Decided on May 06,1976

LILA GHOSH Respondents


- (1.)This appeal on behalf of the defendant appellant is directed against the judgment and decree dated May 9, 1973 passed in Title Appeal No.10 of 1971 affirming the judgment and decree passed in Title Suit No.59 of 1970 on August 12, 1971.
(2.)The salient facts leading to this appeal are, that the plaintiff respondent No.1 Smt. Lila Ghose widow of Sree Prosanna Ghose, since deceased, instituted a suit being Title Suit No.59 of 1970 in the 3rd Court of Subordinate Judge at Alipore for a declaration that the defendant appellant M/s. Technician Studios (P) Ltd. who has been in possession of the suit premises described in schedule 'B' to the plaint on the basis of a contract as embodied in the petition of compromise is a trespasser after expiry of the period stipulated in the said contract and for recovery of khas possession on eviction of the defendant No.1 therefrom. The plaintiff's case is that the suit property being premises No.1 Baburam Ghose Road formerly premises Nos. 2, 3 and 4 Baburam Ghose Road measuring 11 bihas 17 kathas and 17 sq.ft. originally belong to one Debaprosad Ghose who by a registered deed of lease dated December 21, 1935 leased out the said premises No.1, Baburam Ghose Road comprising of a garden house and other structures to one Priyanath Ganguly for 16 years commencing from January 1, 1935. The lessee started a film Studio business thereon under the name and style of ?Kali Films Company? and subsequently the same was converted into a private limited company known as ?Kali Films Ltd.? Debaprosad Ghose executed and registered a deed of settlement on April 18, 1937 settling the said garden house and other structure along with the land to his sons - northern half measuring 6 bighas 2 kathas 3 chittaks 37 sq. ft. described in schedule 'B' and marked in red colour to Sree Prosanna (husband of the plaintiff) and the southern half, that is, 5 bighas 14 Kathas 12 chittaks and 3 sq.ft. to his son Girija Prosanna. The two brothers Sri Prosanna and Girija Prosanna commenced an action being T.S. No.26 of 1962 in the 3rd Court of Subordinate Judge, Alipore for recovery of possession of the studio premises against Priyanath Ganguly on the grounds of default in payment of rent and expiry of the period of lease. It transpired during the pendency of the suit that Priyanath as receiver appointed by this Court in Suit No.944 of 1952 settled the said property including the suit premises to a company known as M/s. Technicians Production who, in its turn, sold its rights, title and interest in the aforesaid premises to the defendant No.1, M/s. Technicians Studios (P) Ltd. The said Technicians Production as well as the defendant No.1 were impleaded as defendants in that suit. The suit was decreed ex parte and in executing of the said decree the entire garden house with all structures, machineries and fixtures was taken possession of on May 19, 1954. On June 2, 1954, an application purporting to be under Order 47 Rule 1 read with S. 151 of the Code of Civil Procedure was filed for review of the said judgment and decree and this was registered as Misc. Case No.54 of 1954.This application having been dismissed a revisional application was moved and a Rule being C.R. No. 3693 of 1954 was issued. On July 27, 1955 the said Rule was disposed of in terms of a joint petition of compromise which provided inter alia that the defendant No.1 would be a direct tenant under Sree Prasanna, the husband of the plaintiff and Gouri Prosanna, at a monthly rent of Rs.1000/- payable in proportion of Rs.500/- to each of them in respect of their moiety share and the lease would be for a period of 16 years from May 19, 1954 with option to defendant No.1 to terminate the lease earlier on giving 60 days notice on the lessors. No deed of lease was executed or registered nor the said compromise petition containing the terms of settlement was registered. The defendant No.1, however, possessed the Studio premises on the basis of the said compromise petition and paid rents upto March 1970. The plaintiff who became the sole owner of the suit premises described in schedule 'B' to the plaint on the basis of a will executed by her husband Sree Prosanna, since deceased, which had been duly probated served a notice on May 2, 1970 on the defendant No.1 asking it to quit and vacate the suit premises. As the defendant No.1 did not vacate the suit premises Title Suit No.59 of 1970 was filed in the 3rd Court of Subordinate Judge, Alipore, for recovery of possession on evicting the defendant No.1 from suit premises on a declaration that the defendant No.1 was in wrongful occupation of suit premises as a trespasser and for recovery of damages stating inter alia that the defendant No.1 was in possession of suit premises in pursuance of the terms and conditions of the said compromise, that the defendant No.1 did not acquire the right, title or interest of a lessee or a tenant as no deed of lease was registered nor the contract contained in the compromise petition was registered, that the defendant No.1 had no right to remain in occupation of the suit premises as the period of 16 years mentioned in the said compromise petition had expired and it had become a trespasser.
(3.)The defendant No.1 contested the claim of the plaintiff by filing a written statement contending inter alia that the defendant No.1 company was inducted as tenant under Sri Prosanna Ghose and Girija Prosanna Ghose in respect of the garden house on the basis of the terms of settlement in Civil Rule No.3693 of 1954 and the defendant No.1 was a lawful tenant in respect of the said garden house. It was also pleaded in paragraph 5 of the written statement that the defendant No.1 paid rents to the lessors according to the terms of settlement and the same had been accepted by them. In paragraph 6 of the written statement it has been stated that Sree Prosanna and Girija Prosanna Ghose under the said terms of settlement admitted the defendant No.1 as tenant in respect of the entire garden house. In paragraph 14 of the written statement it has been submitted that the defendant No.1 has become a tenant on and from May 17, 1954 and is continuing as such even now. The defendant No.1 contends that it was a tenant under Sree Prosanna and Girija Prosanna on the determination of the tenancy of the tenant of the first decree. The defendant No.1, it is submitted, ipso facto and ispo jure became tenant under the plaintiff in terms of settlement incorporating the terms of tenancy which was pre-existing. It has been also contended that by payment and acceptance of rent from before the date of the compromise as alleged as also independent of compromise a monthly tenancy in its favour has been created. The defendant No.1 also states that it is lawfully entitled to continue in possession of the garden house and property as a tenant. In paragraph 17 of the written statement it has been pleaded that the defendant No.1 is entitled to the protection under the West Bengal Premises Tenancy Act, 1956.

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