SUJIT KUAMR PAUL vs MD KHALIL KURESHI(DSD) REP BY MD JALAL QURESHI & ORS

1

IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE

Present:-
The Hon’ble Justice Supratim Bhattacharya

SA 114 of 2022

SUJIT KUAMR PAUL
VS
MD KHALIL KURESHI (DSD) REP BY MD JALAL QURESHI & ORS.

For the Appellant : Mr. Sounak Bhattacharya
Mr. Apurba Kumar Ghosh
Mr. Rudranil Ghosh
Mr. Abhirup Halder
For the Respondents : Mr. Dev Kumar Sharma
Mr. Satya Prakash Shaw

Delivered On : 12.11.2026

Supratim Bhattacharya, J.:
1. The present second appeal has been preferred by the appellant being
th
dissatisfied by the judgment dated 26 March 2018 passed by the
learned First Appellate Court that is the Additional District Judge,
rd
3 Court, Howrah in Title Appeal No. 7 of 2017.
Through the said judgment the learned Court has allowed the said title
th
appeal and thereby setting aside the judgment and decree dated 28 of
nd
September 2016 and 2 of November 2016 respectively passed by the

2

th
learned T rial C ourt that is the learned C ivil Judge ,( Jr . D ivision) 4 Court ,
Howrah passed in connection with Title Suit No. 235 of 2000.

2. Factual Matrix
Before the Trial Court
The fact of the lis is that the appellant herein being the landlord in respect of
the suit property that is one Pucca shoproom on the ground floor comprised
in Dag No. 511 under Khatian Number 735 within Mouja Bankra, J. L. No.
55, PS Domjur, District Howrah preferred a suit for eviction being Title Suit
No. 235 of 2000, against one Mr. Khalil Qureshi, the predecessor of the
present respondents, on the grounds of default in payment of rent since the
month of August 1991 and also on the grounds of causing damage to the
suit property violating the clauses (m), (o) and (p) of Section 108 of the
Transfer of Property Act and also on the ground of reasonable requirement
for his own use and occupation.
It is worth mentioning that the defendant had filed an application under
section 17 (2) and section 17 (2A) of the West Bengal Premises Tenancy Act,
1956. Against the said application written objection was filed by the
landlord. At the time of hearing of the said application the plaintiff namely
Sujit Kumar Paul himself adduced evidence as opposite party.
The learned trial judge disposed of the said application filed by the defendant
tenant under section 17 ( 2) and section 17 (2A) of the West Bengal Premises

3

st
Tenancy Act 1956 on 21 February, 2008 being order No. 102. Through the
said order the learned trial judge had come to the conclusion that the
defendant is premises tenant under the plaintiff in respect of the suit
property at a monthly rental of Rs. 65 payable according to English calendar
month and had also come to the finding that the defendant is a defaulter in
payment of rent since August 1992 and as such had come to the conclusion
that the defendant is a defaulter in payment of rent for 115 months.
The learned trial judge through the said order had calculated the area rent
ଵ
% amounting
ଷ
8
to be Rs. 7475/- plus statutory interest at the rate of
Rs. 622.916 as such had come to the finding that the defendant should pay
Rs. 8098/- in equal instalments of Rs.1000/- each out of which the first
instalment shall be of Rs. 1098/- and the instalments shall have to be
th
deposited within the 15 day of each succeeding month and the current rent

also to be deposited simultaneously.
Written statement was filed by the defendant on 17.07.2008.
On the basis of the pleadings the following issues were framed which are as
follows: –
1 Is the suit maintainable in law ?
2. Is the suit governed by Transfer of Property Act ?
3 Whether the notice of ejectment served upon the defendant and
whether it was valid notice ?

4

4 Has the plaintiff any cause of action to file the suit against the
defendants ?
5 To what relief the plaintiff is entitled to get in law and equity ?
On behalf of the plaintiff landlord the landlord namely Sujit Kumar Paul
himself adduced evidence and has proved the following documents which
have been marked as exhibits :-
Exhibit No. 1 – certified copy of deed No. 2850 of 1991.
Exhibit No. 2 – khatian no. 735 and Khajna receipt (series).
Exhibit No. 3 – notice dated 23 .08.1999 with A/D card and certificate of
posting (collectively).
Exhibit No. 4 – rectification letter dated 5.10.1999 with acknowledgement
due card (collectively).
On behalf of the defendant /tenant Rashida Begam deposed and has proved
the following documents which have been marked as exhibits.
Exhibit A – 21 Court challans .
Exhibit B – Will made by her father.
Exhibit C – Salishinama dated 06.01.1995.
Exhibit D – death certificate dated 31.07. 2012.

