LAWS(CAL)-1967-12-18

ASIS KUMAR MUKHERJEE Vs. PRATUL CHANDRA GHOSH

Decided On December 13, 1967
Asis Kumar Mukherjee Appellant
V/S
Pratul Chandra Ghosh Respondents

JUDGEMENT

(1.) In this second appeal only one question of law is involving whether the Court of. Appeal below had rightly constructed two documents, Exs. A1 and B1, while holding that the Defendants could not substantiate that he was a thika tenant in respect of No. 2 Watkins Lane, Howrah. The matter arose like this:

(2.) The Plaintiff filed a suit being Title Suit No. 404 of 1954 against the Defendants for eviction from the premises No. 2 Watkins Lane, Howrah, on the expiry of the tenancy premises after due service of notice for eviction for recovery of arrears of rent for the period from February 1953 to September 1954, at Rs. 45 per month amounting to Rs. 900 and for mesne profits from October 1, 1954. The Plaintiff purchased that premises along with premises No. 3 Watkins Lane from the Administrator -General of Bengal, who sold the same as Executor to the estate of one George Jones on May 10, 1937, and became the owner thereof. The Plaintiff did not get vacant possession of the suit premises which was found in the occupation of late Bijay Gopal Mukherjee, the predecessor -in -interest of the Defendants, who was a monthly tenant in respect of the building at premises No. 2 Watkins Lane at a rent of Rs. 45 per month payable according to English calendar month. The tenancy originally stood in the name of F. Acerboni & Co. of which the said Bijay Gopal was the sole proprietor. By virtue of the Plaintiff's purchase and the letter of attornment issued by his vendor the relationship of landlord and tenant was established between the Plaintiff and the late Bijay Gopal in respect of the suit premises. The Plaintiff realised rent from Bijay Gopal and from the Defendants by executing the decrees for rent obtained from Courts, The Plaintiff prays for recovery of rent from February 1953 to September 1954 in this suit. The Defendants' as successor -in -interest of Bijay Gopal are in occupation of premises No. 2 Watkins Lane now in suit. The notice of eviction was served upon the Defendants whereby the tenancy was terminated with the expiry of September 1954. The Defendants did not vacate the premises. Hence the suit was filed.

(3.) The main contention of the contesting Defendant No. 1 was that their predecessor -in -interest was a thika tenant in respect of No. 2 Watkins Lane, Howrah, at a rental of Rs. 45 and not a tenant of that premises as is understood within the scope of Rent Control Act, 1950. The rent of Rs. 45 was payable as rent for the land of No. 2 Watkins Lane, Howrah, but not for the building standing on that land. The Defendants admitted the relationship of landlord and tenant between the Plaintiffs and the Defendants, the successors -in -interest of late Bijay Gopal, but denied the nature of the tenancy as alleged by the Plaintiffs. The Defendants contended that there was in fact a tenancy in respect of holdings Nos. 2 and 3 Watkins Lane respectively under the superior landlord Dighapatia Raj. Pucca structures were raised on the land of the holdings by the tenants. G.R. Jones was a tenant in respect of holding No. 2 Watkins Lane and F. Acerboni & Co. was a sub -tenant under Jones. The said F. Acerboni & Co. occupied the then existing pucca structures, now dilapidated, broken and rendered useless and also the open land of the said holding and carried on business in patent stone there. The Defendants constructed various sheds on the holding. In course of time, the said sub -tenancy of Acerboni & Co. somehow vested with the Administrator -General of Bengal, and Bijay Gopal, the predecessor -in -interest of the Defendants, purchased at a public auction the stock -in -trade, goodwill and all properties of the said firm including the sheds on November 16, 1917, and thereby became a tenant under G.R. Jones. After the tenancy of Jones vested with the Administrator -General of Bengal the Plaintiffs purchased the right, title and interest of the latter in the holding Nos. 2 and 3 Watkins Lane. Thereafter, Bijay Gopal took permanent lease in respect of the said two holdings from the superior landlord and filed the Title Suit No. 38 of 1938 against the Plaintiffs for eviction of the Plaintiffs on the ground that the tenancy which the Plaintiffs purchased was anon -permanent and non -transferable tenancy and that the Plaintiff acquired no title by his purchase. In that suit there was no denial by Bijay Gopal of the relationship of landlord and tenant between Plaintiffs and Bijay Gopal and, as such, there could be no forfeiture. The tenancy, now, in respect of No. 2 Watkins Lane is governed by the Calcutta Thika Tenancy Act, 1949, but not by the Rent Control Act, 1950. Previously, Bijay Gopal used to pay rent at Rs. 90 for the holding in suit to Jones and thereafter to the Administrator -General of Bengal. But subsequently when the only pucca structure over the holding No. 2 Watkins Lane became broken, dilapidated and useless, Bijay Gopal was successful in persuading his the then landlord, the Administrator -General of Bengal, to reduce the rent to bare ground rent only at Rs. 45 per month, and from that time Bijay Gopal occupied and thereafter the Defendants are occupying the suit holding as thika tenant by paying the ground rent at Rs. 45 per month. The predecessor of the Defendants made additions and alterations in the structures over the holding purchased by him and also made new construction over there. The structures belonged to the Defendants. The Defendants denied service of notice and challenged the validity and legality of the same.