DURGADAS MOONDHRA Vs. DEVENDRA KUMAR SARAWGEE

JUDGEMENT

(1.) By this common Judgment we propose to dispose of these two appeals together which arise out of the Judgment and Decree dated 14th December, 1987 in two Title Suits, being Title Suit No. 45 of 1987 and Title Suit No. 46 of 1987 pending in the court of Learned 2nd Assistant District Judge at Alipore. Whereas Title Suit No. 45 of 1987 was instituted by a set of six plaintiffs namely, Devendra Kumar Sarawgee and 5-6 others against the sole defendant Durga Das Moondhra, Title Suit No. 46 of 1987 was instituted in the court below by the sole plaintiff Durga Das Moondhra against a set of defendants namely, Devendra Kumar Sarawgee and 5-6 others. The case of the Plaintiffs in T. S. No. 45 of 1987 was that the plaintiffs were co-owners of premises No.3 Alipore Park Place, Calcutta (suit premises) and that the sole defendant was the tenant of the suit premises which was let out to him for a period of 21 years commencing from 1st March, 1955 and expiring on 29th February 1976 by an Indenture of Lease made and executed between the parties on 1st February 1956 at a monthly rent of Rs. 700/-. The plaintiffs in this suit claimed the relief for vacant possession against the sole defendant on the ground that the period of 21 years as fixed in the Lease Deed had expired and that the defendant despite demand had not handed over the vacant possession of the suit premises to the plaintiffs. The case of the plaintiffs was that the lease period had expired by efflux of time on 29.02.1976 and since the lease was for a period of 21 years, the protection of the provisions relating to evictions contained in the West Bengal Premises Tenancy Act was not available to the sole defendant and therefore he was liable to hand over the vacant possession of the suit premises to the plaintiffs. The defendant in the written statement resisted the suit of the plaintiffs primarily and mainly on the ground that, even though the Lease Deed was executed on 1st February, 1956 for a period commencing from 1st March, 1955, and was for a period of 21 years, this Lease Deed was void ab initio and that sometime in October 1964 while the defendant was in occupation of the suit premises as a month to month tenant, the son-in-law of one of the owners of the suit premises namely Sm. Bhagwani Debi approached the defendant by an offer for execution of a Lease for a period of 51 years starting from 1980. The case of the defendants was that this son-in-law namely, Mr. A. K. Jhunjhunwala confirmed that Bhagwani Debi was agreeable for extention/execution of a fresh Lease for a period of 51 years from 1st March, 1980 and that thereupon the defendant wrote a letter dated 9th October 1964 confirming the agreement for execution of such Lease Deed for a period of 51 years, renewable for a fresh period of another 51 years after the expiry of the original 51 years. In short, the defence of the defendant was that the defendant was not liable to eviction from the suit premises on the ground of the Lease Deed dated 1.02.1956 having expired by efflux of time (21 years starting from 1st March '55 and ending on 29.02 '76) and that he was entitled to remain in occupation of the suit premises for a period of 102 years starting from 1st March, 1980. Various other defences were also raised in this suit by the defendant, including the defence of non joinder of the necessary and proper parties and the maintainability of the suit on some grounds. In Title suit No. 45/87 accordingly, based on the pleadings of the parties the following 15 issues were framed by the trial court :

(2.) Title Suit No. 46 of 1987 was filed by the sole plaintiff Durga Das Moondhra against six defendants and in this suit precisely the sole plaintiff Durga Das Moondhara sought a declaration and consequential relief against the defendants with respect to the suit premises that a Lease Deed for a period of 51 years with a further option for another 51 years came to be executed in his favour by the defendants commencing from 1st March, 1980 at a monthly rent of Rs. 1250/- for the first 51 years and thereafter at a monthly rent of Rs. 1550/- for the subsequent 51 years. The sole basis of this contention of the plaintiff in Title Suit No.46 of 1987 was the letter dated 9th October 1964 written by D.R. Moondhra and addressed to Smt. Bhagwani Devi and the letter of the same date i.e. 9th October 1964 written by Bhagwani Devi to D.R. Moondhra wherein she confirmed the contents of his letter dated 9th October 1964. His further case was that he paid a sum of Rs. 5000/- as advance for execution and registration of the Lease Deed and that since he was although ready and willing to perform all obligations under the Agreement contained in the letter dated 9.10.64, he prayed for a decree for Specific Performance of the agreement contained in the said letter dated 9.10.64 and therefore was entitled to continue to remain in possession of the suit premises as a monthly tenant until execution and registration of the Lease Deed for a period of initially 51 years commencing from 1.03.80, extendable to another 51 years thereafter. In Title Suit No. 46 of 1987 accordingly, and based on the pleadings of the parties the following 11 issued were framed by the trial court.

(3.) Vide the Judgment and Decree impugned in these two appeals accordingly the trial court allowed and decreed T.S. 45 of '87, but dismissed T.S. 46 of '87 by returning findings in T.S. 45 of '87 in favour of the plaintiffs and returning findings in T.S. No.46 of '87 against the Plaintiff. It is in this background that these two appeals have come up for hearing before us.