SADHAN KUMAR DAS Vs. AMIYA BHUSAN GHOSH

JUDGEMENT

(1.) The present Appellant as Plaintiff instituted an ejectment suit against the Respondent in the City Civil Court at Calcutta in respect of the property described in the schedule to the plaint. His case was that one Hamid Ali was a monthly tenant under Hamir Chandra Mullick in respect of one shop-room in the ground floor of premises No. 158 Bepin Behari Ganguly Street. The said room was partitioned into two compartments. The Defendant was a monthly tenant under Hamid Ali in respect of one of the compartments of the said shop-room. On February 1, 1965, Hamid Ali had surrendered his tenancy along with sub-tenancies in favour of the Plaintiff to the said Hamir Chandra Mullick. By reason of such surrender the Defendant became a monthly tenant under the Plaintiff in respect of the suit premises at Rs. 50 per month according to English calendar. The Defendant had allegedly committed default since February 1971 and he was not entitled to any protection for eviction under the West Bengal Premises Tenancy Act, 1956.

(2.) The Defendant (the present Respondent in this appeal) filed an application under Section 17(2) of the West Bengal Premises Tenancy Act denying that there was any relationship of landlord and tenant between the Plaintiff arid the Defendant. He prayed that the said dispute be determined according to law. The Defendant in his written statement apart from taking other defences denied that he was a monthly tenant under the Plaintiff. He further pleaded that there could be no valid surrender by Hamid Ali in favour of the superior landlord and in any event, after the alleged surrender the Defendant had become a tenant directly under the superior landlord at a rent of Rs. 60 per month.

(3.) The trial Court by its Order No. 31 dated November 27, 1967, disposed of both the application under Section 17(2) filed by the Defendant and also the preliminary issue No. 3 framed regarding relationship of landlord and tenant between the Plaintiff and Defendant. The Defendant who is the Respondent in this appeal, being aggrieved by the said decision obtained C.R. No. 121 of 1968. On May 22, 1968, Bijayesh Mukherji J. made the said Civil Rule absolute and set aside the above Order No. 31 dated November 27, 1967. Thus, Bijayesh Mukherji J. disposed of the issue No. 3 in favour of the Defendant-tenant.