Calcutta High Court
Maheswar Pramanick & Ors vs Chabirani Sadhukhan & Ors on 6 May, 2014
Author: Debangsu Basak
Bench: Debangsu Basak
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
Original Side
Before:
The Hon'ble Justice Debangsu Basak
C.S. No. 84 of 1977
Maheswar Pramanick & Ors.
Vs.
Chabirani Sadhukhan & Ors.
For the Plaintiffs : Mr. Sabyasachi Chowdhury, Advocate
Mr. Lalratan Mondal, Advocate
For the Defendants : Mr. Pradip Kr. Ghosh, Senior Advocate
Mr. Ashish Chakroborty, Advocate
Heard on : March 14, 2014
Judgment on : May 06, 2014
DEBANGSU BASAK, J.
The suit was for eviction of the defendants, accounts, and decree for compensation and damages for wrongful occupation.
The defendants entered appearance and filed written statement.
Six issues were framed by the Order dated June 22, 2007. The plaintiffs adduced evidence through one witness. The defendants did not examine any witness. On behalf of the plaintiffs various documents were marked as exhibits.
The plaintiffs sought eviction of the defendants on the ground of expiry of sublease. By a registered sub-lease dated December 16, 1965 the original plaintiff granted sub-lease to the original Defendant No. 1 and others. The sub-lease commenced from February 9, 1965 and was for 10 years. The sub-lease expired by efflux of time on February 8, 1975. The registered deed of sub-lease dated December 16, 1965 was marked as Exhibit 'A'.
On December 16, 1965 the same parties as that of the deed of sub-lease entered into a profit sharing agreement whereby and whereunder it was agreed that, the original plaintiff would receive 50% of the net profit of the business of M/s. J.K. Pure Oil Mills (the Defendant No. 7) in lieu of rent and that, the defendants would pay Rs. 225/- out of the sum of Rs.300/- as rent to the head lessor Smt. Lalita Sadhukhan for and on behalf of the original plaintiff. Such profit sharing agreement was marked as Exhibit 'B'.
After the deed of sub-lease expired by efflux of time the Advocate for the original plaintiff gave notice to the defendants to quit on April 28, 1975. By such notice, demands for possession and accounts along with claim for mesne profit were made. The notice was sent by registered post with acknowledgement due card. The postal registration slip as well as the acknowledgement due card showing that the defendants duly received the notice was marked as Exhibit 'D'. The notice itself was also marked as an exhibit. The receipt of the notice dated April 28, 1975 was undisputed. The defendants replied thereto by their Advocates' letter dated May 17, 1975. The defendants claimed that, a fresh tenancy was created after the expiry of the sub-lease. The defendants contended that, such fresh tenancy was created on cheques for rent being submitted in respect thereof.
In the instant suit orders for submitting accounts for the Defendant No. 7 were passed. The defendants filed accounts pursuant to such orders. Such accounts of M/s. J.K. Pure Oils Mills were marked as Exhibits 'C'. According to the plaintiffs the accounts demonstrated that, an amount of Rs.42,393.85p. was lying to the credit of the original plaintiff for the financial year 1980-1981.
On behalf of the plaintiffs it was contended that, the plaintiffs were entitled to the decree of eviction as prayed for against the defendants in view of the expiry of the deed of sub- lease by efflux of time as also in view of the notice of eviction dated April 28, 1975 and the failure of the defendants to make over vacant possession in respect of the suit premises to the plaintiffs in spite of such notice.
The defendants were estopped from challenging the title of the plaintiffs. It was contended that, section 115 of the Evidence Act, 1872 was attracted. A mere decree or order of eviction by itself could not constitute eviction by title paramount. Reliance was placed on All India Reporter 1985 Calcutta page 37 (In Re: Ganesh Trading Co. Pvt. Ltd.) in that regard.
