P.N.MOOKERJEE, J. -
(1.) THIS appeal is by the defendant No. 1 and it arises out of a suit which was originally instituted for ejectment, mesne profits (damages or compensation for use and occupation) and compensation or damages for loss or injury, caused to the disputed premises.
(2.) THE claim was laid in the plaint at Rs. 14997 -8 -0 and comprised the following items, namely, ejectment, valued at Rs. 1410/ - on the basis of the monthly rental of Rs. 117 -8 -0, mesne profits or damages for use and occupation at Rs. 587/ -and the remaining item of compensation or damages for loss or injury, caused to the disputed premises at Rs. 13,000/ -.
The suit was filed on September 19, 1951, and it was decreed by the learned Subordinate Judge on June 26 1953. There were three defendants in the suit, namely, defendant No. 1 who was the immediate tenant under the plaintiff landlord, defendant No. 2, who was a sub -tenant under defendant No. 1 in respect of the entire disputed premises and defendant No. 3, who was a sub -tenant under defendant No. 2 in respect of a Portion or a part of the said premises. So far as the ejectment decree was concerned, the defendant No. 3 moved this Court in appeal (F. A. No. 232 of 1953) but that appeal was eventually dismissed. Defendant No. 1 preferred the present appeal (F. A. No. 79 of 1954), complaining against the decide for damages or compensation for Rs. 7,000/ -, which was made by the Court below against all the defendants, for the loss or injury, caused to the disputed premises, as aforesaid. It is this claim and this part of the decree which is the matter for consideration in this appeal. 3. The facts, which have given rise to this appeal, have already been broadly stated but, for convenience of understanding, and tor appreciating the precise point in dispute it is necessary to set out the same in some particular details.
(3.) THE disputed property comprises premises No. 25, Rakhal Das Auddy Road, formerly premises Nos. 17 and 17/1 Bridge Road, Alipore containing a brick -built godown, partly one -storied and partly two -storied, with C. I. roof. Admittedly defendant No. 1 was the monthly tenant under the plaintiff in respect of the above premises at a monthly rental of Rs. 117 -8 -0 per month, payable according to the English Calendar. It is the plaintiff's allegation that the suit premises were let out to the defendant No. 1, as aforesaid only for the purposes of their being used as a godown for stacking and storing commodities and that the said defendant No. 1 had no right of subletting the same to defendant No. 2. without the plaintiff's consent and, then, defendant) No. 2, again sublet a part of them to defendant No. 3 similarly without the plaintiff's consent and the suit premises were used by these sub -tenants (defendants Nos. 2 and 3) for purposes other than the purpose of the original tenancy, namely, of defendant No. 1, and they were used for residentialpurpose and were not restricted to user as a godown only as conditioned under the terms of the said original tenancy. That, in the course of this unlawful user, which included cooking on the wooden floor of the disputed premises, and through negligence on the part of the sub -tenant or sub -tenants, the suit premises were set on fire and the godown was burnt down causing loss to the plaintiff to the extent of Rs. 13000/ - as estimated by his expert Mr. K.C. Bose, Builder and Contractor. The plaintiff's claim for damages for loss or injury to the disputed premises was based on the above allegation or allegations and, to this part of the plaintiffs claim, which alone is material for our present purpose, the defence was that there was no contravention of the term as to user, as even in the original tenancy of defendant No. 1, there was no restriction on user but it was an ordinary monthly tenancy, whereunder the disputed premises were usable for inter alia residential Purpose and also for godown purposes, that the fire in question was accidental and there was no negligence in the matter on the part of any of the defendants and no contravention of any law or any contract to involve them in any liability or responsibility for the same or for the damages, caused thereby. The defendants also controverted the plaintiff's estimate of damages and characterised it as exaggerated and excessive. In the written statement of defendant No. 1 it appears to have been stated that the damages could not, on any account, be more than Rs. 5000/ - but this figure was later alleged to be a mistake, due to clerical error or accidental slip for Rs. 500/ -.;