BAIDYANATH DUTTA Vs. RADHESHYAM DUTTA

JUDGEMENT

(1.) The plaintiffs' case is that the disputed land along with the structures belonged to one Chamundi Charan Mukherjee. He died leaving his widow, Lakshimoni Debi and son, Bis-wanath Mukherjee. On the 15th of June 1938, Biswanath sold only the structure to one Sakhibala Dassi for Rs. 700/ by a registered kobala. On the same date he granted a lease of the land for 20 years at a monthly rental of Rs. 14/- with an pption to renew for S years more. Thereafter Sakhibala made herself scarce resulting in a presumption of death by the efflux of the statutory period, The plaintiff is the heir by her only daughter. The defendant purchased the property from Biswanath and obtained an order from the Thika Controller for re-entry against one Monimala Dassi. Then the present plaintiff instituted the Title Suit No. 197 of 1963 in the City Civil Court at Calcutta, for declaration of her tenancy right of the suit land and for injunction. That suit was decreed. Then the defendant filed the suit No. 3648 of 1968 under Section 41 of the Presidency Small Cause Courts Act and obtained an order for possession. It has been stated in the plaint that the plaintiff is a permanent tenant of the land and he has absolute right to maintain possession of the property. The suit is for permanent injunction, declaration of tenancy right, declaration of easement right, for a declaration that the order under Section 41 is illegal and recovery of damages.

(2.) The defendants filed a written statement denying the plaintiff's allegation. It has been alleged, inter alia, that the suit is barred by res judicata and under Order 2, Rule 2 of the Civil P. C. The plaintiff has no tenancy right. The order for possession was validly passed in the suit under Section 41 of the Presidency Small Cause Courts Act and a valid notice to quit was served.

(3.) The learned Judge of the City Civil Court decreed the suit in full, He stated under the Issues Nos. 1, 6 and 7 that the plaintiff was not entitled to claim any damages. He did not grant any relief regarding the prayer for easement. But still full costs were awarded in the plaintiff's favour. He also declared that the plaintiff was a tenant as held in Title Suit No. 197 of 1963. Being aggrieved by that decision the defendants preferred the present appeal.