- (1.) This appeal is directed against judgment and decree dated February 28, 2007 passed by the learned Judge, 11th Bench, City Civil Court at Calcutta in Title Suit No.76 of 1999. By virtue of the judgment and decree, the above suit was dismissed on contest against respondents/defendant Nos.1 and 2 and ex parte against the rest.
(2.) The plaintiffs/appellants filed the aforesaid suit being Title Suit No.76 of 1999 in the City Civil Court at Calcutta praying for declaration that the respondent/defendant Nos.1 and 2 were trespassers in respect of shop room No.3, Gate No.5 on the ground floor at 167, Dharmatalla Street, P.S. Bowbazar, Calcutta-700072 as also praying for a decree for recovery of possession of the suit premises by evicting the respondent/defendant Nos.1 and 2 and the case made out by the appellants were as follows in a nutshell:- (i) The suit premises being shop room No.3, Gate No.5 on the ground floor at 167, Dharmatalla Street, P.S. Bowbazar, Calcutta-700 072 belonged to respondent No.3. One Subodh Kumar Basu Mullick was the recorded tenant in respect of the suit premises under the respondent No.3; (ii) During continuation of the above tenancy, the aforesaid Subodh Kumar Basu Mullick inducted one Manoranjan Pal Chowdhury as a sub-tenant in the suit premises who used to carry on his business from the suit premises; (iii) In course of his work, the aforesaid Manoranjan Pal Chowdhury employed the respondent Nos.1 and 2 as employees of his business; (iv) In or about April, 1990, the aforesaid Subodh Kumar Basu Mullick surrendered the tenancy of the suit premises to the landlord, namely, the respondent No.3 upon revocation of sub-tenancy granted to the aforesaid Manoranjan Pal Chowdhury; (v) The aforesaid Manoranjan Pal Chowdhury had also surrendered his right, title and interest in favour of the aforesaid Subodh Kumar Basu Mullick prior to surrender being made to the landlord, namely, respondent No.3; (vi) Upon acceptance of the surrender of tenancy, the respondent No.3 let out the suit premises in favour of the appellants from the month of May, 1990, who used to pay monthly rent of Rs.150/- in respect of the suit premises taking peaceful possession; (vii) After creation of the above tenancy, the respondent Nos.1 and 2 approached the appellants for their employment under them since the appellants were carrying on same business that of the erstwhile tenant of the suit premises. They accepted the above request and allowed the respondent Nos.1 and 2 to work under them; (viii) According to the appellants, the above arrangement continued smoothly since May, 1990. The respondent Nos.1 and 2 were allowed by the appellants to stay in the suit premises at night due to heavy work load. The respondent Nos.1 and 2 were allowed to retain the keys of the suit premises out of good faith; (ix) From middle of 1992, the appellants came to know that the respondent Nos.1 and 2 were carrying on work of similar and same nature being entrusted to them from outside agency apart from the work assigned to them by the appellants or in other words, the respondent Nos.1 and 2 were trying to set up a business of their own in the suit premises; Hence the suit.
(3.) The aforesaid suit was contested by the respondent Nos. 1 and 2 by way of filing written statement denying all the material allegations made in the plaint and their defence were as follows:- (i) The suit was not maintainable in law and the same was false, fabricated and manufactured for the purpose of harassing them; (ii) The appellants had no locus standi to file the suit as they had no right, title and interest over the suit premises and they were in possession of the suit premises; (iii) The respondent Nos.1 and 2 denied the allegation of inducting one Manoranjan Pal Chowdhury in the suit premises by the aforesaid Subodh Kumar Basu Mullick or that the aforesaid Manoranjan Pal Chowdhury used to carry on business from the suit premises or that they were employees under him; (iv) According to the respondent Nos.1 and 2, the aforesaid Subodh Kumar Basu Mullick and the respondent Nos.1 and 2 were the joint tenants in respect of the suit premises at a monthly rental of Rs.50/- payable according to English calendar month to the respondent No.3. Though the aforesaid Subodh Kumar Basu Mullick and the respondent Nos.1 and 2 used to pay the rent of the suit premises at the proportionate rate of share to the respondent No.3, the rent bills were issued in the name of the said Subodh Kumar Basu Mullick according to the mutual understanding between them; (v) According to them, the aforesaid Subodh Kumar Basu Mullick stopped running business from the month of January, 1992; (vi) The respondent Nos.1 and 2 filed a Title Suit No.1675 of 1992 in the City Civil Court at Calcutta against Subodh Kumar Basu Mullick and the respondent No.3 as Subodh Kumar Basu Mullick in collusion with and in conspiracy of the respondent No.3 made attempt to surrender the right, title and interest of the suit premises to the respondent No.3. The above title suit was decreed on March 13, 2006 ex parte in part against the aforesaid Subodh Kumar Basu Mullick and the respondent No.3 and dismissed against the appellants. The aforesaid Subodh Kumar Basu Mullick and the respondent No.3 were restrained by a decree of permanent injunction from dispossessing the respondent Nos.1 and 2 from suit premises otherwise than in due course of law. (vii) The defence of the respondent Nos.1 and 2 was that they were neither tenants nor licensee under the appellants and nor were they ever inducted by the appellants and so, there was no relationship between the appellants and the respondent Nos.1 and 2 and as such, the appellants had no right to evict them. The respondent Nos.1 and 2 had full and absolute right to occupy the suit premises until and unless anything was done or any action was taken by the landlord, namely, the respondent No.3.;