Bhasker Bhattacharya, J. - (1.) This first appeal is at the instance of a defendant in a suit for eviction and is directed against judgment and decree dated April 29, 1994 passed by the learned Judge, 9th Bench, City Civil Court at Calcutta in Title Suit No. 487 of 1971.
(2.) The respondents herein filed the aforesaid suit for declaration that the firm "Chowdhury and Company" stood dissolved on and from 30th December, 1968 and for accounts and also for a decree for a sum of Rs. 1,800/- being arrears of six monthly profits. During the pendency of the aforesaid suit an amendment was made and by virtue of the said amendment the respondents prayed for declaration that the appellant was in permissive occupation as a licensee under Sukumar Dawn during his life time and after his death under the plaintiffs for 10 years from August 11, 1967 ending with August 11, 1977. By the said amendment the respondent further prayed for recovery of possession of the suit property after eviction of the appellant therefrom. The case made out by the respondent in the aforesaid suit was, inter alia, as follows: (a) Sukumar Dawn, the father of the respondents had been carrying on a business in "Oil-Man Stores" in a shop room being No. 48 Bertram Street, West Range, Sir Stuart Hogg Market within the Police Station Taltola and he was a recorded occupier of the said shop-room having obtained a licence from Corporation of Calcutta. (b) Slump having set in the said business, sometime in the year 1967 he intended to take up a new business of suit cases, steel trunks, Handbags and travelling requisites as was carried on in the said market by the neighbouring shop-keepers. (c) With that end in view, the said Sukumar Dawn decided to take the appellant as a partner in his new business as the appellant had experience in such type of business. (d) Accordingly, on August 11, 1967 a Deed of Partnership was executed and registered by the said Sukumar Dawn and the appellant thereby embodying the terms of the proposed partnership. (e) According to the terms, after formal sanction for the change of business was obtained from Corporation of Calcutta, the said co-partnership business would be carried on under the name and style of "Chowdhury and Company" and would be jointly managed by both of them. It was further stipulated that share of Sukumar Dawn in the business would be 87% and that of appellant would be 12% but in lieu of his share of profits, the said Sukumar Dawn would be entitled to receive a monthly sum of Rs. 300/- by way of fixed profits of the said partnership by the first week of every month and the appellant would be entitled to all the profits of the said business. It was further provided that after the expiry of 10 years or on earlier dissolution of the said partnership, the appellant would not have any claim or interest in the said shop- room and the said Sukumar Dawn would be free to carry on business of his own choice. (f) On December 30, 1968 the said Sukumar Dawn died leaving the respondents as his legal heirs and representatives and as such on the death of said Sukumar Dawn, the said partnership business stood dissolved and the appellant had no right to carry on the said business in the said shop-room. (g) During the continuance of the partnership, Sukumar Dawn drew his share up to June, 1968 and as such a sum of Rs. 1,800/- being fixed share of profits from July 1968 to December, 1968 was payable by the appellant.
(3.) The appellant contested the aforesaid suit by filing written statement thereby denying material allegations made in the plaint and the defence of the appellant was inter alia as follows:- (a) The suit was bad for defect of parties. The Calcutta Municipal Corporation being the owner of the stall was a necessary Party. (b) The appellant was in fact the owner of the business viz. "Chowdhury and Company" and the transaction between the appellant and Sukumar Dawn creating alleged partnership and delivering possession of the said stall to the appellant was void. The said Sukumar Dawn being age-wom and having want of capital and assets in his business, decided to transfer the stall to the appellant against monetary consideration to be paid by the appellant and the appellant in his turn decided to carry on the business dealing in suit cases, hand bags and travelling requisites in the said stall upon investment of his own capital independent of the said Sukumar Dawn. (c) The respondents did not inherit any interest in respect of the stall from their predecessor who was a licensee thereof during his life time and the said licence being neither renewed nor heritable, the respondents were not entitled to evict the appellant.;