R.Bhattacharya, J. - (1.) In this Second Appeal Chhaganlal Marwari, the principal defendant No. 1 of the original suit is the appellant- The appeal is being contested by the plaintiff-respondent, the Indian Iron & Steel Co. Ltd. described hereinafter as the Company.
(2.) The allegation of the plaintiff-company in the plaint is that the pro forma defendant No. 4 Mahammadin Brothers, a business concern was a non-agricultural tenant in respect of the suit land under the plaintiff and thereafter some constructions were made by the said tenant. The Company filed the Title Suit No. 76 of 1953 in the First Court of Munsif, Asansol against Mahammadin Brothers for recovery of khas possession of the suit land by evicting the said tenant therefrom on determination of the tenancy and also for recovery of arrears of rent and mesne profits. In that suit a preliminary decree was passed on 12-11-1953. The recovery of khas possession of the disputed property was to be made on payment of compensation as might be agreed upon between the parties or determined by the Court in respect of the structures standing on the land. In terms of this preliminary decree a commission was appointed for determination of the value of the structures and the compensation was ultimately assessed by the Court at Rs. 1,390/- and the said amount was deposited by the plaintiff. Accordingly a final decree was passed against Mahammadin Brothers in Aug., 1957. According to the company after the passing of the final decree, Mahammadin Brothers abandoned the suit property in favour of the plaintiff although the said tenant had let out the suit premises to the principal defendant No. 1 Chhaganlal at a monthly rental of Rs. 30/- prior to the passing of the final decree-. Chhaganlal in his turn let out the suit premises to the principal defendants Nos. 2 and 3 who started occupying the suit premises. According to the plaintiff-company, after the passing of the final decree and the abandonment of the suit premises by Mahammadin Brothers in favour of the plaintiff, the right, title and interest of Mahammadin Brothers in the suit property came to vest in the plaintiff and as such the plaintiff-company became the direct landlord of the principal defendant No. 1. It has been further alleged that the defendant No. 1 promised to pay monthly rents but failed to pay the same. The plaintiff-company thereafter served a notice to quit upon the defendant No. 1 on the expiry of the last day of Aug., 1963. As the defendant, did not comply with the notice, the company filed the instant suit for declaration of its title, recovery of possession of the suit premises and other reliefs.
(3.) The principal defendant No. 1 Chhaganlal contested the suit by filing a written statement. His case is that one Mahammadin and his brother Imammuddin were non-agricultural tenants in respect of the suit land and they started a business in the name of Mahammadin Brothers. Chhaganlal was a tenant in respect of the structures under them and the defendants Nos. 2 and 3 were his subtenants. It has been further alleged that in 1950 Mahammadin and Imammuddin verbally sold away their right in the suit land along with the structures thereon to him. The defendant No. 1 accordingly has been in possession of the suit property as of right lawfully and adversely and has thus acquired, in any view of the matter, absolute title to the suit property. The defendant No. 1 has denied that he is a tenant under the plaintiff. In the suit besides Chhaganlal, his tenants have been made principal defendants Nos. 2 and 3. "Mahammadin Brothers" has been made the pro forma defendant No. 4 and one Md. Isaq has been made the pro forma defendant No. 5. Although Isaq filed the written statement, he did not, as it appears, contest the suit at the time of final hearing and moreover, there was no appeal by him against the decree of the appellate court below.;