Arun Kumar Mitra, J. - (1.) This Second Appeal has been preferred by the Plaintiff/Appellant (being the landlord) challenging the judgment and decree dated 16th January, 1993 passed by the learned Additional District Judge, 9th Court, Alipore in Title Appeal No. 405 of 1990 reversing the judgment and decree dated 17th September, 1990 passed by the learned First Additional Munsif, Alipore in Title Suit No. 19 of 1982.
(2.) This appeal arises out of a suit for eviction and khas possession and for mesne profits. The case has been made out by the plaintiff in the plaint is inter alia as follows : The plaintiff is the owner of the Premises No. 29/7B Chetla Central Road, a 3(three) storeyed building. The plaintiff was in occupation of the 1st Floor and 2nd Floor of the said premises. The plaintiff and his wife are both old and plaintiff is suffering from low blood pressure, Asthma and Gout. Plaintiff and his wife used to reside in 1st Floor of the suit premises before letting out the same to the defendants in May, 1976. Original defendant died. Legal heirs of the original defendant have been substituted who are defendant Nos. 1 to 6. The defendants are in occupation of 1st Floor flat of Suit Premises consisting of 3(three) bed rooms, kitchen, bath-room and privy at a monthly rental of Rs. 500/- payable according to English calendar. At the time of induction as tenant, the original defendant was in occupation of tenanted premises at Bokul Bagan Road, Calcutta. But due to insufficient accommodation in view of his son's marriage defendant was in need of temporary accommodation. So through the intervention of common friends of plaintiff's son and defendant's son, plaintiff let out the suit premises for a short period to defendant from May, 1976 not exceeding till April, 1978. Defendants have also committed acts of annoyance and nuisance against the plaintiff. Plaintiff has terminated the tenancy of defendants by serving upon defendants a notice to quit through his learned lawyer by Registered Post with A/D. The said notice has come back to the sender with the postal endorsement "Refused". But defendants have not vacated the suit premises in compliance with the said notice. Hence the plaintiff instituted the instant suit for relief Defendants have contested the suit by filing written statement. The defence as has been made out by the defendants is inter alia as follows : The tenancy in dispute was taken by the firm K.L. Banerjee and Co. and not by K.K. Banerjee personally and that the said K.L. Banerjee used to reside at 97 Beltala Road and not in the suit premises. Defendants denied the ownership of the plaintiff in respect of the suit premises and stated that their tenancy is in respect of 1st Floor of suit premises together with a garage at a monthly rental of Rs. 500/- for residential portion and Rs. 100/- for garage portion. But plaintiff did not grant written receipt for the rent realised for the said garage. Defendants therefore, stated that the suit premises is actually occupied by substituted defendant No. 2 that is one of the sons of deceased original defendant. However the tenancy in respect of the suit premises has been admitted to have commenced on 5th May, 1976.
(3.) The defendants denied the allegations made in the plaint against them and stated that the suit house has two Municipal Numbers, i.e. 29/7A and 29,'713 Chetla Central. Road and both the premises are accessible from one to the other. Finally, the defendants alleged that during pendency of the suit one tenant of plaintiff vacated the entire ground floor of 29/7A premises and plaintiff let out the said portion to another tenant in June, 1979.;