P. Mandal, J. - (1.) This first appeal is directed against the judgment and decree dated February 15, 2001, passed by the learned Judge, Eighth Bench, City Civil Court, Calcutta, in Title Suit No. 1259 of 1985 thereby decreeing the suit.
(2.) The short fact of the plaint case is that the plaintiff and the defendant No. 2 are two brothers and the defendant No. 3 is their sister while the defendant No. 1 is the wife of the defendant No. 2. The plaintiff and the defendant No. 3 jointly purchased the premises No. 2/2, Ratan Sarkar Garden Lane, under P.S. - Burrabazar, Calcutta - 700 007 (henceforth shall be called as the 'said premises') at a consideration of Rs. 35,000/ - only. The plaintiff paid 3/4th share of the consideration money and the defendant No. 3 paid the rest amount of the consideration money. Thus, the plaintiff became owner of the said premises to the extent of 3/4th share. After purchase, the defendant No. 3 wanted to effect partition of her undivided 1/4th share but it was found that the said premises was incapable of being partitioned in any manner and then, the two owners made an amicable partition by dividing the said premises into two halves by raising a demarcating partition wall dividing the said premises into North and South blocks. The plaintiff got the northern side of the said premises. It was decided that the defendant No. 3 would collect rents from the existing tenants and would pay the share thereof to the plaintiff at his residence in Calcutta. Thereafter, the plaintiff and the defendant No. 3 applied jointly to the Calcutta Municipal Corporation for mutation of their names as owners. They also applied for raising construction in terms of the sanctioned plan. Thereafter, they raised construction upon the said premises and they decided to divide the rents and profits earned from the said premises amongst themselves. After raising such construction from third to sixth floors, the plaintiff was considered as owner of the northern portion of the said premises and they were jointly entitled to make amicable partition of the southern portion and that they would enjoy and induct tenants in the said southern portion. According to such arrangement, the defendant No. 3 collected rents from the tenants of the southern side of the said premises on behalf of herself and the plaintiff and she was bound to make payments of the half share of such rents and advances to the plaintiff. But the defendant No. 3 refused to pay and furnish accounts with regard to the realization of rents and so the plaintiff was compelled to file a suit being numbered T.S.385 of 1977 in the City Civil Court at Calcutta for accounts. The suit was decreed against the defendant No. 3 on June 11, 1985. In the meantime, by a deed of conveyance dated June 4, 1985 the plaintiff purchased the rest 1/4th share of the said premises from the defendant No. 3. By such purchase, the plaintiff became the owner of the said entire premises.
(3.) The defendant No. 1, the wife of the defendant No. 2, was a licensee under the defendant No. 3 before the date of sale on June 4, 1985 in respect of two rooms on the fifth floor. Such licence was granted to the defendant No. 1 in January, 1976. Such accommodation was given to the defendant No. 1 for a limited period of one year only without payment of any licence fees or any other charge. After completion of one year, the defendant No. 1 refused to vacate such portion of the premises. So the plaintiff was entitled to take possession of such portion of the premises after purchase on June 4, 1985. The plaintiff asked her to vacate the said portion in vain. This portion is described as schedule - A to the plaint. Thereafter in January, 1977, the defendant No. 1 in collusion with the defendant No. 2 and thereafter, the defendant No. 7 trespassed into the other vacant southern partitioned portion of the said premises excluding the tenanted portion of the defendant Nos. 4, 5 and 6. The portion trespassed by the defendant Nos. 1 and 2 has been mentioned in schedule - B to the plaint and the portion trespassed by the defendant No. 7 has been mentioned in schedule - C to the plaint. After sale, the defendant No. 3 gave a letter of attornment to the defendant Nos. 4, 5 and 6 in June, 1985 and one tenant, namely, Gour Mohan Sadhukhan (defendant No. 4), received the said letter but the other letters were not returned to the plaintiff after signature. The plaintiff being the owner of the entire premises is entitled to take rents from the defendant Nos. 4, 5 and 6 as tenants under him and the defendant Nos. 1 and 2 have no right to collect rents at all. The plaintiff also stated that during the pendency of the suit, the defendant No. 7 who was a trespasser in respect of the entire fourth floor of the said premises amicably delivered vacant possession of the portion under his occupation on June 7, 1989 and the plaintiff was in occupation of the same. But during pendency of the suit, on June 15, 1989, the defendant Nos. 1 and 2 in collusion with others trespassed into the said fourth floor of the said premises, which is described in schedule - C to the plaint. Thus, the defendant Nos. 1 and 2 are in wrongful occupation of the fourth floor of the southern portion of the said premises. So the plaintiff is also entitled to recover possession of the schedule -C property by evicting the defendant Nos. 1, 2, their agents and servants there from. So the plaintiff has filed the suit for decree for recovery of possession of the suit premises as described in schedule - A to the plaint against the defendant No. 1 and also recovery of possession of the properties mentioned in Schedule - B and C to the plaint against the defendant Nos. 1 and 2 and also permanent injunction restraining the defendant Nos. 1 and 2 from collecting or realizing any rent from the defendant Nos. 4, 5 and 6 including the other tenants and also for other relief's.;