INDRAJIT CHATTERJEE, J. - (1.) This is an application under Article 227 of the Constitution of India wherein this petitioner/landlord has assailed the order no. 350 dated 18th June, 2016 passed by the learned Judge, 5th Bench, Small Causes Court at Calcutta passed in Misc. Case no. 300 of 2015 arising our of Ejectment Execution Case No. 666 of 2000 which arose out of Ejectment Suit No.501 of 1961.
(2.) The matter was heard on 05.09.2016 and the judgment is being delivered today. It may be mentioned that in the meantime an ordered has been passed waiving service of notice on the respondent Nos.2 to 6.
(3.) The fact relevant for the purpose of adjudication of this revisional application can be stated in brief thus: - that the original owners of the suit property being Ratan Mohata (the father of the petitioner) and Brij Ratan Mohata were the joint owners in respect of the suit property located at 24, Mangoe Lane, Kolkata -700001 that Mangoe Lane is now known as Surendra Mohan Ghosh Sarani. The joint owners of the property let out the suit property to one Purna Chandra Chatterjee that is the father of the Opposite Party Nos.2 to 6 and said Purna Chandra Chatterjee wrongfully demolished various structures and made unauthorised construction in the suit property and therefore those joint owners filed a suit for ejectment against him being Ejectment Suit No.501 of 1961 before the City Civil Court at Calcutta. On 29th of July, 1964 that Court decreed the ejectment suit. Due to some family disturbance the execution proceeding could not be drawn up before 1974 and the joint owners/decree holders initiated execution proceeding before that court being Ejectment Execution Case No.308 of 1974 which was later on transferred to the Small Causes Court at Calcutta and was numbered as Ejectment Execution Case No.666 of 2006 which is now pending before the 5th Judge, of that court. Meanwhile in the year 1991 the judgment -debtor, Purna Chandra Chatterjee, of that Ejectment Suit died and the present Opposite Party Nos.2 to 6 were substituted. Ratan Mohata that is the father of the petitioner died on 5th of February, 2000. After the death of the Ratan Mohata disputes arose between his legal heirs and the other decree holder Brij Ratan Mohata. The matter was referred to one Arbitrator. With the intervention of the family friends such disputes were settled and a memorandum of family settlement was made on 16th July, 2001 between the legal heirs of Ratan Mohata and as per that family settlement the suit property was extensively allotted to the present petitioner and his mother Sushila Devi Mohata (since deceased). The mother of the petitioner died on 16th July, 2007 and as per her last Will and Testament dated 10th November, 2003 this petitioner became the exclusive owner of the suit property by virtue of one probate issued as per that last Will left by that Sushila Devi Mohata. As per order dated 29th November, 2007 the executing court substituted the present petitioner as the decree holder in place of the original decree holders. The writ of execution was issued by the executing court but when the Bailiff went to the suit property he found one Indradeb Chatterjee was doing business from the shop room and the Bailiff was resisted for which possession could not be delivered. On 23rd November, 2015 this Opposite Party No.1 filed one petition under Order XXI Rule 97, 98, 99, 100 and 101 read with Section 151 of the Code of Civil Procedure in that execution proceeding and that petition was registered as Misc. Case No.300 of 2015 wherein this Opposite Party No.1 claimed that Sutanu Chatterjee was a tenant of the suit property under the original owners Ratan Mohata and Brij Ratan Mohata and that Sutanu Chatterjee was running a business of eating house under the name and style of "Food Front" in the suit property and during the continuance of the tenancy sometime in the year 2006 this Opposite Party No.1 entered into an understanding with that Sutanu Chatterjee (Opposite Party No.3) to continue the business jointly and at the request of the Opposite Party No.3 the decree holders started issuing rent bills in the joint names of Opposite Party Nos.1 and 3 since July 2012. It is further case of the Opposite Party No.1 that in the middle of the year 2014 that Opposite Party No.3 asked the Opposite Party No.1 to surrender his tenancy but this Opposite Party refused to do so and Opposite Party No.3 might have surrendered the tenancy right in the suit property but such surrender cannot curtail or jeopardise the joint tenancy right of the first opposite party. ;