Barin Ghosh, J.
1. In the suit the plaintiff seeks vacant and peaceful possession of flat No. 4 on the 1st floor of premises No. 2, Old Mayor's Court, Calcutta on the ground that the original defendant, Champalal Bhansali, came to possess the property in question under a lease dated 19th September, 1959 for a term of 21 years commencing from 1st October, 1959, but despite the said lease coming to an end by efflux of time the original defendant continued to possess the same.
2. In the plaint it has been alleged that one Kanailal Dey and one Kalachand Roy, the then trustees appointed under a Deed of Trust dated 11th May, 1957, granted the said lease. It was then contended in paragraphs 2 and 3 of the plaint as follows :
'The said Kanailal Dey and Kalachand Roy were discharged from further acting as trustees of the trust estate and by a decree of this Hon'ble Court in Suit No. 353 of 1974 (Srimati Karabi Roy v. Salil K. Roy) the entirety of the said premises No. 2, Old Mayor's Court, Calcutta was directed to be made over to the plaintiff and the plaintiff became the sole and absolute owner of the said premises.'
'After the plaintiff became the sole and absolute owner of the said premises the lessee under the said deed of lease dated 19th September, 1959 attorned the tenancy in favour of the plaintiff and paid rents to the plaintiff.'
3. In addition to possession, the plaintiff has claimed occupation charges at the rate of Rs. 120 per diem. The suit was valued at Rs. 54,900 on the basis of the following averments :--
'For the purpose of Court-fees the suit premises is valued at Rs. 50,000/- and for ejectment the same is valued at Rs. 4,200/- and for arrears of rent Rs. 700/- aggregating to Rs. 54,900/- and the appropriate Court-fees have been paid on such valuation and the plaintiff undertakes to pay further or additional Court-fees if and when directed by this Hon'ble Court.'
4. During the pendency of the suit the plaintiff sought for an amendment to include in the pleading that the defendant is a trespasser and that the plaintiff though is the owner but the defendant is denying such ownership of the plaintiff and accordingly sought to incorporate two additional reliefs, namely, a declaration that the plaintiff is the owner of the property in question and a declaration that the defendant is a trespasser in the property in question. The application, seeking such amendment, is allowed. In appeal not only the order of amendment was set aside, but the plaint was directed to be returned on the ground that this Court had no pecuniary jurisdiction. The Supreme Court concurred with the finding of the Appeal Court in so far as amendment to the plaint is concerned but set aside the order of the appeal Court to the extent it held that this Court had no pecuniary jurisdiction. The Supreme Court then observed. 'The question regarding the jurisdiction of the High Court will be open to be decided by the learned single Judge before whom the suit is pending.'
5. The original defendant filed a written statement. In paragraphs 1(b), 1(c), 1(d) and 1(e) of the said written statement following averments were made :--
'1(b) By letter dated June 24, 1974 the said Trustees of the said trust intimated to the defendant that by a Deed of Transfer dated June 21, 1974 and registered in the office of Registrar of Assurances, Calcutta they had transferred their right, title and interest in the premises No. 2, Old Mayor's Court, Calcutta to Sm. Karabi Roy and that the said Karabi Roy had become the sole and absolute owner of the said premises. The said Trustees requested the defendant to pay rents to the said Sm. Karabi Roy for the period beginning from June 21, 1974;
1(c) Pursuant to the aforesaid request made by and 7or on behalf of the said Sm. Karabi Roy, the defendant started paying rents for the period starting from June 21, 1974 to the said Sm, Karabi Roy and paid rents up to and including the month of March, 1975 in respect of his tenancy;
1(d) Thereafter Sm. Bhabani Rani Roy approached the defendant and represented that her husband Salil Kumar Roy, the plaintiff had become the absolute owner/landlord of the premises No. 2, Old Mayor's Court and offered the defendant to become a monthly tenant under the plaintiff at the same rate of rent of Rs. 3507- per month provided that the defendant would incur expenses and cost for repair and maintenance of the tenancy to which the defendant agreed. Thereafter the defendant become a monthly tenant under the plaintiff at the same rate of rent and the said Sm. Bhabani Rani Roy started collecting rent for and on behalf of the plaintiff and the defendant paid the rents to the said Sm. Bhabani Rani Roy as monthly tenant under the plaintiff started from the period from April 1, 1975. As such the defendant became a monthly tenant under the plaintiff on and from April 1,1975 and the said lease was given a go by. However, the tenancy of the plaintiff either under the said trustees or under the said Sm. Karabi Roy was never attorned to the plaintiff.
1(e) The defendant states that he is a monthly tenant under the plaintiff and none of the terms and conditions of the said lease are binding upon the defendant.'
6. It appears from records that on 11th September, 1986 a few questions were put to the plaintiff in examination-in-Chief. Then on 7th October, 1987 the original defendant died whereupon his heirs and legal representatives being the present defendants were brought on record. The hearing of the suit re-commenced before me on 6th August, 1998 when also a few questions were put to the plaintiff in examination-in-chief. On that date on the prayer of the learned counsel appearing on behalf of the substituted defendant hearing of the suit was postponed till 10th August, 1998. On 10th August, 1998 the substituted defendants applied for incorporation of the following pleadings in the written statement:--
'1.(aa) With expiry of 20th June, 1974 the lease dated 19th September, 1959 was expressly and/or impliedly surrendered and/or the said lease was put to an end and the original defendant was treated as a monthly tenant by the Lessors and their transferee which was duly accepted by the original defendant.'
(f) In the alternative of sub-paragraphs (d) and (f) above the defendants state that the trustees transferred the premises No. 2 Old Mayor's Court, Calcutta including the demised premises to Sm. Karabi Roy by a registered document dated 21st June, 1974 which continues to be in force, valid and subsisting and the plaintiff has no cause of action.'
Such amendments were allowed and in that view of the matter on 12th August, 1998 the following issue were settled :
1. Is the plaintiff sole and absolute owner of the premises No. 2, Old Mayor's Court including the demised premises as alleged in paragraph 2 of the plaint?
