Bhaskar Bhattacharya, J. - (1.) This first appeal is at the instance of a plaintiff in a suit for recovery of possession and is directed against the judgment and decree dated 21st December, 1998 passed by the learned Civil Judge, Senior Division, 9th Court, Alipore in Title Suit No.42 of 1996 thereby dismissing the said suit.
(2.) The appellant herein filed the aforesaid suit for recovery of possession of the suit premises from the respondent herein by describing him as a trespasser and also for mesne profit and the case made out by the appellant may be summed up thus: (a) The plaintiff was appointed administrator of the estate left by his father by virtue of an order passed by the High Court and in the capacity of such administrator, he inducted one Kali Saha as a licensee in the suit property for the purpose of use of the portion thereof for ceremonial occasions. As charge for induction as such licensee, the said Shri Saha agreed to pay Rs.1,500/- a day to the plaintiff. Such authority given by the plaintiff was on condition that the licence so granted was liable to be revoked in case the property was required to be developed for construction of a new building. Accordingly, Shri Saha took possession of the 7500 sq.ft. on the first floor of the premises. (b) The respondent wanted to take five bed rooms, four latrines, terrace, kitchen, store room and one hall room on the first floor and two garages on the ground floor and the right of the user of the roof and two rooms of the premises No.66, Purna Das Road which is the subject-matter of the suit and approached the plaintiff for the aforesaid purpose. Negotiations started but the terms and conditions of the transfer of the suit property were not and could not be finalised in view of order of status quo passed by the learned Munsif, 3rd Court, Alipore in Title Suit No.232 of 1991at the instance of the plaintiffs brother restraining the plaintiff from letting out the suit property. (c) The defendant initially gave Rs.1,00,000/- to the plaintiff as advance in the course of negotiations and discussions and thereafter paid a further sum of Rs.25,000/-. Subsequently, when the plaintiff found that he would not be able to have the order of status quo vacated in the suit of his brother, he discussed the matter with the defendant and it was agreed that the entire amount of advance given by the defendant to the plaintiff would be returned back to him. (d) The first of such refund was made by the plaintiff by sending a cheque for Rs.25,000/- and the said cheque was presented for encashment of 28th March, 1992 but as the balance fell short, the cheque could not be encashed. The said cheque was again presented to the said bank but the plaintiff instructed the bank not to honour the cheque as the claim of the plaintiff of mense profit and damages were required to be adjusted against the advance. (e) Taking advantage of retention of Rs.1,25,000/-, the defendant wrongfully misrepresented the same to be a tenancy agreement and forcibly entered into the suit property by breaking open the padlock put up by Shri Kali Saha. (f) To retain the unauthorised and wrongful possession of the suit property, the defendant filed Title Suit No.111 of 1992 before the 3rd Court of the Munsif at Alipore against the plaintiff for a decree for declaration that the defendant was a tenant under the plaintiff in respect of the suit property at a rental of Rs.2,000/- which should be adjusted towards advance of Rs.1,25,000/- and for permanent injunction. The said suit was heard ex parte and by a judgment and decree dated 21st August, 1995, the learned Munsif was pleased to decree the suit in part restraining the plaintiff from evicting the defendant from the suit property without due process of law but the prayer for declaration of tenancy right in favour of the defendant was refused. (g) The plaintiff has accordingly filed the present suit for recovery of possession by treating him as trespasser and for mesne profit.
(3.) The defendant contested the aforesaid suit by filing written statement thereby denying the material allegations made in the plaint and the defence of the respondent may be summarised thus: (1) The suit was not maintainable as a previous suit filed by the plaintiff being Title Suit No.242 of 1992 filed in the 3rd Court of Munsif, Alipore, was dismissed for default. (2) The defendant is a tenant in respect of the property on the basis of induction by the plaintiff after acceptance of Rs.1,25,000/- with a stipulation that the rent should be adjusted towards the said advance. (3) The suit is barred by limitation and at the same time, the suit should fail for want a valid notice under section 13(6) of the West Bengal Premises Tenancy Act.;