28.04.2025 Ct. no. 29 P.A SA 325 of 2009 With IA No. CAN 7 of 2022 IA No. CAN 8 of 2022 Amit Sen & Ors.

Vs.

Asish Roy and Ors.

Mr. Probal Kumar Mukherjee Ms. Shebatee Datta ……..for the Petitioner Mr. Mr. Aniruddha Chatterjee Mr. A.S. Tarafdar Mr. Iftikar Munshi ……..for the Petitioner Being aggrieved by and dissatisfied with the judgment and decree dated 30th August, 2006 passed by learned 3rd Additional Civil Judge (Junior Division) Alipore in Title Suit no. 1 of 2005 the opposite parties herein preferred Title Appeal no. 23 of 2007 before learned Civil judge (Senior Division) 5th court, Alipore, who by the impugned judgment and decree dated January, 14, 2009 has allowed the appeal on contest, thereby set aside the judgment and decree passed by the trial court.

The brief background of the present case is that plaintiff/appellant herein claiming themselves as sole land lords filed the aforesaid ejectment suit against the defendants/respondents herein, on the ground of reasonable requirement and as per plaint case the original owner who is the predecessor of the plaintiff, Sri Manmatha Nath Sen during his lifetime executed a trust deed on 30.01.1956. Said settlor of the trust named his wife Smt. Pramila Bala Sen as the trustee and clause 7 of the said trust deed states that Rs. 100/- would be drawn by the said trustee Pramila Bala towards her monthly maintenance from the income of the trust properties. She was also given the right to act as a trustee to collect rent and to induct tenants in the trust property. The distribution of other portion of the income from the trust property has also been mentioned in the trust deed. As per clause 13 and 14 of the trust deed, the trust would come to an end with the death of smt. Pramila Bala and with the death of trustee, the trust properties will be vested upon his five sons as follows:

(a) Chandi charan Sen: 27 A Chakraberia Road (b) Bibhuti Bhusan Sen: 27 B Chakraberia Road (c) Gopal Chandra Sen: 27 C Chakraberia Road (d) Santosh Kumar Sen: 32 D Sarat Bose Raod (e) Deb Kishore Sen: 32E Sarat Bose According to plaint case by the said trust deed, the predecessor of the present appellant Bibhuti Bhusan Sen became absolute owner of the suit premises namely 27 B Chakraberia Road where the respondents herein were inducted as tenant and against whom the plaintiff filed the aforesaid eviction suit.

The plaintiffs further case is that they are at present residing as licensee in the above mentioned 32 E Sarat Bose Road, under the owner of said premises Santosh Kishore Sen and Deb Kishore Sen. Plaintiffs further case is his family consists of himself, his wife, four sons, married daughters and two unmarried daughters and that the suit property consists of two rooms in the ground floor two rooms in the first floor and two small tiles sheded rooms in the second floor. Plaintiff requires the entire suit property for his personal use and occupation as plaintiff’s licensee has already revoked the license.

Defence contention on the other hand is that though a trust deed was executed by Manmatho but the same was not acted upon and Pramila used to collect rent from the defendant not as a trustee but in her individual capacity. Upon the enactment of Hindu Succession Act w.e.f. 17.06.1956 and upon Promulgation of section 14(1) of the Hindu Succession Act. 1956, the limited interest of Pramila Bala Sen created by virtue of the trust deed, in lieu of maintenance ripened into full ownership and she became the absolute owner of the property of late Manmatho nath Sen. Therefore, after the death of Pramila Bala on 09.02.1976, all her sons and daughters including the original plaintiff Bibhuti Bhusan Sen became the joint owners in respect of all the above- mentioned properties mentioned in the alleged trust deed, each having 1/8th share in all those properties. Therefore, since the plaintiff has alternative suitable accommodation, they do not reasonably require the suit property and as such plaintiff’s suit for eviction