So far as the claim for mesne profit and accounts were concerned, it was contended on behalf of the plaintiffs that, although mesne profit was claimed at the rate of Rs.15/- per day, by reason of the accounts filed by the defendants it was clear that an amount of Rs.42,393.85p. was payable by the defendants to the original plaintiff as on March 31, 1985. The plaintiffs were entitled to such amount with interest at such rate as may be allowed by this Hon'ble Court.
It was next contended on behalf of the plaintiffs that, the profit sharing agreement dated December 16, 1965 was admitted between the parties. The defendants did not produce any witness nor adduced any evidence to show the profit of the Defendant No.
7. In absence of such evidence being adduced, it was submitted on behalf of the plaintiffs that, adverse presumption under Section 114 of the Evidence Act, 1872 be drawn against the defendants. It was submitted that, the accounts of the Defendant No. 7 was within the personal knowledge of the defendants. The plaintiffs were not the partners of the Defendant No. 7 and as such did not have any access to the accounts of the Defendant No. 7. Without the profit of the Defendant No. 7 being disclosed the quantum of 50% of such profit payable as rent could not be assessed. The plaintiffs contended that, they were entitled to mesne profit and that if the quantum of mesne profit on and from April 1, 1981 till the date of actual delivery of possession cannot be ascertained, the Court should appoint a special referee to determine such mesne profit for such period under the provisions of Order XX Rule 12 of the Code of Civil Procedure, 1908.
The plaintiff also claimed costs commensurate with the number of years the suit was pending.
On the point that the plaintiffs were not entitled to any decree in view of the provisions of Sections 211 and 213 of the Indian Succession Act, 1925. Reliance was placed on All India Reporter 2004 Supreme Court page 2060 (Commissioner, Jalandhar Division & Ors. v. Mohan Krishan Abrol & Anr.) and All India Reporter 1967 Supreme Court page 49 (Dolai Maliko & Ors. v. Krushna Chandra Patnaik & Ors.). It was submitted that the property vested in the executor by virtue of the Will and not by virtue of probate. Property vested with the executor for the purpose of representation. In any event the estates of the deceased plaintiffs were substantially represented. It was contended that, there was no impediment in the Court granting the decree as prayed for although the original plaintiff stood substituted by the executors named in his Will.
On behalf of the defendants it was contended that, the plaintiff was not entitled to institute the instant suit. The right of the plaintiff to institute a suit for eviction ceased on the expiry of the deed of sub-lease as the head lessor terminated the tenancy between the head lessor and the original plaintiff. It was contended that, the lease of the original plaintiff with his superior landlord Smt. Lalita Sadhukhan expired on February 8, 1975 and, thereafter, the plaintiff ceased to be a sub-lessee of the suit premises and did not have any interest in the suit property. The original plaintiff was a tenant at sufferance. Thus, the original plaintiff did not have any locus standi for recovery of possession of the suit premises.
It was contended on behalf of the defendants that, the Defendant No. 7 was not required to share the profits of the firm after the expiry of the period of sub-lease as the locus standi of the original plaintiff to receive rent expired on February 8, 1975 when the lease of the original plaintiff with his superior landlord Smt. Lalita Sadhukhan expired.
On behalf of the defendants various questions and answers put to the witness of the plaintiff were relied upon. It was suggested that, the witness of the plaintiffs accepted that, the plaintiff received the lease rent for the entire period and that, the plaintiffs received money until 1972-1973. It was contended that, the plaintiffs failed to produce any evidence to show that the original plaintiff ever demanded inspection of accounts or ever complained of non-furnishing of accounts prior to filing of the suit. On the contrary, the original plaintiff admitted having received accounts. In that regard Exhibit '1' was relied upon. According to the defendants, the original plaintiff had acknowledged the correctness of the accounts by endorsing on the reverse of each page of the accounts submitted by the defendants from time to time for the respective years. Exhibit 'C' in that regard was relied upon.
