The burden of proof shifts to the defendant to establish the Thika tenancy and his status as a Bharatia under the Thika tenant.

JUDGMENT

1. The present Second Appeal has been directed by the appellant being aggrieved and dissatisfied with the judgment and decree dated 8th February, 2006 passed by the learned 6th Bench, City Civil Court, Calcutta in T.A. no. 82 of 2005 affirming the judgment dated 6th July, 2005 passed by the learned 3rd Bench, Small Causes Court, Calcutta in Ejectment Suit No. 557 of 2001.

2. Brief background of the present appeal is that the respondents/plaintiffs filed aforesaid suit for eviction of the defendant/appellant from the suit premises, occupied by the defendant as a tenant under the plaintiffs at a rental of Rs. 30 per month, payable according to English Calendar month. The plaintiffs in the plaint alleged that the defendant is a defaulter in payment of rent in respect of the suit premises since the month of August, 1981 and as such the plaintiff terminated the tenancy of the defendant in respect of the suit premises by serving notice under section 13(6) of the West Bengal Premises Tenancy Act, 1956 (Act of 1956) asking him to vacate the suit premises with the expiry of the month of June 1986. As the defendant failed to vacate the suit premises inspite of the termination of tenancy, the plaintiff filed the aforesaid suit for eviction and for recovery of khas possession.

3. The defendant contested the suit by filing written statement contending interalia that there was no relation of landlord and tenant between the plaintiffs and the defendants and as such the question of payment of rent to the plaintiff does not arise. The defendant also challenged the legality, validity and sufficiency of the ejectment notice allegedly served upon her and accordingly the defendant prayed for dismissal of the suit. The Defendant also filed application under section 17(2) of the West Bengal Premises Tenancy Act, denying landlord tenant relationship. The Trial Court by order no. 145 dated 21.04.1995, came to a finding that there exists landlord tenant relationship between the parties and the defendant is a defaulter in payment of rent and the total amount of rent due is Rs. 7317/- and the defendant was directed to pay the said arrear amount of rent by seven monthly instalments. It is alleged that the defendant thereafter did not comply the direction made in aforesaid order no. 145 and as such the Trial Court by a subsequent order dated 17.03.2005, on the basis of plaintiff’s application filed under section 17(3) of the Act of 1956, was pleased to struck off the defence of the defendant against delivery of possession. Defendant did not challenge the said order passed under section 17(3) by the court below.

4. Thereafter the Court held that from the exhibited documents it appears that the defendants received the ejectment notice by putting his signature on 16.05.1986. Since the defence of the defendant has been struck off, under section 17(3) of the Act and since relationship between the parties as landlord and tenant has been established and since the defendant is a defaulter since August 1981 and the eviction notice was duly served upon the defendant, the court below on the ground of default in payment of rent, decreed the suit in favour of plaintiff, directing the defendant to quit and vacate the suit premises within three months from the date of order vide judgment dated 06.07.2005.

5. Being aggrieved and dissatisfied with the said judgment and order defendant/appellant preferred first appeal before the Appellate Court being aforesaid T.A. 82 of 2005, wherein appellant contended that the court below passed the judgment on the basis of surmise and conjecture and ignored the fact that predecessor of plaintiff purchased the property in the year 1981 from Gopal Lal Mallick, who was Zamindar of the property and Zamindar’s interest in the suit property vested in the state in view of the promulgation of Calcutta Thika Tenancy (Acquisition and Requisition) Act, 1981 and predecessor of the plaintiffs by purchase did not acquire any right, title, interes