B.P.Banerjee, J. - (1.) This is an appeal against the judgment and decree dated 17th May, 1990 passed in Suit No. 514 of 1984 by the learned trial Judge P. K. Majumdar, J. whereby the learned trial Judge decreed the suit for recovery of vacant possession of the premises No. 76/3, Bidhan Sarani, Calcutta.
(2.) That fact of this case in short is that one Kumar Dhirendra Krishna Deb Sehadur was the absolute owner of premises No. 76/3, Bidhan Sarani, Calcutta-700006 on which stands a cinema hall and the area of the land is about 1 Bigha 8 Cottahs. By registered deed of lease the said Kumar Dhirendra Krishna Deb Sahadur let out the premises No. 76/3, Bidhan Sarani, Calcutta in favour of Prakash Chandra Nan and Sudhir Chandra Nan for a period of 21 years commencing from 2nd March, 1963 at a monthly lease rental of 2,800/-. Under the said lease the lessor was given right to sub-let the premises in question. On 28th February, 1968 the said Dhirendra Krishna Deb Bahadur died leaving behind his last will and testament dt. 2nd March 1964 whereby the said lessor devised and bequeathed undivided (Half) share in the said premises No. 76/3, Bidhan Sarani, Calcutta in favour of Biswanath Deb and the other undivided? (half) share in favour of Debasis Deb and Subhasis Deb. In 1968 Prakash Chandra Nan who was one of the lessess died leaving behind him surviving Sri Amar Nath, Defendant No. 1, as his sole heir. In 1970 the Calcutta High Court granted probate of the last will and testament of the said lessor, Kumar Dhirendra Krishna Deb Bahadur to its executors. The other lessee, Sudhir Chandra Nan died leaving behind his surviving widow and daughters who are defendants Nos. 2 to 7. On 26th May, 1977 the executors of the last will of the said Lessor duly assented to the legacies in favour of Biswanath, Debasis and Subhasis who were the plaintiff-opposite parties. On 16th February, 1981 the appellant requested the plaintiffs landlords to issue rent receipts in favour of the appellant instead of P. C. Nan and S. C. Nan as both of them have died long before. In such letter it was also stated that "we like to mention here that you are accepting rent by A/C payee cheques from Screen Corporation (1938) P. Ltd. As such, we think there should not be any difficulty in issuing receipts to the company." On 16th February, 1983 the appellants wrote letter to Kamal Krishna Deb who was the father of the plaintiff Nos. 2 and 3, Debashis Kumar Deb and Subhasis Deb. In the said letter the appellants confirmed to have received a letter sent by Kamal Krishna Deb addressed to Sudhir Ch. Nan and Prakash Ch. Nan who were the original lessees.
(3.) By the notice dated 31st January, 1984 the plaintiff opposite parties called upon the defendants appellants to quit and vacate and make over peaceful possession of the demised premises upon termination of lease on 1st March, 84. It was also alleged by the plaintiff opposite parties that notwithstanding the termination of the said lease the defendant Nos. 1 to 7 were in wrongful. possession of the said premises as a trespasser therein. The plaintiff-opposite parties' further case was that the appellant, who was defendant in the suit. The Screen Corpn. (1938) Pvt. Ltd. is said to be in the possession of the premises under the defendant Nos. 1 to 7 and therefore defendant No. 8 also was not entitled to remain in possession after the expiry of the said lease. In the suit the plaintiff also claimed damages for a sum of Rs. 1,05,358/-. The said suit was not contested by the defendant Nos. 1 to 7 but was contested by defendant No. 8. The case of the defendant No. 8 who is the appellant in this appeal is that after the death of Prakash Chandra Nan who died in the year of 1972 the plaintiff-opposite parties predecessor -in-interest by mutual agreement accepted the appellant as its tenant in place and stead of the original losses Prokash Chandra Nan and Sudhir Chandra Nan deceased and it was also the ease of the appellant that since death of Prokash, the appellant alone became responsible for making payment in respect of the suit premises to the plaintiff-opposite parties who were the owner of the property. It was also alleged by the appellant that from November, 1973 rents were paid by cheques and each of such payment was duly accepted by the plaintiff-opposite parties. Appellant's further case was that from the dealings and transaction with the parties and/or contract it was understood by all concerned that the original losses and/or their heirs and legal representatives surrendered the said leasehold interest which was a created under the lease deed dated 28th June, 1963 and the appellant continued to occupy the said premises since then as a monthly tenant governed under the provision of West Bengal Premises Tenancy Act; 1956 and not as a sub-lessee governed under the provision of the Transfer of Property Act. In the said suit several issues were framed including the issue whether the original lessees or the heirs and legal representatives had surrendered their respective interest under the lease dated 28th June, 1963 and whether the plaintiff-opposite party accepted the appellant as a monthly tenant as claimed. Further the issue was whether the plaintiff opposite parties were estopped from denying the tenancy of the apellant in respect of the suit premises. Several witnesses were examined by the learned trial Judge and the learned trial Judge on consideration of the evidence and documents before the court below held that there was no surrender of the lease by the original lessee or their heirs and legal representatives as claimed by the appellant. It was further held that the appellant were never accepted as a monthly tenant by the plaintiff opposite parties that there was no basis for making such a claim. The learned trial Judge also found on the basis of. the evidence on record that there was no question of any estoppel in the matter and that there was circumstances which suggested creation or acceptance of tenancy of the appellant by the plaintiff-opposite parties.;