MANIK CHANDRA NASKAR Vs. TARA DEBI

JUDGEMENT

(1.) This second appeal has been taken out by the defendant No. 1 appellant challenging the judgment and decree dated 30- 1 - 1998 passed by the learned Addl. District Judge, 1st Court at Alipur in Title Appeal No. 880 of 1984 affirming the judgment and order dated 21-9-1984 passed by the learned Fourth Munsif, Alipur in T.S. No. 180 of 1982.

(2.) This appeal arises out of a suit for recovery of possession and mesne profits. The case as has been made out by the plaintiff in the plaint is inter alia as follows : 1. One ekchala hut with that walls and tiled roof in the premises No. 32 Kali Temple Road, Police Station Bhowanipur belongs to the plaintiffs and pro forma defendants in their respective shares and the aforesaid joint property was let out to different monthly tenants in different portions. The defendant No. 1 was a monthly tenant in respect of suit premises. An ejectment suit was filed by all the landlords, owners, namely, the pro forma defendants Nos. 9 to 11 and predecessors-in-interest of the plaintiffs against the defendant No. 1 in the Court of learned 4th Munsif at Alipur being I. S. No. 351 of 1970 and subsequently the said suit was transferred to 3rd Addl. Court of Munsif, Alipur and was renumbered as T.S. No. 96/72 and ultimately the said suit was decreed ex parte. The plaintiffs further stated that after obtaining the said ex parte decree of the co-owners intended to sale out the property to one Rupen Mukherjee and executed an agreement for sale by taking earnest money from the said Rupen Mukherjee. After that said Rupen Mukherjee started to look after all pending cases and also taking steps by execution of the decree against the defendant for delivery of possession. The said Rupen Mukherjee happens to be relations of the plaintiffs by marriage. The pro forma defendants coming to know about it started moving adversely against the plaintiffs' interest and also started supporting the defendant No. 1. The plaintiffs further stated that during the pendency of the execution proceeding the pro forma defendants Nos. 9 to 11 filed an application in Court praying for non-prosecution of the execution case on the ground that the matter has been compromised with the defendant No. 1 being the judgment-debtor. But their said malicious attempt was nullified by the Court's order in the said execution case but in spite of unlawful obstructions created by the pro forma defendants the delivery of possession was obtained by the half on 22-9-1981. That after taking possession of the suit premises the defendant again trespassed into the suit premises on the very same night on 22-9-1981 with the help of certain unruly people. The plaintiffs stated in the plaint that the defendant No. 1 is a rank trespasser in the suit premises and he has no legal right to stay in the suit premises and is liable to be evicted. The plaintiffs and the pro forma defendants are entitled to get a decree for mense profits against the defendant No. 1 on and from 23-9-1981. The cause of action of the suit arose on 22-9-1981 and the plaintiffs prayed for a decree of eviction.

(3.) The defendant No. 1 and the pro forma defendants Nos. 2 to 12 appeared in the suit and contested the suit by filing the Written Statement. In their respective W. S. they stated that the suit is bad, the plaintiffs have no cause of action and the suit is liable to be dismissed. The pro forma defendants Nos. 2 to 12 stated that they along with the plaintiffs Nos. 1 to 3 executed an agreement for sale of their interest which they had in premises No. 38, Kali Temple Road, Calcutta-26. The plaintiff No. 2 who is the son- in-law of the said Rupen Mukherjee negotiated the sale on behalf of all the defendants co-sharers. Due to some reasons or other the said Rupen Mukherjee failed to complete the transaction. According to the defendants including the pro forma defendants the allegations made in Paragraph 2 of the plaint by the plaintiffs is false. The pro forma defendants denied all the allegations made by the plaintiffs in the plaint. The pro forma defendants also denied that said Rupen Mukherjee used to look after the execution case. The pro forma defendants further denied that they have filed the application before the learned Addl. Munsif, Alipur for dismissal of the execution case. The pro forma defendants stated that the tenancy agreement was executed after full consideration which was lawful and the principal defendant acquired the legitimate right therefrom. These pro forma defendants stated that the allegations made by the plaintiffs regarding taking possession of the suit property by the help of police are false. These are nothing but paper transactions. These pro forma defendants further stated that the plaintiffs have no independent right, title and interest in the suit premises unless their shares are ascertained and partitioned by a partition suit. The pro forma defendants further stated that they are not entitled to get any mesne profits from the defendant No. 1. These pro forma defendants denied that the defendant No. 1 is staying in the suit premises as rank trespasser. These defendants also denied the plaintiffs' cause of action of the suit. The defendant No. 1 further denied the allegations of the plaintiffs as alleged in the plaint. The defendant No. 1 stated that he is a monthly tenant in respect of the suit premises at a monthly rental of Rs. 15/- per month according to English Calendar under Keshab Das Chatterjee. Debnath Chatterjee, Probodh Kr. Chatterjee, Ajit Kr. Chatterjee, Sudhangshu Kr. Chatterjee and Sailendra Nath Chatterjee by virtue of an agreement dated 24-3-1981. The defendant denied the relationship of landlord and tenant between the plaintiffs and him. The defendant also denied that the said house is a joint property. The defendants stated that he is paying the rent regularly to the pro forma defendants. The defendants denied the alleged transaction with Rupen Mukherjee. The defendant No. 1 stated that he is staying in the suit premises as a tenant. The plaintiffs have no cause of action of the suit and hence the suit is liable to be rejected.