The legal point established is the maintainability of the claim for occupational charges in a tenancy dispute and the rights of legal heirs to occupy the tenanted premises under the West Bengal Premises Tenancy Act, 1997.

JUDGMENT

Subhasis Dasgupta, J. - The impugned Order No.14 dated 13.03.2018, passed by Learned Judge, VIII Bench, City Civil Court, Calcutta in Title Suit No.1360 of 2015 granting occupational charges at the rate of Rs.3,000/- per month is subject of challenge in this revisional application.

2. Learned advocate for the petitioner precisely challenged the order granting occupational charges on the ground that the claim to obtain occupational charge in respect of the premises under the possession of petitioner was not maintainable in a case where the petitioner lawfully inherited the tenancy from his father upon his death, and for the refusal to receive the rent by the landlord/opposite party on being lawfully tendered, the rent had already been deposited with the Rent Controller.

3. It was, thus, contended by the learned advocate for the petitioner that the order granting occupational charges was a consequence of exercise of authority most improperly by the learned trial Judge forgetting the nature of the suit, where there was no prayer for eviction of tenant.

4. Per contra, learned advocate for the plaintiff/landlord adverting to a copy of plaint submitted that the pending suit was for declaration and permanent injunction with a further prayer for recovery of possession and damages, which had been precisely shown against the caption 'Concise Statements' at the title page of the suit, and reference of which was further enforced by incorporating a specific averment contained in para 15 of the plaint, which was sufficient enough to reveal that petitioner had been sought to be evicted from his illegal occupation in respect of the scheduled property by necessary implication.

5. It was, thus, contended by the opposite party/landlord that though prayer portion of the plaint inadvertently failed to incorporate a specific prayer for recovery of possession, as against the petitioner in respect of the schedule premises, but the same could not be taken to be a strong ground to refuse the prayer for occupational charges, as the prayer for recovery of possession might be enforced at any time by bringing about an amendment of plaint to the prayer portion of the plaint in terms of the averment already contained in para 15 of the plaint.

6. Learned advocate for the opposite party/plaintiff further contended that the father of the petitioner having died in the year 2008, the petitioner could not be permitted to remain in possession in respect of the scheduled premises claiming right of tenancy by way of inheritance, as the tenancy held by his father was not permitted to be continued for a period above 5 years in terms of the provisions contained in Section 2(g) of W.B.P.T. Act, 1997. The suit, thus, having instituted in the year 2015, the possession of the petitioner could safely taken to be an illegal occupier in respect of the scheduled premises, and for obtaining the desired relief, the opposite party/plaintiff had already instituted a suit containing several prayers in the pending suit. In a nutshell, according to opposite party, there left nothing to be interfered with the order impugned.

7. The only point to be addressed by this Court is whether the impugned order granting occupational charges was rightly granted in context with the rival claims of the parties or not. It would be profitable here to mention the prayers incorporated in the prayer portion of Title Suit No.1360 of 2015 filed by the petitioner, which may be mentioned as hereunder:

a) That the plaintiff prays before the Ld. Court for declaration that the plaintiffs is the owner of Premises No.42/A, B. K. Paul Avenue formerly known as 32A, Ahiritola Street, Police Station Jorabagan, Kolkata-700 005 which is the suit property and the premises inherited from his predecessor;

b) Further declaration that the plaintiff was the Landlord of Kali Das Ghosh, since deceased according to the West Bengal Premises Tenancy Act, 1997 as amended up to date and the said tenancy has been ceased acc