CHANDI CHARAN KOLAY Vs. SWARN SINGH

JUDGEMENT

(1.) THE defendant in a suit for declaration of title and recovery of possession is the appellant in this Second Appeal filed under Section 100 of the Code of Civil Procedure. The plaintiffs came to Court claiming recovery of possession of the building in question including a shop room on the plea that the said building including the shop room was held by one Ashutosh Ganguli as allotted by TISCO. Ashutosh Ganguli had gifted that property to Swapan Kumar Chakraborty and DilipChandra Chakraborty and they had in turn assigned the property to the plaintiffs on 25.9.1993 and thus the plaintiffs had acquired title to the property. The defendant was let into the building as a tenant by Ashutosh Ganguli and he continued to be a tenant. Though intimation was given to him about the assignment of the suit property to the plaintiffs and rent from the date of assignment was demanded, the defendant defaulted in payment of rent. The plaintiffs were, therefore, entitled to recover possession of the building. The suit was valued based on the market value of the property in the possession of the defendant. There was also a claim for recovery of arrears of rent.

(2.) BEFORE the trial Court, in addition to producing the assignment in their favour and other documents showing the attorn -ment by Ashutosh Ganguli to TISCO and the deed of gift, executed by him, the plaintiffs also marked the plaint in Title Suit No. 87/83 filed by the present defendant against Swapan Kumar Chakraborty, Dilip Chandra Chakraborty and the sons of Ashutosh Ganguli seeking a declaration of his tenancy right under Ashutosh Ganguli and another plaint in Title Suit No. 32/87 filed by defendant against the two Chak -rabortys, for a declaration of his title and for a permanent injunction restraining them from interfering with his possession of the building on the plea that Swapan Kumar Chakraborty and Dilip Chandra Chakraborty never came into possession of the property since though the suit land was allotted in the name of Ashutosh Ganguli by TISCO, in fact the said Ashutosh Ganguli was only a benamidar for himself and that he was the real owner of the property.

(3.) THE plaintiffs also examined five witnesses in support of their case. The defendant, in his turn, examined seven witnesses. The trial Court, on an appreciation of the evidence in the case including the admissions in the two plaints filed by the defendant, came to the conclusion that Ashutosh Ganguli had acquired title to the property from TISCO, and had gifted it to the two Chakrabortys, who had assigned the property to the plaintiffs and thus the title to the property including the room in question, vested in the plaintiffs. The trial Court taking note of the admissions of the defendant in Title Suit No. 87/83 and on an appreciation of the evidence of the plaintiffs and the defendant, and the witnesses examined, came to the conclusion that the plaintiffs had proved that the defendant was holding the building as a tenant under Ashutosh Ganguli and that the relationship of landlord and tenant continued and the plaintiffs were therefore entitled to recover possession of the building from the defendant. Thus a decree for eviction was passed.