MOITRALI MUKHERJEE Vs. MANIK CHAND JOHURI

JUDGEMENT

(1.) This is a suit for recovery of vacant possession of premises No. 146, Upper Chitpur Road, now renumbered and renamed as No. 468, Rabindra Sarani, Calcutta fully described in the plaint schedule at Annexure-A, as also for mesne profits at the rate of Rs. 150/- per diem which is tentatively assessed at Rs. 18,000/- for the period from 2nd July, 1987 up to 29th October, 1987 and alternatively for enquiry into compensation payable for use and occupation of the premises and a decree therefor. Interim interest and interest on judgment have also been prayed for in the plaint.

(2.) Plaintiff's case is that the leasehold right of the said premises belonged to plaintiff's mother Smt. Indu Prabha Roy Chowdhury, since deceased, by virtue of a deed of lease which was renewed from time to time including by the one dated 12th May, 1958, executed by the then Chief Manager of the Dacca Nawab Court of Ward Estate for a period of 15 years on terms and conditions as fully described in the said deed. Plaintiff's further case is that by a registered indenture of sub-lease dated 25th May, 1966 Smt. Indu Prabha Roy Chowdhury leased out the said premises to the defendant No. 1 for a period of 21 years commencing from 1st July, 1966 on terms and conditions, inter alia, that Smt. Indu Prabha Roy Chowdhury would apply for and obtain renewal of lease from the head lessor that the defendant No. 1 would pay to Smt. Indu Pabha Roy Chowdhury the premium of Rs. 11,000/- in instalment in the manner provided in the deed, that Smt. Indu Prabha Roy Chowdhury would invest the same in a fixed deposit and would withdraw the same after obtaining renewal of the lease from the head lessor, that the defendant No. 1 would pay monthly rent of Rs. 400/- to Smt. Indu Prabha Roy Chowdhury, that the defendant No. 1 would be entitled to sublet the demised premises or any part thereof and that the defendant No. 1 would deliver back the demised premises to Smt. Indu Prabha Roy Chowdhury on the expiry of the terms of the lease. It has been stated that Smt. Indu Prabha Roy Chowdhury died on 26th July, 1968 leaving a Will dated 27th January, 1968 which was duly probated whereupon the plaintiff, the daughter of Smt. Indu Prabha Roy Chowdhury has become absolute owner of all the properties, both movable and immovable including the leasehold right of the said premises demised to the defendant No. 1. It is plaintiff's case that the plaintiff duly informed the defendant No. 1 that the plaintiff had succeeded to the leasehold right of Smt. Indu Prabha Roy Chowdhury since deceased and upon being so informed the defendant No. 1 duly attorned to the plaintiff as his landlady and remained in possession. Subsequently the plaintiff allegedly applied for and obtained renewal of the lease from the then head lessor, Ruchi Ranjan Sen in respect of the said premises and withdrew the amount of premium in the manner as provided in the lease deed. It is plaintiff's case that the defendant No. 1 inducted the defendant No. 2 as a sub-tenant in respect of the said premises for the period stipulated in the indenture of lease dated 25th May, 1966 and as a result defendant No. 2 is bound by the terms and conditions contained in the indenture of lease dated 25th May, 1966. It is plaintiff's case that the period of lease for 21 years to the defendant No. 1 expired on 1st July, 1987 and accordingly the defendant No. 1 or any one inducted by the defendant No. 1 into the said premises is under an obligation to give vacant possession of the suit premises to the plaintiff by and on 2nd July, 1987. By advance notices dated 16th May, 1987 the plaintiff duly called upon the defendant No. 1 and defendant No. 2 separately to handover the demised premises to the plaintiff as the lease was to 8 determine by efflux of time but in spite of the notices and subsequent demand the defendants failed and neglected to handover vacant possession and wrongfully and illegally remained in possession as trespassers. And hence is the suit for recovery of possession and mesne profits.

(3.) It appears that in spite of service by registered post, as also by substituted service by affixing a copy of the plaint on the notice board and newspapers publications, the defendant No. 1 has not come forward to contest the suit. The defendant No. 2 however contests the suit by filing a written statement and alleging, inter alia, that the defendant No. 1 having died on 3rd November, 1973, the suit has been brought against a dead person and not maintainable. It has been alleged that the plaintiff is aware of the death of the defendant No. 1 and in spite of such knowledge the plaintiff brought the suit against the deceased defendant No. 1. In this connection the defendant No. 2 has also stated that such report of the defendant No. 1 was duly submitted in suit No. 472 of 1974 brought by Ruchi Ranjan Sen against the present plaintiff and others by the present defendant No. 2 as defendant No. 2 of that suit and accordingly the present plaintiff cannot deny knowledge of the death of the present defendant No. 1. The defendant's further case is that the suit premises being governed by the West Bengal Premises Tenancy Act, the plaintiff is not entitled to any decree of recovery of possession and that no valid notice to quit was served upon the defendant No. 2. The entitlement as to mesne profits as claimed by the plaintiff and all other allegations of the plaintiff have also been denied by the defendant No. 2.