5

The learned trial judge after consideration of the pleadings of the parties,
considering both oral and documentary evidence and also considering the
submission of learned counsels came to the finding that the suit is governed
by Transfer of Property Act. Notice was valid and the service of notice is
deemed to be valid and thus reached the conclusion that the relationship of
landlord and tenant is established and the suit is governed by Section 106 of
the Transfer of Property Act and there being valid notice served upon the
defendant, the learned trial judge came to the finding that the plaintiff has
succeeded in part for eviction barring prayer for cost / mesne profit and has
thus decreed the suit in favour of the plaintiff landlord.
3. Before the Ld. First Appellate Court
B eing dissatisfied by the judgment passed by the learned trial court the
tenant / defendant preferred a first appeal which being Title Appeal No.
rd
07 of 2017. The Additional District Judge 3 Court Howrah heard the
said appeal. The learned F irst A ppellate Co urt after hearing the learned
counsel representing the appellant and the learned counsel representing
the respondent has allowed the said title appeal thereby setting aside the
judgment and decree passed by the learned trial Judge, which has given
birth to the present second appeal.
4. The Ld. Counsel representing the appellant during his exhaustive
argument has submitted the following;-

6

i) T hat the fact in contention is as to whether the present lis is to
be guided by the T ransfer of P roperty Act, 1882 or the West
Bengal P remises T enancy Act, 1956.
ii) He has further submitted that though the order passed by the
learned trial judge while disposing of the application filed by the
defendant under S ection 17 ( 2 ) and (2A) of the West Bengal
P T A
remises enancy ct had not been assailed at that relevant
point of time, it can be challenged subsequently. In this regard
the learned counsel has relied upon S ection 1 05 of the C ode of
C ivil P rocedure 1 908 . He has also relied upon sub - section 1 of
the said Section and has submitted that no appeal shall lie from
any order made by a court in the exercise of its original or
Appellete jurisdiction but where a decree is appealed from, any
error, defect or irregularity in any order, affecting the decision of
the case, may be set forth as a ground of objection in the
memorandum of appeal.
iii) Ld. Counsel has also relied upon S ections 1 06 (1) and S ection
1 11 clause (h) of the T ransfer of property Act . While relying upon
S 1
ection 06 of the said act the learned counsel has submitted
that in case of lease of immovable property for any purpose other
than agricultural or manufacturing purpose, which is in this
case, the lease shall be deemed to be a lease from month to
month. While relying upon section 111 of the said A ct the

7

learned counsel has submitted that as regards to determination
of lease , a lease of immovable property determines on the
expiration of the notice to determine the lease, or to quit, or of
intention to quit, the property leased, duly given by one party to
the other. In this case there was a notice sent to the defendant
directing him to quit the suit property and the said notice was
served upon the defendant as such there is no controversy as
regards to the legality of the notice and seeking termination of
the lease.
iv) Learned counsel has relied upon Exhibit C that is the
salishinama and has submitted that the said Salishi took place
before the panchayat, which signifies that the suit property is
within the panchayat area, as such the lis is to abide by the
T ransfer of P roperty A ct.
v) He has further submitted that in the objection to the application
under S ection 17 ( 2 ) and ( 2A ) of the West Bengal Premises Tenancy
A ct the plaintiff has stated that the suit premises is comprised
within Dag No. 511 under khatian Number 735 within Mouza
Bankra, Police Station –Domjur, District Howrah. This Dag
Number, khatian number and Mouja signifies that the suit
property lies within panchayat area and as such is to be abided
by the T ransfer of P roperty A ct.