Placing reliance on the record of the Income Tax Department and the notices issued under Section 226 (3) of the Income Tax Act, 1961 it was submitted that, the money payable to the original plaintiff lying in the hands of the Defendant No. 7 was attached by the Income Tax Department. Such notices were statutory notices and were marked as exhibits in the proceedings. It was contended that, the statements made by, or recorded or orders passed by the Income Tax Officers were public documents under Section 74 of the Evidence Act, 1872 and reliance was placed on All India Reporter 1946 Nagpur page 377 (Sm. Buchibai v. Nagpur University) and All India Reporter 1940 Madras page 768 (Katikineni Venkata Gopala Narasimha Rama Rao v. Chitluri Venkataramayya) in that regard.
On the issue that notices more than 30 years old were admissible under Section 90 of the Evidence Act, 1872 reliance was placed on 1996 Volume 8 Supreme Court Cases 367 (Tarlok Singh v. Vijay Kumar Sabharwal).
Relying on the Income Tax notices it was contended on behalf of the defendants that, the original plaintiff was in arrears of Income Tax. By such notices the Income Tax Department required the defendants to pay amounts demanded in the notices out of the amounts receivable by the original plaintiff from the defendants. The procedure adopted by the Income Tax Authorities was similar to garnishee proceedings. The defendants were obliged to pay the Income Tax Authorities. The defendants paid such amounts. Contemporaneously the defendants by diverse letters informed the original plaintiff of the sums paid. The original plaintiff did not reply thereto.
The witness on behalf of the plaintiff was called upon to produce the Income Tax file of the original plaintiff or the statutory notices sent by the Income Tax Authorities to the original plaintiff. According to the defendants, in spite of repeated opportunities the witness of the plaintiff failed to produce such documents. Reliance was placed on All India Reporter 1968 Supreme Court page 1413 (Gopal Krishnaji Ketkar v. Mohamed Haji Latif & Ors.) and All India Reporter 1997 Gujarat page 24 (M/s. Shivam Construction Co., Ahmedabad & Ors. v. Vijaya Bank, Ahmedabad & Ors.) in that regard.
The original plaintiff was well aware that, the defendants were paying arrears of Income Tax of the original plaintiff to the Income Tax Authorities. The Income Tax return of the original plaintiff was a relevant document. Such Income Tax returns were not produced in evidence. In any event, the defendants wrote letters to the original plaintiff informing the original plaintiff of the diverse payments made by the defendants to the Income Tax Authorities on behalf of the original plaintiff. These letters were marked Exhibit '2', '11'-'18', '22', '23'. The amounts paid as arrears of Income Tax for the original plaintiff were in excess of the amounts receivable by the original plaintiff from the defendants. The original plaintiff did not reply to such letters contemporaneously. The original plaintiff during his lifetime did not dispute the payments made by the defendants to the Income Tax Authorities.
According to the defendants, the original plaintiff accepted the accounts furnished by the defendants. Reliance was also placed on interlocutory orders passed in the suit to submit that the original plaintiff was not entitled to any amount.
It was suggested that, the plaintiff not having filed any suit for accounts subsequent to the order dated August 3, 1981 the claim of the plaintiff for accounts was barred by the laws of limitation.
The defendants contended that, they were entitled to question the title of the plaintiffs in the instant case. The defendant suggested that the landlord's title stood extinguished prior to the institution of the suit. The defendants suggested that, on the expiry of the tenancy between the original plaintiff and Smt. Lalita Sadhukhan on February 8, 1975 the title of the original plaintiff stood extinguished. The defendants relied on Section 116 of the Evidence Act, 1872. The defendants also relied upon All India Reporter 1937 Privy Council page 251 (Kumar Krishna Prosad Lal Singha Deo v. Baraboni Coal Concern, Ltd., & Ors.), All India Reporter 1944 Patna page 77 (Krishna Prasad Singh v. Adyanath Ghatak & Anr.), All India Reporter 1926 Madras page 187 (Alaga Pillai v. Ramaswami Thevan & Ors.), All India Reporter 1954 Madras page 402 (K. S. M. Guruswami Nadar v. N. G. Ranganathan) and All India Reporter 1970 Madras page 396 (S.A.A. Annamalai Chettiar v. Molaiyan & Ors.) in that regard.
