RAJMANI SHARMA Vs. KHITISH DEBNATH

JUDGEMENT

(1.) THIS appeal has been preferred by the defendants/appellants assailing the judgment and decree passed by the learned Additional District Judge, Fast track Court, Sealdah in Title Appeal No. 34 of 2001 reversing the judgment and decree passed by learned Civil Judge, (Junior Division), Third Court, sealdah in T. S. No. 282 of 1989. The case of the Plaintiff/respondent, in short, is that the plaintiff/respondent is a thika tenant in respect of the suit property situated at premises No. 58/5a, Barrackpore Trunk Road, p. S. Cossipore. The suit was filed praying for a decree of permanent injunction. But subsequently, the plaint was amended and the prayer was made for declaration that the plaintiff is the thika tenant in respect of 'a' schedule property with a shed standing thereon and for confirmation of possession in respect of 'a' schedule property and for recovery of possession, alternatively, for a decree for mandatory injunction directing the defendants to vacate the 'b' schedule property. The plaintiff has his motor repairing garage in the said premises and he used to take occasional assistance from the defendants as skilled labour for the purpose of carrying on the said business. Due to financial stringency, the plaintiff had to minimize his space of work. The defendants had no right for enjoyment of the suit property or any portion thereof at any point of time. Defendants are now claiming permanent shelter in the suit property for running their individual business taking the helplessness of the plaintiff and they are associated with the local hooligans. On 24. 5. 89 at about 3. 00 p. M. the defendants being accompanied by some local hooligans made an attempt to enter into the suit property by force, but failed due to timely resistance made by the plaintiff and the well-wishers of the family. Having got the knowledge of the institution of suit as well as the order of injunction passed therein, the defendants in violation of the order of the learned Court started keeping their business articles inside the suit room and most illegally canvassing themselves as tenants under the plaintiff. But, as a matter of fact, the defendants cannot be more than the licensees under the plaintiff since they were never in exclusive possession of the suit property or any portion thereof. As a matter of fact, the defendant was given licence in the suit property in order to proceed with the work allied with the work of motor repairing like electrifications, wood work etc. so that the plaintiff could complete the motor repairing work in a compact form. In connection with the aforesaid work between the plaintiff and the defendant, there was exchange of money on issuing receipts in their individual 'khata' and the defendant now taking advantage of that, started canvassing themselves as tenants under the plaintiff falsely representing that those payments were made towards payment of rent. During the pendency of the suit for the period from 1992-1997, each of the defendants slowly made wrongful occupation of specific portion of the existing shed by making tin partition wall putting door, jhap etc. so as to make individual occupation a separate identity amongst the defendants. The plaintiff under the circumstances, instituted the suit praying for recovery of khas possession by evicting each of the defendants from their respective compartment or room as they are not the tenants, but licensees and upon cancellation or revocation of the same, the plaintiff is entitled to get recovery of khas possession.

(2.) THE case of the defendants/respondents, in short, is that they are the monthly tenants under the plaintiff and are governed by the West Bengal premises Tenancy Act and they have the right to enjoy their respective portion by virtue of their own tenancy right, unless they are evicted in accordance with the procedure established by law. The defendants have also denied the other material allegations raised by the plaintiff in the plaint. In the additional written statement, the defendants have however averred that the plaintiff who was an engine mechanic decided to open a complete and comprehensive garage at 58/5a, B. T. Road in thika land and constructed 5 rooms and a shed thereon and himself occupied one room as his business office. The plaintiff thereafter inducted one blacksmith, one welder, one electrician and a carpenter as tenants in respect of one room each.

(3.) THE learned Trial Court upon consideration of the materials on record dismissed the suit holding that when the suit properties are different and parties are also different, the plaintiff was not entitled to get the relief of recovery of khas possession against all the defendants in a single suit. It has further been held by the learned Trial Court that the defendants have no legal status in respect of the suit shed, but they are in possession of the same and they are nothing but trespassers. The learned Trial Court held that the defendants failed to prove that they are the tenants under the plaintiff in respect of the suit premises.