2. Did the lessee attorn the tenancy in favour of the plaintiff as alleged in Paragraph 3 of the plaint?
3. Is the defendant in wrongful occupation of the demised premises as alleged in paragraph 9 of the plaint?
4. Is the defendant liable to pay mesne profits as alleged in paragraph 9 of the plaint? If so, at what rate?
5. Does this Court have jurisdiction to receive, try and determine the suit?
6. Was the lease dated 19th September, 1959 expressly and/or impliedly surrendered or put to an end to as stated in the written statement?
7. Was the original defendant treated and/or accepted as a monthly tenant by the lessors and their transferees as stated in the written statement?
8. To what relief, if any, is the plaintiff entitled?
7. On behalf of the plaintiff, the plaintiff examined himself alone. The substituted defendants also examined substituted defendant No. 1C alone. No other witness was examined. The plaintiff proved the said lease. He proved the decree of this Court passed in suit No. 595 of 1973 by, which this Court discharged the trustees on 1st April, 1974. He then contended that the trustees though were discharged they on 21st June, 1975 handed over the property to his elder sister-in-law, Sm. Karabi Roy. He stated that he had filed suit No. 353 of 1974 where he challenged the action of the trustees. He also proved the decree passed in the said suit. He then proved the letter of attornment dated 24th May, 1975 from Sm. Karabi Roy, original defendant. He then proved a letter dated 30th June, 1975 written to the plaintiff and Sm. Karabi Roy by, inter alia, the original defendant. He stated that the original defendant was holding the premises under the lease. He then proved a letter dated 18th September, 1980 written by his Advocate to the original defendant. He stated that the present letting out rate of the property in question, which is 1543 sq. it. more or less, is Rs. 20 per sq. ft. but he is claiming occupation charges at the rate of as claimed in the plaint. He stated that rents were paid by the original defendant to him and tendered in evidence four rent receipts, dated 25th May, 1975,1st November, 1979,8th April, 1980 and 8th April, 1980 respectively for the months of April, 1975, December, 1979, February, 1980 and March, 1980.
8. In cross-examination the plaintiff stated that he came to know the original defendant after he had received the letter of attornment dated 24th May, 1975 from Sm. Karabi Roy. He accepted the signatures of the senders of the letter dated 24th June, 1974 addressed to the original defendant. He also accepted the signature of Sm. Karabi Roy on the rent receipt dated 21st June, 1974. He also accepted the certified copy of the Deed of Transfer dated 21st June, 1974. It was suggested to the plaintiff that the lease came to an end with the expiry of 20th June, 1974, amonthly tenancy came into existence with effect from 21st June, 1974, during the subsistence of the transfer of lease the monthly tenancy was granted to the original defendant by the trustees; and thereafter by Sm. Karabi Roy, and that plaintiff s wife S. Bhabani Roy also ratified the monthly tenancy granted to the original defendant. He sought to justify the present letting out value on the basis that he has sold an identical flat at the rate of Rs. 500/- per sq. ft. and 1/20th of that would be the letting out value. He accepted that the letter dated 28th August, 1980 written by Mr. Khetri to the original defendant was written on his behalf. Lastly it was suggested to the plaintiff that in 1980 the prevailing rate of rent for the flats of the same size and locality was Rs. 600 per month and the present letting out rate is about Rs. 4000 per month.
9. In examination-in-chief the substituted defendant No. 1C stated that he resided in the suit premises up to 1983-84. He stated that he knew about the lease granted to the original defendant and the same was for 21 years. He then asserted, when the trust was being dissolved, he and the original defendant met Kalachand Roy when Kalachand Roy said that the trust was going to be dissolved and the property would be transferred to the wife of Kalachand Roy, namely Smt. Karabi Roy. He asserted that at that time he and the original defendant told Kalachand Roy that since the property was being transferred in the name of the wife of Kalachand Roy and the lease was going to be over by next 5-6 years, the leased property be transferred in the name of the original defendant as a tenant. This was a proposal, which was accepted by Kalachand Roy. Kalachand Roy told that he would send a letter to that effect. The lease was upto 20th June, 1974 and since 21st June, 1974 the tenancy came into existence. The trustees confirmed that the original defendant was accepted as a monthly tenant by the letter dated 24th June, 1974. He proved the bill raised by the trustees for the period 1 st June to 20th June, 1974. He also proved the bills dated 1st September, 1974 to 1st October, 1974 and 1st April, 1975 issued by Smt. Karabi Roy to the original defendant. He also proved the letter dated 19th July, 1974 written to the original defendant by the Advocates of the trustees. He said that the letter dated 24th May, 1975 from Smt. Karabi Roy to the original defendant was not received by the original defendant. He stated that in the year 1980 a similar flat could be available at the rate of Rs. 500 or Rs. 600 and the present rate of rent for a similar flat would be at least Rs. 3000 to Rs. 3500 per month.
10. In cross-examination the substituted defendant No. 1C stated that from 1984 he is staying at Panchanantala, Howrah and in the flat in question his younger brother, Kamal Kumar Bhansali is residing. He stated that the request to grant monthly tenancy was made orally by the original defendant in his presence. He accepted that the original written statement filed in August, 1981 was verified by the original defendant. It was suggested to him that in the written statement original defendant did not make any statement about granting of monthly tenancy by the trustees. In question No. 67 it was suggested that rent was paid under the lease dated 19th September, 1959 to Dr. Salil Roy after April, 1975. The answer to that was 'yes'. He stated that the case as made out in paragraph 1D of the written statement is correct.
