Siba Prasad Rajkhowa, J. - (1.) This appeal is directed against the judgment and decree dated 25th February, 1985 passed by Sri R. Goswami, Additional District Judge 4th Court, Alipore in Title Appeal no. 1002 of 1983 reversing the judgment and decree dated 29th August, 1983 pasted by Sri S.K. Chakraborty, Munsif, 2nd Court, Sealdah in Title Suit no. 167 of 1981.
(2.) Plaintiff/appellants filed the Title Suit no. 167 of 1981 against the defendant/respondent for his ejectment from the suit premises as fully described in Schedule 'A' at the foot of the plaint and also for arrear rents. The plaint case is that plaintiff no. 1, Sm. Kironmoyee Roy Choudhury was previously the sole owner of the premises no. 12, Syed Amir Ali Avenue, and by a registered deed dated 27th February, 1960 she leased out the said premises for a period of 21 years to the defendant at a monthly rental of Rs. 70/- according to English Calendar month. Thereafter plaintiff no. 1 transferred half share of the said premises to plaintiff no. 2 who is her son and thereafter a letter of attornment dated 6.5.71 was sent to the defendant and the defendant accepted the same and became a tenant under both the plaintiffs. By efflux of time the lease expired on the last day of February, 1981 and the defendant was bound to put the lessor/plaintiffs into possession of the suit premises on the determination of the lease on the expiry of the last day of February, 1981 and the plaintiffs through their Advocate intimated the defendant by a notice dated 23.2.81 sent through registered post with Acknowledgement. Due regarding the termination of the tenancy. However, despite receipt of the notice, the defendant did not quit and vacate the suit premises. The defendant also defaulted in the payment of rents from the month of January 1979 to the month of February, 1981 which comes up to Rs. 1470/- which is described in Schedule 'B' of the plaint. The plaintiffs therefore filed the suit for a decree for khas possession of the suit premises by evicting the defendant therefrom and for a decree for Rs. 1470/- as arrear of rents and for other reliefs.
(3.) The defendant contested the suit by filing a written statement admitting inter alia the creation of the tenancy by a registered deed for 21 years commencing from 1.3.60 to 28.2.81 in report of the suit premises at a monthly rent of Rs. 70/- under the plaintiff no. 1. But he denied that there was a valid transfer of half share of the suit premises by plaintiff no. 1 to plaintiff no. 2 and averred that in absence of any valid and lawful transfer of any share of the plaintiff there could not be any valid attornment as alleged by the plaintiffs. He also denied any relationship with the plaintiff no. 2 as his landlord as part owner of the suit property. He contended that on the express request of plaintiff no. 1, he accepted plaintiff no. 2 as entitled to receive rents on her behalf without prejudice to his rights to disclaim the position of the plaintiff no. 2 as his landlord. He further averred that in an earlier title suit being numbered as T.S. no. 484 of 1974, the same plaintiffs treated him as a monthly tenant simpliciter and prayed for khas possession under section 13 of West Bengal Premises Tenancy Act, 1956. The suit was finally disposed of and dismissed by judgment and decree dated 7.10.80 passed by the 3rd Additional District Judge at Alipore in Title Appeal No. 920 of 1979. Both the plaintiffs, accepted rents deposited by him in that suit and on the basis of this fact the defendant claimed that he continued as a monthly tenant even after the alleged determination of the registered lease and therefore, he contended that the plaintiffs were estopped from claiming otherwise and he prayed for the dismissal of the suit.;