JUDGMENT:

1. This special leave petition is filed against the order dated 24th of April, 2007 passed by the High Court at Calcutta in APOT No.44 of 2007 whereby the High Court had dismissed the appeal filed by the appellant challenging an order passed by a learned Judge sitting in the original side jurisdiction of the High Court.

2. The petitioners are trustees of a trust named Gouri Devi Trust, which at all times was and still is the absolute owner of premises situated at 95A Chittaranjan Avenue, Calcutta-700 073 (in short the disputed premises). The disputed premises consists of a three storied building and comprises an area of 1 Bigha 4 Cottahs of land and is situated in the heart of the city. A portion of this building comprising 11 rooms on the 1st floor and 11 rooms on the 2nd floor including 2 kitchen rooms was let out by the then trustees of the said Trust to one M/s.B.Majumdar Samajpati at a monthly rent of Rs.1610/-. In the year 1992, at the request of the said B.Majumdar Samajpati, the tenancy in respect of the tenanted portion was transferred by the then trustees in favour of B.Majumdar Samajpati & Sons Hotels Pvt. Ltd. which is now respondent before us in this petition on the same terms and conditions contained in a letter dated 18th of November, 1992 with effect from December, 1992. On 5th of October, 2005, the petitioners has filed the instant suit in the original side of the High Court for a decree of Rs.12 lakhs and for mandatory and perpetual injunction and for recovery of possession, and for damages of mesne profit which have been described in the prayer portion of the plaint and for other incidental reliefs.

3. In this suit on an application filed before a learned Judge, an Advocate Commissioner was appointed to make inventory of the demised premises and also passed an order of status quo. The advocate Commissioner after due notice to the parties inspected the demised premises and made a detailed inventory of the same in the presence of both the parties and on 15th of November, 2005 submitted a detailed report which is already on record. On a perusal of the said report, it reveals that :

(1) The demised premises is used for running a hotel in the name and style of "Hotel Avenue Club".

(2) In the third floor :

(i) a makeshift store room of the Western side of the Terrace (made up to Bamboos and Canvas) are being used as a makeshift store room in which fridge and freezers and other utensils dumped on the north western corner of the said makeshift of the store room. From the said report, it also appears that a makeshift mezzanine made of plywood having canvases and other utensils dumped on top of it.

(ii) On the eastern side of the terrace, there is a room which is also used as a store room having a number of racks inside it with books, papers and soft drink bottles. ( 10' x 6')

iii) The rear wall of the room on the eastern side is a common wall of another room adjacent to the front room. The rear room is also used as a store room and it is filled with utensils for buffet. (8' x 5')

iv) 2 Rooms adjacent to the front room (both 14' x 10' )

v) There is a small passage of terrace on the eastern side of the terrace, which leads to the southern wall of the premises.

vi) There is one small room for ironing clothes and two small toilets. From there if one turns to the northern side and walks towards the stair case, one will find a kitchen with is approximately 30' x 15'. (2 rooms made into one by demolishing the partition wall inside.

vii) A huge satellite TV Antenna having a diameter of 14 Feet mounted on top of the room, which is in front of the stair case on the eastern side.

4. A perusal of the report of the Advocate Commissioner, as noted herein above, would show that he found only one room in front of the staircase on the eastern side and two rooms on the souther