BENOY BHUSAN DASGUPTA Vs. SABITRI BANERJEE

JUDGEMENT

(1.) This appeal from appellate decree is directed against the judgment and decree dated August 30, 1970, made in Title Appeal No. 337 of 1970 by Shri S. K. Dutta. Additional District Judge, 1st Court, Alipore, affirming thereby the judgment and decree dated January 30, 1970, made in Title Suit No. 234 of 1968, by Shri D. K, Panda, Munsif, 2nd Court, Alipore.

(2.) The plaintiff-respondent, being the owner of the premises in suit brought the Title Suit in question against the defendant appellant for recovery of khas possession by eviction and for mesne profits and also for compensation for damages Caused to the same. It was alleged that the defendant appellant was a tenant in respect of two bed rooms, one privy and one verandah at a monthly rent of Rupees 35/-, payable according to English calendar month. It was contended that the tenant defendant broke open a portion of the wall in between the bed rooms of his tenancy, made a hole in the wall of the privy and broke other portion of the rooms of the tenancy and thereby contravened the provisions of clauses (m) and and (o) of Section 108 of the Transfer of Property Act and as such became liable for eviction. The tenancy was alleged to have been duly determined by necessary service of notice to quit.

(3.) The tenant-defendant, apart from denying the material allegations, contended that he was a tenant in the premises in question from the predecessor-in-interest of the plaintiff respondent at a rent of Rs. 24/- per month, payable according to English calendar month and at first his tenancy consisted of 2 rooms and a privy which was used by him jointly with other tenants. He alleged that after her purchase there was some rearrangement of the tenancy at the request of the plaintiff respondent end the tenant defendant left possession of one of his rooms in exchange of another room of similar size. He has further alleged that the room so surrendered by him was converted into two privies and he was given exclusive possession of one of the said two privies, Thus the tenant defendant has contended that the extent of his tenancy was thus changed to two rooms, one privy and a verandah and the rent of the same was correspondingly increased to Rs. 35/- from Rs. 24/- per month. The tenant defendant has stated that since there was neither any intercommunicating door between the two rooms of the tenancy as subsequently created nor there was any ventilator in the newly constructed privy, for which he was facing great trouble and difficulties, he with the knowledge and consent of the plaintiff respondent's husband and/or with intimation to him got an opening in the common wall of the two rooms and so also a vantilator in the privy. On such happening, the plaintiff respondent filed Title Suit No. 122 of 1968 for permanent injunction restraining him from breaking or demolishing any portion of the structure within his tenancy. A prayer for mandatory order of injunction directing him to restore the walls of the rooms to their former position was also made. On admissions made by him in the written statement, the said Title Suit was decreed on contest and thereafter the tenant defendant has filled up the portions he broke open for the purposes as aforesaid. Since the damages which were caused were duly repaired the tenant defendant contended that the subsequent suit for ejectment on the ground of causing damages was not maintainable. In that view of the matter it was also contended by him that the plaintiff respondent was not entitled to any damages at all, apart from contending further that the present suit in view of the earlier determination was barred.