DEBESH BISWAS Vs. DALIA BHATTACHARYYA

JUDGEMENT

(1.) -The present application under Article 227 of the Constitution of India is directed against the order dated 14th July, 1998 passed by the learned Additional District Judge Alipore in Civil Revision Case No. 148 of 1995 reversing the order dated 2nd February, 1995 passed by the learned Civil Judge, Junior Division, First court, Alipore in Title Suit No. 486 of 1984, now numbered as 137 of 1996 and pending before the learned Civil judge, Junior Division, 2nd Additional court, Alipore.

(2.) The suit was for eviction of a monthly premises tenant on the ground of subletting amongst others. The plaintiff's case is that the defendant No. 1 petitioner Debesh Biswas was the tenant under the original landlady from whom the plaintiff purchased the property and the defendant No. 1 sublet the premises to his brother Santosh Biswas, the defendant No. 2 petitioner. Both the defendants jointly filed an application under sections 17(2) and 17(2) (A) of the West Bengal Premises Tenancy Act alleging that the defendant No. 2 is a co-tenant of the defendant No. 1. They also pleaded adjustment against rent to the tune of Rs. 5260 on the allegation that the defedant No. 2 with the special knowledge of the original landlady incurred expenditure to the extent of Rs. 5610 in the years 1978, 1979 and 1980 for effecting necessary repairs and additions and alterations in the suit premises and that the said land lady also took a sum of Rs. 350 from the defendant No. 2 as advance for two months rent which was agreed to be adjusted.

(3.) The learned trial court, upon hearing the application under section 17(2) & 17(2A) held the defendant No. 2 to be a co-tenant and not a sub-tenant of the defendant No. 1 and also accepted the plea of adjustment as raised on behalf of the defendants and after determining the amount of rent payable by the defendants and gave necessary directions for payment of the rent found to be payable. The lower revisional court did not concur with the finding of the trial court and negative the defence pleas of joint tenancy as also adjustment. It, however, held that the deposits of rents already made by the defendants in their joint names were invalid deposits and it set aside the order of the trial court without, however, determining the rent payable by the defendant No. 1 whom it found to be the sole tenant under the plaintiff.