11. From the above it appears that premises No. 2, Old Mayor's Court Street, Calcutta was a trust property. The trustees granted the subject lease. By an order dated 1st April, 1974 the trustees were discharged from acting any further as trustees, but the operation of the said order was directed to remain stayed until first day of July, 1974, it having been expressly held that the trust will come to an end with effect from first day of July, 1974. On 20th June, 1974 the trustees raised the last bill for the period 1st June to 20th June, 1974. It stated as follows :--
'To rent of the flat No. 4 in 1st floor of Premises No. 2, Old Mayor's Court,Calcutta-5 for the month of 1 -6-74 to 20-6-74 at the rate of Rs. 350/- per month
233.33Less advance adjusted as per terms of the Lease Deed Dated. ..........
rupees two hundred thirty three and thirty three paise only
Total Rs.233.33
On 21st June, 1974 a deed of transfer was executed by the trustees whereby premises No. 2, Mayor's Court, Calcutta was transferred to Smt. Karabi Roy. On 21 st June, 1974 Smt. Karabi Roy raised a bill upon the original defendant which reads as follows :--
'To rent of the flat No. 4 in 1st floor of premises No. 2, Old Mayor's Court,Calcutta-5 for the month of 21-6-74 - 30-6-1974, at the rate of Rs. 350/- per month116.67Municipal Tax........................ Maintenance charges................ Other charges....................... Dated............................... Rupees One hundred sixteen and p. sixty seven only
Total Rs.116.67'
On 24th June, 1974 the trustees wrote a letter to the Original defendant stating as follows :--
'This is to inform you that we Sri Kanai Lal Dey and Sri Kalachand Roy Trustees to the Estate of Dr. Gour Mohan Roy deceased have by a Deed of Transfer dated the 21st day of June, 1974 and registered at the office of the Registrar of Assurance, Calcutta have transferred the right, title and interest in the above premises in favour of Srnt. Karabi Roy, wife of Sri Kalachand Roy of No. 11A, Anukul Mukherjee Road, absolutely.
The said Smt. Karabi Roy has thus become the sole and absolute owner of the said premises being premises No. 2, Old Mayor's Court, Calcutta-5.
You Sri Champalal Bhansali is a tenant in respect of flat No. 4 in 1st floor of the said premises at a rental of Rs. 3507- (Rupees Three Hundred Fifty) only per month.
We the said trustees do hereby call upon you to henceforth pay your rent in respect of the said flat for the period beginning from 21st June, 1974 to the said Smt. Karabi Roy who is now the sole and absolute owner of the premises of which you are a monthly tenant in respect of the flat as above mentioned.'
On 19th July, 1974 the Advocates of the Trustees wrote a letter to the original defendant to the effect as follows :--
'This is to inform you that our clients Sri Kanai La! Dey and Sri Kalachand Roy, Trustees to the Estate of Dr. Gour Mohan Roy deceased have by a Deed of Transfer dated the 21st day June, 1974 and registered at the office of the Registrar of Assurance, Calcutta have transferred their right title and interest in the above premises in favour of Smt. Karabi Roy wife of Sri Kalachand Roy 11A, Anukul Mukherjee Road absolutely.
The said Smt. Karabi Roy has thus become the sole and absolute owner of the said premises being premises No. 2. Old Mayor's Court, Calcutta-5.
You Sri Champalal Bhansali is a tenant in respect of flat No. 4, in 1st floor of the said premises at a rental of Rs. 350/- (Rupees Three Hundred & fifty) only per month.
The said Trustees do hereby call upon you to henceforth pay your rent in respect of the said flat of the period beginning from 21st June, 1974 to the said Smt. Karabi Roy who is now the sole and absolute owner of the premises of which you are a monthly tenant in respect of the flat as above mentioned.'
In suit No. 353 of 1974 (Salil Kumar Roy v. Smt. Karabi Roy) the plaintiff herein prayed, inter alia, for a declaration that the Deed of Transfer dated 21st June, 1974 executed by the Trustees in favour of Smt. Karabi Roy is void, delivery up and cancellation thereof. The said suit was decreed by consent on 11th February, 1975, which provided as follows :--
'1. All interim orders made in the abovementioned suit are hereby vacated.
2. It is hereby declared by this Hon'ble Court by consent of the plaintiff Salil Kumar Ray, hereinafter called Sri Salil Kumar Roy and the defendant Smt. Karabi Roy that the said Smt. Karabi Roy is the sole and absolute owner of premises No. 11 A, Anukul Mukherjee Road, Calcutta, valued at Rs. 1,89,969/- and that the said Sri Salil Kumar Roy is the sole and absolute owner of Premises No. 2, Old Mayor's Court, Calcutta valued at Rs. 2,17,855/- and this Hon'ble Court decrees accordingly.
3. The said Sri Salil Roy by himself or his duly authorised agent will make over to the said Smt. Karabi Roy vacant possession of portion of premises No. 11A, Anukul Mukherjee Road, in the ground floor, first floor, garage and mezzanine floor above the said garage in his occupation within the 30th April, 1975.
4. The said Smt. Karabi Roy will make over to the said Sri Salil Kumar Roy or his duly authorised agent possession of premises No. 2, Old Mayor's Court by issuing letters of attornment to the tenants within the 39th April, 1975 in case clause 3 hereof is complied with; failing such compliance, on such other date on which the said clause is complied with by the said Sri Salil Kumar Roy or his duly authorised agent.
5. The said Smt. Karabi Roy will be solely entitled to appropriate rent of premises No. 2, Old Mayor's Court so far paid by the tenants and to realise all arrears of rents from the tenants in occupation thereof till 30th April, 1975 or upto such date when vacant possession of premises No. 11 A, Anukul Mukherjee Road is made over to her by the said Sri Salil Kumar Roy or his duly authorised agent.
6. The said Smt. Karabi Roy shall pay Rs. 500/- per month to the said Sri Salil Kumar Roy as compensation for use of the portion in occupation of that part of the premises No. 11A, Anukul Mukherjee Road, Calcutta which has been in her possession for the period from 1 st July, 1974 till 30th April, 1975, on or before 30th April, 1975or until vacant possession is delivered by Sri Salil Kumar Roy in terms of clause 3.
7. Each party do bear and pay his or her own costs of the suit. Certified for two counsel for each party. Ad valorem Stamp duty will be paid by Srimati Karabi Roy and Sri Salil Kumar Roy in equal shares.
