- (1.) This is an appeal by the defendant against a judgment of affirmance. The suit was instituted on the following allegations. The suit property comprises Premises No. 105, Gopal Lal Tagore Road, P.S. Baranagar, with partly one and partly two storied pucca house, garage, kitchen, mali's room, pucca privy thereon and tank with area measuring about 15 kottahs. The father of the plaintiffs vendor Surendra Pyne as lessor demised to the defendant the suit premises by registered lease for seventeen years commencing from January 1, 1954 to December 31, 1970 on a monthly rent according to English calendar for first ten years at Rs.8/- and thereafter for seven years at Rs.85/- payable by the 10th day of the succeeding month. It was provided in the lease (Exhibit 6) that in the event of default in payment of rent for six months, the lease would stand determined and on being required by the lessor or his heirs or assignees the defendant would peacefully vacate any yield up possession of the suit premises to the lessor.
(2.) Surendra died in testate on March 21, 1957 leaving one Sambhudas as his sole heir. Thereafter by registered conveyance dated July 20, 1962 (Ext. 9) the plaintiff's purchased the property in suit for valuable consideration with all arrears of rent. The defendant was defaulter in payment of rent since March, 1947 to June, 1959. The lawyer of Sambhu by a notice dated July 13, 1959 called upon the defendant to quit the premises on forfeiture of the lease. This demand was renewed on August 17, 1959 but the defendant failed to give vacant possession of the suit premises and accordingly had been in occupation of the suit premises as a trespasser from 1st September, 1957. It was further stated that the defendant forfeited the benefit of section 114 of the Transfer of Property Act for denying plaintiffs title in the suit premises by his reply to the first notice. On the above allegations the plaintiffs instituted the suit on August 7, 1962 claiming a decree for ejectment, rent and mesne profits.
(3.) The suit was contested by the defendant who filed a written statement contending, inter alia, that the plaintiffs had no right to sue and there were no relationship whatsoever between the parties. It as further stated that the lease was not legal, valid or operative in law and was with "suppressio veri and expressio falsi", willful misrepresentation and wrongful inducement. The document was accordingly not binding on the defendant. It was further stated that the sale to the plaintiffs was a sham and fraudulent transaction. The plaintiff's father had inherited no right, title and interest in the suit premises and the plaintiffs in their turn acquired no title to the property by alleged conveyance. The defendant stated that one Gangamani was the owner of the suit property and she died while in possession thereof some time in February, 1950. The defendant came to possess the suit property since March, 1950 long before the alleged lease and had spend over Rs.20,000/- for repairs. It was stated that the plaintiffs had no right to demand rent or vacant possession nor was the defendant under any obligation to comply with the terms of the notice. It was accordingly submitted that the suit should be dismissed.;