AMALA PALIT Vs. RATNA BOSE

JUDGEMENT

(1.) Subject property being premises No. 24A Balaram Ghosh Street Calcutta was an old building at North Calcutta owned by Mukherjee family. By registered Deed of Lease dated July 25, 1964 Mukherjees leased out a portion of the said building being open and vacant courtyard at the back portion of the building for twenty one years in favour of the appellants. The lease expired by efflux of time in July 1985. As a condition of the lease, the appellants were permitted to raise structure on the said vacant land. However, at the end of the lease, structure, if any, would belong to the owner. Sri Bimal Chandra Mitra an advocate of this Court witnessed the said execution. He also helped the parties in preparation and execution of the document as claimed by the appellants. In 1966 Mukherjees sold their interest in the property to Ghoshes being the respondent's predecessors. One Amiya Ghosh, Dr. Alok Kumar Ghosh, brothers by relation, and one Nirmal Mitra their brother-inlaw (Sister's husband) purchased the property. In 1971 Nirmal, Amiya and Alok filed a suit being suit No. 327 of 1971 as against the Mukherjees and the predecessor of the appellants where Sri Bimal Chandra Mitra was appointed receiver. The suit was ultimately dismissed for non-prosecution in 1975. In 1983 Nirmal filed a partition suit that the parties settled by filing a Terms of Settlement. In the Terms of Settlement, the parties agreed, Sri Bimal Chandra Mitra who was acting as Commissioner of partition and receiver, would stand discharged from the post of Commissioner of partition however, he would continue to act as receiver so long he could not collect the compensation money for a portion of the said premises that the Corporation acquired through an acquisition proceeding. We are told, the parties have not been able to collect the compensation as yet. During pendency of the partition suit Dr. Alok Ghosh one of the co-sharers died a bachelor leaving him surviving his heirs on intestacy that would include Smt. Pritikana Mitra the wife of Sri Bimal Chandra Mitra. By the Terms of Settlement, the parties relinquished their rights in respect of the suit property in favour of Pritikana in exchange of her share in other property as also owelty money, as claimed by the respondent.

(2.) By such process, Pritikana became the sole owner as claimed by her successor in interest after her death. When we heard the appeal Bimal Chandra Mitra had already died, so had Pritikana.

(3.) The present lis would relate to an eviction proceeding as against the appellants. Bimal Chandra Mitra filed the suit as receiver in suit No. 169 of 1983 however, during pendency of the suit there was change in ownership as discussed above and ultimately the heirs of Bimal and Pritikana the present respondents came to be substituted. The defendant contested the suit by filing the written statement by taking various pleas including the plea of Thika Tenancy. It did not appeal to the learned Judge. At the time of the hearing of the appeal, the appellant took an additional ground challenging the status of the plaintiff being Bimal Chandra Mitra and/or his successor in interest claiming under him.