P.K.Ray, J. - (1.) The second appeal has been preferred challenging the Judgment and decree dated 28th February, 1996 and 25th February, 1996 respectively passed by learned Assistant District Judge, 2nd Court at Howrah in title appeal No. 176 of 1993 reversing the Judgment and decree dated 29th May, 1993 and 5th June, 1993 respectively passed by the learned Munsif, 2nd Court at Howrah in title suit No. 266 of 1987, which was a suit for eviction of licensee on the ground of termination of licence. The appellant in the second appeal is the defendant of the suit. Appeal was preferred on several grounds, which reads to this effect: "I. For that the learned lower Appellate Court has failed to appreciate the facts and circumstances of the case and also without considering the merits of the case was decreed the suit." II. For that the learned lower Appellate Court erred in law by not considering the status of this appellant/defendant. III. For that the learned lower Appellate Court has failed to appreciate properly the exhibit 3, which is the original sale deed dated 70, May 1997 executed by the heirs deceased Jogmaya Dutta in favour of Bholanath Karui son of late Dukhiram and Jitendra Nath Karui son of late Dwarikanath Karui in equal share. IV. For that the learned lower Appellate Court has failed to prove the joint tenancy of both the parties which the learned Munsif vividly discussed in his Judgment. V. For that the learned lower Appellate Court below erred in law in not considering the joint tenancy with the plaintiff No. 2 by way of inheritance. VI. For that the learned lower Appellate Court below nowhere discussed in his delivering Judgment that the defendant/appellant is/was a licensee and even licensee has not been proved. VII. For that the learned lower Appellate Court below has failed to consider properly the exhibit 4, death certificate of Kamala Bala Karui dated 23rd February, 1972 and also Exhibit 6, death certificate of Krishna Chandra Karui husband of the defendant/appellant herein dated 17th October, 1974. VIII. For that the learned lower Appellate Court has failed to consider the exhibits marked as A to E in the plaint which was issued by the authorities concerned for the purpose of proper adjudication of the dispute that have not been considered at all by the learned Judge at the time of hearing of the case. IX. For that it would be evident from the exhibits marked A to E that the defendant/appellant herein and her husband and children resided in the suit premises more than years. X. For that the learned lower Appellate Court has totally failed to prove that the defendant/appellant herein was inducted as licensee in the disputed suit property since 1981 and also failed to prove joint tenancy with the plaintiff No. 2 on the basis of the documents relied upon by the plaintiffs/respondents. XI. For that the plaintiffs/respondents have also failed to prove their own case by adducing evidence by fit and proper way. "XII. For that it is the duty of the plaintiffs/respondents to prove their own case by producing essential documents before the learned Court but that has not been done in this case and the learned Judge of the Appellate Court below without assigning properly allowed the appeal on contest and set aside the Judgment and decree of the learned Munsif."
(2.) When the appeal was admitted for hearing under Order 41 Rule 11, the Division Bench (Coram: N.K. Mitra and B.M. Mitra, JJ as their Lordships' were) on 30th August, 1996, admitted the appeal for hearing on all the grounds as stated in the memo appeal being of substantial questions of law. All the aforesaid grounds, which were considered by the aforesaid Division Bench practically are within the domain of adjudicatory process on factual matrix, which with due respect is not within the field of consideration of a Second Appeal Court. However, since the parties have urged on all those points, which were considered as substantial question of law involved, the points are now being considered. Factual matrix of the case:
(3.) Plaintiffs admittedly are the cousin brothers of defendant. They jointly filed the suit praying for eviction of defendant Binapani from the suit premises on the ground that Binapani was inducted as a licensee by the plaintiff No. 2 in the year 1981 and in the first weak of July, 1987 as the defendant refused to vacate the premises despite request made, a notice revoking the licence was issued on 27th July, 1987. Plaintiffs in the suit asserted that the suit premises was under the tenancy right of one Kamalabala, the mother of plaintiff No. 1 and despite the decree of eviction Kamalabala stayed in the said premises as the execution case being 5 of 1971 was dismissed with reference to the Judgment and decree of title suit No. 131 of 1970 as instituted by the landlord against the tenant Kamalabala, mother of plaintiff No. 1. In the year 1981, defendant Binapani approached plaintiff No. 2, the brother to have accommodation in the suit premises and the defendant No. 2 as was leaving in the joint mess with plaintiff No. 1, cousin brother, granted licence to reside, which was revoked in terms of the notice aforesaid. It was the further case of the plaintiffs that they have purchased the property by registered deed of sale on 7th May, 1987. Case of the defendant:;