IMPORTANT POINT
No need for appointment of Commissioner for inspection of premises in order to ascertain details of tenancy pertaining to 1934 and 1954.

Dr. Manjula Chellur, C.J.—This appeal is filed by defendant/tenant aggrieved by judgment dated 25.3.2010. Suit was filed for eviction of the defendant from suit schedule property. C.A.N. 979/2013 was filed for judgment and decree on admissions of defendant/tenant in affidavit-in-opposition in G.A. 114/2009.

In the schedule to the plaint, the suit property is described as ‘A’ Schedule property consisting of partly three storied, partly two storied and partly one storied together without houses being demarcated major portion of the premises no.11 in all measuring about 29 cottahs.

2. According to plaintiff before the Trial Judge, the affidavit-in- opposition filed by the defendant in G.A. No.114 of 2009 virtually admits the case of the plaintiffs. Further defendant placed an affidavit explaining the statement made in the earlier affidavit and according to him, suit was not maintainable as no notice for ejectment was served on him. However, plaintiffs sought for final judgment as provided under Order 12 Rule 6 of the Code of Civil Procedure.

3. The brief facts that led to the filing of the suit are as under:-

In the year 1934 one Late Madan Gopal Bhagat, father of the defendant became a tenant inducted by one Late Bhujendra Krishna Gooptu on a monthly rent of Rs.350/-. In the year 1962, Madan Gopal Bhagat died leaving behind his wife Sukhnandan Bhagat and their son Gopal Krishna Bhagat. It is pertinent to mention that Gopal Krishna Bhagat also died and the present appellant is the wife of Gopal Krishna Bhagat, the original defendant. Smt. Sukhnandan Bhagat, mother of the original defendant died on 08.5.1998 leaving behind her son Gopal Krishna Bhagat. According to plaintiff, original defendant cannot have any protection under the West Bengal Premises Tenancy Act of 1997 and continues to be in wrongful occupation of the suit premises. They have also claimed Rs.10,000/- per month mesne profits from 10.7.2006 till the filing of the suit claiming to be the reasonable rating value of the property. With these averments they had sought for following reliefs:-

a) A decree against the defendant for vacant possession of the suit premises more fully described in the schedule hereto annexed and marked “A”;

b) Decree for Rs.90,50,000/- as stated in paragraph 9 of the plaint;

c) Further mesne profits till vacant possession is decreed by the defendant;

d) Alternative, to prayers (b) and (c) an inquiry into damages/mesne profits and a decree for such sum as may be found due and payable therein;

e) Receiver;

f) Injunction;

g) Attachment;

h) Costs;

i) Such further and/or other reliefs.

4. Per contra, Late Gopal Krishna Bhagat, the defendant filed affidavit-in-opposition claiming that the suit is not maintainable and denied liability to pay mesne profits contending that he is not a trespasser, but he is a person in occupation of the premises by inheriting tenancy right after the death of his father and mother. According to him, he is a direct tenant under the landlord and the same is accepted by the landlord, therefore cessation of tenancy in terms of Section 2 (g) of the West Bengal Premises Tenancy Act does not arise. According to him in the year 1954, the landlord let out the upper flat of the premises on a monthly rent of Rs.325/- while lower flat of the premises let out to his father Madan Gopal Bhagat in 1934. All the rents were paid regularly and separately to landlord Gooptu Estates Ltd. The rent was also enhanced from time to time.

5. After the death of his father, disputes arose between Gooptu Estates Ltd. and others regarding the ownership of the property. A Receiver was appointed by the Hon’ble High Court. Rent for the upper portion as tenant and as legal heir/representative as well as the executor of the Will of his late father, he was tendering rent in the name of Receiver. He claims that his mother executed a Power of Attorney as she was seriously ill. Now, the rents are deposited with the Rent Controller at the enhan