Decided on February 23,1996

Saday Chand Mahtab And Others Appellant

Referred Judgements :-



- (1.)This is a suit for recovery of vacant possession of the determined portion of premises No. 2, Netaji Subhas Road, Calcutta, indicated in yellow borders in the plan annexed to the plaint, for a further decree for vacant possession of the portions of the said premises encroached upon by the defendant as indicated in violet borders on the said plan, for a decree for damages and mesne profits at the rate of Rs. 19,500.00 per diem from 15th Aug., 1984, for decree for damages and mesne profits @ Rs. 3,000.00per diem, in the alternative an enquiry into the damages suffered by the plaintiff by reason of wrongful occupation of the said premises by the defendant and a decree for the sum found thereupon, for a decree for Rs. 12,22,431.00 towards municipal rates and taxes, and cost and other reliefs as stated in the plaint.
(2.)Plaintiffs' case is that they are the joint owners in equal shares and in possession of the premises, No. 2, Netaji Subhas Road, Calcutta, fully described in the plaint schedule. In or about July 1979, the defendant Allahabad Bank, a body corporate constituted under the banking companies (Acquisition and Transfer of Companies) Act 1970 approached the plaintiffs with a proposal to purchase the said premises with vacant possession thereof at the price of Rs. 81 lacs (rupees eighty-one lacs) only. Between July 1978 and Feb. 1979, negotiations were held for purchase of the said premises by the defendant and the parties discussed the various formalities to be observed and performed. The defendant however represented that they were in immediate need of accommodation and in or about Jan. 1979 suggested that the plaintiffs should grant the defendant permissive user of the determined portion of the said premises on leave and licence basis for one year at the first instance. Accordingly, the plaintiffs were insisted to agree to allow the defendant the use and occupation of the ground floor of the said premises expected to be vacant by the 15th of Feb., 1979 and the remaining floors as soon thereafter as the then occupier vacated the floors. Accordingly on or about 7th Feb., 1979 an agreement in writing was entered into by and between the plaintiffs and the defendant whereby the plaintiffs agreed to grant the defendant permissive user of the determined portion of the said premises on leave and licence for the purpose of his business on the following terms :
(a) The defendant was given leave and licence for occupation of 49,000 square feet, more or less, as shown in the plan annexed to plaint coloured by yellow borders comprised in the ground floor, first floor, mezzanine floor and second floor together with right of egress and ingress and the right of user of the passages and staircase in common with the plain-tiffs which are bordered violet.

(b) The plaintiffs will have exclusive right and the defendant will have no right whatsoever over the areas bordered green.

(c) The defendant shall not be entitled to make addition or alteration in the said premises during the continuance of the said licence.

(d) In the event a conveyance in favour of the defendant being concluded between the parties in respect of the said premises the leave and licence would automatically terminate from the date of such purchase, provided always that the licence granted would terminate on the expiry of the terms for which it was granted unless extended by mutual consent.

(e) On the licence terminating the defendant shall cease to have any further right to continue in occupation.

(f) The permissive user was not intended to create any right or interest in the property.

(g) In consideration of such leave and licence the defendant agreed to pay to the plaintiffs an aggregate sum of Rs. 1,95,000.00per month commencing from Feb. 15, 1979.

(h) The defendant agreed to pay any increase in the municipal rates whether of owner's share or of occupier's share.

(i) The defendant will have option to purchase the said premises at a price of Rs. 81,00,000.00 (Rupees eighty-one lacs) only and the plaintiffs will be under an obligation to sell, convey and transfer the property under three separate conveyances provided such option is exercised within six months from the date of the said agreement and the sale is completed within the period of the licence or any extension thereof.

(3.)A copy of the said leave and licence agreement is annexed with the plaint. In pursuance of the said agreement the defendant was allowed to occupy the demarcated portion from Feb. 1979. The leave and licence granted in favour of the defendant was initially for a period of one year and thereafter so long the negotiations for sale continued. was extended from time to time. Ultimately the negotiations for sale of the premises fell through and sale of the premises did not materialise. The permissive user expired on 14th of Aug., 1984 whereupon the defendant was obliged to make over vacant possession of the said premises to the plaintiffs. But the defendant wrongfully failed and neglected to make over possession of the licensed premises to the plaintiffs on Aug. 15,1984 or at all. The defendant is wrongfully continuing in possession of the licensed portion as trespasser and is liable to pay damages to the plaintiffs. The reasonable letting out value is Rs. 19,500.00(rupees nineteen thousand five hundred) only per diem calculated at the rate of Rs. 12 per square feet. The plaintiffs allowed permissive user of altogether 49,003 square feet as detailed below: JUDGEMENT_47_LAWS(CAL)2_1996.html
besides the terrace covering 10,425 Sq. ft.


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