JUDGMENT :

(Siddhartha Roy Chowdhury, J.)

1. Challenge in this appeal is to the judgement and decree passed by learned Judge, 4th Bench, City Civil Court at Calcutta in Title Appeal No. 14 of 2018, reversing thereby the judgement and decree dated 27th November, 2017 passed by learned 6th Bench of Presidency Small Causes Court, Calcutta in Ejectment Suit No. 1079 of 2002 as well as order dated 25th July, 2019, rejecting thereby the cross-objection to the decree.

2. For the sake of convenience the parties will be referred to as they were arrayed before the learned Trial Court.

3. Briefly stated, by executing a deed of settlement on 19th February, 1933(Vide order dated 19.09.2023.), one Harak Chand Beljee settles the premises nos. 37, 38 and 39 of Ezra Street, Kolkata-700001 upon the trust. One Baijnath Choubey was inducted as a tenant in respect of three rooms, one showcase on the ground floor and seven rooms on the first floor of the premises nos. 37, 38 and 39 of Ezra Street, Kolkata-700001 at monthly rental of Rs. 456/- payable according to English Calendar month. The tenancy stood in the name of M/s Baijnath Choubey and Co. Baijnath Choubey died leaving behind a Will dated 24th September, 1925 by which he created a trust and appointed trustees or their survivors as guardian of his son and to carry on his said business M/s Baijnath Choubey and Company for the benefit of his heirs and legal representatives. The trustees accordingly, took charge of the said business and carried on the same. On or about May, 1984 while the trustees were carrying out the said business, the plaintiffs came to know for the first time that the family of said Baijnath Choubey was extinct, there was no heir or survivor of Baijnath Choubey. The trustees of the trust created by Harak Chand Beljee came to know that Baijnath Choubey died in the 1929, his wife pre-deceased him, his son had died in the year 1949, widow daughter, who did not have any issue was dead and accordingly the trust created by Baijnath Choubey by the said Will ceased to exit. It is further contended by the plaintiffs that Title Suit No. 1294 of 1984 was filed previous to the filing of the Title Suit No. 1079 of 2002 and in the said suit the plaintiffs came to know that the trustees of the trust created by Baijnath Choubey, wrongfully and/or illegally formed a partnership with two other persons namely, Sarbottam Das Mundra and Chetan Das Mundra. The said partnership firm started carrying on business under the name and style of Baijnath Choubey and Company. The plaintiffs instituted the suit being Title Suit No. 230 of 1991 for declaration of title of the plaintiffs and permanent injunction restraining Sarbottam and Chetan Das Mundra from entering into or occupying premises in the name of alleged partnership. The Title Suit being No. 230 of 1991 was instituted without determining the tenancy of M/s Baijnath Choubey and Company after serving a notice to quit as provided in Section 13 (6) of the West Bengal Premises Tenancy Act, 1956 and M/s Baijnath Choubey and Company was not even made a party in the said suit. The suit was withdrawn with the leave of the Court to file afresh on the same cause of action. It is further case of the plaintiff that plaintiff inducted Baijnath Choubey as tenant in respect of the suit premises, and rent receipt was issued in the name of M/s Baijnath Choubey and Company, a proprietary firm. As the said tenant illegally and wrongfully sublet/assigned and/or parted with possession of the said tenanted premises to Sarbottam Das Mundra and Chetan Das Mundra, who are in wrongful possession of the suit premises, the tenancy of the defendant was terminated by a notice to quit dated 22nd July, 1994. It is adverted that the defendants are also liable to be evicted because of their failure to pay rent to the plaintiffs since April, 1984.

4. It is the specific case of the defendants, who contested the suit by filing written statement, denying all material allegation conte