8. In default of compliance by either Smt. Karabi Roy or Sri Salil Kumar Roy of the terms of Clauses 3, 4, 5 and 6 hereinabove this decree will be executable against the defaulting party by the other party without having to take recourse to a fresh suit.
9. Save as aforesaid the said Smt. Karabi Roy and Sri Salil Kumar Roy will have no claim against each other on any account whatsoever.
10. Liberty to apply.'
There is now no dispute that the said decree has been registered.
On 1st April, 1975 Smt. Karabi Roy raised a bill for the month of March, 1975. On 24th May, 1975 Smt. Karabi Roy wrote a letter to the effect as follows:--
'I beg to inform you that by a consent decree made by the Hon'ble High Court in suit No. 353 of 1974 (Salil Kumar Roy v. Smt. Karabi Roy) and dated 11th of February, 1975 Sri Salil Kumar Roy has been declared to be the sole and absolute owner of the above premises,
Please therefore attorn tenancy and pay your monthly rent of the above premises at the rate of Rs. 350/- (Rupees Three hundred fifty) per month to the said Salil Kumar Roy with effect from the month of April, 1975.'
On 25th May, 1975 the plaintiff raised a bill for the month of April, 1975. In text of this bill is identical to those raised by Smt. Karabi Roy. On 30th June, 1975 Satyanarayan Bharatia, Santosh Kumar Saraf, original defendant, Shyamal Prasad Todi, Liladhur Dinanath, Rampratap Gupta and Fulchand Garodia describing them respectively as lessees of flat No. 1, flat No. 2, flat No. 4, flat No. 5, flat No.,6, flat No. 7 and flat No. 8, wrote a letter to Smt. Karabi Roy and the plaintiff with acopy to the plaintiff s advocate Sri Tarun Kumar Gupta stating as follows :--
'We the undersigned are the lessees in respect of our respective portions in the aforesaid premises holding under Registered Deeds of Lease.
For the last few years we are experiencing great difficulties in peaceful and beneficial enjoyment of our respective portions and we brought our difficulties and inconvenience to the landlords concerned on several occasions, but they turned deaf ear to the same.
Out difficulties inter alia may be enumerated as hereunder:--
1. That there is no general maintenance of the building. The main entrance, the stair-case and the common passage are not kept clean for the last few months.
2. There is no arrangement of any resident Darwan in the building for about 3 months with the result that anti-social elements and persons of doubtful character are found in and around the main entrance during the major portion of the day. The absence of the said resident darwan caused theft in Flat No. 4 on 25th of June, 1975 and household articles worth about Rs. 1,000/-were stolen and no trace of the same has been found as yet.
3. There is total stoppage of water supply for the last 20 days in the building and it appears that the electric motor for running the pump for lifting water for the purpose of storage on the overhead reservoir has been removed from the premises and in spite of our repeated requests water supply has not yet been resumed.
4. That the building has not been repaired for several years and so also white washing, colour washing and wood painting.
The aforesaid grievances of ours have resulted due to the gross negligence and carelessness on the part of the landlords concerned though the deeds of lease executed by and between us and the landlords clearly proves the obligation of the landlords besides others to carry out the general repairs, to keep the resident Darwan, to give regular supply of filtered water and to maintain the building neat and clean by regular repair, white washing etc.
We may mention here that so long the trustees were in charge of the property we had never suffered any inconvenience or troubles ini the buidling; but since the disputes have arisen between the owners thereof the building has been neglected and the landlords concerned are not fulfilling their obligations under the registered deeds of lease.
The aforesaid neglect and carelessness on the part of the landlords concerned has caused immense loss to us and there is no end to it even now.
We are placing our grievances before you for your consideration as we being the lessees in the premises living with our respective families are going without filtered water for several days and you can visualise our difficulties in the circumstances and as landlords you owe the obligation towards us by keeping us in peaceful and comfortable position in our respective portions. In these summer days water is a 'must have' without which we with our families cannot pull on and it being the essential necessity and an amenity attached to our respective leases you cannot deprive us to get the same to meet our day to day requirements.
We, however, approach you and place our aforesaid grievances for your consideration and we hope that you would take all necessary steps to remove our grievances to the best of the interest of all concerned.
We are addressing this letter to you both as we are not sure to who out of you both is our landlord.'
On 28th August, 1980 Mr. Khattry wrote a letter to the original defendant stating as follows :--
'I am addressing you under instructions from and on behalf of my client Shri Salil Kumar Roy of 2, Old Mayor's Court, Calcutta.
Under an indenture of lease dated the 19th Day of September, 1959, you took lease of the flat No. 4 on the first floor of the premises No. 2, Old Mayor's Court, Calcutta for a period of 21 years commencing from the 1st Day of October, 1959 at a monthly rent of Rs. 350/- payable according to English Calendar month from the Trustees Sri Manailal Dey and Shri Kalachand Roy. The said Trust came to an end by the order of the Hon'ble High Court at Calcutta passed in suit No. 353 of 1974 and the premises No. 2, Old Mayor's Court, Calcutta, was allotted to my abovenamed client absolutely. So long as the property was in the hands of the Trustees, they realised rent from you and after the property came into the hands of my client he realised rent in terms of the said lease from you. The said lease is going to expire by efflux of time on the 1st of October, 1980 when you are to make over possession of the said flat to my client.
I am therefore, instructed to give you notice which I hereby do, that you are to make over vacant and peaceful possession to my client of the said flat No. 4 on the 1 st floor of the premises No. 2, Old Mayor's Court, Calcutta, consisting of four living rooms, two bath rooms, two privies, one kitchen and one store room on the expiry of the 1st of October, 1980. Failing compliance, my client shall be constrained to take appropriate action for the recovery of possession of the said premises without further reference to you and shall also hold liable for damages for wrongful occupation at the rate of Rs. 30 per diem till you are evicted in due course of law, which please note.'
