested in the State of West Bengal since Baishak 1, 1362 B. S. For these reasons the defendant submitted that the suit should be dismissed.

(3.) It appears that on an application by the defendant one Jamuna Bala was added as a pro forma defendant as the purchaser of the plaintiff's interest in the suit property. On her prayer, she was transferred to the category of the plaintiff as plaintiff No. 2. On May 20, 1966 she applied for amendment of the plaint incorporating that the defendant's lease had in the meantime expired by efflux of time and eviction of the defendant was also sought on that basis. The said amendment was allowed.