- (1.) THIS second appeal is directed against the judgment and decree dated 28th April, 1998 passed by the learned Civil Judge (Senior Division) at Sealdah reversing the judgment and decree dated 26th April, 1996 passed by the learned Civil Judge (Junior Division), Second Court at Sealdah in Title Suit No. 574 of 1999, at the instance of the plaintiff/appellant herein. The propriety of the judgment of reversal is, thus, under challenge before this Court in this second appeal.
(2.) LET me now give the short background of this case leading to the filing of this appeal hereunder:- A. Initially the plaintiff/appellant filed a suit for permanent injunction for restraining the defendant/respondent and his men and agent from entering into any portion of the suit property lying at premises no. 81/2a, Raja Dinendra Street, P. S. Maniktala, Kolkata-6. B. In the original plaint it was contended by the plaintiff that the plaintiff was the sole owner of the suit premises. It was further stated therein that the plaintiff's uncle Harekrishna Saha was a tenant in respect of the suit premises under the erstwhile owner thereof through whom the plaintiff acquired title in the suit property by way of purchase. It was further stated therein that on the death of Harekrishna Saha, the said tenancy was inherited by his wife Subhasini Saha. It was also stated therein that since Harekrishna Saha had no issue, the plaintiff used to stay with his uncle and his aunt in the suit premises even since before the date of purchase of the suit property by the plaintiff. The plaintiff further contended therein that on the death of Subhasini, the said tenancy was merged with the landlord's interest and since then the suit property remained in the exclusive possession of the plaintiff. Since the defendant/respondent was trying to trespass into the suit property, the instant suit was filed claiming the aforesaid reliefs. C. Subsequently the plaint was amended and a relief for recovery of possession of the suit property by evicting the defendant therefrom was prayed for, on the allegation that the defendant has dispossessed the plaintiff from the suit premises. It was further introduced by way of amendment that though the defendant who was the stepbrother of the plaintiff was staying in the suit property during the lifetime of Subhasini as a licensee but his licence stood revoked on the death of Subhasini and thus, he became a trespasser in the suit property after the death of Subhasini. D. The defendant/respondent contested the said suit by filing written statement and additional written statement therein. Though the defendant initially challenged the plaintiff's title in the suit property and claimed to have succeeded the said tenancy right as a legal heir of Subhasini Saha but ultimately in the additional written statement he clarified that he being the adopted son of Harekrishna Saha, inherited the said tenancy on the death of Subhasini Saha as her only heir. E. The parties led their respective evidence in support of their respective pleadings. F. The learned Trial Judge ultimately decreed the said suit by disbelieving the defendant's claim for his adoption as son by Harekrishna Saha. The learned Trial Judge held that the defendant did not inherit the tenancy right of Subhasini in the suit property. The learned Trial Judge further held that the defendant was staying in the suit property with Harekrishna and Subhasini as their licensee and on their death, the defendant became a trespasser in the suit property. The learned Trial Judge found that the defendant failed to prove his adoption as son by Harekrishna Saha. The learned Trial Judge also found that not only the defendant failed to produce any valid acceptable evidence in support of his claim for adoption as son by Harekrishna but also he filed a suit against his other brothers and sisters claiming his interest in the properties left by his natural father. In the said suit he claimed himself to be the son of his natural father. Thus, by taking into consideration the pleadings and evidence of the parties in its entirety, the learned Trial Judge came to the conclusion that the defendant was not the adopted son of Harekrishna. The defendant was declared as a trespasser in the suit property by the learned Trial Judge. Accordingly, a decree for eviction was passed against the said defendant in the said suit. G. Being aggrieved by and dissatisfied with the said judgment and decree of the learned Trial Judge, an appeal was preferred by the defendant/respondent herein before the learned First Appellate Court. The learned First Appellate Court allowed the said appeal by setting aside the judgment and decree of the learned Trial Judge by holding inter alia that the suit is not maintainable for non-joinder of necessary parties. The learned First Appellate Court held that the tenancy right of Subhasini Saha on her death, devolved upon a living brother of her husband and since the said living brother of Harekrishna has not been impleaded as a party in the suit, this Suit is not maintainable for non-joinder of necessary parties. Accordingly, the appeal was allowed and the judgment and decree of the learned Trial Judge was set aside.
(3.) THE propriety of the said decree of the learned First Appellate Court is under challenge in this appeal before this Court. While admitting this appeal, the Division Bench of this Hon'ble Court was pleased to formulate the following substantial question of law on which the instant appeal will be heard. Those two substantial questions of law are as follows : 1. For that the learned Appellate Court has failed to consider that it was nobody's case that the suit was not maintainable for non-joinder or mis-joinder of parties. 2. For that the learned Appellate Court has exceeded his jurisdiction while deciding the said appeal inasmuch as neither party has raised any question that the right of tenancy of Subhasini devolved upon Jatindra Mohan Saha, the brother of Harekrishna. ;