I.P. MUKERJI, J.

This is a Chapter XIIIA application made by the plaintiff. He seeks a final judgment and decree in his suit for possession of the third floor of premises No. 68/A/1B Nimtolla Ghat Street, Kolkata –700006 (hereinafter referred to as “the said premises”). He also claims an enquiry into mesne profits and a decree therefor.

The cause of action arises in this way. The original owner of the said premises was a Tara Devi Jalan.

On 26th December, 1967 she granted a lease of the said premises for 21 years to Uma Shankar Jalan commencing on 26th December, 1967 at the rent reserved by the deed of lease. Now, Clause 12 of this lease empowered the lessee to give two months’ notice to the lessor for vacating the said premises.

Whatever may have been the construction of the lease made by Tara Devi Jalan, a suit was instituted by her in this Court being Suit No. 177 of 1989 for eviction of the lessee Uma Shankar Jalan on the ground that the lease had expired by efflux of time. In that suit a Chapter XIIIA application was taken out by the plaintiff. This Court by a decree dated 6th July, 1989, in that application, ordered the eviction of Uma Shankar Jalan. Uma Shankar preferred an appeal from this judgment and decree before the Division Bench of this Court, which by its judgment and order dated 10th November, 1994 set aside the decree based on the Chapter XIIIA application. On 7th December, 1994 Uma Shankar filed his written statement in the suit. On 25th December, 1999 Uma Shankar died. The present defendants are the heirs of Uma Shankar, the first and second defendants being his sons and the third and fourth defendants being his daughters.

Now, Tara Devi Jalan did not feel interested to retain the said premises anymore. On 13th February, 2001 she made a gift of the said premises to the present plaintiff. The records show that the above suit (Suit No. 177 of 1989) is still pending in this Court.

Before proceeding further with the narration of events it is to be noted that the defence which Uma Shankar Jalan had taken in the suit was that, since by Clause 12 of the lease, the lessee had the option to determine the lease earlier, he was protected by the West Bengal Premises Tenancy Act, 1956.

On 10th July, 2001, the West Bengal Premises Tenancy Act, 1997 came into force.

On 12th May, 2008 Tara Devi Jalan died.

The present suit C.S. No. 97 of 2011 was then instituted by the donee of the said premises being the present plaintiff for eviction of the heirs of Uma Shankar Jalan who are the defendants in this suit.

RIVAL CONTENTIONS:

Plaintiff:

On the basis of Clause 12 of the said lease the plaintiff accepts the contention of the predecessor-in-interest of the present defendants that the initial letting out was protected by the Rent Act of 1956. The new Rent Act came into force on 10th July, 2001. Section 2(g) of the said Act defines a tenant as follows:

“2.(g) “tenant” means any person by whom or on whose account or behalf the tenant of any premises is or, but for a special contract, would be payable, and includes any person continuing in possession after termination of his tenancy and, in the event of death of any tenant, also includes, for a period not exceeding five years from the date of death of such tenant or from the date of coming into force of this Act, whichever is later, his spouse, son, daughter, parent and the widow of his predeceased son, who were ordinarily living with the tenant up to the date of death of the tenant as the members of his family and were dependent on him and who do not own or occupy any residential premises, and in respect of premises let out for non-residential purpose his spouse, son, daughter and parent who were ordinarily living with the tenant up to the date of his death as members of his family, and were dependant on him or a person authorized by the tenant who is in possession of such premises but shall not include any person against whom any decree or order for eviction ha