Defendants lose tenancy rights after five years from the original tenant's death; plaintiffs' eviction order upheld based on lack of legal tenancy.

JUDGMENT :

BISWAROOP CHOWDHURY, J.

1. This is an application filed by the petitioners/plaintiffs praying for the following reliefs:

a) Judgment on admission and decree for eviction against the defendant nos. 5(a) 5(b) and 5(c) from the open area marked in pink hatch on the map being annexure ‘B’ to the plaint.

b) Injunction restraining the defendant nos. 5(a), 5(b) and 5(c) from parting with possession of or in any manner dealing with the open are a marked in pink hatch on the map being annexure ‘B’ to the plaint.

c) Ad-interim order in terms of prayers above.

d) Costs of and incidental to this application be borne by the defendant nos 5(a), 5(b) and 5(c).

e) Such further or other order or orders and/or direction or directions as this Hon’ble Court may deem fit and proper.

2. The contention of the Petitioners/plaintiffs in the suit being C.S. No. 136 of 2006 may be summed up thus:

1. The plaintiff no. 3 as owner on or about February 1978 had let out a portion of the premises no. 12, Armenian Street being the shop room no. 10 on the ground floor more fully described in the schedule ‘A’ to the plaint to the plaintiff no. 2 with a right to sublet.

2. The plaintiff no-2 on or about August 2000 had sublet the said shop to the plaintiff no. 1

3. The tenanted shop room no-10, is more fully described in the schedule to the plaint and the map annexed thereto which are marked ‘A’ and ‘B’ respectively.

4. The tenanted area of the plaintiff no. 1 in shop no. 10 comprising an area of over 1000 square on ground floor and also with (a) open unenclosed area on North exposed to Armenian Street marked in Pink-hatch on the map referred above and b) open aerial space in rear central portion of such shop was dumped with garbage/rubbish by defendant no-6, 7, and 8 who also erected illegal structures thereon.

5. The original defendant no-5 had trespassed into a portion of open unenclosed area on the northern Armenian Street side but within the portion of the said shop, and thereafter illegally erected a brick wall in front of iron collapsible gate/door of said shop blocking egress and ingress to the enclosed portion of the said shop through Armenian Street on the northern side and was wrongfully occupying the open unenclosed area marked in pink hatch on the map and selling foodstuffs therefrom. The said portion of open unenclosed area is borne out from the report of special Officer appointed in CP No.-108 of 1980 dated 12/10/1982.

6. In spite of repeated opportunities to file Written Statement, the Original Defendant No.5 had deliberately failed and neglected and did not file any Written statement.

7. In the suit the petitioners filed an application being G.A. 1704 of2006 seeking inter-alia the following reliefs:-

a) Receiver/Special Officer be appointed to:-

i) Make inventory of the demised area and all the surrounding portions including portion above the demised area and to submit a report with photographs with regard to the ingress and egress to the demised area if necessary with police help.

ii) Remove all the obstructions by way of rolling shutter and wall to the entrance of the demised area from Southern side and northern side.

iii) To remove all the unauthorized structures erected over the open portion forming part of the demised area and also at first floor level.

iv) To erect/restore necessary purport wall at the first floor level beside the open area so as to avoid the invasion into the open area from the first floor level.

v) Take possession of the demised area and thereafter allow the petitioner No. 1 to occupy use and enjoy the demised area under the