BINODE KUMAR SHAW Vs. S L PAUL

JUDGEMENT

(1.) THIS first appeal is directed against the judgment and decree dated July 31, 1993, passed by the learned judge, City Civil Court, Eighth Bench, Calcutta, in Title Suit no. 1829 of 1979 thereby dismissing the suit on contest with costs. The case made out in the plaint, in short, is that the father of the appellant was a monthly tenant in respect of one godown as described in the schedule to the plaint under the respondents from 1974 at a monthly rental of Rs. 150/- payable according to English calendar and the father of the appellant had been carrying on business of selling waste papers and waste old papers after obtaining licence from the Corporation of Calcutta. The respondents realized rents for the said premises in suit month by month by sending their Durwan with typed chits. Thereafter, on september 9, 1979, the respondents came to the premises in suit with some local hooligans to forcibly oust the father of the appellant from the premises in suit. Then the father of the appellant was compelled to file an application under Section 144 (2) of the Code of Criminal Procedure before the Executive magistrate. The predecessor-in-interest of the appellant was illiterate and he came to know afterwards that the respondents did not issue proper rent receipts. He also came to know that the respondents filed a proceeding for eviction after revocation of licence in respect of the suit premises along with its mezzanine room against one person and wanted to get possession of that premises including the suit premises. That was a fraudulent proceeding as the respondents tried to oust the original plaintiff. Hence, he filed a suit for declaration that he was a tenant in possession of the said godown. He also prayed for permanent injunction restraining the respondents from disturbing possession of the plaintiffs. During the pendency of the suit, the original plaintiff having died, the appellant, his son, was substituted in his place.

(2.) THE respondents contested the suit by filing a written statement denying all the materials allegations made in the plaint. They denied that they had collected any rent through the durwan by sending typed chits. They also denied that the proceeding for eviction filed by them was collusive. Actually, the father of the appellant had no right, title and interest in the said godown. One Satya Narayan Jagdish Prosad Joshi was a licensee in respect of the said suit premises along with its mezzanine room at a monthly rental of Rs. 125/- and Rs. 50/- as corporation taxes at premises no. 3, Bowbazar Street, Calcutta. He failed to pay the licence fee to the landlords since September, 1976. So the licence was revoked and the proceeding for eviction was filed for recovery of possession against him. That proceeding ended in compromise on May 2, 1979. The Satya Narayan Jagdish prosad Joshi agreed to vacate the suit premises on or before May 15, 1979. But he failed to deliver vacant possession according to the terms of the compromise. The respondents were compelled to file the execution case for recovery of possession. The bailiff went to deliver possession; but he was resisted. Then the respondents prayed for police help for delivery of possession. In the meantime, the father of the appellants filed the said suit from which this appeal has arisen in respect of the garage which was the part of the subject-matter of the eviction proceeding. So the suit should be dismissed.

(3.) UPON consideration of the evidence on record, the learned trial Judge dismissed the suit on contest. Mr. Sarkar, learned Advocate for the appellant, contended that the original plaintiff was inducted as a tenant in respect of the suit premises in September, 1974, and since then he was in possession of the premises in suit till his death and after his death the appellant has been possessing the suit premises all along. The landlord collected rents through Durwan who visited the house of the tenants and granted chit receipts at once which were followed by regular receipts. He also contended that the exhibit no. 2 (collectively) is the bunch of such chits of receipt of rents. He also contended that unless and until any possession of the premises is shown, the municipality did not grant any licence in respect of any business. The original plaintiff contended that he ran a business of waste papers by paying licence fees to the municipality. Exhibit no. 1 (collectively) contains the relevant papers to show that licence fees had been paid by kedar Nath Shaw and so it must be held that the original plaintiff was a tenant in respect of the suit premises. So, after his death, his heirs, that is, the present appellant having stepped into the shoes of Kedar Nath was entitled to get a decree of declaration and permanent injunction as prayed for. He contended that the learned Trial Judge has failed to appreciate the evidence on record and thus wrongly dismissed the suit.