8

vi) Ld. Counsel has further submitted that the defendant witness
No. 1 during his cross-examination dated 03.08. 2016 has
admitted the fact that the shoproom is in panchayat area, as
such there being admission of the fact that the suit property is
within the panchayat area so it is obvious that the T ransfer of
P roperty A ct will guide the present lis.
S
vii) The learned Counsel has further relied upon chedule I of the
M Ac
Howrah unicipal Corporation t 1980.
viii) He has also referred to section 1 of the West Bengal P remises
T enancy Act 1956. Referring to sub - section 3 of the said S ection
the learned counsel has submitted that the West Bengal
P remises T enancy Act 1956 extends to the whole of Calcutta and
to all areas which have been or may hereafter be constituted
municipalities under the provisions of the Bengal M unicipal Act
1932.
ix) The learned counsel has also referred to the following
documents, those are the record of rights and the tax receipts
and has submitted that from the record of rights and the tax
receipts it transpires that the suit property lies within panchayat
area.
x) The learned counsel has also submitted that the principles of res
judicata will not apply in the present lis as because while
disposing of the application the learned trial court had not

9

framed any issue. As no issues have been framed so the
principle of res judicata will not apply.
xi) He has further submitted that only the relationship, rate of rent
and the arrear amount of rent was decided. In this regard he has
further submitted that the point of maintainability was not
decided. During reply the learned counsel has further submitted
that res judicata is applicable in cases where the court has
jurisdiction but passes a wrong order but is not applicable in
cases where the court does not have jurisdiction.
xii) To buttress his contention the learned counsel has relied upon
the following authorities, which are: –
A judgment of a coordinate bench of this Hon'ble Court passed
in a C ivil R evision decided on March 21, 1995 and published in
1995 SCC online Cal 83. A judgment of a coordinate bench of
this Hon'ble Court passed in C ivil R evision being C. O. 1943 of
2021 passed in the case between Soma Sarkar versus
nd
SMT. Gitika Banerjee and others dated 2 of March 2022 and
has also relied upon a judgment passed by this Hon'ble Court in
second appeals being SA 33 of 2017 and SA 34 of 2017 in the
case between Panchanan Pal versus Shika Roychowdhury
and others.
Relying upon the aforementioned circumstances and the
authorities cited the learned counsel has prayed for allowing the

10

present appeal by setting aside the judgment passed in the first
appeal.
5. Per contra the learned counsel representing the respondents has placed
before the court
i. The notice for eviction and the plaint seeking eviction.
ii. The learned counsel has submitted that the plaintiff landlord
both in the notice and in the plaint has time and again
stated that the defendant was a monthly premises tenant
under him in respect of a shop room that is the suit property
at a monthly rental payable according to the English
calendar month. He has further submitted that from the
aforementioned facts it transpires that the appellant plaintiff
landlord has stressed upon the fact of monthly premises
tenancy which comes within the ambit of the West Bengal
P remises T enancy Act and not under the T ransfer of P roperty
Ac t.
iii. He has further submitted that the order passed by the
learned trial court while disposing the application under
S ( ) ( ) P T
ection 17 2 and 2A of the West Bengal remises enancy
Ac t had never been challenged and as it has not been
challenged so the said order has attained finality and cannot
be agitated subsequently.

11

iv. He has further submitted that throughout the entire
proceeding the appellant plaintiff landlord has proceeded as
per the provisions of the West Bengal Premises Tenancy Act.
v. The learned counsel has stressed upon S ection 114 of the
T ransfer of P roperty Act 1882 and has submitted that where
a lease of immovable property has been determined by
forfeiture for non-payment of rent, and the lessor sues to
eject the lessee, if, at the hearing of the suit,the lessee pays
or tenders to the lessor the rent in arear, together with
interest thereon and his full costs of the suit, or gives such
security as the court thinks sufficient for making such
payment within 15 days, the court may, in lieu of making a
decree for ejectment, pass an order relieving the lessee
against the forfeiture; and thereupon the lessee shall hold
the property leased as if the forfeiture had not occurred.
vi. Relying upon the mentioned section the learned Counsel has
submitted that in this present lis the tenant has complied
the direction of the learned trial judge and has paid the
ଵ
%
ଷ
entire amount of arrear along with interest at the rate of 8
per annum and as the same has been complied if at all the
lis is guided under the T ransfer of P roperty Act then also the
respondents cannot be evicted as they have paid the entire
arrear amount along with interest, so according to this angle

