- (1.) THIS second appeal is at the instance of a tenant/defendant in a suit for eviction and is directed against the judgment and decree dated May 13, 1997 passed by the learned additional District Judge. 5th Court, Alipore, District-South 24 Paraganas in Title Appeal No. 25 of 1995 thereby affirming those dated November 23, 1994 passed by the learned Assistant District Judge, 3rd Court, alipore, District 24 Paraganas (South) in Title Suit No. 50 of 1979.
(2.) THE predecessor-in-interest of the present respondents no. 1 to 3 along with respondent no. 4 filed the aforesaid Title Suit No. 50 of 1979 for eviction of the appellant on the ground of efflux of time mentioned in a registered deed of lease dated November 21, 1955 which was for a period of 16 years and the case made out by the plaintiffs was as follows :- (a) The suit property along with other properties originally belonged to a partnership firm carrying on business under the name and style of M/s. Partabmull Rameswar. The said partnership firm had five partners including the original plaintiff no. 1 and one dhanraj Bagaria, the husband of respondent no. 4. (b) By a registered indenture of partition and mutual conveyance dated March 26, 1963. all the partners of the said firm mutually and amicably partitioned the properties of the partnership including the suit property among the partners and in accordance with the said partition, the suit property along with some other properties fell in the share of plaintiff no. 1, the father of the plaintiff no. 1 and one Dhanraj Bagaria, the husband of plaintiff no. 2 jointly and thus all three of them became joint owners of the property with effect from the date of the said partition i. e. the March 26, 1963. (c) Thereafter on the death of the father of the plaintiff no. 1 and in view of partition by virtue of a decree passed in Suit No. 263 of 1972 of this High Court, the plaintiffs became the joint owners of the suit property. (d) Defendant having defaulted in payment of rent including enhanced Municipal rates and taxes in terms of the lease deed, the plaintiff no. 1, his father and Dhanraj Bagaria, the husband of plaintiff no. 2, as the then joint owners and lessors in terms of the said lease, filed application for winding up proceeding of defendant company under the provisions of Companies Act. However, this court disposed of the said petition by ordering permanent stay of the winding up proceeding on the defendants paying the entire amount of admitted arrears of rent with increased Municipal rates and taxes for the period from March 1967 to October 1967 and January 1970. In the said winding up proceeding the defendant acknowledged and admitted the petitioners therein as owners-lessors of the suit property and their right as such owners-lessors and acted accordingly by paying them the admitted arrears. (e) After the expiry of the said lease by efflux of time on April 30, 1972 although the defendant was bound to vacate the property, it filed a suit being Title Suit No. 88 of 1973 thereby praying for a decree for specific performance of an alleged agreement of renewal of the said lease against the then owners-lessors viz. plaintiff no. 1, his mother, Smt. Rani Debi Bagaria and Dhanraj Bagaria by treating them as lessors under the said lease. The said suit however abated for non-substitution of one of the defendants viz. Rani Debi Bagaria. (f) Thus, on the expiry of the said lease, the defendant was liable to be evicted.
(3.) THE appellant contested the aforesaid suit by filing written statement thereby denying the material allegations made in the plaint and its defence was, inter alia, as follows : (a) The partnership firm M/s. Partabmull Rameswar was the owner of property in suit and the suit not having been filed by the said firm, the defendant company was not bound to give up possession to the plaintiffs. (b) The partnership firm M/s. Partabmull Rameswar was admittedly the owner of the suit property and the said firm executed lease in favour of the appellant as lessor and under the terms of the lease possession of the leasehold property could only be lawfully demanded by the said lessor. The firm not having been dissolved, mere arrangement between) certain persons to enjoy the benefit of the property in the suit does not entitle them to lawfully demand possession from the defendant. (c) The payment of rent to Rangalal Bagaria, Deokinandan Bagaria and Dhanraj Bagaria was made on account of their misrepresentation about the ownership of the suit property. (d) The suit for specific performance of contract initiated by the appellant had not been finally decided. Moreover, the suit was instituted on the basis of wrong claim of separate ownership of the suit property by plaintiffs and when the real position became known, the appellant did not proceed further and the suit stood abated. ;