Bhan, J. - (1.) This appeal by grant of special leave has been filed by defendant No.1 the appellant herein, against the judgment and decree passed by the High Court of Calcutta. By the impugned judgment the High Court has restored the decree for recovery of possession and mesne profits with regard to Plaint B Schedule property in favour of the plaintiffs/original respondent Nos.1 and 2 (since deceased and now represented by their legal representatives), setting aside the judgment of the Appellate Court in Title Appeal No. 52/1976 and restoring that of the Trial Court.
(2.) Facts necessary for the disposal of this appeal are as under : One Hangeswar alias Narendra Nath Singha on 4th February, 1936 obtained settlement/lease-hold interest for A Schedule property, i.e. premises No.77, Benaras Road, Howrah admeasuring 3 Bighas including a tank from Sear Sole Raj Estate. He raised certain constructions including sheds on B Schedule property, a part of A Schedule property and set up an iron casting foundry under the name and style of D.L. Singha and Company, which was run by him till his death. After his death on 31st May, 1954, his legal heirs, original respondent Nos.1 and 2 settled the whole karbar (business) of iron casting foundry along with land and all fittings and fixtures in favour of one Kalipada Mondal and Bahar Bala Dassi on 27th July, 1954, for a period of five years starting with the month of Baisakha 1361 B.S. Bangabda Samvat (for short "B.S.") (Bangla year) to Chaitra 1365 B.S. at a monthly rent of Rs. 466/3 annas. By successive transfers, interest of original lessees/settlees came to be acquired by the appellant on 18th January, 1956 (A.D.) Settlement in favour of the appellant came to an end by efflux of time in Chaitra 1365 B.S., equivalent to, 13th April, 1959. Appellant failed to vacate the B Schedule property as well as to pay the rent after 1363 B.S.
(3.) Original plaintiff Nos.1 and 2 instituted Suit No.11/1959 against the appellant but the same was withdrawn due to some formal defects with liberty to file a fresh suit. After the withdrawal of said suit, appellant trespassed over C Schedule property, i.e. remaining A Schedule property consisting of a tank and its three banks. Appellant filled up the tank, raised certain structures thereon and extended its work over the said property.;