I.P.MUKERJI, J. - (1.) THIS is a Chapter XIIIA application made by the plaintiff. He seeks a final judgment and decree in his suit for possession of the third floor of premises No. 68/A/1B Nimtolla Ghat Street, Kolkata �700006 (hereinafter referred to as "the said premises "). He also claims an enquiry into mesne profits and a decree therefor.
(2.) THE cause of action arises in this way. The original owner of the said premises was a Tara Devi Jalan. On 26th December, 1967 she granted a lease of the said premises for 21 years to Uma Shankar Jalan commencing on 26th December, 1967 at the rent reserved by the deed of lease. Now, Clause 12 of this lease empowered the lessee to give two months ' notice to the lessor for vacating the said premises. Whatever may have been the construction of the lease made by Tara Devi Jalan, a suit was instituted by her in this Court being Suit No. 177 of 1989 for eviction of the lessee Uma Shankar Jalan on the ground that the lease had expired by efflux of time. In that suit a Chapter XIIIA application was taken out by the plaintiff. This Court by a decree dated 6th July, 1989, in that application, ordered the eviction of Uma Shankar Jalan. Uma Shankar preferred an appeal from this judgment and decree before the Division Bench of this Court, which by its judgment and order dated 10th November, 1994 set aside the decree based on the Chapter XIIIA application. On 7th December, 1994 Uma Shankar filed his written statement in the suit. On 25th December, 1999 Uma Shankar died. The present defendants are the heirs of Uma Shankar, the first and second defendants being his sons and the third and fourth defendants being his daughters. Now, Tara Devi Jalan did not feel interested to retain the said premises anymore. On 13th February, 2001 she made a gift of the said premises to the present plaintiff. The records show that the above suit (Suit No. 177 of 1989) is still pending in this Court. Before proceeding further with the narration of events it is to be noted that the defence which Uma Shankar Jalan had taken in the suit was that, since by Clause 12 of the lease, the lessee had the option to determine the lease earlier, he was protected by the West Bengal Premises Tenancy Act, 1956. On 10th July, 2001, the West Bengal Premises Tenancy Act, 1997 came into force. On 12th May, 2008 Tara Devi Jalan died. The present suit C.S. No. 97 of 2011 was then instituted by the donee of the said premises being the present plaintiff for eviction of the heirs of Uma Shankar Jalan who are the defendants in this suit. RIVAL CONTENTIONS: Plaintiff: On the basis of Clause 12 of the said lease the plaintiff accepts the contention of the predecessor-in-interest of the present defendants that the initial letting out was protected by the Rent Act of 1956. The new Rent Act came into force on 10th July, 2001. Section 2(g) of the said Act defines a tenant as follows: "2.(g) "tenant " means any person by whom or on whose account or behalf the tenant of any premises is or, but for a special contract, would be payable, and includes any person continuing in possession after termination of his tenancy and, in the event of death of any tenant, also includes, for a period not exceeding five years from the date of death of such tenant or from the date of coming into force of this Act, whichever is later, his spouse, son, daughter, parent and the widow of his predeceased son, who were ordinarily living with the tenant up to the date of death of the tenant as the members of his family and were dependent on him and who do not own or occupy any residential premises, and in respect of premises let out for non-residential purpose his spouse, son, daughter and parent who were ordinarily living with the tenant up to the date of his death as members of his family, and were dependant on him or a person authorised by the tenant who is in possession of such premises but shall not include any person against whom any decree or order for eviction has been made by a Court of competent jurisdiction: Provided that the time-limit of five years shall not apply to the spouse of the tenant who was ordinarily living with the tenant up to his death as a member of his family and was dependent on him and who does not own or occupy any residential premises, Provided further that the son, daughter parent or the widow of the predeceased son of the tenant who was ordinarily residing with the tenant in the said premises up to the date of death of the tenant as a member of his family and was dependent on him and who does not own or occupy any residential premises, shall have a right of preference for tenancy in a fresh agreement in respect of such premises on condition of payment of fair rent. This proviso shall apply mutatis mutandis to premises let out for non-residential purpose. "
(3.) ACCORDING to this sub-section upon the death of the tenant, inter alia, his sons and daughters who were ordinarily living with him up to the date of his death as the members of his family and were dependant on him and who did not own or occupy any residential premises would also be considered to be tenants for a period of five years from the date of death or from the date of coming into force of this Act whichever was later. Therefore, upon the death of the original tenant Uma Shankar Jalan on 25th December, 1999, the tenancy came to an end on the expiry of five years from the date of coming into force of the new Act. Hence, the defendants, assuming them to be the heirs of Uma Shankar Jalan and dependent on him and having no other place of residence have lost their right to reside in the said premises. So, they should be evicted. Defendants: The suit of 1989 is still pending. Both the plaintiff and the defendant of that suit are dead. The present plaintiff made no effort to cause substitution of the parties. Therefore, the suit has abated. For the above reason, the plaintiffs were precluded from instituting the present suit. Uma Shankar Jalan died on 25th December, 1999 before coming into force of the new Act on 10th July, 2001. Since Uma Shankar was a monthly tenant and died during the operation of the old Act, valuable rights had accrued to the present defendants, such right being the right to succeed to the tenancy of Uma Shankar Jalan. Such right was protected by Section 8 of the Bengal General Clauses Act 1897. No notice determining the tenancy was given by the plaintiff. Discussion: The issues between the parties in the suit of 1989, assuming the same to be pending in the records of this Court, is: whether the original defendant, Uma Shankar was a tenant under the West Bengal Premises Tenancy Act, 1956 or was the lease under the Transfer of Property Act, 1882? Let us for the sake of argument assume that the suit as of today stands decreed in favour of the defendants herein being the successors-in-interest of the original defendant. The decree which could be passed in their favour, at the highest would be that they were monthly tenants of the said premises from 26th December, 1967.;