SANTISRI ROY Vs. PRANAB KUMAR GUHA @ PRANAB GUHA

JUDGEMENT

(1.) One Smt. Uma Rakshit, since deceased and her son Sri. Amitava Rakshit instituted a suit for eviction, recovery of khas possession and mesne profits against one Bijay Bhusan Guha @ B.B Guha, since deceased in the 8th Court of the learned Civil Judge (Senior Division) at Alipore which was registered as Title Suit No.47 of 1990. The said suit was decreed on contest by the learned trial judge by judgment and decree dated 31st August, 1998. The defendant/tenant preferred Title Appeal No.263 of 1998 assailing the judgment and decree passed by the learned trial court in the above mentioned suit which was heard and disposed of by the learned Additional District Judge, Fast Tract, 4th Court at Alipore, 24 Parganas (South). The learned Judge in First Appellate Court allowed the appeal by setting aside the judgment and decree passed in the said suit and remanded the suit for fresh trial with a direction to the said Amitava Rakshit, plaintiff No.2 to file fresh application for commission to show his requirement in the suit house and also directing the learned trial judge to dispose of the suit afresh on the basis of the report of the Local Inspection Commissioner. The instant first miscellaneous appeal is filed by the substituted plaintiffs/appellants assailing the judgment and order of remand passed by the learned 1st Appellate Court.

(2.) Salient facts necessary for disposal of the instant appeal are narrated below:-

(3.) One Dr. Bibhuti Bhusan Rakshit was the original owner of premises No.26, S.R Das Road under police station Tollygang in the district of South 24 Parganas. The said Dr. Rakshit died intestate leaving behind his widow, one son and two married daughters, namely, Smt. Suchisri Das and Smt. Santisri Roy as his legal heirs and representatives. By virtue of a registered deed of partition and family settlement, original plaintiffs, i.e., the widow of Dr. B.B Rakshit and their son jointly got three flats in three different floors of the suit house with proportionate right in the land and right to use the common areas. The original defendant was a tenant under the plaintiffs in respect of western side flat on the first floor of the suit premises at a monthly rental of Rs.390/- payable according to English calendar month. The plaintiffs further pleaded in the plaint that the widow of the original owner Dr. Rakshit was in occupation of a flat situated on the second floor of the suit premises. Her daughter Santisri Roy had been staying with her in the said second floor flat with her husband and son as licensees. By virtue of partition and family settlement Santisri Roy was allotted with a flat on the front portion of the first floor of the suit house which was also under occupation of another tenant. The western side flat of the ground floor of the premises was in occupation of Smt. Suchisri Das, another daughter of the original plaintiff No.1, since deceased. The flat which was allotted to Suchisri by virtue of the said deed of partition was under occupation of a tenant against whom she instituted a suit for eviction. Plaintiff No.2 Amitava Rakshit is an engineer and obtained PHD degree from Texus A.M University, USA. He has been carrying on business of computer software in USA. He decided to come back to India permanently with his wife and son and intended to start his own business in Calcutta. Present accommodation of the plaintiffs was inadequate and insufficient. Therefore, they instituted the suit for eviction against the original defendant/tenant, after service of notice under Section 13(6) of the West Bengal Premises Tenancy Act, 1956 (hereafter described as the 'said Act').