- (1.) THIS first appeal is at the instance of the defendant no. 1 in a suit for eviction and is directed against the judgment and decree dated 24th August, 1999 passed by the learned Judge, Fourth Bench, City Civil Court at Calcutta, in ejectment Suit No. 675 of 1985 thereby passing a decree for eviction on the ground of default in payment of rent and subletting.
(2.) THE case made out by the plaintiff may be summed up thus: (a) The plaintiff is a Receiver appointed by the learned 8th Court of the subordinate Judge at Alipore in Title Suit No. 48 of 1970 with all powers to file suits and to recover possession as well as rent, damages and mesne profits etc. in respect of the Premises No. 69, Ratan Sarkar Garden Street, calcutta which is owned by Baishnab Das Set and others. (b) The said Premises No. 69, Ratan Sarkar Garden Street was originally let out by the then owners to Arjun Chandra Nath and Anil Chandra Nath, at a monthly rental of Rs. 100/- a month payable according to the English calendar. Besides the aforesaid rent, one-half share of the municipal taxes amounting to Rs. 20/- a quarter and costs of necessary repairs on the said premises were required to be borne by the aforesaid joint tenants. (c) The said Arjun Chandra Nath died sometime in the year 1967 leaving him surviving his only son, viz. Harendra Chandra Nath, the defendant no. 8. The said Harendra Chandra Nath left the said premises sometime in 1967 and he had foregone his tenancy right in the premises. The said joint tenancy of Arjun Chandra Nath and Anil Chandra Nath, however, was inherited by the survivors of the said Anil Chandra Nath. (d) The said Anil Chandra Nath died in January, 1975 leaving his widow, the defendant no. 1, three sons, defendant nos. 2, 3 and 5 and three daughters, the defendant nos. 4, 6 and 7 and they had inherited the aforesaid tenancy on the same terms and conditions. (e) In the aforesaid circumstances, the defendants were monthly tenants under the plaintiff in respect of the said premises at a monthly rental of rs. 100/- a month payable according to the English calendar but the defendants were not paying rent to the plaintiff from June, 1984 and, thus, they were defaulters in payment of rent from June, 1984 till the tenancy of the defendants' tenancy was duly and validly determined with the expiry of the month of July, 1985. (f) The defendants were also not paying one-half of the municipal taxes amounting to Rs. 20/- a quarter on and from 1st quarter, 1984-85 and, thus, the plaintiff was entitled to recover the said municipal taxes from the defendants from April, 1984 till the date of filing of the suit amounting to rs. 120/ -. (g) The defendants had sublet and/or let out and/or transferred and/or parted with possession of the tenancy accommodation without the consent of the plaintiff and/or predecessors-in-interest after the commencement of the West Bengal Premises Tenancy Act, 1956.
(3.) THE suit was contested by the defendant nos. 1, 5, 6 and 7 by filing written statement thereby denying the materials allegations made in the plaint and the defence of the defendants may be epitomized thus: (i) The defendants were not the defaulters in any manner in respect of anytime as alleged. As the plaintiff refused to accept the rent and share of municipal taxes without showing any reason with mala fide intention, the same could not be paid. (ii) The property in question initially was let out to Arjun Chandra Nath and anil Chandra Nath. Arjun Chandra Nath died in 1967 leaving his son harendra Chandra Nath, the defendant no. 8 who left the said tenancy in favour of Anil Chandra Nath. Anil Chandra Nath died on 26th January, 1975 leaving the defendant nos. 1 to 7. After the surrender of Arjun chandra Nath, the rent was regularly paid by Anil Chandra Nath alone and after his death, the defendant no. 1 continued to pay the rent to the plaintiff at his sherista although, the rent receipt was granted in the names of both arjun Chandra Nath and Anil Chandra Nath, since deceased. (iii) After the death of Anil Chandra Nath, the defendant no. 1 requested the plaintiff for mutating the rent receipt in the names of heirs of Anil Chandra nath, which was deferred on one pretext or the other. Ultimately, the plaintiff handed over a letter of two sheets of papers typed in English as prepared by him to the defendant no. 1 and asked her to put signature of the defendant nos. 1 to 7 at the specified vacant spaces and to return the same to the plaintiff. The plaintiff had assured that on the strength of that paper, he would mutate the name of the defendant no. 1, which she believed to be true on good faith. The plaintiff also asked the defendant no. 1 to submit before him a letter from the said Harendra Chandra Nath stating whether he had any objection if her name alone was recorded or mutated. The defendant no. 1 placed such letter of "no objection" from the said Harendra Chandra Nath along with the said letter dated 11th december, 1984. (iv) The plaintiff, however, did not give any receipt for those papers and in the meantime, the plaintiff refused to receive the rent for the month of June, 1984 after receiving the letter in August, 1984 on the plea that the rent would be received after the completion of formalities of mutation after making over the said papers. The defendant no. 1, however, sent rent to the plaintiff by postal money order, which was also refused, and thereafter the defendant no. 1 met the plaintiff when he asked her to wait for a while. (v) On 2nd May, 1985, the defendant no. 1 wrote a letter under registered post with A/d to the plaintiff requesting him to receive rent and also to mutate her name along with an extra copy of the letter dated 11th December, 1984 and another letter dated 15th April, 1985 of the said Harendra Nath chandra conveying that he had no objection to the mutation. (vi) Thereafter, the defendant no. 1 sent rent by postal money order and after refusal of the rent for the month of July, 1985 at the instance of the plaintiff, the defendant nos. 1 to 7 began to deposit the rent month by month with the Rent Controller, Calcutta since July, 1985 till date. At the time of hearing of the suit, one Sudhir Chandra Set, the brother of the plaintiff deposed in support of the plaint case and in addition to that, an employee of Kolkata Municipal Corporation was examined for the purpose of proving inspection book. The defendant no. 1, on the other hand, deposed in support of her defence and also examined and an employee of the Kolkata Municipal Corporation to prove the inspection book of Kolkata Municipal Corporation for the year 1963-64, 1969-70, 1981-82 and 1975-76 and those were marked as exhibits. The learned Trial Judge, as indicated above, decreed the suit on the ground of default as well as subletting.;