TARAKPADA KIRTI Vs. RUPLEKHA CHATTERJEE

JUDGEMENT

(1.) This second appeal is directed against the judgment and decree passed in Title Appeal No. 7 of 1975 of the 6th Court of the Additional District Judge, Alipore, whereby the judgment and decree passed in Title Suit No. 25 of 1955 of the 2nd Court of the Subordinate Judge, Alipore was affirmed. This appeal has been preferred by the defendant who, as aforesaid, lost in both the courts below. The plaintiff respondent instituted the Title Suit No. 25 of 1957 for eviction of the defendant appellant from the suit land being premises No. 56/2, Hazra Road, Calcutta and for recovery of arrears of rent and for mesne profits.

(2.) The case of the plaintiff was inter alia that Sri Charu Chandra Ganguli, father of the plaintiff Sm. Ruplekha Chatterjee, inducted the defendant into a plot of land being premises No. 56/2, Hazra Road measuring 6 cottahs 9 chittaks under a registered lease dated January 15, 1955 for a term of 15 years commencing from January 1, 1955 and ending on December 31, 1969 at a monthly rental of Rs. 140 for the first five years, then Rs. 150 for the next five years and thereafter Rs. 170 for the last five years. It was stipulated in the regie--tered agreement that the rental should be paid in advance by the 15th of the month for which the rent is due. There was also a default clause in the registered indenture of lease to the effect that if the rent for three consecutive months would fall in arrears the lease would be forfeited and the lessor would have the fight of re-entry. There was another clause in the indenture of lease that the defendant would not sublet more than half of the road frontage or more than half of the total area of the Land and in case of the breach of the said term, the lease would be forfeited and the lessor would have right of re-entry. The said Sri Charu Chandra Ganguly by a deed of trust dated December 24, 1964 transferred the said property to the plaintiff as trustee and the defendant attorned to the plaintiff as his landlady and had been paying rent to her. The plaintiff brought the said suit for eviction of the defendant on the ground that rent from February, 1966 to January, 1967 had remained unpaid by the defendant and that the defendant had also sublet more than half of the road frontage and also more than half of the total area of the leasehold land in breach of the express covenant in the said indenture of lease. By a notice dated December 16, 1966 the said lease was forfeited by the plaintiff and as the defendant failed to make over vacant possession after removing the structures made on the said land, the aforesaid Title Suit was instituted for eviction of the defendant and for arrears of rent amounting to Rs. 1,930 and also for mesne profits.

(3.) The said suit was contested by the defendant by filing a written statement inter alia denying the contentions of the plaintiff and it was averred by the defendant that he had developed the leasehold land at a cost exceeding R. 26,000 and the original lessor viz. Charu Chandra Ganguli had verbally agreed to adjust the money spent by the defendant against the future rent payable by him but such adjustment was deferred. If such adjustment was made the defendant would not be found to be a defaulter. The defendant also contended that under a verbal and also written permission given to the defendant by the said Charu Chandra Ganguli he had sublet more than half of the land and as such there was no contravention of any covenant under the lease deed.