12

also the tenant is not liable to be evicted under the
provisions of law.
vii. In support of his contention the learned Counsel has relied
upon the following authorities.
A judgment of the Hon'ble Apex Court published at
AIR 1987 SC 1145 ,
H
e has also relied upon a judgment of the Hon'ble four
at
Judges bench of the Hon'ble Supreme Court published
AIR 1966 SC 1061.
He has also relied upon a judgment published at AIR 1969
SC 1349 and has also relied upon a judgment published at
AIR 1953 Bombay 129.
Banking upon the aforementioned authorities and the facts
and circumstances the learned counsel has prayed for
rejection of the present second appeal on the ground that the
impugned judgment and decree passed by the learned first
appellate Court does not require interference.


6. The present second appeal has been admitted on the following two
substantial questions of law, which are as follows:
“I. whether the learned judge in the lower appellate court, substantially,
erred in law in not considering the Exhibit 2 which shows that the property
in suit governs under the Transfer of Property Act?

13

II. whether the learned judge in the lower appellate court, substantially,
erred in law in relying upon the order passed in the application filed under
sections 17 ( 2 ) and subsection ( 2 A) of the West Bengal P remises T enancy
Ac t holding, inter alia, that the defendants are the premises tenant under
the plaintiff disregarding the fact that during the evidence it was
established that the property in suit is in the panchayat area?”

7. From the contention of the learned counsels and the substantial
questions of law framed it transpires that the moot point for
consideration is whether the decision arrived at the time of disposal of
the application filed by the defendant tenant under S ection 17 ( 2 ) and
(2A) of the West Bengal P remises T enancy A ct will prevail, having not
been challenged has attained finality, over the evidence which have been
adduced at the time of adjudication of the suit.
8. From the materials on record it transpires that a notice dated
23 .08.1999 for eviction of the tenant was issued by a learned counsel on
behalf of the plaintiff landlord. In the said notice it has mentioned that
Md. Khalil Kureshi is a ‘monthly premises tenant’ under Sujit Kumar
Paul that is the appellant plaintiff in respect of one Pucca shoproom
comprised in Dag No. 511, under khatian Number 735 within Mouja
Bankra JL No. 55 Police Station Domjur, District Howrah, at a monthly
rental of Rs. 200 /- payable according to English calendar month and
demand of tenancy is from first day to the last day of English calendar
month. So there is mention of "monthly premises tenancy " and there is

14

also mention of " the month of tenancy is from first day to last day of
English calendar month ".
9. In addition it has also been mentioned that through the said notice the
defendant was requested to quit vacate and deliver Khas possession to
the plaintiff with the expiry of the month of September, 1999 and all
relationship between landlord and tenant shall be absolutely seized on
19
and from 01.10. 99 . So through the notice for eviction of the tenancy
which has been proved on behalf of the plaintiff appellant and has been
marked Exhibit 3 (collectively) along with the acknowledgement due card
there has been specifically mention of " relationship as landlord and
tenant " between the plaintiff and the defendant.
10. In the plaint through which the lis has been initiated it has been
mentioned that the plaintiff is the absolute owner of the landed property
comprising in Dag No. 511 under Khatian No. 735 Mouja Bankra by
purchase through a registered sale deed and the defendant was a
monthly premises tenant in respect of a shop room at the aforesaid
premises comprising within the Dag No. 511 under Khatian No. 735
I
within Mouja Bankra, PS Domjur, District Howrah. t is also fact that an
S ( ) ( ) P
application under ection 17 2 and 2 A of the West Bengal remises
T enancy Act had been filed by the defendant. The plaintiff had contested
the said application by filing written objection and has deposed at the
time of hearing of the said application. The said application has been
disposed of by the learned trial judge holding that the defendant is

