PROSUN KUMAR DEY Vs. PROVASH KUMAR DEY

JUDGEMENT

(1.) The present application under Article 227 of the Constitution of India has been filed by the defendant/petitioner challenging an order dated 18.04.2005 passed by the learned Chief Justice, Court of Small Causes of Calcutta in SCC Suit No. 115 of 2004 whereby an application under section 41 of the Presidency Small Cause Courts Act for recovery of possession, filed by the plaintiff/opposite party, was allowed. This is an unfortunate dispute between the father (plaintiff/ opposite party) and his son (defendant/petitioner). The case of the opposite party is that the opposite party is absolute owner of the suit property and he inducted the petitioner as a licensee in the suit property for business purposes without any licence fee. The opposite party requires the suit property for his own use and occupation and asked the petitioner to vacate the suit property but, in spite of notice to vacate, the petitioner did not vacate and hence the said application for recovery of possession was filed.

(2.) It appears that the petitioner contested the said application by taking a stand that the petitioner was given possession of the suit property by the opposite party but since the premises in question belonged to the grandfather of the petitioner, the petitioner has acquired special right, title and interest therein and that the opposite party has no right to evict the petitioner from the suit property.

(3.) It appears from the impugned order that it was argued on behalf of the defendant/petitioner before the learned Court below that since the petitioner was born in the premises in question which is the paternal property of the plaintiff/opposite party, the defendant/petitioner has acquired a special right in such property and the plaintiff/opposite party cannot pray for recovery of possession treating the defendant/petitioner as a licensee. Another point that was argued before the learned Court below on behalf of the defendant/petitioner was that the defendant/petitioner is a licensee without any fees and such licence without any fees cannot be treated as a licence in the strict sense of the term. The learned Court below found that the notice to quit was legal and valid and it was duly served upon the defendant/petitioner.