Arun Kumar Mitra, J. - (1.) This appeal has been preferred challenging the judgment and decree dated 12th May, 1986 passed by the Learned Additional District Judge, 11th Court at Alipore in Title Appeal No. 504 of 1985 affirming the judgment and decree dated 30th April, 1985 passed by the learned Munsif, 1st Court, Sealdah in Title Suit No. 38 of 1985. This appeal is in connection with suit for permanent injunction. The plaintiff made out a case which in summary can be stated in the manner as follows : By virtue of two deeds executed on 3-7-1975 and registered on 4-7-1985 the plaintiffs became the sole owners of the suit property. The defendant was a tenant under the previous owner Sk. Saleh Mistry in respect of one storeyed building and an asbestos shed in the Premises No.7, Lower Range, P.S. Beniapukur at a monthly rental of Rs. 100/- payable according to the English calendar month. By the letter of Attornment dated 4.7-1975 Sk. Saleh Mistry advised the defendant to attorn the plaintiffs as his landlords and also requested him to pay rent to the plaintiffs since the date of purchase. The defendant duly acknowledged the said notice but he has failed and neglected to pay rents to the plaintiffs. He is a defaulter from 4th July, 1973 to November 1973. He has stored up bricks, cement, stone chips etc. for creating new rooms on the existing one storeyed structure in order to change the nature and character of the tenancy and as such the suit had to be filed. The defendant entered appearance and contested the suit by filing written statement. In the written statement the defendant denied all the averments made in the plaint. His contention on the other hand, is that Saleh Mistry let out to the defendant one garage in a dilapidated condition and one vacant land measuring 32 ft. 30 ft. situated at the back portion in the Premises No. 7, Lower Range,Calcutta at a fixed monthly rental of Rs. 100/- as a thika tenant by an agreement dated 30-10-1967 and kept possession of the same. In the said agreement there is a distinct power to the tenant to use the main entrance of the said premises for the purpose of ingress and egress and also a right was given to the defendant to construct such building in the vacant portion of the land, the defendant was permitted to make constructions and building will be the property of the defendant as was stated. The rent was realised by Saleh Mistry upto 1972 and on 4-10-1972 by a supplementary agreement this defendant purchased from the said Saleh Mistry the dilapidated structure of the garage at a consideration of Rs. 2,000/- and in the said agreement Saleh Mistry has clearly admitted that the defendant is a thika tenant and not a tenant under the West Bengal Premises Tenancy Act. In 1969 the defendant started construction of a room without sanction from the Corporation of Calcutta and a notice was served upon him by the Municipal Corporation and the defendant stopped the work. Subsequently, on 21-2-1970 a notice under Section 414(1) of the Calcutta Municipal Corporation Act was served upon him and on hearing an order was passed for providing a side space of 4ft. instead of 3ft. demolishing and remodelling suitably and on payment of Rs. 654/- as the necessary charge. The defendant gave the reply to the letter of attornment. He sent the rent to the plaintiffs by money order which they refused to accept and as such the defendant is depositing the rent with the Rent Controller. He never neglected to pay the rents, he is not erecting new rooms on the existing one storeyed building, the plaintiffs have not acquired any title in the said property by the alleged purchase from Saleh Mistry, as whatever right, title and interest Saleh Mistry had in the suit property, was subject to attachment at the instance of the State of West Bengal and the alleged purchase by the plaintiffs is void and inoperative. The plaintiffs have no locus standi to file this suit, Saleh Mistry was the superior owner of the thika holding held and possessed by the defendant and even if the plaintiffs' purchase is established in law, they purchased only the rent receiving interest of Sk. Saleh Mistry and under the amended provision of the Calcutta Thika Tenancy Act rent receiving interest has vested in the State. The State of West Bengal is a necessary party. Hence the suit is liable to be dismissed with costs.
(2.) On the above pleadings the learned trial Judge framed the following issues : (i) Is the suit maintainable in its present form (ii) Is the defendant a thika tenant (iii) Has the building been constructed by the defendant on his thika tenanted land (iv) Are the plaintiffs entitled to the decree as prayed for (v) To what other relief, if any, are the plaintiffs entitled
(3.) The learned trial Judge decreed the suit and the learned appellate Court below affirmed the judgment and decree passed by the learned trial Judge.;