MD HABIB Vs. GOLAM RASUL

JUDGEMENT

(1.) This court is hearing this second appeal in which the judgement and decree passed by the first appellate court in connection with Title Appeal No.20 of 2005 as disposed of on 30th May, 2007 and decreed on 12th June, 2007, as passed by the learned IVth Bench, City Civil Court, Calcutta, has been assailed wherein the learned appellate court was pleased to allow the appeal and set aside the judgment and decree of dismissal passed by the learned trial court in connection with Ejectment Suit No.655 of 2001 (which was previously numbered as Ejectment Suit No.199 of 1999) and one decree of eviction was passed in favour of the plaintiff/appellant in respect of the suit property being one tin shade on the ground floor of the suit premises being 5A, Mirza Galib Street, PS-New Market, Calcutta-87 as it was originally so with rent of Rs.8/- which was enhanced to Rs.25/- after the said tin shade was demolished and the building was developed and one room was given in the second floor of the suit premises in lieu of that tin shade.

(2.) The fact of this case can be stated in brief:- that the plaintiff Golam Rasul purchased the suit property in 1980 along with his wife from the previous owner Janmenjoy Basak who inducted this defendant as tenant in respect of one tin shade on the suit plot in the ground floor. One suit was filed being Ejectment Suit No.480 of 1985 as against this defendant. One compromise was effected out of court and the said suit was allowed to be dismissed by the plaintiff/appellant. The suit property was developed and as per one agreement one room in the second floor was given to the defendant in lieu of that tin shade. The plaintiff in the case before the floor of the trial court came up with the plea that this defendant is not at all residing in the suit premises and he has sublet that room to his cousin brothers namely Md. Israil and Md. Salim who are actually using the said room without any written permission of the plaintiff/landlord which is in violation of the provision of West Bengal Tenancy Act, 1956 and as such no protection can be claimed by the defendant under the provision of the said Act.

(3.) The defendant contested the suit and claimed that he is in possession of the suit property and that he visits the suit property when he comes to Calcutta on vacations. The defendant also made out a case that the defendant and his cousin brothers Salim, Md. Safi, Md. Israil and Sk. Nizamuddin jointly took two separate tenancies in January 1972, in respect of one tin shade covered on three sides without any door and window at a monthly rent of Rs.8/- and one room in the ground floor at a monthly rent of Rs.24/- from the prevision landlord. The defendant admitted the filing of Title Suit No.480 of 1985 and that one compromise was effected in that suit and the building was demolished and one four storied building came up there and the defendant was allotted one room in the second floor of the suit building. The defendant also claimed that sometime June or July 1980 the plaintiff claiming himself to be a landlord filed a criminal case under Section 144(2) Cr.P.C against the defendant and others for creating nuisance. The defendant prayed dismissal of the suit on ground of sub-letting and calimed that his cousin brothers are joint tenants along with him. The defendant furthere claimed that the previous landlord declined to give any receipt in their names and the receipt was only granted in the name of the defendant.