Bhaskar Bhattacharya, J. - (1.) This Letters Patent appeal is at the instance of a defendant in a suit for recovery of possession and is directed against the judgment and decree dated 11th April, 2005 passed by a learned Single Judge of this Court by which His Lordship passed a decree for recovery of possession of the suit premises and also mesne profits after allowing the prayer of the plaintiffs-respondents for rectification of the deed of lease.
(2.) The respondents filed a suit being Title Suit No. 102 of 1994 against the appellant thereby praying for the following relief: (a) "Decree for quiet, peaceful and vacant possession of the said property comprising of the demised premises described in the Schedule appended hereto and Marked - "A" and delineated in the Map or Plan annexed hereto and marked with the Letter - "B" and moveable Article particularized in Annexure- "C" hereto forming part of the demised premises or in connection therewith as provided for and in terms of the said Indenture of Lease; (b) If necessary, the misdescriptions in the said Deed of Lease dated 19th September, 1972 be rectified so as to reflect the true intention of the parties as indicated in paragraph 7 hereof; (c) Decree for Rs. 13,05,000/- as mentioned in paragraph 18 above; (d) Further mesne profit at the rate of Rs. 7,500/- per diem or at such rate as to this Hon'ble Court may deem fit and proper; (e) Interim interest and interest on judgment; (f) Receiver; (g) Injunction; (h) Attachment; (i) Costs; (j) Further and other reliefs."
(3.) The case made out by the plaintiffs-respondents may be summed up thus: (i) The plaintiffs, six in number, were all the sons of one Chaganlall Baid who absolutely seized and possessed brick built messuage tenement or theatre house known as 'Grace Cinema' with piece and parcel of land whereon and whereof the building measuring fifteen cottahs twelve chittacks more or less being a portion of 91A, Mahatma Gandhi Road and one room in the ground floor and open space in a portion of premises No. 6A, Sambhu Chatterjee Street as described in part one of the first schedule annexed to the plaint and was also possessed of all that the leasehold hereditaments and premises or Theatre House together with the piece and parcel of land whereon and whereof the same is erected measuring three cottahs three chittacks and thirty square feet more or less being the front portion of the premises No. 91A, Mahatma Gandhi Road as mentioned in Part-II of the first schedule. (ii) The said Cinema House, more particularly described in paragraph 1 and Part-II of the first schedule, of the plaint was shown in the map or plan annexed thereto and marked with the Letter - "B" and was delineated in red colour boundary lines. (iii) The said Chaganlall Baid was further absolutely seized and possessed of all furniture, articles and assets etc. used in the said portion of the said premises and appertaining to the said Cinema Hall including the seats, cushions, chairs, galleries, electrical fittings, lights, fans and other fixtures etc. described in second schedule annexed and marked with the Letter -"C". (iv) The said properties particularly described in Part-I and Part -II of the first schedule annexed and marked with the Letter- "A" and the second schedule marked with the Letter- "B" were effectively referred to as the suit property. (v) By six several deeds of settlements, all dated 15th January, 1956, the said Chaganlall Baid transferred and conveyed the suit property in favour of the plaintiff Nos. 1 and 2 with a direction upon them to hold the same for the benefit of the plaintiffs for the term mentioned therein. By those deeds of settlement, the plaintiff Nos. 1 and 2 were specifically empowered to lease out the property. (vi) On the said authority, by an Indenture of Lease dated 19th September, 1972, the plaintiff Nos. 1 and 2 granted unto the defendant a lease for a term of 21 years commencing from 1st November, 1972 on the terms, conditions and covenants therein contained and subject to payment of rent therein reserved. (vii) The said Indenture of Lease was duly registered and the defendant took possession of the said property as lessee thereof in terms of the provisions, terms and conditions contained in the said Indenture of Lease and were obliged to perform the terms, conditions, covenants and provisions contained in the said Indenture of Lease. (viii) The said lease-deed dated 19th September, 1972 was signed, executed and registered by the parties namely, plaintiff Nos. 1 and 2 and defendant bona fide and with common belief that the same embodied the agreement set out in paragraphs 2 and 3 of the plaint, but in fact, the following misdescription crept in there by reasons of common mistakes: (1) Whereas the deed of lease mistakenly stated that the leasehold premises described in Part-I of the schedule to the said deed bore Municipal Premises No. 91, Mahatma Gandhi Road, the actual Municipal Premises number of the leasehold described in Part-I of the said schedule was portion of 91 A, Mahatma Gandhi Road and one room in the ground floor and one open passage in a portion of premises No. 6A, Sambhu Chatterjee Street. (2) Whereas the deed of lease incorrectly stated that the leasehold premises described in Part-II of the schedule to the said deed contained by estimation an area of three cottahs and thirty square feet, the actual measurement of the said premises was three cottahs three chittacks and thirty square feet. (ix) On the expiry of the said deed of lease by a notice in writing dated 2nd march, 1993, the plaintiffs through their Advocates called upon the defendant to quit, vacate and deliver up peaceful and vacant possession of the said property and to hand over the same to the plaintiffs but in spite of receiving such notice and expiry of the said lease by efflux of time, the defendant failed to deliver vacant and peaceful possession. Hence the suit.;