Prasenjit Mandal - (1.) THIS application is at the instance of the defendants and is directed against the Order No.9 dated September 29, 2007 passed by the learned Civil Judge (Junior Division), 1st Court, Hooghly in Title Suit No.117 of 2007 thereby rejecting the application for stay and the Order No.13 dated December 7, 2007.
(2.) THE plaintiff/opposite party herein instituted a suit being Title Suit No.117 of 2007 for declaration that the plaintiff is a tenant of the suit premises under the defendants, permanent injunction and other reliefs. THE defendants are contesting the said suit by denying the material allegations raised in the application. By the impugned order, the learned Trial Judge has rejected the application for stay. THE learned Trial Judge has also directed the defendant No.3, by the order dated December 7, 2007, to open the main gate of the suit premises within 7 days after passing of the order. Being aggrieved, this application has been preferred. Now, the question is whether the impugned order should be sustained. Upon hearing the learned Counsel for the parties and on going through the materials-on-record, I find that it is a specific case of the defendant that he has been possessing the suit premises as a bona fide tenant since 1972 and he has been enjoying electricity at the suit premises. He has been depositing rent with the rent controller as the landlord refused to take rent from him. Upon perusal of the materials-on-record, it reveals that the plaintiff has already filed some rent receipts and challans to show that he is a statutory tenant and that he is in possession of the suit premises. So, unless there is any positive evidence to the effect that the plaintiff had delivered possession of the suit premises in favour of the defendants, it would be presumed that he is in possession of the suit premises.
(3.) THE defendants have contended that the plaintiff had taken all his belongings from the premises in suit and at present he is residing elsewhere. On the other hand, the plaintiff/opposite party has contended that owing to non-availability of electricity, he has been compelled to take shelter in the house of his daughter and as such, when he came to the premises in suit, he found that the defendant No.3 who was the brother of the landlord and was looking after the premises in suit had locked the main gate of the suit premises causing prohibition of the plaintiff/tenant from making entry into his tenanted premises. Under the circumstances, the impugned order has been passed.;