Bhaskar Bhattacharya, J. - (1.) This first appeal is at the instance of the defendants in a suit for eviction and is directed against the judgment and decree dated 19th December, 1997 passed by the learned Civil Judge, Senior Division, 10th Court, Alipore in Title Suit No. 79 of 1981.
(2.) The respondent filed a suit being Title Suit No. 79 of 1981 in the 10th Court of Subordinate Judge at Alipore thereby praying for recovery of possession of the suit property along with machineries mentioned in the plaint and also for recovery of arrears of money due and payable by the defendants to the plaintiff towards rent by virtue of agreement dated 3rd November, 1970 between the plaintiff and the defendants and the case made out by the plaintiff- respondent may be summarised thus: (a) The plaintiff was the landlord of the defendant in respect of a piece of land measuring 5 bighas land more or less with two big corrugated iron structures at 63, Belgachia Road, P.S. Ultadanga, Calcutta-37 where the plaintiff erected several machineries for running of sawmill. Two big corrugated iron structures standing on a portion of land was partitioned each in two halves, one half of each structure was allotted to two tenants wherein the machineries and plants were installed in each half of the two structures. The said machineries and plants in one set were hired by the defendant and the vacant land under the portion of the structures were allowed to be used as a licensee by the defendant and the other half portion of the structure of other 6ne were given to other tenants. (b) By an agreement dated 3rd November, 1970 between the plaintiff and the defendants, the machineries were let out to defendants with permission to use the structure and office room and the vacant land under the structure to be used by the defendants as licensee. The hire charges for plants and machineries were fixed at Rs.500/- a month according to the English Calendar from November 1970 to September 1971 and thereafter, at the rate of Rs. 650/- a month from October, 1971 onwards payable in advance on or before the fifth day of that month to the plaintiff at his premises. The defendants further agreed that in default of payment in the manner aforesaid, they would be liable to pay interest at the rate of 12 per cent per annum from the due date until payment. (c) The defendants affixed certain machinery with the plaintiffs existing machinery and also repaired the office room with the plaintiffs consent. The defendants agreed to keep the demised premises with the structures and machineries thereon in good and repairable condition and to preserve the let-out machineries and structure safe and free from damages. (d) In violation of the terms and conditions of the aforesaid agreement, the defendants had been using and occupying for the purpose of their trade and business the adjoining vacant land which they were not permitted to use in terms of the agreement and such vacant land measuring about 20000 square feet, if let out separately, would have fetched a rent of Rs. 2/- per square feet a month or Rs.40,000/- a month for the said land. (e) The plaintiff had been suffering damages on this account of Rs. 40,000/- a month from 24th June, 1989 when the plaintiff came to learn about such illegal occupation. (f) The defendants had damaged the property as detailed in the plaint which amounted to Rs. 6,21,000/-. (g) The defendants having failed and neglected to pay rents for 33 months from December, 1975 to August, 1978 together with agreed interest of Rs. 12/- per cent per annum, he filed a suit being Money Suit No. 24 of 1978 for a decree of Rs. 25,096.50 paise including interest of Rs. 3,646.50 paise. In the aforesaid suit, the plaintiff also claimed a further decree of Rs. 38,318.54 paise being the value of the goods sold and delivered to the defendants with interest of sales tax. The plaintiff claimed in the said suit a decree against the defendants for a sum of Rs. 63,415.04 paise. (h) The defendants admitted the plaintiff's claim in the said suit and accordingly, the defendants and the plaintiff filed a compromise petition embodying the terms of settlement and the said suit was decreed on compromise. (i) The defendant having violated the terms of the said agreement and particularly, having defaulted in payment of rents from September, 1978 onwards, the plaintiff by his Advocate's letter dated 1st December, 1980 forfeited the defendants' right and interest under the said agreement and determined the defendants' tenancy by the aforesaid notice with the expiry of the month of June, 1981 and gave notice to quit and deliver up to the plaintiff's vacant and peaceful possession of the premises with machineries. (j) The defendants received the notice on 30th December, 1980 but had not given up possession of the premises. Hence the suit.
