- (1.) The appeal is against a judgment and decree of December 20, 2001 in a suit instituted in 1964.
(2.) The matter pertains to a property at 30, Burtolla Street in Burrabazar. The case made out in the plaint, in short, is that one Awadh Behari Tiwari, the predecessor-in-interest of the plaintiffs, was inducted as a monthly tenant in respect of the premises in question. Such induction was in or about the year 1955. It appears that in a mortgage suit previously brought against the original first defendant, the landlord, a receiver was appointed by this Court; but the owner of the property was given leave to induct any tenant as long as the rent earned went to the receiver towards discharge of the mortgage debt. Thus, the rent would be paid by the predecessor-in-interest of the plaintiffs and, upon the death of such predecessor, by the plaintiffs, to the receiver. According to the plaintiffs, shortly after their predecessor died in April, 1964 and the plaintiffs returned after completion of the religious rites in their native place in Bihar, the original first defendant approached the widow of Awadh Behari and his eldest son with a proposal that the existing tenancy be surrendered and a fresh tenancy be created so that the records before the receiver would carry the names of the new tenants upon the death of the original tenant.
(3.) Though the plaint claims that such representation was apparently made by the original first defendant to the widow and the eldest son of Awadh Behari on or about May 7, 1964, it appears that a document of surrender of tenancy was executed with the date attributed thereon to be April 27, 1964. It is the case of the plaintiff-appellants that on June 1, 1964, a brother of the original landlord carried a letter of such date evidencing the creation of a fresh tenancy in favour of the heirs of Awadh Behari and the letter of surrender was handed over to such brother of the original landlord simultaneously with the document pertaining to the creation of the new tenancy dated June 1, 1964 being obtained. According to the plaint, shortly thereafter the plaintiffs attempted to tender rent to the receiver, but on or about June 17, 1964, the receiver refused to accept rent on the ground that the plaintiffs had surrendered the tenancy by the document dated April 27, 1964 and such document was duly addressed to the receiver who was the de jure owner of the property. The receiver also informed the plaintiffs that following the plaintiffs' surrender of their tenancy, a fresh tenancy had been created by the landlord in favour of his niece Gita Rani Khaitan.;