AMULYA KUMAR SUR Vs. DILIP KUMAR SUR

JUDGEMENT

(1.) This appeal is at the instance of the defendant no.1 and it arises out of a suit for partition and khas possession.

(2.) The property in suit is a tract of land know as "Ghoshaler Abad' comprising within it a jalkar. The plaintiff, since deceased, the predecessor-in-interest of the respondents nos.1 (1) to (7), and the defendants were co-sharers of the suit property in Mourasi Mokurari right. The defendant no.1 has 10 annas share equivalent to 5/24th share and the respondents including the respondents nos. 1(1) to 1(7) have 6 annas share equivalent to 9/24th share in the suit property. Out of the 9/24th share, the plaintiff had 4/24th share. The 6 annas or the 9/24th co-sharers including the plaintiff, granted a Dar Mourasi Mokurari lease to the defendant no.1 by an unregistered agreement to lease dated March 29, 1936 at an annual rent of Rs.846-15-2 pies. Out of the amount of rent defendant no.1 was to pay a sum of Rs.171-15-2 pies to the superior landlords and pay the balance sum of Rs.675/- to the 6 annas co-sharers including the plaintiff in proportion to their respective shares. Clause 12 of the agreement to lease, inter alia, provided that in case of default of payment of rent for three consecutive years the lease would stand cancelled that the defendant no.1 has been in possession of the whole of the suit property, namely, 6 annas share thereof by virtue of the said agreement to lease as a Dar Mourasi Mokurari tenant, and 10 annas share thereof belonging to him in Mourasi Mokurari right. During the pendency of the Dar Mourasi Mokurari lease in favour of the defendant no.1, the plaintiff purchased 1/24th share of the defendant nos.3 to 6 by a registered kobala dated September 7, 1949. After such purchase, the plaintiff's share became 5/24 in the Mourasi Mokurari interest. It was alleged by the plaintiff that the defendant no.1 defaulted to pay rent to him in respect of his share for three consecutive years, namely, from 1354 B.S. to 1357 B.S., and that, accordingly, he was entitled to treat the lease as cancelled and to take possession of his share in the Mourasi Mokurari interest along with the other co-sharers having 4.24th share by virtue of clause 12 of the agreement to lease providing for the right of re-entry of the lessors in case of failure of the lessee to pay rent for three consecutive years. The plaintiff by the letter of his lawyer dated October 22, 1954 demanded khas possession of his 5.24th share from the defendant no.1. It was contended by the plaintiff that the lease in favour of the defendant no.1 was void and that in any event, it stood extinguished on the failure of the defendant no.1 to pay rent for three consecutive years. It was further contended that he was entitled to treat the lease as non-existent and to take khas possession of his 5/24th share in the suit property on partition with the remaining defendants. On the aforesaid allegations, the plaintiff instituted the suit for khas possession of his share in the suit property on partition by metes and bounds, treating the lease of the defendant no.1 as inoperative and void.

(3.) The defendant no.1 appellant alone contested the suit. His defence was that the Dar Mourasi Mokurari lease in his favour was quite legal and valid. The terms of the lease were affirmed by the parties in a joint petition of compromise filed in Rent Suit No.16 of 1942 of the 4th Court of the Subordinate Judge at Alipore. It was contended that the plaintiff having instituted suits for rent on the basis of the lease and that having realised the amounts decreed in such suits, he was precluded from avoiding the lease. Further, his contention was that even assuming that the plaintiff had the right of re-entry, the said right was not exercised in accordance with law. It was submitted by him that the suit for eviction on the ground of non-payment of rent could be avoided by payment of rent and, as such, the suit was not maintainable. He was also ready and willing to pay the amount as would be directed by the Court. By an additional written statement, it was contended by him that the interest of the plaintiff in the suit property having vested in the State of West Bengal under the provisions of West Bengal Estates Acquisitions Act 1953, his claim for partition was barred, and the suit was not maintainable.