Narayan Chandra Sil, J. - (1.) This appeal is directed against the judgment and decree dated 29.6.1995 passed by Shri N.N. Ghosh, learned Assistant District Judge, Fifth Court, Alipore, 24 - Parganas (South) in connection with Title Appeal No. 415 of 1989 reversing the judgment dated 31.8.1989 passed by Shri J.C. Maulik, learned Munsif, Fifth Court, Alipore, 24-Parganas (South) in connection with Title Appeal No. 41 of 1989.
(2.) The suit before the trial Court was for declaration of tenancy and injunction. The trial Court after hearing both the parties dismissed the suit on contest. The lower appellate Court allowed the appeal setting aside the judgment and decree of dismissal of the suit passed by the learned Munsif.
(3.) The facts of the case have been fully described by both the Courts below in their respective judgments and as such I shall refrain myself from going details into the facts. Thus, the facts of the plaint case in brief is that one Hemendra Nath Chowdhury, predecessor of the plaintiffs was the tenant of the suit premises and during the continuance of his tenancy he fell ill in or about 1955 and thus in order to come round he started living at Jhargram keeping his entire family in the suit premises. Subsequently, Hemendra Nath died and the tenancy of the suit premises devolved upon the plaintiffs. Defendant No. 1 is the son of the original landlord Manicklal Seal since dead. Initially, the other sons of Hemendra Nath were made proforma defendants but subsequently their names had been expunged. Proforma defendant No. 2 Shri K.P. Chowdhury is the maternal uncle for the plaintiffs and their local guardian in the absence of Hemedra Nath. In 1956, the defendant No. 2 informed the mother of the plaintiffs that the landlord was demanding higher rents to which the mother of the plaintiffs agreed to pay Rs. 1,200/- per month with effect from 1956 and all rents thereafter were not being paid through Shri K.P. Chowdhury to the defendant No. 1, but the rent receipts were being retained by Shri K.P. Chowdhury. In February, 1976 the plaintiffs came to know from defendant No. 2 that an ejectment decree was passed in connection with Title Suit No. 15, of 1960 and then on further enquiry they came to know that the defendant No. 2 got his name written in the rent receipt at a rental of Rs. 125/- per month and lost the ejectment suit. Thereafter, the defendant No. 2 filed a suit for specific performance against the defendant No. 1 which he had also lost. It is the specific case of the plaintiffs that Hemendra Nath never surrendered the tenancy to the defendant No. 1 and the said tenancy continued till his death and after his death it was devolved upon the plaintiffs and the defendant No. 2 had no occasion to reside in the suit premises. The case of the defendant No. 1, on the other hand, is that Hemendra Nath put Shri K.P. Chowdhury into the suit premises as sub-tenant after he had surrendered the tenancy in favour of the defendant No. 1 and having left for Jhargram for good. Thereafter on request of Hemendra Nath defendant No. 2 was inducted as a tenant in the suit premises. Subsequently ejectment suit being Title Suit No. 15 of 1960 was filed against the defendant No. 2 and the suit was decreed and the defendant No. 2 lost the case in appeal even before the High Court. Thereafter being unsuccessful the defendant No. 2 filed a case of specific performance of agreement against the defendant No. 1 and there also the defendant No. 2 lost the case before the trial Court as well as before lower appellate Court and before the High Court. The judgment of the High Court was reported in the case of Manicklal v. K. P. Chowdhury, AIR 1976 Calcutta 115. It is the further case of the defence that thereafter the defendant No. 2 set up the plaintiffs to institute the present suit only with a view to stalling the execution of the decree being Title Execution Case No. 66 of 1976 passed in connection with Title Suit No. 15 of 1960.;