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Before filing the instant suit the plaintiff served a notice of Ejectment dated 16th December, 1987 (Exhibit-F) under section 111(g) of The Transfer of Property Act, 1882 upon the defendant No.1. In the said notice two grounds were alleged namely that (i) illegal construction of unlawful structures covering about 8000 square feet on the roof of the demised building and (ii) default in payment of rent since October, 1987.

The additional ground is that the defendant had illegally and in deviation of original sanctioned building plan converted the bathroom space on the ground floor into shops.

On the issue of unpaid rent, counsel submits that there was no response from Marshall to the letter dated 1st December 1987 (Ex-F) where it had been clearly stated that rents from October 1987 is outstanding and a demand had been made for Rs.18,000 for October and November 1987. Marshall has not led any evidence by way of witness action to refute the aforesaid. Witness on behalf of Mahavir (Defendant No.2) has admitted that from 1974 to 1992, Mahavir did not pay any rent directly to the plaintiff. In answer to the documents relied on by the defendants to show that amounts were being tendered and were being accepted by the plaintiffs, after filing of the suit in 1988, Counsel relies on an order dated 5th July 1988 where the payment was directed to be accepted by the plaintiffs without prejudice to its rights. With regard to breach on the part of the defendants in making constructions contrary to the sanctioned plan of the KMC, Counsel has relied on the sanctioned building plan of the suit premises of 1966 (Ex-i). It is submitted that despite specific directions given by this Court on 10th December 2013 to the executive engineer of KMC, the sanctioned plan dated 9th July 1975, relied on by the defendants, was produced. On the other hand, by the order dated 14th February 2014, counsel for KMC produced Ex- 1, series of documents being the sanctioned plan of 1966. The Report of the Surveyor dated 28th January 2011 (Ex-J) has pointed out the specific deviations supported by photographers taken at actual site. The evidence of Mahavir has not challenged the contents of the Report in respect of the deviations pointed out. The sanctioned plan of 1966 is the only record available with the KMC and confirmed by Counsel appearing for KMC. He submits that Asru Kanti Ghosh, witness for Mahavir, could not produce any plan of 1975 and also admitted that no plan of 1975 was found in the KMC records. Several opportunities were given to KMC by this Court thereafter for production of the 1975 Plan but which has not been produce till date. He submits that even if the alleged Plan of 1975 (Ex-1A and Ex-6) are taken into consideration even then the building suffers from deviations in breach of the conditions and lease of 1964. Part of the ground floor had been converted into shops contrary to the sanctioned plan as reported in a Report published in The Telegraph on 13th February 1988 (Ex-G). Counsel submits that in view of the breach of two essential conditions of the lease, namely, for non-payment of rents and for constructing the building in deviation of the sanctioned plan which is also in violation of the Rules and Bye-laws of the KMC, the plaintiffs are entitled to determine the lease and to a decree of eviction against both the defendants. Since the suit premises were sub- leased by Marshall in favour of Mahavir, the latter would be bound by a decree passed against the former. The determination of lease being valid, the occupation of the defendants subsequent to the determination is unlawful and the plaintiffs are hence entitled to mesne profits for such unlawful occupation.

Issues -5 : Are the plaintiffs entitled to get a decree, as prayed for? Issue- 6: to what reliefs are the plaintiffs entitled?

Since we are of the view that the defendants have committed breach of the terms of the lease namely for payment of rent and for violation of the Rules and Bye-laws of the KMC by constructing the building in deviation of the sanctioned plan, the plaintiffs were entitled to determine the lease and to the decree as prayed for. Further, since the determination of the lease is valid, the occupation of the defendants subsequent to the determination is unlawful and the plaintiffs are entitled to mesne profits.