On behalf of the defendants it was contended that, Kolkata Port Trust went to take possession of the suit property on the ground that Kolkata Port Trust obtained a decree for eviction against Lalita Sadhukhan. Eviction was resisted by the Defendant No. 7. The Defendant No. 7 moved a writ petition before this Hon'ble Court being Writ Petition No. 3194 of 1992. Such writ petition was disposed of by an Order dated September 24, 1992. By such order Kolkata Port Trust was restrained from taking possession and/or interfering with in any way the Defendant No. 7's possession without starting appropriate proceedings in accordance with the law upon prior notice to the Defendant No. 7. It was contended that, the Defendant No. 7 enjoyed an independent right to remain in possession of the suit premises by virtue of such order. Kolkata Port Trust did not initiate any proceedings against the Defendant No. 7. The plaintiff was, therefore, not entitled to have the defendants evicted from the suit property by way of the present suit.
The defendants next contended that, no decree could be passed in the instant suit in view of the fact that, two plaintiffs died testate and that the result of the probate proceedings were not on record. In absence of grant of the probate of the Will of the original plaintiff and Jagannath Pramanik since deceased no decree could be passed in the instant suit.
After considering the respective submissions of the parties and the documents and pleadings I found that, the defendants came into possession of the suit property in terms of the deed of sub-lease dated December 16, 1965. The deed of sub-lease dated December 16, 1965 which was Exhibit 'A' and the agreement dated December 16, 1965 which was Exhibit 'B' were admitted by the parties. There were no disputes between the parties as to the terms of the sub-lease and the terms of the agreement. The parties agreed that the sub-lease dated December 16, 1965 expired by efflux of time on December 8, 1975. The parties also agreed that the original plaintiff through their Advocate called upon the defendants to quit, vacate and make over possession of the suit premises by the notice dated April 28, 1975. The defendant replied to such notice by their Advocate's letter dated May 17, 1975. The defendants claimed that, the defendants were not liable to vacate the suit premises. Such claim of the defendants was founded firstly, upon the notice of eviction issued by Smt. Lalita Sadhukhan to the original plaintiff and the defendant whereby Smt. Lalita Sadhukhan terminated the tenancy existing between her and the original plaintiff. The second foundation of the defendants to their contention that, they were not required to vacate the suit premises in spite of the sub-lease expiring by efflux of time and the notice to quit was the Order dated September 24, 1992 passed by this Hon'ble Court in the writ petition of the Defendant No. 7.
The defendants contended that, under Section 116 of the Evidence Act, 1872 a tenant during the continuance of the tenancy could not deny the title of the landlord. They, however, contended that, such principle did not apply to prevent the tenant from contending that, the title of the landlord since then came to an end. According to the defendants, if the true owner was armed with the legal process for eviction, though the tenant was not out of possession, the threat to put him out of possession amounted in law to eviction. According to the defendants, in the facts of the instant case, Smt. Lalita Sadhukhan issued a notice of eviction against the original plaintiff. Although the original plaintiff was not put out of possession even then Smt. Lalita Sadhukhan threatened the original plaintiff with eviction which amounted to eviction of the original plaintiff in law.
In Kumar Krishna Prosad Lal Signha Deo (supra) the Privy Council noted the distinction between the English law and the Indian law with regard to tenant being estopped from denying the title of the landlord. It observed that, a tenant or a licensee was precluded from denying that the landlord or the licensee did not have title. Section 116 of the Evidence Act, 1872 did not disentitle a tenant to dispute the derivative title of one who claimed to become entitled to the reversion, though in some cases there may be other grounds of estoppel, for example, by an attornment, acceptance of rent, etc. It applied to the title of the landlord who let the tenant in as distinct from any other person claiming to be reversioner. It also did not prevent a tenant from pleading that, the title of the original lessor had since come to an end. In the case before the Privy Council a suit for royalty due on coal raised during a particular period was filed. The suit was decreed.
