Prasenjit Mandal - (1.) THIS second appeal is directed against the judgment and decree dated December 15, 2005 passed by the learned 6th Additional District Judge, Court, Alipore in Title Appeal No.171 of 2003 thereby affirming the judgment and decree dated July 31, 2003 passed by the learned Civil Judge (Junior Division), 3rd Additional Court, Alipore in Title Suit No.2 of 1997.
(2.) THE original plaintiff instituted a suit being Title Suit No.2 of 1997 for ejectment contending, inter alia, that the original plaintiff, Sk. Soleman was the owner of the premises in suit as described in the schedule of the plaint and the defendant was a monthly tenant under him in respect of that suit premises at a rental of Rs.16/- per month payable according to English Calendar Month. THE plaintiff sought for recovery of possession on the ground of default in payment of rent, guilty of causing nuisance and annoyance to the suit premises and causing damage to the suit premises. THE plaintiff also required the suit premises for their own use and occupation and also for their family members. A notice of quit was served upon the defendant and he was asked to vacate the suit premises. THE present plaintiffs / respondents herein are the heirs of the original plaintiff. The defendant contested the said suit by filing a written statement denying all the material allegations made against him by the plaintiff. He prayed for dismissal of the suit. 2.The learned Trial Judge decreed the suit on contest without costs against the defendant. Being aggrieved, the defendant preferred an appeal and the said appeal was also dismissed on contest without cost. The judgment and decree under appeal was affirmed. Being aggrieved, this second appeal has been preferred. Upon hearing both the sides, the following substantial questions of law have been framed for decision in the second appeal:- i) Whether the learned Courts below committed substantial error in law for not calling the original challans which were admittedly in the custody of the learned court below and Nazirkhana as well in order to decide the genuineness of the xerox copies of the challans produced by the defendant as proof of payment of rents in respect of the suit premises. ii) Whether the learned Courts below committed substantial error in law in deciding the reasonable requirements of the suit premises by the plaintiffs on the basis of the evidence on record. Thus, in the second appeal, the grounds of default and reasonable requirement are under consideration. So far as the ground of default is concerned, I find that the tenant / appellant filed xerox copies of certain challans contending, inter alia, that the original challans had been lost. The Courts below did not accept such contention and held that the tenant was required to show that they had paid or deposited rents properly in respect of the suit premises.
(3.) MR. Debasish Roy appearing on behalf of the appellant has submitted that in fact, the tenant has filed an application under Order 41 Rule 27 of the C.P.C. for calling for the original challans which are lying in the custody of the Court and for directing the Nazirkhana to produce those challans for verification of the genuineness of the xerox copies of the challans produced by the appellant and as such, the necessary orders may be passed in this respect. Mr. Debasish Roy has also contended that under the above circumstances, the suit should be remanded back to the trial court after setting aside the judgments and decrees of the Courts below.;