(3.) The suit is contested by the defendant No. 1 by filing written statement thereby denying the material allegations made in the plaint and his defence may be epitomised thus: (i) The plaintiff had no cause of action, the suit was not maintainable. (ii) There was no relationship of landlord and tenant between the plaintiff and the defendant. (iii) The defendant No. 2 had retired from the business of the defendant No. 3 long before 1978 and since his retirement, the defendant No. 1 had become the sole proprietor of defendant No. 3. (iv) One Durga Das Dass of No.4, Jorabagan Street was at all material times and till then, the owner of the land which has been renumbered as 63, Belgachia Road, P.S. Ultadanga, Calcutta-37 and M/s. Shree Krishna Timber Works was inducted as a lessee in respect of plot of land by Durga Das Dass under a registered lease dated 6th December, 1952 for a term of 16 years commencing from 1st December, 1952 and ending on 30* November, 1968. The said lessee erected several structures and installed several machineries herein. (v) The defendant No. 3 was inducted as a tenant in respect of the said plot of land along with structures and installed several machineries. (vi) The defendant No. 3 was inducted as a tenant in respect of plot of land along with structure and machinery by M/s. Shree Krishna Timber Works on and from 1st March, 1962 at a monthly rent of Rs. 500/- according to English calendar month. Sometime in November, 1970, Sri Prahlad Ray Bagla, the father of the plaintiff and partner of M/s. Shree Krishna Timber Works represented to the defendant No. 1, then a partner of defendant No. 3, that his son, the plaintiff, had been accepted as a tenant in place and instead of M/s. Shree Krishna Timber Works by the Superior landlord and that the plaintiff had started business under the name and style of Sunrise Timber Company. The plaintiff also made similar representation. The defendant No.3 was persuaded by the plaintiff and his father to pay rent of the premises in question to the plaintiff and the defendant who was very much in friendly terms with the plaintiff and still holds the plaintiff's father in high esteem believed the representation to be true without suspecting any foul play in the matter and started paying rents to the plaintiff in the name of his firm styled Sunrise Timber Company in good faith. (vii) Recently, the defendant had come to know that after the expiry of the lessee dated 6th December, 1952, the plaintiff's father who was one of the partners of M/s. Shree Krishna Timber Works was accepted as a monthly tenant in respect of the land, structures and machineries in question by the owner. The defendant further came to know that in or about September, 1976, the plaintiff's father filed insolvency case before the District Judge, Alipore for adjucating him as an insolvent and the case was still pending. (viii) The plaintiff was never a tenant under the superior landlord and the owner, Durga Das Dass, in respect of the premises and no portion of the suit premises was ever in possession of the plaintiff. (ix) The defendant without knowing the contents of the agreement of November, 1970 put signature and no copy of the agreement was furnished to the defendant No. 1. (x) After service of summons of Money Suit No. 24 of 1978, the plaintiff entered into an agreement with the defendant No. 1 for effecting compromise on the terms that the defendant would pay a sum of Rs. 20,000/- to the plaintiff before 14th October, 1978 and upon such payment being made, the plaintiff would forgo all the interest claimed in the said suit and the suit would be decreed for balance principal amount only with full stamp cost of the suit and the defendants would be allowed to pay the balance amount by easy monthly instalment at the rate of Rs.300/- till full liquidation of the balance amount. (xi) In pursuance of the said agreement, the defendant paid Rs. 20,000/- against receipt granted by the plaintiff on 14th October, 1978 and upon such payment for which due receipt was granted, the plaintiff represented that the necessary petition of compromise as stated above had been prepared and the same along with the Vakalatnama would be filed by engaging a lawyer on behalf of the defendant No. 1. (xii) The defendant No. 1 bona fide believed the said representation and without knowing the contents of the agreed terms put signature on the petition and the Vakalatnama in good faith. (xiii) After coming to know that the decretal amount was sought to be executed, the defendant No. 1 was surprised to know that the plaintiff had not only obtained the signature of the defendant by practising fraud upon the defendants but the sum of Rs. 20,000/- had not been adjusted against the decretal dues. (xiv) The defendant never violated the terms of any agreement in view of the fact that there existed no relationship of landlord and tenant between the plaintiff and the defendants and the question of default in payment of rent did not and could not arise and the suit was liable to be dismissed.;