ABDUL RAUF Vs. JANAB ABU MOHAMMAD

JUDGEMENT

(1.) THIS appeal is by the defendant No. 2 and it arises out of a suit instituted by the plaintiff-respondent no. 1 for certain declarations and also for a permanent Injunction restraining the defendant No. 2 as well as the defendant No. 1 from realising the rent from the sub-tenants in the disputed premises. The plaintiff's case is as follows:

(2.) ONE Fatehuddin is a monthly tenant under the defendant No. 1 in respect of premises No. 69, 71 and 73. Madan Mohan Burman Street, Calcutta, at a monthly rental of Rs. 475k the original rent was Rs. 375/- per month which was subsequently enhanced to Rs. 475/- per month. The defendant No. 2 used to collect rent from the sub-tenants of the said premises who were inducted by Fatehuddin and the defendant No. 2 used to pay the rent due to the defendant No. 1, the superior landlord. The defendant no. 2 used to pay rent to the defendant no. 1 on account of Fatehuddin under the authority of and as the constituted attorney of Fatehuddin. It was alleged that the defendant Nos. 1 and 2 entered into a conspiracy and in collusion with one another, the defendant No. 1 granted a lease for five years in respect of the entire premises in suit in favour of the defendant No. 2 although the tenancy of Fatehuddin was continuing thereafter, defendant No. 2 issued notices to the sub-tenants of Fatehuddin asking them to pay rent to him as he had become their landlord by virtue of the lease. In the last week of the month of August, 1969, the plaintiff received intimation from the tenants of Fatehuddin that the defendant No 2 demanded rent from them as their landlord. The plaintiff approached the defendant Nos. 1 and 2 and asked the defendant No. 1 not to grant any tenancy to the defendant No. 2 but his request went in vain. The plaintiff demanded accounts from the defendant no. 2 in respect of the rents and profits which he had collected on behalf of fatehuddin and also asked him to refrain from collecting rents from the sub-tenants of Fatehuddin but the defendant No. 2 paid no heed to the plaintiff's request. The plaintiff thereafter asked the sub-tenants in the suit premises not to pay any rent to the defendant No. 2 which infuriated the defendant No. 2. who came to the suit premises on the 8th September 1969 with several persons and attacked the plaintiff's brother Mr. Munsif and forcibly took away some important documents and papers relating to the suit premises. It was further alleged that on or about 18th September, 1969, the plaintiff came to know that the defendant No. 1 executed a lease of the entire suit premises in favour of the defendant No. 2 for five years in July, 1967 at an enhanced rent of Rs. 350/- per month. On coming to know all this the plaintiff requested the defendant No. 1 to issue rent receipts in the name of Fatehuddin and to cancel the lease which was illegally created by the defendant No. 1 in favour of defendant No. 2 and also asked the defendant No. 2 not to realise the rent from the sub-tenants. The defendant No. 2 did not accede to the plaintiff's request and the plaintiff, thereafter, instituted the suit for the reliefs mentioned in the plaint.

(3.) THE suit was contested by the defendant Nos. 1 and 2 who filed separate written statements. The defense of the defendant No. 1 was as follows: -