- (1.) F.A. 30 and 31 of 2009 are two appeals arising out of the common judgment and decree passed in an eviction proceeding. The facts would reveal, Anglo India Jute Mills Company Limited was the owner of flat No. 34 at Woodland Estate, premises No. 8/7 Alipore Road Calcutta. The premises were comprised of a total area of about 190 square feet. At one point of time, Duncan International India Limited and Anglo India Jute Mills Company Limited were under the same management of one Goenka family. Duncans were using the flat belonging to Anglo India where one of their officers was residing. The facts would depict, Anglo India became sick and was referred to the Board of Industrial and Financial Reconstruction (herein after referred to as BIFR). We would not go in detail as to the BIFR proceeding. Ultimately, as per the sanctioned scheme the present management of Anglo India took over charge of the company and demanded vacant possession of the flat in question that Duncans denied. Initially Duncans took the plea, they were having a claim against Anglo India in repayment of such loan. Duncans were adjusting the rent payable in respect of the flat as a tenant.
(2.) Duncans would claim, they were inducted as a tenant with effect from April 1, 1991 at a monthly rental of Rs. 10000. Duncans paid and/or adjusted the rent for the period April 19, 1991 to December 1994. Subsequently, they tendered rent and ultimately started depositing rent in Court at the said rate. Anglo India totally denied the landlord-tenant relationship. According to them, once Anglo India came out of the fold of Goenkas they were not entitled to retain possession that would amount to tress-pass. Duncans filed a suit being Title Suit No. 5 of 1996 inter-alia, claiming a declaration, they were tenant in respect of flat and prayed for consequential injunction restraining Anglo India from disturbing their possession. Anglo India filed a suit being Title Suit No. 53 of 2001 inter-alia, claiming recovery of possession as well as mesne profit. Learned Judge heard both the suits analogously and dismissed the suit of Duncans and decreed the suit of Anglo India and asked the Duncans to deliver up vacant possession.
(3.) Being aggrieved, the Duncans preferred both the appeals, one against the dismissal of their suit and the other against the decree for recovery of possession. The Division Bench vide judgment and Order dated January 15, 2009 asked the appellant to pay occupation charges at the rate of Rs.65000 for the period February 1994 till July 1998 and thereafter at the rate of Rs.1.3 lacs till the disposal of the appeal. The appellant did not comply with the said direction that resulted in vacating of the order of stay. Anglo India got the decree executed and obtained possession by dispossessing Duncans. The present appeal would thus effectively deal with the question of mesne profit. RIVAL CONTENTIONS:;