- (1.) This appeal is at the instance of the Defendant and it arises out of a suit for declaration, eviction of the Defendant, recovery of mesne profits, in the alternative, for arrears of rent.
(2.) The facts which are involved in this case are more or less admitted and they may be stated as follows: One Baruneswar Banerjee and his brother Kasiswar Banerjee, since deceased, were the owners of the municipal holdings Nos. 13, 13/1, 15, 16, 17, 18 and 19, lzzatulla Lane, usually known as premises No. 1, lzzatulla Lane, Tollygunge, Calcutta, consisting of buildings, shop-rooms and a cinema house known as Pradip Talkies. Baruneswar and Kasiswar let out the said Pradip Talkies to the Defendant at a monthly rent of Rs. 450 which was subsequently reduced to Rs. 270. Baruneswar died sometime in the month of February 1950. In or about 1953, his heirs instituted a suit being T.S. No. 66 of 1953 in the Court of the Third Subordinate Judge, Alipore, for partition of the said premises. During the pendency of the said suit Kasiswar granted a lease of his undivided half share in the said premises No. 1, Izzatulla Lane including the half share of the cinema house to the Defendant at a monthly rent of Rs. 208 by a registered deed of lease dated February 10, 1954, for a term of 30 years with effect from February 1, 1954, with an option of renewal for a further term of 10 years. Ultimately, final decree was passed in the said partition suit on May 7, 1956. The western portion of the said premises consisting of the said cinema building, shop-rooms etc. was allotted to Kasiswar in respect of his half share in the premises. It may be stated here that, till before the final decree in the partition suit, Kasiswar was realising rent at the rate of Rs. 208 per month under the said registered lease in respect of his undivided half share and he was also realising a sum of Rs. 135 which was payable to Baiuneswar or his heirs in respect of the said monthly tenancy. Kasiswar died on March 11, 1959 and his interest in the property was inherited by his widow Sm. Abirbala as his sole heiress. By three deeds of transfer, two executed on May 15, 1961 and the third one on July 4, 1962, Abirbala assigned her interest in the suit premises, that is, in the portion allotted to Kasiswar under the partition decree, which is the subject-matter of the registered lease dated February 10, 1954, to the Plaintiff. She also assigned to the purchaser, namely the Plaintiff, the arrears of rents due from the Defendant from October 1960.
(3.) In the instant suit, which has been filed by the Plaintiff, his case is that the registered lease dated February 10, 1954, executed by Kasiswar in favour of the Defendant is void; that the said monthly tenancy created by Baruneswar and Kasiswar has been existing; and that he is entitled to realise arrears of rents from the Defendant at the rate of Rs. 270 per month with effect from October 1960. Alternatively, it is his case that if the said registered lease is found to be valid and binding upon the Plaintiff, then by virtue of the allotment of the entire 16 annas share in the said Pradip Talkies to Kasiswar, he became entitled to payment of the sum of Rs. 135 which was payable by the Defendant to the heirs of Baruneswar in respect of their half share in the said Pradip Talkies besides the stipulated sum of Rs. 208 per month to which Kasiswar was entitled. Accordingly, as an alternative case he has prayed for recovery of the arrears of rent at the rate of Rs. 343 per month with effect from October 1960 to October 1962. It has been alleged by him that he has terminated the lease of the Defendant by the service of a notice to quit and he has claimed eviction of the Defendant from the suit premises on the ground that he is a defaulter in payment of rent. He has also claimed mesne profits at the rate of Rs. 270 per month with effect from September 1962 till recovery of khas possession.;