(1) This application under Article 227 of the Constitution of India is directed against an order being No.34 dated 21st August, 2008 passed by the learned Additional Civil Judge (Junior Division), Sealdah in Ejectment Suit No. 399 of 2005 whereby the defendants application under Section 7(2) of the West Bengal Premises Tenancy Act, 1997 was disposed of by holding inter alia that the defendant is a defaulter in payment of rent for the period from 1st November, 1986 to 1st August, 2008 i.e. for 261 months at the rate of Rs.40/-per month. The defendant was thus, directed to deposit the entire arrear rent for the said period at the said rate together with 10% interest thereon to the credit of the petitioner within one month from the date of the order.

(2) The defendant is aggrieved by the said order as the dispute which the defendant raised in the said application as to existence of relationship of landlord and tenant between the parties was decided against the defendant. Though the learned trial Judge held that relationship of landlord and tenant exists between the parties but at the same time, the learned trial Judge made it clear that such findings are tentative findings and the said dispute was kept open for conclusive adjudication at the time of final hearing of the suit.

(3) Being aggrieved by the said order, the instant application has been moved by the defendant/petitioner herein.

(4) Heard Mr. Gupta, learned Advocate appearing for the petitioner and Mr. Bhattacharya, learned Advocate appearing for the opposite party. Considered the materials-on-record including the order impugned.

(5) Let me now consider the merit of this revisional application in the facts of the instant case.

(6) Admittedly, the defendant/petitioner was a tenant under one Smt. Mrinalini Dasi, since deceased, who was a thika tenant in respect of the suit premises. There was a dispute with regard to the rate of rent payable by the defendant and the period of default. The petitioner claimed that Rs.40/-was the rate of rent payable by him to his landlord in respect of the said premises. Plaintiff, however, claimed that the rate of rent is Rs. 100/- per month. The defendant claimed that he paid rent to Mrinalini Dasi upto Jaistha 13 93 B.S., but he could not produce any rent receipt for any month subsequent to Bhadra 13 93 B.S. (23rd September, 1986).

(7) Admittedly, Mrinalini Dasi died on 25th October, 1986. The plaintiff/opposite party is claiming title in the suit property by virtue of a will dated 25th January, 1986 by which Mrinalini Dasi bequeathed the suit property in favour of the plaintiff. The said will was duly probated by the learned District Delegate, Sealdah on 21st February, 2004. Thereafter, notice of attornment was served upon the defendant and rent was demanded from him. The defendant replied to the said notice but refused to pay the rent to him unless he is able to prove his title in the suit property.

(8) In fact, the defendant also claimed title in the said property by virtue of the unprobated will allegedly executed by the said Mrinalini Dasi on 10th July, 1986. The defendant also made an alternative claim for acquisition of title by adverse possession, though he did not deny his occupation as tenant in the said suit premises under the said Mrinalini Dasi during her lifetime.

(9) In the aforesaid set of facts the learned trial Judge held that since the relationship of landlord and tenant between Mrinalini Dasi and the petitioner herein is not disputed and further since the defendant has failed to prove his title in the suit property either by virtue of the said purported will which still remains unprobated or by virtue of adverse possession, no other conclusion can be arrived at excepting that there exists relationship of landlord and tenant between the parties as the plaintiff has proved his title in the suit property by virtue of the aforesaid probated will and has also proved that he had served notice of attornment of his