Chittatosh Mookerjee, J. - (1.)This appeal is at the instance of the plaintiff whose suit, inter alia, for declaration that he was a real monthly tenant under the respondent No. 1 according to the Hindi calendar in respect of room in the first floor of 6, Banstala Gali and for permanent injunction has been dismissed by the learned Judge, 10th Bench, City Civil Court at Calcutta.
(2.)Admittedly, one Nemkumar Raniwalla, was a tenant under the defendant No. 1 in respect of the said room in the first floor of the premises No. 6, Banstala Gali. It can no longer be disputed that before the commencement of the West Bengal Premises Tenancy Act, 1956 the said Nemkumar Rani-walla had created a sub-tenancy in respect of the suit room in the name of Hariram Agarwalla. who was a son of the original plaintiff, Radheshyam Agarwalla. Hariram had made an application under Section 16 (3) of the West Bengal Premises Tenancy Act and on 25th May, 1957 the Rent Controller, Calcutta had declared Hariram as a direct tenant under the defendant No. 1 at a rent of Rs. 30/- per month according to Hindi calendar. The defendant No. 1 had granted receipts in the name of Hariram Agarwalla up to Phalgoon 2022 S.Y. According to the plaintiff, the defendant No. 1 did not grant any receipt from Chaitra 2022 S.Y. to Jaistha 2023 S.Y. on various pretexts. After the defendant No. 1 had refused to accept the rent remitted by the plaintiff by money-order, Radheshyam Agarwalla claiming to hold the tenancy in the name of Hariram began to deposit rents to the credit of the defendant No. 1 in the office of the Rent Controller. The defendant No. 1 did not withdraw the said rents and he filed in the City Civil Court at Calcutta Ejectment Suit No. 825 of 1967 against Harintm Agarwalla for evicting him from the suit premises.
(3.)On 18th July, 1967 the plaintiff Radheshyam had filed an application for permission to contest the said Ejectment Suit No. 825 of 1967 inter alia, on the ground that he was the real tenant of the suit premises. He had also made an application under Section 17 (2) of the West Bengal Premises Tenancy Act alleging that the rent was Rs. 30/- and not Rs. 33/- per month. On 21st Sept., 1967 the learned Judge of the City Civil Court rejected the plaintiff, Radheshyam's prayer for impleading him in the said ejectment suit, inter alia, holding that in a suit for recovery of possession against a tenant, the questions of title and benami could not be decided. He further held that Radheshyam had miserably failed to show any prima facie document regarding his alleged tenancy and it was open to him to institute a proper suit for declaration of his tenancy right and other consequential reliefs. The learned Judge, 4th Bench, City Civil Court by his subsequent order dated 28th Sept., 1967 had also rejected Radheshyam's petition under Section 17 (2) of the West Bengal Premises Tenancy Act. Thereafter, Hariram, who was the defendant in the said ejectment suit, appeared and on 16th Nov., 1967 obtained leave from the Court to contest the said ejectment suit. He had also filed (sic) petition under Section 17 (2) of the West Bengal Premises Tenancy Act and also under Ordinance V of 1967. Hariram had filed his written statement but on 4th June, 1968 his petition under Section 17 (2) was dismissed (sic) default. On 25th July, 1968 he had obtained adjournment of the peremptory hearing of the suit. In the meantime, on 24th Aug., 1968 the plaintiff, Radheshyam, instituted the instant suit, inter alia, for declaring that his son. Hariram, the defendant No. 2, was his benamidar and that the plaintiff was the real monthly tenant in respect of the suit premises and for further declaration that the decree passed in the aforesaid Ejectment Suit No. 825 of 1967 was not binding or executable against the plaintiff. He also prayed for permanent injunction to restrain the defendants 1 and 2 from proceeding with the said ejectment suit and also for restraining them from interfering with the plaintiff's possession of the suit premises.