INDRA BALA DUTTA Vs. BANESWAR PAL

JUDGEMENT

(1.) This appeal is at the instance of the Plaintiff -Appellant arising out of a judgment and decree passed by S.K. Mukherjee, Additional Sub -Judge, Bankura, affirming the decision of the learned Munsif arising out of a suit for eviction of the Respondent from the disputed premises under the provision of the West Bengal Premises Tenancy Act. The case of the Plaintiff is that the Respondent was a monthly tenant in respect of the suit premises at a monthly rental of Rs. 8 payable according to Bengali calendar month. The Respondent defaulted in payment of rent from Chaitra 1359 B.S. to Bhadra 1365 B.S. and from Aswin 1368 B.S. to Chaitra 1368 B.S. and that the Appellant also required the suit premises for his own use and occupation. The tenancy was determined by notice to quit under Sec. 13(6) of the West Bengal Premises Tenancy Act read with Sec. 106 of the Transfer of Property Act. The Respondent not having vacated, the present suit was filed. The Respondent contested the suit by filing a written statement. He contended that his tenancy was not governed by the West Bengal Premises Tenancy Act but was governed by the Non -Agricultural Tenancy Act. He stated that he rented the vacant land only and that when the tenancy was created there was no structure on the said land. The structure, which stood on the disputed land when the suit was instituted, was built by the tenant Defendant and as such, the Plaintiff is not entitled to evict him under the provision of the West Bengal Non -Agricultural Tenancy Act. It is further stated that he being a tenant under the West Bengal Non -Agricultural Tenancy Act and having in occupation for more than 12 years by building structure thereon, he acquired status of a permanent tenant and as such, he was not liable to be evicted. It is further stated that after the enactment of the West Bengal Estates Acquisition Act the rent receiving interests of the Appellants vested in the State of West Bengal and as such, the Appellant has no locus standi to bring this suit for recovery of rent.

(2.) Prior to the above suit, the Appellant brought another suit being T.S. No. 102 of 1953 and the Appellant got a decree in the trial Court as well as in the First Appeal Court, but the Appellant lost in the Second Appeal before this Hon'ble Court. The Hon'ble High Court held that the notice was insufficient and invalid and accordingly, the suit on the basis of that notice could not be entertained. This Hon'ble High Court set aside the judgment and decree of the trial Court as well as the First Appellate Court on the ground that it was not maintainable. Pursuant to that decision of the Hon'ble High Court, the Appellant has brought the present suit after services of another notice as directed.

(3.) Mr. P.N. Mitter on behalf of the Appellant has contended that both the Courts are wrong in holding that the Respondent is a non -agricultural tenant and is not evitable on the ground that this point is no longer open, in view of the fact in the earlier suit, there is a finding as against the Defendant that he is not a tenant of the land but of the premises. It is argued by Mr. Mitter that the finding in the earlier suit is binding on the parties and cannot be re -agitated in the subsequent suit.