15

premises tenant under the plaintiff at a monthly rental of Rs. 65 payable
according to English calendar month. It has also been held through the
said order that the defendant has not paid rent during the period of
August 1992 and February 2002, that is for 115 months and as such the
defendant was directed to pay Rs. 7475 plus statutory interest at the rate
ଵ
% per annum amounting Rs. ^622.9 1^{66. The total amount payable}
ଷ
of 8
was Rs. 8098 /-. The defendant was also directed to pay the said amount
in equal instalments of Rs. 1000/- each of which the first instalment was
of Rs.1098/-. The plaintiff did not assail the said order on the contrary
has accepted the compliance of the said order by the defendant. As the
said order has not been set aside so the order passed by the learned trial
judge declaring the relationship between the plaintiff and defendant as
premises tenant stands. It is also fact that the learned trial judge while
finally adjudicating the suit has reached the finding that the lis is to
abide by the Transfer of Property Act and has thus reached the inference
that the notice is legal and has been served upon the defendant as such
the defendant is liable to be evicted. As the appellant herein had not
assailed the order passed by the learned trial judge while disposing of the
application under Section 17 ( 2) and subsection (2 A) of the West Bengal
Premises Tenancy Act so the decision of the trial court stands that the
respondent defendant is premises tenant under the plaintiff appellant.
In this regard this Court relies upon a judgment of the Hon'ble three
Judges bench of the Hon'ble Apex Court passed in the case between

16

SATYADHYAN GHOSAL AND OTHERS versus DEORAJIN DEBI(SMT)
and another reported at 1960 SCC online SC 15. In Paragraphs 8 to
16 of the said judgment the following has been laid down :
“8. The principle of res judicata applies also as between two
stages in the same litigation to this extent that a court,
whether the trial court or a higher court having at an earlier
stage decided a matter in one way will not allow the parties to
re-agitate the matter again at a subsequent stage of the same
proceedings. Does this however mean that because at an
earlier stage of the litigation a court has decided an
interlocutory matter in one way and no appeal has been taken
therefrom or no appeal did lie, a higher court cannot at a later
stage of the same litigation consider the matter again?
9. Dealing with this question almost a century ago the Privy
3
Council in Maharaja Moheshur Singh v. Bengal Government
held that it is open to the appellate court which had not earlier
considered the matter to investigate in an appeal from the final
decision grievances of a party in respect of an interlocutory
order. That case referred to the question of assessment of
revenue on lands. On 6-12-1841, judgment was pronounced
by the Special Commissioner to the effect that 3,513 beeghas
of land alone were assessable, and that the collections made
by the Government on the other lands should be restored to
the possessors. This judgment was affirmed by another
Special Commissioner on 8-3-1842. On 21-9-1847, a petition
for review on behalf of the Government of Bengal was
presented to another Special Commissioner. That petition for
review was granted. After due hearing the judgment of 8-3-
1842, was reversed. The question arose before the Privy
Council whether the review had been granted in conformity

17

with the Regulations existing at that time with respect to the
granting a review. It was urged however on behalf of the
Government of Bengal that it was then too late to impugn the
regularity of the proceeding to grant the review and that if the
appellant deemed himself aggrieved by it, he ought to have
appealed at the time, and that it was too late to do so after a
decision had been pronounced against him.
10. Dealing with this objection the Privy Council observed:
“We are of opinion that this objection cannot be sustained. We
are not aware of any law or regulation prevailing in India
which renders it imperative upon the suitor to appeal from
every interlocutory order by which he may conceive himself
aggrieved, under the penalty, if he does not so do, of forfeiting
for ever the benefit of the consideration of the appellate court.
No authority or precedent has been cited in support of such a
proposition, and we cannot conceive that anything would be
more detrimental to the expeditious administration of justice
than the establishment of a rule which would impose upon the
suitor the necessity of so appealing; whereby on the one hand
he might be harassed with endless expense and delay, and
on the other inflict upon his opponent similar calamities. We
believe there have been very many cases before this Tribunal
in which their Lordships have deemed it to be their duty to
correct erroneous interlocutory orders, though not brought
under their consideration until the whole cause had been
decided, and brought hither by appeal for adjudication.”
11. This view was re-affirmed by the Privy Council in Forbes v.
4
Ameeroonissa Begum . A decree for possession with mesne
profits having been made against the defendant by the Civil
Judge, Purneeha on 18-12-1834, the defendant appealed to
the Sadar Diwani Adalat. That Court by its order dated 22-1-

