JUDGMENT :

Krishna Rao, J.

1. The plaintiff has filed the instant application praying for an order directing the respondent to secure the sum of Rs.34,69,200/- and Rs.7,69,481.30/- being the damage/mesne profit @ Rs.980/-per diem from December 1, 2019 to September 30, 2021 along with interest at the rate of 18% per annum up to September 30, 2021 and Rs.980/-per day being the occupational charges till the delivery of possession.

2. The petitioner says that the petitioner is the sole and absolute owner of the property being premises No. 2/1, Ho Chi Minh Sarani having an area of 1 Bigha, 17 Cottahas, 5 Chittaks and 32 sq. ft. One Rahmatullah, since deceased was a monthly tenant in respect of one shop room measuring about 98 square feet on the North-Western corner of the ground floor of the premises initially under one Rabindra Chandra Ghosh, and after his death under his widow Smt. Durgabati Ghosh both since deceased.

3. The said Rahmatullah during his lifetime had stopped paying monthly rent to Smt. Durgabati Ghosh and had started depositing the rent payable in respect of the suit property in the office of the Rent Controller, Calcutta. The suit property being a shop room was let out to the said Rahmatullah, since deceased for commercial/non-residential purpose. After the death of Rahmatullah, the heiresses used to sell food and non-food items like cigarette, biscuits, aerated drink etc. from the suit property. Rahmatullah died intestate on July 12, 2006 leaving behind his wife, being the defendant no.1 and his daughter being the defendant no. 2 herein. After the death Rahmatullah, the defendants therein being the wife and daughter respectively remained in possession and occupation of the suit property.

4. Mr. Surajit Nath Mitra, Learned Senior Advocate representing the plaintiff submits that as per the provision contained in West Bengal Premises Tenancy, 1997, the right of the defendants to remain in possession of the property is ceased with effect from July 12, 2011 and since thereafter the defendants are the trespasser in the said property.

5. One, Tarun Kumar Ghosh during his lifetime had filed a suit being C.S. No. 77 of 1981 against the Credit Union Co-operative Enterprises Ltd. and had obtained decree. In terms of the decree, an Execution case was filed wherein the defendants have filed an application being G.A. No. 1540 of 2016 and in the said application, the receiver was restrained from taking possession of the property from the defendants on the basis of the decree of eviction dated 3rd September, 2013 and in the said order, it was recorded that the decree of eviction dated September 3, 2013 will not be enforceable against the defendants.

6. Mr. Mitra submits that either spouse or the daughter of a deceased tenant is not entitled to protection from eviction in respect of the premises let out for non-residential purpose beyond the period of five years from the date of death of original tenant, if, the original tenant died after coming into force of the West Bengal Premises Tenancy Act, 1997.

7. Mr. Mitra submits that the original tenant Rahmatullah died on July 12, 2006 i.e. after coming into force of the Act of 1997 and, therefore, the defendants being the spouse and daughter are not entitled to remain in possession and occupation of property beyond the period of five years.

8. Mr. Mitra submits that as the defendants are in illegal possession and occupation of the property, therefore, the plaintiff is entitled to get damage/mesne profit at the rate of Rs. 980 per day being the rate which the defendants in wrongful possession of the suit property might with ordinary diligence have received therefrom together with interest from July 12, 2011 until actual possession is delivered.

9. Mr. Mitra submits that the claim of damage/mesne profit has been calculated by the plaintiff on the basis of the prevailing rate of rent in the said area. Mr. Mitra submits that the defendants have already parted with possession of the suit premises i