JUDGMENT :

(Prasenjit Biswas, J.)

1. Both the courts below have decided the case against the appellant/tenant.

2. Plaintiff filed the suit against the original tenant Kishore Chatterjee for eviction from the tenanted premises who died on 13.06.2011 and thereafter his wife Smt. Maitrayee Chatterjee also died on 17.01.2012 leaving no heirs/legal representatives. The said Kishore Chatterjee allowed this appellant to reside in the suit flat on oral permission although she is nothing but an outsider and stranger. The appellant had been using the same for commercial and non-commercial purposes by setting up office of one Nari Nirjatan Pratirodh Mancaha ignoring the objection of the respondents.

3. The appellant denied all the allegations as made out against her and claimed to be the foster daughter of the original tenant Kishore Chatterjee (since deceased) and claimed that on the demise of the original tenant and his wife the tenancy has been devolved upon her and her occupation in the tenanted premises is not unlawful rather she is a tenant under the respondents/landlords.

4. Although this appellant claimed herself to be tenant under the respondents but she failed to show any scrap of paper that she was tenant being foster daughter of the original tenant Kishore Chatterjee. During trial some civil deposit challans have been marked as exhibit A in favour of the appellant but mere deposit of challans do not qualify this appellant as tenant under the respondents.

5. Let us now consider as to whether this appellant could have inherited the said tenancy by virtue of the provision of Section 2 (g) of the West Bengal Premises Tenancy Act, 1997.

6. Section 2 (g) of the West Bengal Premises Tenancy Act, 1997 is set out hereunder:

"2(g) "tenant" means any person by whom or on whose account or behalf the rent of a ny premises is or, but for a special contract, would be payable, and includes any person continuing in possession after termination of his tenancy and, in the event of death of any tenant, also includes, for a period not exceeding five years from the date of death of such tenant or from the date of coming into force of this Act, whichever is later, his spouse, son, daughter, parent and the widow of his predeceased son, who were ordinarily living with the tenant up to the date of death of the tenant as the members of his family and were dependent on him and who do not own or occupy any residential premises, and in respect of premises let out for non-residential purpose his spouse, son, daughter and parent who were ordinarily living with the tenant up to the date of his death as members of his family, and were dependant on him or a person authorised by the tenant who is in possession of such premises] but shall not include any person against whom any decree or order for eviction has been made by a Court of competent jurisdiction.”

7. Section 2 (g) clearly states in no uncertain term that in the event of death of any tenant, the heirs who were ordinarily living with the tenant up to his death as a member of his family could get the benefit of 5 years to remain in possession of the property in question as heirs of the deceased tenant and not thereafter. We are of the opinion that learned trial judge has rightly referred to section 2(g) of the West Bengal Premises Tenancy Act, 1997 in order to ascertain the right of the appellant. Apart from the disability of claiming any interest as tenant and the period of five years from the date of death of original tenant appellant is also required to establish that she was ordinarily residing with the original tenant. So, the initial onus is upon the appellant to prove that she is eligible to continue as tenant.

8. Origi