A suit for eviction of a trespasser is maintainable even if the defendants were previously tenants but ceased to be tenants after expiry of five years from the date of death of the original tenant, and such defendants are not entitled to protection under Section 6 of the West Bengal Premises Tenancy Act, 1997.

Jyotirmay Bhattacharya, J.

1. Leave is granted to the learned advocate-on-record of the appellant to rectify the defect in the appeal in terms of the report of the Stamp Reporter.

2. This second appeal is directed against the judgment and decree dated 13th June, 2016 passed by the learned Additional District Judge, 3rd Court at Alipore in Ejectment Appeal No. 26 of 2012 reversing the judgment and decree dated 30th June, 2012 passed by the learned Civil Judge (Junior Division), 2nd Court at Alipore in Ejectment Suit No. 285 of 2008 at the instance of the defendant/appellant.

3. Let us now consider the merit of the appeal to find out as to whether any substantial question of law is involved in this appeal for which the appeal is required to be admitted for hearing under the provision of Order XLI Rule 11 of the Code of Civil Procedure or not.

4. The eviction suit was filed by the husband of the respondent no.1 herein since deceased against the defendant/appellant. It was alleged by the plaintiff that Jogesh Chandra Bose, predecessor-in-interest of the defendants was the original tenant in the suit property. The husband of the respondent no. 1 was the transferee landlord. The predecessor-in-interest of the defendants viz., Jogesh Chandra Bose paid rent to the plaintiff up to June 2002 against which rent receipts were granted by the plaintiff. From July 2002, the said tenant started sending rent by money order. Jogesh Chandra Bose died on 8th June, 2003 leaving the defendants as his heirs and legal representatives who used to reside with Jogeshbabu at the time of his death in the suit premises. Mira Bose, wife of Jogeshbabu, pre-deceased her husband. As such, even after the death of Jogeshbabu, the defendants were regarded as tenants for a period of five years from the date of death of Jogeshbabu as per the definition of “tenant” as defined in Section 2(g) of West Bengal Premises Tenancy Act, 1997.

5. It was alleged by the plaintiff that after expiry of five years from the date of death of Jogeshbabu, the defendants ceased to be tenants of the said premises. However, since despite service of notice upon the defendants calling upon them to vacate the said premises, the defendant/appellant did not vacate the suit premises even after expiry of the notice period, the instant suit was filed.

6. The defendant no. 1/appellant contested the said suit by filing written statement, asserting the plea of her tenancy right in respect of the suit property. She claimed that even after the death of Jogeshbabu, the plaintiff accepted rent from the defendants and as such the defendants became tenants under the plaintiff. The defendant/appellant, however, challenged the maintainability of the suit on the ground that the suit for eviction framed under the scheme of West Bengal Premises Tenancy Act, 1997 is not maintainable for evicting a person who ceased to be a tenant after expiry of five years from the date of death of the original tenant.

7. Accepting the aforesaid contention of the defendant no. 1/appellant, learned Trial Judge was pleased to dismiss the said suit by holding that the suit as framed is not maintainable. Challenging the legality and propriety of the said judgment and decree of the learned Trial Judge, the plaintiff preferred an appeal before the learned first Appellate Court. Learned first Appellate Court was pleased to allow the said appeal by reversing the findings of the learned Trial Judge. Learned first Appellate Court held that the suit as framed for eviction of the defendants is well maintainable. The legality of the said judgment and decree passed by the learned first Appellate Court is under challenge in this second appeal before us.

8. While considering the issue regarding maintainability of this suit, as argued by Mr. Probal Kumar Mukherjee, learned senior counsel appearing for the defendant/appellant, we have considered the plaint as a whole. On perusal of the plaint, we do not find that the plaintiff framed the said