In Krishna Prasad Singh (supra) the Patna High Court considered Section 116 of the Evidence Act, 1872. Their Lordships were of the view that, a tenant could not escape estoppel merely by stating that, his tenancy under the landlord was terminated, either by delivery of possession, or by the landlord's own act in determining the tenancy and bringing the suit for ejectment. Nor can a tenant escape by stating that, he came to an arrangement with a new person and attorned to him. Neither of these by itself were enough. The estoppel disappeared, however, if the landlord's title was extinguished subsequent to the inception of the tenancy, or if there was eviction by title paramount.
In the instant case, the title of the original plaintiff was not extinguished subsequent to the inception of the sub-lease. The notice of eviction issued by Smt. Lalita Sadhukhan per se was not the extinguishment of the right of the original plaintiff. The original plaintiff did not accept the notice of eviction and did not act thereon. The original plaintiff was not evicted pursuant to the notice of eviction by a Court of law. The right of the plaintiff, therefore, was not extinguished merely by suffering the notice of eviction from Smt. Lalita Sadhukhan. The original plaintiff was not evicted by title paramount. Kolkata Port Trust authorities also, admittedly, did not evict any of the parties from the suit premises. The defendants did not attorn in favour of any other person consequent to the notice of eviction issued by Smt. Lalita Sadhukhan to the original plaintiff or otherwise.
In Alaga Pillai (supra) the Division Bench of the Madras High Court was of the view that, although a tenant was not entitled to set up the title of a third party even though the title was that of the Government, yet such tenant was entitled to plead that he was evicted by the true owner, whether the true owner be the Government or a private person and that after such eviction he attorned to the true owner. In the instant case, none of the defendants were evicted. None of the defendants attorned in favour of any person.
In K. S. M. Guruswami Nadar (supra) the Madras High Court while considering the estoppel under Section 116 of the Evidence Act, 1872 held that, such estoppel was restricted to the denial of the title at the commencement of the tenancy. According to the Madras High Court it was open to the tenant even without surrendering possession to show that since the date of the tenancy, the title of the landlord came to an end or that he was evicted by a paramount title holder or that even though there was no actual eviction or dispossession from the property, under a threat of eviction he had attorned to the paramount title holder.
Mr. Ghosh relied very heavily on this judgment. The Madras High Court held that, in order to constitute eviction by paramount title it was not necessary that the tenant should be dispossessed or even that there should be a suit in ejectment against him. It was sufficient if there was threat of eviction and if the tenant as a result of such threat attorned to the real owner. In such a situation the tenant could set up eviction by way of defence either to an action for rent or to a suit in ejectment. The facts of the instant case are different. None of the defendants attorned in favour of title paramount. In fact, the defendants were in of the suit premises without paying rent to any person. In such scenario the plea that, the defendants attorned in favour of title paramount was not available to the defendants.
In S.A.A. Annamalai Chettiar (supra) the Madras High Court held that, the estoppel contemplated by Section 116 of the Evidence Act, 1872 was restricted to the denial of title at the commencement of the tenancy and by implication, it followed that a tenant was not estopped from contending that, the landlord had no title before the tenancy commenced or that the title of the lessor has since come to an end. Again the title of the plaintiff to the suit property did not come to an end in the manner as claimed by the defendants. The plaintiffs were not evicted by the Kolkata Port Trust authorities from the suit premises.
It was contended by the plaintiffs that, the defendants as lessees were estopped from challenging the title of the plaintiffs as lessors in view of the Sections 115 and 116 of the Evidence Act, 1872. In Re: Ganesh Trading Co. Pvt. Ltd. (supra) it was held that, where the lessee sublets the premises an order for eviction passed against the lessee did not by itself determine the lessee's right to realize rent from the sub-lessee and the order for eviction before its execution could not constitute eviction by title paramount. It also went on to hold that, under Section 116 of the Evidence Act, 1872 the sub-lessee would be estopped from disputing the title and right of the lessee to realize rent but he would not be precluded for pleading loss of title of the lessee subsequent to the induction as a result of eviction by title paramount. To overcome the bar of estoppel it would be necessary for the sub-lessee to establish that his relationship with his immediate landlord stood disrupted not only de jure but de facto.
