Ashis Kumar Chakraborty, J. - (1.) THE instant appeal is at the instance of the appellants, who suffered a decree for eviction, passed by a learned Single Judge, in respect of Premises No. 8A, Burdwan Road, Alipore situate in the heart of the city of Kolkata comprising a plot of land of 13 cottahs together with a dwelling house (hereinafter described as the suit property). The appellants are the two sons of Shivnath Shroff, since deceased the original defendant no. 9 in the eviction suit (hereinafter referred to as the original defendant no. 9). The respondent no. 1, owner has also filed a cross -objection from the decree passed by the learned Single Judge. We shall first deal with the appeal of the appellants. One Smt. Narayani Debi Bajaj since deceased (hereinafter referred to as Narayani) was the owner of the suit property. By a registered indenture of lease dated August 10, 1951 Narayani demised the suit property in favour of Ila Basu (hereinafter referred to as Ila), the proforma respondent no. 2 in this appeal, for a period of thirty years commencing from August 1, 1951. By a registered indenture dated June 26, 1954, Ila assigned her right and interest, under the said lease dated August 01, 1951, in respect of the suit property in favour of Amal Kumar Mukherjee, since deceased and the proforma respondent nos. 3 to 6 in this appeal. After the death of Amal his right and interest in respect of the suit property, under said deed of assignment, devolved upon his legal heirs, the proforma respondent nos. 7 and 8 in this appeal. For the sake of convenience Amal Mukherjees, the proforma respondent nos. 7 and 8 and the proforma respondent nos. 3 to 6 are hereinafter referred to as Mukherjees. In the year 1962, Narayani, died intestate and the ownership of the suit property devolved upon her twelve legal heirs (hereinafter referred to as the said co -owners). In 1971, the original defendant no. 9 became a tenant in respect of the suit property, under the said Mukherjees and he obtained possession of the suit property. On September 21, 1978 an agreement was entered into between the said co -owners and the original defendant no. 9, for transfer of the suit property in favour of the original defendant no.9 and/or his nominees for a total consideration of Rs.2 lacs. Out of the total consideration amount of Rs. 2 lacs, the original defendant no. 9 paid Rs. 20,000 to the said co -owners and the balance consideration amount was payable at the time of execution of conveyance. By an indenture dated April 21, 1981, Mukherjees assigned their right title and interest, in respect of the suit property, under said indenture of lease dated August 10, 1951 in favour of Vishanath Kapur,the proforma respondent no. 9 in this appeal. By four separate deeds of conveyance all dated July 6, 1981, all the said co -owners sold, transferred and conveyed their right, title and interest in the suit property to the respondent no.1 in this appeal. On July 15, 1981, the original defendant no. 9 along with his nominees, namely, Triveni Devi Shroff, Indira Devi Saraf and Preamlata Saraf filed a suit being Suit No. 531 of 1981 (hereinafter referred to as the said specific performance suit), before this Court, against all the said co -owners claiming, inter alia, a decree for specific performance of the said agreement dated September 21, 1978. It is to be noted that in the specific performance suit, the plaintiffs therein, also made an alternative claim for damages for a sum of Rs. 10 lacs in lieu of specific performance. During the pendency of the said specific performance suit, the original defendant no. 9, came to know about the said four conveyances dated July 6, 1981 and prayed for, inter alia, impleadment of the respondent no.1, in the said specific performance suit and for certain amendments in the plaint . By an order dated July 9, 1982 a learned Single Judge allowed the said prayer but, the necessary amendments of the plaint or the specific performance suit was not carried out. On July 31, 1981, the said lease dated August 10, 1951 expired by efflux of time. Thereafter, in December, 1981, the respondent no. 1 claiming to be the owner of the suit property filed, the eviction suit, before the learned Court at the first Subordinate Judge, Alipore, 24 Parganas (South) against the proforma respondent nos. 2 to 9 in this appeal and the original defendant no. 9 claiming, inter alia, their eviction from the suit property and mesne profits. In September 1982, on a joint prayer of the parties, the eviction suit was transferred from the District Court at Alipore to this Court. In spite of service of the writ of summons none of the proforma respondent nos. 2 to 9, being the defendant nos. 1 to 8, filed written statement in eviction suit and the original defendant no. 9 alone contested the eviction suit. Although on June 26, 1982, the original defendant no. 9 entered appearance in the