AMALA MAZUMDAR Vs. BISHWANATH PABRA

JUDGEMENT

(1.) THIS appeal has been preferred against the judgment and decree dated 14 -10 -93 passed by the 1st Additional District Judge, Katihar in Tit 19 Appeal No. 25/90 affirming the judgment and decree dated 24 -8 -90 passed in Title Suit No. 78/81 by the 1st Additional Munsif, Katihar. Thus, this appeal has been preferred against the concurrent findings of both the Courts below in respect of eviction of the plaintiff Ram Peyari Devi (her heirs have been substituted during the pendency of the appeal on her death) filed Title Suit No. 78/81 contending, inter alia, that she was the owner of a pucca building consisting of several rooms situated at Station Bazar (Mangal Bazar) Katihar in Mauza Mirchai, P.S. Katihar, District Katihar appertaining to Tauzi No. 1239, Thana No. 328, Khata No. 274, Plot No. 619, Holding No. 83, Ward No. 15 of Katihar Municipality. It was her further case that the appellant defendant was a tenant of two pucca rooms with pucca platform constructed by the plaintiff and was given in a rental of Rs. 110/ - per month under a separate tenancy. It is also the case of the plaintiff that the defendant appellant entered into a compromise to meet the personal need of the plaintiff of the said premises for her own occupation arrived at in Title Suit No. 129/67 instituted by the plaintiff earlier for eviction of the defendant -appellant from the said premises and the defendant vide compromise agreed to vacate the said premises by the end of May 1980. In the meantime it is the plaintiffs further case that the defendant approached the plaintiff to take a lease of the western pucca room 10' x 10' in measurement for specified period of 8 years and 8 months commencing from 1st October, 1971 to 31st May, 1980 at a rental of Rs. 720/ - in total to be paid at the rate of Rs. 60/ - per month. A lease deed was executed on 10 -9 -71 for one pucca room for specified period of 8 years and 8 months commencing from 1 -10 -71 to 31 -5 -80 and have jointly been executed by the plaintiff and the defendant. When the plaintiff wanted to get the premises vacated at the end of 31st May, 1980 then the defendant refused to give vacant possession and remained occupying the same in a wrongful manner. As such the present suit has been filed for eviction and also for damage at Rs. 840/ - for wrongful occupation of the suit premises from June, 1980 to July, 1981. Thus the suit was filed for ejectment of the defendant on expiry of the lease and also for award of damages as mentioned above.

(2.) THE suit was contested by the defendant by filing written statement contending, inter alia, that the suit was not maintainable and the defendant has also disputed and denied the compromise petition and also the execution of the lease. But, the ownership of the plaintiff over the premises and the relationship of landlord and tenant have not been specifically denied. The parties adduced evidence and during the course of proceeding in the original Court as the signature was denied in the compromise petition and the lease deed those were sent to the hand -writing expert and the report was received against the defendant and the handwriting expert has also been examined. After considering the evidence on record the trial Court decreed the suit for eviction holding that there was a fixed term tenancy between the parties and on expiry the plaintiff is entitled to recovery of possession. Against that an appeal was preferred being Title Appeal No. 25/90 but the same was also dismissed affirming the judgment of eviction and damages passed by the original Court. Hence the present second appeal was preferred. While admitting this appeal under Order XLI, Rule 11 of the C.P.C. a Single Bench of this Court vide order dated 18 -3 -94 framed following substantial questions of law:

(3.) IN the result, this appeal has got no force and hence, the same is rejected but no order as to costs. However, as the tenant appellant is to find out a new accommodation to shift his business two months from this date is hereby allowed to the tenant appellant to vacate the suit premises after searching out an alternative accommodation with condition of payment of rent as per previous terms and conditions for these two months also, failure of which would make the landlord respondents to take delivery of possession of suit premises in execution of decree. Considering the facts and circumstances, no order as to costs.