Dayal, J. - (1.) This appeal is directed against the judgment and decree dated 6th October, 1989 of the 7th Bench of the City Civil Court at Calcutta decreeing Title Suit No. 2371 of 1980 brought by respondents Nos. 1 and 2 whereby the plaintiffs Gobinda Chandra Nag and Smt. Astami Nag were granted a decree for possession of the suit premises by eviction of defendant No. 1 Sulochana Debi Bubna. The suit was also decreed for damages on payment of adequate Court fees for the same in a separate proceeding.
(2.) Rash Behari Basu and Kumud Behari Basu were initially the owners of premises No. 40, Shree Aurobindo Sarani, formerly known as 29/1, Grey Street, Calcutta fully described in the schedule to the plaint. By an Indenture dated 7th September, 1959, the said premises were leased out to Defendant No.2 Meghraj Bubna for 21 years from 1st day of October 1959 till 30th day of September, 1980. During the continuation of the lease, defendant No. 2 assigned the lease in favour of defendant No. 1 Sulochana Debi Bubna by a deed of assignment dated 13.5.1967. By an indenture dated 20th March, 1974, Rash Behari Basu sold his 3/4th share in the suit premises to Gobinda Chandra Nag plaintiff No. 1 and by an Indenture dated 20th March, 1974 Kumud Sehari Basu sold his undivided 1/4th share in the suit premises by deed of gift dated 18.4.1975 in favour of plaintiff No. 2 Smt. Astami Nag. In this manner, both the plaintiffs became the absolute owners of the suit premises. After the lease was assigned by defendant No. 2 in favour of defendant No. 1, the latter regularly paid rent to the plaintiffs upto September, 1980. On the expiry of the aforesaid lease on 30th September, 1980, defendant No. 1 did not vacate the premises inspite of request and letter of demand having been served upon him. Therefore, the plaintiffs brought the suit for eviction and recovery of possession against defendant No. 1 impleading defendant No. 2 as a necessary party but without claiming any relief against him. Damages/mesne profits were also claimed by the plaintiff against defendant No. 1 on monthly rate of rent of Rs. 800/- for wrongful used and occupation.
(3.) Defendant No. 1, in his written statement, denied the allegations made in the plaint. However, he has not disputed that defendant No. 2 was originally the tenant under Rash Behari Basu and Kumud Behari Basu; but alleged that in the year 1960, defendant No. 1 took monthly tenancy as sub- tenant under defendant No. 2 in respect of a portion of the suit premises with the knowledge and consent of the landlords and that in early March 1967 both the defendant approached the then landlords and defendant No. 2 surrendered his tenancy in favour of the landlords who accepted the surrender and accepted defendant No. 1 as a direct tenant and thus defendant No. 1 became a direct tenant under the landlords in place of defendant No. 2 with their consent and thereafter, the landlords started granting rent receipts in favour of defendant No. 1. He has also pleaded that the alleged assignment of lease for the residual period by defendant No. 2 to defendant No. 1 cannot make defendant No. 1 lease in respect of the suit premises for the residual period of 13 years or so. In the alternative, it is alleged that even if it be assumed that defendant No. 1 became a tenant under the lessors for the residual period of the lease by virtue of the assignment, the residual period of lease being 13 years or so i.e., less than 20 years, his tenancy is governed by the West Bengal Premises Tenancy Act and not by the Transfer of Property Act and as such he continues to be the tenant under the said Act.;