Lastly on 18th September, 1990 Mr. Tarun Kumar Gupta on behalf of the plaintiff wrote a letter to the original defendant stating as follows:-
'Under the instructions from my client Sri Salil Kumar Roy of No. 2, Old Mayor's Court, Calcutta, I write to you as follows :
By an indenture of lease dated 19th September, 1959 you took a lease of a portion of the first floor of premises No. 2, Old Mayor's Court, Calcutta for a period of 21 years commencing from 1st day of October, 1959 at a monthly rent of Rs. 350/- payable according to English Calendar month from the Trustees Sri Kanailal Dey and Sri Kalachand Roy. The said trust came to an end by the Order of the Hon'ble High Court at Calcutta and the premises No. 2, Old Mayor's Court, Calcutta was absolutely allotted to my client. So long the property was in the hands of the Trustees they realised rent from you and after the property came to my client, he is realising rents from you in terms of the said lease. The said lease is going to expire on 1st day of October, 1980 when you are to make over vacant and peaceful possession of the portions in your occupation under the said lease to my client.
In the premises aforesaid I have been instructed to give you notice which I hereby do that your are to give and make over vacant and peaceful possession of portions of 2, Old Mayor's Court, Calcutta, consisting of four bed rooms, two bath rooms, two privies, one kitchen and one store room in the first floor being flat No. 4 of the said premises No. 2, Old Mayor's Court, Calcutta demised under the lease hereinbefore stated on the expiry of 1st day of October, 1980 failing which my client will be constrained to take appropriate steps against you for recovery of possession and for other reliefs as he will be advised in the matter without any further reference to you and at your risks as to all costs and consequences. In this connection my client repeat and reiterate the statements made in the letter dated 28th August, 1980 addressed to you by my client's Advocate Mr. Mahesh Prasad Khettry and in which letter the amount of damages claimed per diem is Rs. 30/- by typographical mistake which should be Rs. 130/-. So please read it accordingly.'
12. Originally a certified copy of the consent decree dated 11th February, 1975 passed in Suit No. 353 of 1974 (Salil Kumar v. Smt. Karabi Roy) was tendered in evidence. In that view of the matter the 1 st issue was raised. Subsequently a certified copy of the registered certified copy of the said decree was tendered in evidence and accordingly the plaintiff s ownership of premises No. 2, Old Mayor's Court was accepted. The issue No. 1, therefore, was not contested by the defendants and accordingly the same is answered in the affirmative in favour of the plaintiff.
13. There is. no dispute that the original defendant during the subsistence of the lease accepted the plaintiff to be his landlord and paid rent to him. Therefore, there cannot be any dispute that the original defendant attorned his tenancy in favour of the plaintiff. The dispute is, in what capacity did the original defendant attorned his tenancy. Did the original defendant do it as a monthly tenant or as a lessee This can only be answered after answering the issues No. 6 and 7.
14. The original defendant pleaded in his written statement that by the letter dated 24th June, 1974 the trustees informed him that Smt. Karabi Roy has become the sole and absolute owner of premises No. 2, Old Mayor's Court, Calcutta by virtue of the Deed of Transfer dated 21st June, 1974, with a request to pay rent to Smt. Karabi Roy for the period beginning from 21st June, 1974 and that in pursuance of such request he started paying rent to Smt. Karabi Roy. The original defendant also pleaded that subsequent thereto wife of the plaintiff approached him and granted him a monthly tenancy. After the death of the original defendant, the substituted defendants pleaded that with the expiry of 20th June, 1974 the lease was expressly or impliedly surrendered or the same was put to an end and the original defendant was treated as a monthly tenant by the trustees and their transferees, which was accepted by the original defendant. Thus, white the original defendant contended in the pleadings that subsequent to 21st June, 1974 monthly tenancy was created in his favour by the wife of the plaintiff, but the substituted defendants pleaded that with the expiry of 20th June, 1974 the lease was surrendered and the original defendant was treated as a monthly tenant by the trustees and their transferees. At the trial the substituted defendants chose to stick to the case which was made out by them by amending the written statement, i.e., with the expiry of 20th June, 1974 the lease was surrendered or put to an end and the original defendant was treated as monthly tenant by the trustees and their transferees. In order to substantiate that case the sole witness of the substituted defendants in his ex-amination-in-chief stated as follows :--
'9. What happened to that lease ?
When the trust was being dissolved we met Kalachand Roy and at that point of time he said that the trust was going to be dissolved and the property was being transferred in the name of his wife. At that time we requested him saying since this property was being transferred in the name of his wife and the lease agreement was also going to be over by next 5/6 years, kindly transfer the property in our name as a tenant.
10. What happened thereafter ?
He accepted that request saying that he would send a letter to that effect.
11. Was your father Champalal Bhansali given monthly tenancy ?
Yes.
12. Since when ?
Leasewasamatterupto20thJune, 1974and since 21st June, 1974 we got the tenancy.
13. Did the trustees confirm that you were accepted as a monthly tenant ?
This letter was sent by the trustees themselves.
14. I am showing you Ext. 1 in this proceeding (shown to the witness). Is this the letter by which the trustees confirmed that you were accepted as a monthly tenant ?
Yes it is.'
(Ext. 1 referred to in question No. 14 is the letter dated 24th June, 1974 which has already been extracted above).
15. In cross-examination the substituted defendant No. 1-C stated as follows :--
'49. You have deposed that a request was made to the trustees for grant of monthly tenancy in respect of flat No. 4, 2, Old Mayor's Court Street. This request if made was made by Mr. Champalal Bhansali ?
Yes.
50. You have no personal knowledge with regard to this request ?
How it can be so since this request was made in my presence.
51. This lease of 19th September, 1959 was registered lease and in writing. Was it not ?
Yes.
52. According to you this request was made orally, not in writing ?
He said orally of course but he also said that I will be sending you the letter and he did that.
53. According to you the request was made by Mr. Champalal Bhansali. He never sent any request in writing ?
Yes. He never sent in writing.
54. The original written statement which was filed in the suit was verified in August, 1981. Is that correct ?
Yes.