18

1857, held that the Civil Judge had been wrong in decreeing
the mesne profits and further that the plaintiff was bound
before he was entitled to have his conditional sale made
absolute to render certain accounts. Accordingly the Sadar
Diwani Adalat remanded the case in order that the judge
might call upon the plaintiff for his accounts and then decide
the case in the light of the remarks made by the Adalat. After
the case went back the plaintiff produced accounts but the
judge held that they were insufficient and dismissed the suit.
An appeal was taken against that decree of dismissal to the
Sadar Diwani Adalat but the appeal was unsuccessful; a later
prayer for review was also rejected. On behalf of the appellant
it was contended before the Privy Council that the Sadar
Diwani Adalat was wrong in requiring the appellant to
produce his accounts. In order however that this question
could be raised, it was necessary to decide, whether if the
Sadar Diwani Adalat was wrong in remanding the case for re-
trial, the appellant was bound by that decree he not having
appealed therefrom. Their Lordships of the Privy Council
pointed out that the order of remand was an interlocutory
order and that it did not purport to dispose of the case and
consequently upon the principle laid down by the Privy Council
in Maharaja Moheshur Singh v. Government of Bengal (Supra),
the appellant was not precluded from insisting that the
remand for the production of the accounts was erroneous or
that the cause should have been decided in his favour,
notwithstanding the non-production of the accounts. Their
Lordships also mentioned the fact that the learned Judges of
the Sadar Court also treated the latter point as still open to the
appellant, when considering his appeal against the decree of
dismissal passed after remand.

19

3
12. The principle laid down in Moheshur Singh case was also
5
acted upon by the Privy Council in Sheonath v. Ramnath .
That litigation was commenced Ramnath by a suit in the Court
of the Civil Judge, Lucknow, seeking a general account and
partition. The plaint mentioned the execution of some releases
described as (Farighkuttees) but alleged that there had been
no partition as between the parties as stated in them, that the
partition was intended to take effect after the settlement of
accounts when the Farighkuttees were to have been registered
and that in the meantime they had remained with the
appellant as incomplete instruments. The trial Judge held
however that the Farighkuttees had been executed on the
footing of actual partition and division of the joint property,
that these had been executed without taint of fraud and
dismissed the suit. An appeal was taken to the Judicial
Commissioner; he affirmed the Civil Judge's decision on all
points adding however that “there was one account between
the parties still unadjusted viz. the division of the
outstandings which was left open at the time of the division of
the assets”. In this view he remanded the case to the Judge to
decide what sum should be awarded to the plaintiff in
satisfaction of all claims on this account and directed that if
possible a decision should be obtained from the arbitrators
previously appointed by the parties. After remand the Civil
Judge referred the question involved to certain arbitrators but
the defendant did not acquiesce in this order and petitioned
the Judicial Commissioner against it, stating that he objected
to the arbitrators to whom the Civil Judge had referred the
case, and requesting that other arbitrators might be appointed.
This objection was overruled by the Judicial Commissioner,
and the request was rejected. Ultimately two separate decrees

20

were made by the Civil Judge, one on the 4th September as
regards part of the claim and the other on 22nd December as
regards another part. On appeal both these decrees were
affirmed by the Judicial Commissioner. It was against this
decision of the Judicial Commissioner that the defendant
appealed to the Privy Council. Two points were raised before
the Privy Council. The first was that it was not competent to
the Judicial Commissioner except with the consent of both
parties, to vary, as he did vary, by his order of May 15, 1862,
the rights of the parties under the Farighkuttees and to impose
on the defendant an obligation of purchasing the plaintiff's
interests in the outstandings on a rough estimate of its value;
the other point raised was that the nomination of the
particular arbitrator by the Judge without the consent and
against the repeated protests of the appellant was altogether
irregular, and that the award was therefore not binding upon
him. It has to be noticed that the defendant had not appealed
against the Judicial Commissioner's order of May 15, 1862,
nor had he appealed against the Judicial Commissioner's later
order rejecting the defendant's petition that he objected to the
arbitrators to whom the Civil Judge had referred the case and
that other arbitrators might be selected by the parties. In spite
of these facts the Privy Council held that both these points
were open to the appellant observing:
“That both points are open to the appellant, although he has in
terms appealed only against the final decision of the Civil
Judge and the confirmation of it by the Judicial Commissioner,
is, we think, established by the case of Moheshur Singh v.
3
Government of Bengal . The appeal is, in effect, to set aside an
award which the appellant contends is not binding upon him.
And in order to do this he was not bound to appeal against

