LEW BANERJEE Vs. PANCHU CHOWDHURY & ORS.

JUDGEMENT

(1.) This application is directed against the judgment and decree dated 8 -10 -1993 passed by Sri T. K. Bhattacharya, learned Assistant District Judge, Sealdah in connection with Title Appeal No. 64 of 1992 affirming the judgment and decree dated 27 -6 -1992 and 10 -7 -1992 respectively passed by Sri M.P. Srivastava, learned Munsif, First Court. Sealdah in Title Suit No. 37 of 1978. It appears that the trial court was pleased to decree the suit on contest in part and the first appellate court was pleased to affirm the same having dismissed the appeal on contest.

(2.) It appears from the record that the substantial questions of law for the consideration of the present appeal were formulated at the time of admission of the appeal by the Division Bench of this Court by order dated 8 -4 -1994 and it further appears therefrom that the ground Nos. 2 to 4 taken up in the memo of appeal were treated as the substantial question of law. It is, thus, stated in ground No. 2 of the memo of appeal that the courts below erred in law in not taking into consideration the judgment and order dated 6 -9 -1991 passed by this court in Civil Order No. 3088 of 1991 whereby admission of the respondent about the nonexistence of the structure on the suit premises would be evident and there was a direction of the court for adjudication of the question regarding the period of non -existence of the structure on the suit premises by the courts below but the same was not decided and as such the courts below could not come to any conclusion in the suit as regards the ground of default. In ground No. 3 it is stated that the courts below ought to have taken into consideration the judgment and decree dated 21 -12 -1989' passed by this Court in Civil Order No. 3399 of 1989 wherein this court was pleased to give liberty to the petitioner to challenge the Order No. 44 dated 7 -9 -1982 passed in the Title Suit No. 37 of 1978 in appeal and as such the decision of the court was liable to be set aside. It is stated in ground No. 4 that the" petition under Sec. 17(2) of the West Bengal Premises Tenancy Act was filed by the defendant before the trial court wherein it was raised that the defendant was a thika tenant and not a tenant under the West Bengal Premises Tenancy Act and as such the trial court was legally bound to determine the quantum of arrears of rent at the time of disposal of such petition but that having not been done, both the courts below could not have held that the order No. 44 dated 7 -9 -1982 could not be challenged in appeal under Sec. 105 of the Code of Civil Procedure. Thus, in order to sum up the ground Nos. 2, 3 and 4 in the memo, of appeal and so also the substantial questions of law involved for the determination in the present appeal it stands as follows :

(3.) The suit before the trial court was filed for eviction of the tenant on the ground of (1) default in payment of rent, (2) reasonable requirement of the plaintiff/landlord and (3) waste and mischief caused in the suit premises by the tenant. The trial court was pleased to decree the suit only on the ground of default in payment of rent dismissing the other two grounds. The first appellate court was pleased to affirm the judgment and decree passed by the trial court.