55. This was verified by Champalal Bhansali. He must have known about this fact Yes. He knew that.
56. In the original written statement Mr. Bhansali has not made any statement about this fact which you are now saying from the witness box.
How can it be so. It must also be there in the original.
57. I am suggesting to you that whatever you have deposed with regard to this alleged request to the trustees is completely untrue. I do not agree.'
16. The question is, has the substituted defendant No. 1-C been able to prove surrender of the lease with the expiry of 20th June, 1974 and granting of a monthly tenancy with effect from 21st June, 1974 on the basis of the deposition set out above and the letter dated 24th June, 1974 written by the trustees It was submitted by the learned counsel appearing on behalf of the substituted defendants that the trustees in their letter dated 24th June, 1974 described the original defendant as a monthly tenant and not as a lessee. He submitted that the test of the rent receipt issued by Smt. Karabi Roy was changed. He also submitted that the manner of collection of rent was also changed. He clarified that in accordance with the lease no advance monthly rent was payable and accordingly rent bills used to be raised by the trustees for the preceding month but Smt. Karabi Roy raised advance bills on 21st June, 1974. He also submitted that this conduct of the trustees and Smt. Karabi Roy corroborates the deposition of the witness. He added that in a situation like this the Court should view the matter if instead of plaintiff, Smt. Karabi Roy had instituted the present suit. He submitted that neither Smt. Karabi Roy, nor the trustee, one of whom is the husband of Smt. Karabi Roy could say anything contrary to what have been stated by his witness and in any event in the absence of any statement contrary to what have been stated by his witness, by Smt. Karabi Roy and by the trustees, which statement ought to have been obtained by the plaintiff, the deposition of his witness should be accepted by the Court.
17. The learned counsel for the defendant further submitted that although the burden to prove that there was in fact surrender of the lease and grant of a monthly tenancy is with the substituted defendants, but, they having adduced prima facie evidence, they have duly shifted the onus upon the plaintiff.
18. If by the letter dated 24th June, 1974 grant of monthly tenancy was accepted, as appears to be the case of the substituted defendants, then of course the same should be rejected inasmuch as on 24th June, 1974 the trustees had no interest in the property, they having transferred the propcity in favour of Smt. Karabi Roy by the Deed of Transfer dated 2Isi June, 1974 tendered in evidence by the substituted defendants. The substituted defendant No. 1-C has deposed that for surrender of the lease and for grant of monthly tenancy one of the trustees was approached. One of the trustees could not deal with the property in question in the manner as the substituted defendants have asserted. This could be done by both the trustees. There is no assertion on the part of the substituted defendant No. 1-C that both of the trustees acted in the manner as asserted by the substituted defendants prior to 21st June, 1974. Even assuming that by the letter dated 24th June, 1974 written by the trustees and by the letter dated 19th July, 1974 written on their behalf original defendant was recognised as a monthly tenant, but that is not even a prima facie case to shift the onus as admittedly on the date of the said letters the trustees had no interest in the property in question and thus they had no authority or power to create any interest therein.
19. Further and in any event description of a lessee as monthly tenant in a notice given to such lessee is not indicative of conduct justifying an inference that a fresh contractual tenancy had come into existence. The use of the adjective 'monthly' is not indicative of a contractual relationship. In this connection reference may be had to the judgment of the Supreme Court in the case of Ganga Dutt Murarka v. Kartic Chandra Das, reported in : [1961]3SCR813 .
20. It is not the case of the substituted defendants that monthly tenancy was granted by Smt. Karabi Roy. It is their case that monthly tenancy granted by the trustees was accepted by Smt. Karabi Roy. It has not been shown that until 20th June, 1974 the trustees granted any monthly tenancy to the original defendant. It is not the case of the substituted defendants that the original defendant tendered any rent to the trustees in his capacity as a monthly tenant. On the contrary it is an accepted position in the evidence that until 20th June, 1974 original defendant tendered rent to the trustees in his capacity as lessee. If the original defendant was not the monthly tenant of the trustees then the question of their transferees Smt. Karabi Roy accepting such monthly tenancy did never arise.
21. Furthermore, the original defendant who filed the written statement and whose son, namely, the substituted defendant No. 1-C confirmed that the written statement was verified by the original defendant, did not assert in the written statement that any monthly tenancy was created by the trustees though he was alive of the letter of the trustees dated 24th June, 1974 and in regard thereto had contended that by that letter the trustees had requested him to pay rents to Smt, Karabi Roy and accordingly he paid rent to Smt. Karabi Roy. This aspect of the matter has not at all been explained by the substituted defendant No. 1-C. Then again he has also not explained as to why the trustees would create a monthly tenancy on the self-same terms and conditions when the lease was about to expire within 5 or 6 years from the date of creation of such monthly tenancy.
22. Even after 24th June, 1974 the original defendant by a letter dated 30th June, 1974 asserted that he is the lessee in respect of the portion of the premises in question holding under a registered deed. By that letter he was seeking at least one benefit, namely, benefit of a resident Darwan. It was available to him only under the lease and not as a monthly tenant. The letter dated 30th June, 1975 was tendered in evidence by the plaintiff. The substituted defendant No. 1-C, who was called upon to depose after the plaintiff had deposed, did not explain the letter dated 30th June, 1975 in his examination-in-Chief. In cross-examination he was not confronted with that letter. The learned counsel for the substituted defendants relying on a judgment of the Supreme Court in the case of Sitaram Bhau Patil v. Ram Chandra Nago Patil, reported in : [1977]2SCR671 , submitted that since the letter dated 30th June, 1975 was not put in cross-examination to the substituted defendant No. 1-C, he was not given an opportunity to explain the same and thus the admission in the letter dated 30th June, 1975 should be ignored altogether. In that case a previous statement contained in a certified copy of deposition was placed on record which was sought to be used as admission. The Supreme Court observed, 'a mere proof of admission after the person whose admission it is alleged to be, has concluded his evidence, will be of no avail and cannot be utilised against him.' In the instant case the letter dated 30th June, 1975 was tendered in evidence prior to the substituted defendant No. 1-C had come to depose. The letter did not contain any admission by the substituted defendant No. 1-C. It did not even contain any statement of the substituted defendant No. 1-C. It contained a statement of the original defendant. The letter dated 30th June, 1975, therefore, is not an admission as such requiring it to be confronted with the substituted defendant No. 1-C. It is a piece of evidence which depicts the contemporaneous conduct of the original defendant If the conduct is such and it remains unexplained, can it be said that onus has at all been shifted. I do not think so. In those circumstances, I have no other option but to hold that the substituted defendants have failed to discharge their onus of proving issues No. 6 and 7 and accordingly the said issues are answered in the negative and in favour of the plaintiff. In that view of the matter it has to be held that the original defendant attorned his tenancy in favour of the plaintiff in his capacity as lessee and accordingly the said issue is also answered in the affirmative and in favour of the plaintiff.