eviction suit, but he filed his written statement only in December 1996, that is, after fourteen years. In the mean time, by an order dated March 13, 1992, a learned Single Judge of this Court rejected the prayer of the original defendant no. 9 to extend the time to carry out the amendment of the plaint in the specific performance suit. Further by an order dated July 14, 1992, a learned Single Judge dismissed the said specific performance suit on the ground of non -service of the writ of summons on the defendants. Both the said decisions dated March 13, 1992 and July 14, 1992 were upheld by the Division Bench of this Court, as also the Supreme Court. Thus, the said original defendant no. 9 ceased to have any right to obtain specific performance of the said agreement dated September 21, 1978 or to claim title in respect of the suit property. However, in the written statement filed in the eviction suit, in December 1996, the original defendant no. 9 made out two defences. He alleged that by a notice dated December 15, 1952, the said Narayani determined the said lease dated August 10, 1951 with effect from January 01, 1953 and, thereafter, the said Mukherjees became monthly tenants in respect of the suit property with a right to sublet. The other defence alleged by the original defendant no. 9 was that being already in possession under the Mukherjees, he continued in possession of the suit property in part performance of the said agreement dated September 21, 1978. On July 27, 1999, the original defendant no. 9 died and he was substituted, in the eviction suit, by his wife Tribeni Devi Saraf and his two sons, the appellants in this appeal. On August 21, 2004 the said Triveni Devi died leaving behind the appellants as her only legal heirs. In the eviction suit although as many as thirteen issues were framed, but for the decision of this appeal, only the following issues framed by the learned Single Judge are relevant.
(2.) ISSUE no. 1. Was the lease dated 10th August, 1951 referred to in paragraph 2 of the plaint determined as alleged in paragraph 2 of the written statement? Issue no. 5.(a) Did the original defendant no. 9 enter into a contract in writing to purchase the premises as alleged in paragraphs 6(a) and (d) of the written statement? (b) Did the original defendant no. 9 continue in possession of the premises in part performance of the contract dated 21st September, 1978 and act in furtherance of the same as alleged in paragraphs 6(f) and (g) of the written statement? (c) Had the original defendant no. 9 and after him, have his substituted defendants always been and are ready and willing to perform their part of the said contract as alleged in paragraph 6(q) of the written statement? Issue no. 12. Is the plaintiff entitled to any mesne profits or damages of compensation as alleged in respect 15 of the plaintiff?
(3.) DURING the trial, before the learned Single Judge, both the respondent no. 1/plaintiff and the appellants / defendants adduced oral and documentary evidence through their respective witnesses. After considering the pleadings as also the oral and documentary evidence adduced by the respondent no.1/plaintiff and the appellants respectively, the learned Single Judge rejected the aforesaid two defences of the appellants and passed the decree in favour of the respondent no.1/plaintiff for recovery of khas possession of the suit property. The learned Single Judge further passed a decree for Rs. 24,000/ - against the defendant nos. 8, 9 and 10, in the suit, on account of mesne profit from August 01, 1981 until November 30, 1981 and appointed a Special Referee to determine the mesne profits from December 1981 till the date of decree. With regard to the defence of the appellants/defendants that they are entitled to claim protection of part -performance under Section 53A of Transfer of Property Act, the learned Single Judge accepted the contention of the respondent no. 1/plaintiff that the pleadings filed the original defendant no. 9 would clearly show that such defendants accepted that they are in possession of the property as tenants even after 1978 and not under any other capacity. The learned Single Judge refused to accept the plea taken by the appellants/defendants under Section 53A by the Transfer of Property Act as the same was unmeritorious. With regard to the other defence of the appellants that the said lease dated August 10, 1951 stood determined by Narayani, the learned Single Judge considered the various agreements and draft agreements, which were exhibited in the suit, as also pleadings/affidavits of the original defendant no.9. The learned Single Judge found, there was nothing on record to show that, Ila (the proforma respondent no. 2) had been evicted from the premises or a monthly tenancy had been created between Narayani and Ila and the appellants herein failed to discharge their onus to establish such monthly tenancy.;