From the facts it would appear that, the plaintiff was in possession of the suit premises. The defendants admit that, they were inducted into the suit premises by virtue of the deed of sub- lease dated December 16, 1965. The deed of sub-lease expired by efflux of time. No doubt Smt. Lalita Sadhukhan terminated the tenancy of the original plaintiff. Nothing on record was shown to suggest that, Smt. Lalita Sadhukhan took possession of the suit premises or had initiated any proceedings for eviction of the original plaintiff or that any decree for eviction was executed against the original plaintiff in respect of the suit property at the behest either Smt. Lalita Sadhukhan or Kolkata Port Trust. None of the defendants attorned in favour of any title paramount. In fact there was no attornment at all in favour of any other person subsequent to the sub-lease expiring by efflux of time. The plaintiffs were not evicted from the suit premises. The defendants failed to establish that, their relationship with the plaintiffs stood disrupted with de jure and de facto. In such a scenario the defendants were estopped under Section 116 of the Evidence Act, 1972 from contending that the plaintiffs did not have title to maintain the suit for eviction against the defendants. The first contention of the defendants that, the defendants were not liable to vacate in view of the termination of tenancy by Smt. Lalita Sadhukhan was without any basis.
The order dated September 24, 1992 passed in writ petition No. 3194 of 1992 allowed the Kolkata Port Trust authorities to take appropriate proceedings for eviction in accordance with law upon prior notice to the Defendant No. 7. It was not the case of the defendants that subsequent to the order dated September 24, 1992 the Kolkata Port Trust authorities had initiated any proceedings for eviction upon notice to the Defendant No. 7. There was no embargo on the Kolkata Port Trust authorities to initiate proceedings for eviction. Such order could not be read to mean that the plaintiffs would not be entitled to evict the defendants for all times to come. The second contention of the defendants was also without any basis.
The defendants contended that in view of Sections 211 and 213 of the Indian Succession Act, 1925 and in view of the original plaintiff and Jagannath Pramanick dying testate and the result of the probate proceedings not being known the plaintiffs were not entitled to any decree in the suit.
The Original plaintiff Panchkari Pramanik was substituted by Jagannath Pramanick and Maheswar Pramanick as his executors. Jagannath Pramanick died and he was also substituted by his heirs and legal representatives. The estate of Panchkari Pramanik and Jagannath Pramanick were on record. No document was produced to show that probate of the Will of Panchkari Pramanik was granted. However, the estate of Panchkari Pramanik was adequately represented as would appear from the records.
The estate of the two deceased plaintiffs was on record. There was no allegation of fraud or collusion in not bringing on record the result of the probate proceedings. In Commissioner, Jalandhar Division (supra) it was held that, the property of a deceased dying testate vested in the executor by virtue of the Will and not by virtue of the grant of probate.
In Dolai Maliko (supra) it was held that failure to bring on record all the heirs and legal representatives of the deceased were not fatal to a suit. The suit did not abate. The estate of the deceased plaintiffs was adequately represented.
The suit did not abate as the estates of the two deceased plaintiffs were represented by the heirs and legal representatives of the deceased persons. The estates of the deceased plaintiffs could not be denied the reliefs if they were otherwise entitled to it. The embargo was on the executor of the Will from obtaining final reliefs without a probate of the Will. All the plaintiffs were not claiming rights as executors to the Will of the original plaintiff since deceased. In my view there was no bar to the plaintiffs being granted reliefs in the suit if they were otherwise entitled to. Since all the heirs and legal representatives of Panchkari Pramanik were on record there was no impediment in passing a decree as prayed for.