23. The learned counsel for the defendant relied on a judgment of a single Judge of this Court in Bimalendu Bhusan Das v. Firm Mitra and Ghosh, reported in : AIR1973Cal515 , where apparently it was held that when either the landlord or the tenant transfers his interest in the property a new privity of contract need be established between the parties to establish a relationship of landlord and tenant and that happens when a purchaser of the landlord's interest accepts the occupier of the tenanted portion as a tenant under him by accepting rent or when the tenant attorns to the purchaser by paying rent to him as a tenant. It was urged that when the property was transferred to Smt. Karabi Roy and she accepted the original defendant as the tenant a new tenancy was created. There is no such pleading even in the amended written statement. Such a case was not suggested to the plaintiff when he was in the witness box. No such case was made out from the witness box even by the substituted defendant No. 1-C. Furthermore lease is a transfer. The owner, when sales his property, sales with the transfer already affected by the lease. He also sales his right to receive the rent under the lease. The acceptance of rent from the lessee by the transferee owner cannot thus create any new tenancy. In the case referred to above the learned Judge was not concerned with a lease. He was concerned only with a monthly tenancy.
24. On the expiry of the lease the original defendant had no right to remain in possession of the property in question. The substituted defendants contended that the original defendant remained in the property in question as monthly tenant and such tenancy is protected by the West Bengal Premises Tenancy Act, 1956 but they have failed to prove that the original defendant ever occupied the premises in question in any capacity except as lessee. In that view of the matter issue No. 3 is answered in the affirmative and in favour of the plaintiff.
25. In the plaint mesne profit was claimed at the rate of Rs. 120 per day or at the rate of Rs. 3600 per month. In his deposition, the plaintiff stated that the present letting out value of the property in question is Rs. 20 per sq. ft. and that the property is about 1500 sq. ft. Thus, according to the plaintiff the present letting out value of the property in question is about Rs. 30,000 per month. He did not say what was the letting out value of the property in question in 1980 when the lease came to an end. He sought to justify his contention that the present letting out value is Rs. 20 per sq. ft. on the basis that l/20th of the value of the property is the present letting out value and the value of the property is Rs. 500 per sq. ft. as an identical flat was sold by him at that rate. He did not try to justify his said contention by producing any cogent evidence. Be that as it may, he only talked about the present letting out value and not what was the letting out value in 1980. In the first letter written by him through Mr. Khetrry dated 28th August, 1980, the plaintiff claimed mesne profit at Rs. 30 per diem. In the letter written by him through his advocate Mr. Tarun Dutt dated 18th September, 1980, the plaintiff contended that the earlier claim of Rs. 30 per diem was an error and the same should be read as Rs. 130 per diem. Whether that was a mistake or not, it was a mere claim. From the evidence of the plaintiff it does not appear that the plaintiff has been able to prove the letting out value of the property in question at the time when the lease came to an end. It was, however, suggested to the plaintiff on behalf of the substituted defendants that the letting out value of the property in question in 1980 was Rs. 600 per month and the present letting out value of the property in question would be Rs. 4000 per month. The substituted defendant No. 1-C in his deposition stated that in 1980 a similar property was available at the rent of Rs. 500 or Rs. 600 per month and at present the same is available at Rs. 3,000 to Rs. 3,500 per month at least. Despite an issue having been raised at the trial as to what would be the rate of mesne profit, the plaintiff did not make any effort to prove the same. The substituted defendants, however, accepted such rate in the manner, indicated above. Although, I can direct an enquiry as to the mesne profit but having regard to the fact that an issue was raised in regard thereto and parties have led evidence thereon, it would not be proper on my part to direct an enquiry as to mesne profit and on the contrary it would be my obligation to decide the said issue on the evidence on record.
26. The substituted defendants having failed to show that the original defendants had any authority to remain in possession of the suit property after the expiry of the lease, They are obliged to compensate the plaintiff for being in possession of the property in question without authority to do so and accordingly they are liable to pay mesne profit. The rate of such mesne profit would be the prevailing rate of rent. The substituted defendants have suggested that in 1980 the prevailing rate of rent was Rs. 600 per month. They cannot, thus, dispute that the reasonable letting out value of the property in question in 1980 was less than Rs. 600 per month. They have also suggested that the present prevailing rate of rent of the property in question is about Rs. 4000 per month. Thus, they cannot dispute that the present prevailing rate of rent of the property in question is less than Rs. 4000 per month. Mesne profit is accordingly determined. The issue No. 4 is thus, answered in the affirmative in favour of the plaintiff but the rate of mesne profit is Rs. 600 per month as prevalent in 1980 and Rs. 4000 per month as prevalent is 1998.
27. Although in the written statement it was urged that this Court has no jurisdiction to receive, try and to determine this suit and although at one stage of the suit, the original defendant succeeded and the plaint was directed to be returned to the plaintiff and though the said order was set aside by the Supreme Court with an observation that the question regarding the jurisdiction of the High Court will be open to be decided by the learned single Judge before whom the suit is pending, but the issue relating to jurisdiction was not urged to be decided as preliminary issue. On the contrary this was suggested as one of the issues along with other issues on the merit. If after the entire suit is heard and decided on merit it appears to the Court that the Court has no pecuniary jurisdiction, as is being suggested here, would it be proper to return the plaint and thereby put the parties in greater difficulties Issues of the nature should be decided as apreliminary issue. If the party raising such issue does not insist that the same should be decided as a preliminary issue, he should not be permitted to urge that issue after the trial is over on merits.
