- (1.) The defendants preferred this second appeal being aggrieved and dissatisfied with the judgement of reversal passed on 13.11.90 by the learned Assistant District Judge, 4th Court, Alipore in Title Appeal No. 32/1987. The First Appellate Court allowed the appeal after setting aside the judgment and decree dated 29.9.1986 passed by the learned Munsif, 1st Addl. Court, Alipore in Title Suit No. 78/76 and decreed the suit.
(2.) The facts of this case in brief are as follows : Bhabani Charan Ghosh and Abhijit Ghosh claiming themselves as the owners of the premises No. 50C, Ritchi Road, Calcutta-19, filed a title suit being T.S. No. 152/74 on 6.5.74 before the Second Court of Munsif at Alipore alleging inter alia that the defendant Anil Kumar Ghosh was a monthly tenant under them in respect of a southern garage of the said premises at the rent of Rs. 20/-, payable according to English calendar month under the erstwhile owner of the entire premises Sm. Manjusree Shyam Chowdhury, that the plaintiff purchased the suit property on the basis of a registered deed dated 13.6.72, that the tenancy of the defendants was duly attorned, that the defendants did act contrary to the provision of clauses (m) and (o) of section 108 of the Transfer of Property Act, that the defendants also made default in payment of rent. Notice to quit dated 18th June, 1973 was duly served on the defendants but as the defendants did not vacate the suit premises on the expiry of July, 1973, indicated in the notice, the plaintiff filed a suit praying for a decree for recovery of khas possession of the suit premises, mesne profit and other reliefs.
(3.) The defendants contested the suit by filing a written statement on 10.10.1974 denying all the material allegations made in the plaint, and it is specifically stated that the defendants were not tenants in respect of the garage but they were tenants in respect of a shop room. It is also stated that the suit room was let out for the purpose of running a tailoring shop, that the defendants never committed any act contrary to provision of clauses (m) and (o) of section 108 of the Transfer of Property Act nor they made any default in payment of rent. It is also stated that notice to quit was never served upon them. Accordingly, the defendants prayed for dismissal of the suit. Subsequently, the suit was transferred to the First Additional Court of Munsif and it was renumbered as T.S. 78/76. The learned Munsif on the basis of respective pleadings framed as many as 7 issues, and thereafter considered the evidence adduced by the parties and dismissed the suit on contest.;