Next came the question of accounts. On the issue of accounts the defendants disclosed that, they paid diverse sums on account of the plaintiffs to the Income Tax authority. The payment of such sums was intimated to the plaintiff in writing. The original plaintiff did not object to such payment contemporaneously. At least nothing was placed on record to the contrary.
On behalf of the defendants Section 74 of the Evidence Act, 1872 was relied upon and in support of the contention that the orders passed by the Income Tax Officers were public documents Sm. Buchibai (supra) and Katikineni Venkata Gopala Narasimha Rama Rao (supra) were relied upon. The defendants also contended that the Income Tax notices were more than 30 years old were admissible in evidence under Section 90 of the Evidence Act, 1872. They relied on Tarlok Singh (supra).
On the issue of adverse inference the defendants relied upon Gopal Krishnaji Ketkar (supra) and M/s. Shivam Construction Co. (supra). It was contended that, since the Income Tax return of the original plaintiff was in question the plaintiffs were the best persons to produce such documents. In spite of request the plaintiffs did not produce such documents. Therefore, adverse inference ought to be drawn.
With regard to the production of Income Tax files the defendants required the same for the purpose of establishing that the original plaintiff had Income Tax dues and that the defendants had discharged such liability on behalf of the original plaintiff. The defendants otherwise proved the payment of the Income Tax liabilities of the original plaintiff from out of the amounts receivable by the original plaintiff as rent form the defendants.
The evidence placed disclosed that, the defendants were paying Income Tax on account of the original plaintiff to the Income Tax Authorities. The quantum paid on account of the plaintiff was intimated by the defendants to the original plaintiff in writing. The original plaintiff did not respond to such writings contemporaneously. The writings contained amounts which the original plaintiff was entitled to as and by way of rent in accordance with the agreement and the quantum paid on account of the original plaintiff to the Income Tax authorities. The documents relied upon by the defendants in that regard were admissible in evidence. They were adequately proved. Such documents were admissible both under Section 74 of the Evidence Act, 1872 as well as Section 90 thereof. The writings of the defendant to the original plaintiff disclosed that the defendants have furnished accounts to the original plaintiff. In terms of the orders passed in the suit the defendants disclosed a sum of Rs.42,393.85p. was payable by the defendants to the plaintiffs as at March 31, 1985. The plaintiffs would, therefore, be entitled to such amount of Rs.42,393.85p. from the defendants together with interest at the rate of 10% per annum on and from April 1, 1985 till realization. There was no agreement for interest. Interest at the rate of 10% per annum was awarded in view of the commercial nature of the transaction between the parties.
Next came the claim of mesne profit. The deed of sub-lease expired by efflux of time on February 8, 1975. The defendants were in possession since that date and were not paying any occupation charges to the plaintiffs. The plaintiffs, therefore, were entitled to mesne profit in respect of the period they were in occupation on and from February 8, 1975 till the defendants vacated the suit premises. Mesne profit, therefore, was required to be adjudicated. Such adjudication may be done under Order XX Rule 12 of the Code of Civil Procedure, 1908. For such purpose I appoint Mr. Koushik Chowdhury, Advocate as the Special Referee to inquire into the quantum of mesne profit that the plaintiffs were entitled to. The remuneration of the Special Referee is fixed at Rs.50,000/- payable by the plaintiffs at the first instance. The plaintiffs will bear all other costs and expenses of the inquiry by the Special Referee at the first instance. The Special Referee will submit his report within 6 weeks from the date of communication of this order upon him.
The plaintiffs, therefore, were entitled to a decree of eviction in terms of prayer (a). The plaintiffs were also entitled to Rs.42,393.85p. together with interest at the rate of 10% per annum calculated on and from April 1, 1986 till realization. So far as mesne profits were concerned, the Special Referee appointed will ascertain the same.
C.S. No. 84 of 1977 is decreed accordingly. The department is directed to draw up and complete the decree as expeditiously as possible.
[DEBANGSU BASAK, J.]