CHAPALA DEBI Vs. RAKHAL CHANDRA SEN GUPTA

JUDGEMENT

(1.) Plaintiff is the appellant. She brought a suit in the Court of the 3rd Additional Munsif, Patna, for recovery of Rs. 1799/-from the defendants respondents jointly or, is the alternative, from defendant No. 1 alone. Her case was that defendant No. 1 was inducted as a monthly tenant under a lease (Ex'., i) on the nth September 1944 in the premises including that described in Schedule A of the plaint belonging, to the plaintiff's vendor Biseshwar Dey and his other cosharers. The premises are situated ou Ashok Raj Path in the town of Patna. The remises form part of Municipal Holding No. 42, in Circle No. 25. The lease was for a period of eight years and it expired in June 1953. The claim against defendant No. 2 was given up later because he was a sub-lessee under defendant No. 1. In July 1953, there was a partition between Biseshwar Dey and his cosharers and a portion of the lease-hold 'premises fell to the share of Biseshwat Dey and that is indicated in the plaint. Biseshwar Dey had two-ninth share in the premises, his other cosharers having the rest. Biseshwar Dey transferred his interest by three sale deeds to the plaintiff; one was in 1948, the other was in 1950 and the third was in July 1953 after the partition to which a map showing block E corresponding to suit property, was attached. In the first sale deed, one-third interest of Biseshwar Dey in the premises was transferred, in the second similarly another one-third interest was transferred and in the third the remaining one-third interest was transferred to the plaintiff. There is variance between the parties as to what actually was transferred under the third sale deed in July 1953. On behalf of the plaintiff it was asserted that by that document the whole of Block "E" as depicted in the map attached to the sale deed was transferred by Biseshwar Dey to the plaintiff, whereas the defendant contended that it was only the remaining one-third interest in Block "E" that was transferred by that sale deed to the plaintiff. Biseshwar Dey and his cosharers along with the plaintiff instituted proceedings under Section 11 of Bihar Act III of 1947 (Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947) in the Court of the Controller, but those proceedings were abandoned because a notice purporting to be under Section 12 of that Act was given by defendant No. 1 for extension of the period of the lease, and the revisional Court in that proceeding held that the proceedings for eviction of defendant No. 1 on account of the expiry of the period of lease was not maintainable. Thereafter another proceeding was initiated by Biseshwar Dey, his other co-sharers and the plaintiff, after the expiry of the period of one year under Section 12 of the Act, The Controller passed an order of eviction against defendant No. 1 on the 3rd January, 3956- but defendant No. 1 carried the matter to the higher Courts and ultimately that order was confirmed" by the Commisioner in January 1957. The landlords put that order into execution for taking delivery of possession of the premises from defendant No. 1, but up till now they have not succeeded in taking actual possession on account of the resistence offered in the proceeding for execution, which I understand, is now pending in appeal. The present suit was instituted for realisation of damages from defendant No. 1 for his unlawful possession for the period from the 1st September' 1956 to the 31st May 1957, in a portion of the premises that was obtained by purchase by the plaintiff from the owner landlord.

(2.) Defendant No. 1 raised several contentions against the suit. He denied the title of the plaintiff to the premises and also her right re realise any damages or compensation. He contended that his possession was not unlawful and as such he was not liable for any payment to the plaintiff, or for the mailer of that, to Biseshwar Dey or his heirs or to any of his co-sharers.

(3.) The trial Court dismissed the plaintiff's suit. But on appeal, that was reversed and damages at the rate of Rs. 3o/- per month has been awarded to the plaintiff from defendant No. 1. Against that the plaintiff has preferred the present appeal in which he claims to be paid Rs. 5/- per day as damages, or at least at a rate higher than that decreed by the appellate Court. Defendant No. 1 has also preferred a cross-objection, challenging the decision of the lower appellate Court that the plaintiff was entitled to any damages at all. It is contended on his behalf that even if the plaintiff is found entitled to any damages, the rate of Rs. 3o/- per month is excessive and the same cannot be more than one-third of one-sixth of the total rent that was payable for the lease-hold premises under Ext. 1, which would come to about Rs. 6/- per month.