V.D. Bhargava, J. - (1.) This is a defendant's appeal in a suit filed by the plaintiff for ejectment and recovery of Rs. 1141|8/- as damages for use and occupation from 15th May, 1949 to 10th April, 1951, at the rate of Rs. 50/- per mensem. Pendentelite and future damages were also claimed at the same rate.
(2.) According to the plaint the plaintiff had let out the entire shop to Mitter San, who was the defendant in the suit. He died during the pendency of the suit and his widow, Smt. Asha Devi, the present appellant, had been brought on the record. The shop was given on an annual rental of Rs. 5001- on the 26th of January, 1944, for a fixed period of five years, but that was to be effective from the 15th of May, 1944. According to the plaintiff the tenancy came to an end on the 15th of May, 1949, that is, after the expiry of five years and the defendant became liable to ejectment. Another ground was that the defendant had sublet the shop to defendants nos. 2 to 4 without the consent of the plaintiff and hence he was liable to ejectment.
(3.) As I have already mentioned Mitter Sen was alive when the suit had been filed. He in his written statement had said that the shop was given to him for five years and he had actually paid Rs. 2500/- as rent in advance for five years. Later on the plaintiff colluded with Sumat Pershad and others, who were tenants in the shop and prevented him from taking possession of the same. The defendant, therefore, had to bring a suit and incur an expenditure of about Rs. 2500/- and was then able to get possession only on 7th May, 1947. Therefore, the period of five years should begin from the 7th of May, 1947. He also contended that he had got the shop partitioned at a cost of Rs. 2000/- and it was with the con-sent of the plaintiff that he had let it out to defendants Nos. 2 to 4; that the period of five years had not expired for which rent had already been paid and, therefore, the suit was premature. Defendants Nos. 2 to 4 did not contest the suit.;