28. Be that as it may, Section 7(v), (vi) and (xiii) of the West Bengal Court Fees Act, 1970 is as follows :--
'(7(v)) In suits for the possession of land, buildings or gardens, not being suits referred to in Clause (vi)--
(a) according to the value of the subject matter, and such value shall be deemed to be fifteen times the net profits which have arisen from the land, building or garden during the year next before the date of presenting the plaint, or if the Court sees reason to think that such profits have been wrongly estimated, fifteen times such amount as the Court may assess as such profits or according to the market value of the land, building or garden, whichever is lower;
(b) if, in the opinion of the Court, such profits are not readily ascertainable or assessable, or where there are no such profits, according to the market-value of the land, building or garden;
Explanation.-- In this paragraph 'building' includes a house, out-house, stable, privy, urinal, shed, hut, wall and any other such structure, whether of masonry, bricks, wood, mud, metal or any other material whatsoever;
7(vi) In a suit for recovery of possession of immovable property from
(a) a trespasser, where no declaration of title to property is either prayed for or necessary for disposal of the suit-according to the amount at which the relief sought is valued in the plaint subject to the provisions of Section 11;
(b) a licensee upon revocation or termination of his license,--
(i) where a license fee is payable by the licensee in respect of the immovable property to which the suit refers -- according to the amount of the license fee of the immovable property payable for the year next before the date of presenting the plaint, or
(ii) where no such license fee is payable by the licensee-according to the amount at which the relief sought is valued on the plaint subject to the provisions of Section 11;
7(xiii) In the following suits between landlord and tenant--
(a) for the delivery by a tenant of the counterpart of a lease,
(b) to enhance the rent of a tenant having a right of occupancy,
(c) for the delivery by a landlord of a lease,
(d) for the recovery of immovable property from a tenant including a tenant holding over after the determination of a tenancy.
(e) to contest 'd notice of ejectment,
(f) to recover the occupancy of immovable property from which a tenant has been illegally ejected by the landlord, and
(g) for abatement of rent--
according to the amount of the rent of the immovable property to which the suit refers, payable for the year next before the date of presenting the plaint.'
29. In the instant case the plaintiff wanted to amend his plaint to contend that the original defendant is a trespasser, that amendment was disallowed. If that plea is not in existence, then it cannot be contended that the suit valuation should be on the basis of such plea. The case of the plaintiff is not that the original tenant was a licensee. Therefore, Section 7{vi) of the West Bengal Court Fees Act, 1970 has no application.
30. The learned counsel for the defendant contended that a tenant will include an ex tenant and thus Section (xiii) of the West Bengal Court Fees Act, 1970 will apply. The learned counsel for the plaintiff defendant contended that a lessee whose lease has come to an end is a tenant at sufferance and thus he cannot be a tenant within the meaning of Section 7(xiii) of the said Act. He submitted that in such cases Section 7(v) will apply, if not, Section 7(vi) applies. The learned counsel forme defendant relied on a judgment of a division bench of this Court in the case of Govinda Kumar Sur v. Mohini Mohan Sen, reported in AIR 1930 Cal 42. There the defendants were holding under the plaintiffs as monthly tenants at will a building. The suit was valued at the 12 months rent. A preliminary issue regarding valuation of the suit was raised. The issue was decided in favour of the defendant. The division bench decided in favour of the defendant. The division bench decided the issue against the defendant and held that the word 'tenant' occurring Section 7 Clause 11 (cc) means an ex-tenant, that a person who was a tenant but has now ceased to be so. I do not think that this case can at all help the substituted defendants. A monthly tenancy at will is not a lease since that does not purport to transfer any interest in the property whereas the lease effects transfer of the property. An ex-lessee, therefore, is not an ex-tenant. He is, as stated by the Supreme Court in Smt. Shanti Devi v. Amal Kumar Banerjee, reported in AIR 1981 SC 1550, a trespasser and a tenant at sufferance akin to the position of a trespasser as held by the Supreme Court in R. V. Bhupal Prasad v. State of AndhraPradesh, reported in : AIR1996SC140 . A lessee, whose lease has come to an end, and by operation of law whose interest in the property acquired under the lease stands reverted back to the guarantor, is neither a tenant, nor an ex-tenant but a person in occupation without any authority to do so. If he is not a trespasser, a suit for recovery of possession from him can only be valued by taking recourse to Section 7(v) of the said Act. The defendants have not challenged the valuation of the property as given by the plaintiff. Thus it cannot be said that the suit was not properly valued. Tf the suit was properly valued then there cannot be any question that this Court had jurisdiction to receive, try and determine the suit. The issue No. 5 is thus, answered in the affirmative and in favour of the plaintiff.
31. I shall now answer the issue No. 8 by stating that the plaintiff is entitled to vacant and peaceful possession of flat No. 4, on the 1st floor of premises No. 2, Old Mayor's Court, Calcutta described in the plaint and accordingly there shall be decree directing the substituted defendants to deliver up vacant and peaceful possession of the suit property to the plaintiff on or before 1 st January, 1999. There shall also be decree directing the substituted defendants to pay mesne profit to the plaintiff at the rate of Rs. 600 per month on and from 1st October, 1980 until 31st December, 1998. In the event the substituted defendants fail to give vacant and peaceful possession of the property in question to the plaintiff in terms of this decree, they shall be liable to pay mesne profit to the plaintiff at the rate of Rs. 4000 per month on and from 1st January, 1999 until the date of delivery of vacant and peaceful possession of the property in question to the plaintiff.
32. The plaintiff shall be entitled to cost of this suit assessed at Rs. 25,000/-.
33. Stay prayed for is refused.