Decided on December 04,2003

JOYDEB SAW Respondents

Referred Judgements :-



Ghatal, Midnapore - (1.)1. In this First Miscellaneous Appeal, the order of remand passed by the Civil Judge (Sr. Division), Ghatal, Midnapore dated 30th April, 1997 in Title Appeal No. 8 of under consideration. The appellants are aggrieved by an order of remand passed by the Appellate Court to give an opportunity to adduce evidence and to re-hear the case afresh in presence of both sides. The real crux of the matter is in relation to production of the xerox copy of the documents being Ext. B and Ext. B-1. The Court held that a person from the office where the original had been produced would have been examined by the defence to prove the signature. An argument has been put forward before this Court by the appellants that there is no applicability of section 53A of the Transfer of Property Act due to variation of the condition in the original agreement. The learned Munsif held that the defendant/respondent frankly admitted that the defendant would definitely be evicted from the suit premises if the protection provided under section 53A of the Transfer of Property Act is not extended to him. It has already been exposed and held that the defendant made default in payment of monthly rent from a month. Since then he did not pay any rent nor did he show his willingness to pay the sum as per agreement entered into between the parties. According to me, each and everywhere in the written statement, evidence and Paper Book, the defendant has shown himself as a monthly tenant. Therefore, if he is as a monthly tenant, the existence of the Ext. B being the agreement to draw an inference-at about part performance under section 53A of the Transfer of Property Act does not lie. Had there been a marginal case dependable only on such agreement requiring performance to come to a conclusion then in that case the question of appointment of an expert to prove the genuinity of the document would have arisen. This is not such a case. As per Halsbury's Laws of England, 4th Edition, at page 391 in paragraph 568 where a contract is varied it operates according to the variation, and the original terms cannot be set up by one of the parties against the other. In any event, the respondent contended that the tenancy could also be created by contract, apart from the tenancy at will or at sufferance. The learned Counsel appearing for the respondent cited a judgment reported in 46 CalWN 366, Mozam Shaikh vs. Ananda Prosad Bhadra & Anr., to establish his case. In reply, the learned Counsel appearing for the appellants contended that their case is that when it is an admitted position that the respondent had obtained a xerox copy of the agreement then the question of non-availability of such agreement does not apply. I am of the view that this is an important aspect of the matter in respect of the fact whether non-availability of the original document is formal one cr not. Whether section 53A of the Transfer of Property Act will be applicable or not is also to be considered independently before appointment of an expert, if any, and to examine the defence to prove the signature of one. Unless such point is considered the matter cannot be remanded back. Incidentally, a factual question has also struck the mind of the Court in respect of the existence of the agreement for a period of 51 years at a monthly rent of Rs. 50/- per month. However, the same was increased subsequently. In any event, all such questions are to be taken independently by the Court of First Appellate Court before passing an order. According to me, the important part of due consideration is which question will prevail over another. The question of appointment of an expert to prove the signature in the agreement or the existence of the agreement in the circumstances. According to me, the existence of the agreement is the. prime consideration in the facts and circumstances of the case. Therefore, the remand order is .bad and has to be set aside. Accordingly the same is set aside. The Lower Appellate Court is directed to give an independent hearing and finalise the issue preferably within a period of three months from the date of communitation of the order or availability of the records whichever is later.
(2.)The appeal is, thus, disposed of. There will be no order as to costs.
(3.)Let Lower Court Records be sent down to the Court below as expeditiously as possible but not beyond the period of fortnight from this date. Appeal disposed of.

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