Decided on November 17,1976

Baijnath Gupta Appellant


N.C. Mukherji, J. - (1.)This is an appeal against the judgment of M.M. Dutt J. delivered on June 15, 1973, in F.A. 78 of 1972.
(2.)The facts of the case may briefly be stated as follows:
One Lakshmi Narayan Gupta brought a suit for ejectment against Baijanath Gupta and another being T.S. 76 of 1959 in the City Civil Court, Calcutta, on the ground that the Defendants were licensees. The learned Judge, City Court, found that the evidence adduced by the Plaintiff was neither sufficient nor strong enough to sustain the Plaintiff's case that the Defendants were mere licensees and not tenants. In that view of his finding, the learned Judge dismissed the suit. Being aggrieved, the Plaintiff preferred an appeal to this Court. The said appeal was allowed by Chittatosh Mookerjee J., who sent the case back to the learned Court below. In the order bf remand it was held by Mookerjee J. that the onus was also upon the Defendants to prove their case that they had been in possession of the disputed room since November 1957 as tenants under the Plaintiff as alleged. Mookerjee J. observed:

It is well -settled now that the test of exclusive possession is not always conclusive though it is a very important indication in favour of tenancy.

In that view of his finding Mookerjee J. directed the lower Court to consider afresh whether Ex. 'C', the receipt, showing payment of Rs. 6,000 by the Defendants to the Plaintiff was ante -dated. After the case was sent back, the learned Judge, City Court, followed the directions of Mookerjee J. and decreed the suit. Being aggrieved, the Defendants came up in appeal being F.A. 78 of 1972. The said appeal was dismissed by M.M. Dutta J. and hence, this Letters Patent Appeal.

(3.)Mr. Bankim Chandra Dutta, learned Advocate appearing on behalf of the Appellants in the first appeal, submits that the order of remand passed by Mookerjee J. was not in accordance with law. It is submitted that the lower Court was directed to decide a point of law which ought to have been decided by the appellate court itself.

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