21

every interlocutory order which was a step in the procedure
that led up to the award.”
13. There can be little doubt about the salutary effect of the
rule as laid down in the above cases on the administration of
justice. The very fact that in future litigation it will not be open
to either of the parties to challenge the correctness of the
decision on a matter finally decided in a past litigation makes
it important that in the earlier litigation the decision must be
final in the strict sense of the term. When a court has decided
the matter it is certainly final as regards that court. Should it
always be treated as final in later stages of the proceeding in
a higher court which had not considered it at all merely on the
ground that no appeal lay or no appeal was preferred? As
was pointed out by the Privy Council in Moheshur Singhs
3
Case the effect of the rule that at every stage of the litigation
a decision not appealed from must be held to be finally
decided even in respect of the superior courts, will put on
every litigant against whom an interlocutory order is decided,
the burden of running to the higher courts for redress of the
grievances, even though it may very well be that though the
interlocutory order is against him, the final order will be in his
favour and so it may not be necessary for him to go to the
appeal court at all. Apart from the inevitable delay in the
progress of the litigation that such a rule would cause, the
interests of the other party to the litigation would also
generally suffer by such repeated recourse to the higher courts
in respect of every interlocutory order alleged to have been
wrongly made. It is in recognition of the importance of
preventing this mischief that the legislature included in the
Code of Civil Procedure from the very beginning a provision
that in an appeal from a decree it will be open to a party to

22

challenge the correctness of any interlocutory order which had
not been appealed from but which has affected the decision of
the case.
14. In the Code of 1859 Section 363 after laying down that no
appeal shall lie from any order passed in the course of a suit
and relating thereto prior to a decree provided “but if the
decree be appealed against, any error, defect or irregularity in
any such order affecting the merits of the case or the
jurisdiction of the court may be set forth as a ground of
objection in the memorandum of appeal”.
15. When the Code of 1877 made provisions in Chapter 43 for
appeal against certain orders, Section 591 thereof provided
“Except as provided in this chapter, no appeal shall lie from
any order passed by any court on the exercise of its original or
appellate jurisdiction” and went on to say “but if any decree
be appealed against any error, defect or irregularity in any
such order affecting the decision of the case, may be set forth
as a ground of objection in the memorandum of appeal”. The
position remained the same in the Code of 1882. The present
Code in its 105th section uses practically the same
phraseology except that the word “any such order” has been
substituted by “any order” and an additional provision has
been made in the second sub-section in respect of orders of
remand. The expression “such order” in Section 591 gave rise
to a contention in some cases before the Privy Council that
Section 591 applied to non-appealable orders only. This
contention was overruled by the Privy Council and that view
was adopted by the legislature by changing the words “any
such order” to “any order”. As regards the orders of remand it
had been held that under Section 591 of the Code a party
aggrieved by an order of remand could object to its validity in

23

an appeal against the final decree, though he might have
appealed against the order under s. 588 and had not done so.
The second sub-section of Section 105 precludes an appellant
from taking, on an appeal from the final decree, any objection
that might have been urged by way of appeal from an order of
remand.
16. It is clear therefore that an interlocutory order which had
not been appealed from either because no appeal lay or even
though an appeal lay an appeal was not taken could be
challenged in an appeal from the final decree or order. A
special provision was made as regards orders of remand and
that was to the effect that if an appeal lay and still the appeal
was not taken the correctness of the order of remand could not
later be challenged in an appeal from the final decision. If
however an appeal did not lie from the order of remand the
correctness thereof could be challenged by an appeal from the
final decision as in the cases of other interlocutory orders. ...”
....
11. From the aforementioned judgment, specifically Paragraph 16 it
transpires that an interlocutory order which had not been appealed from
either because no appeal lay or even though an appeal lay, an appeal
was not preferred could be challenged in an appeal from the final decree
or order.
In the present lis the defendant preferred the first appeal but the plaintiff
did not prefer any counter appeal / cross appeal and did not take any
step in this regard and has eventually preferred the present second
appeal after the first appellate Court having set aside the judgment and
decree of the trial court.

24

12. At this stage the issue as to whether the lis is to be abided by the
Transfer of property Act or by the West Bengal Premises Tenancy Act
cannot be re-agitated by the appellant when the appellant has enjoyed
the fruits of both the order passed while disposing the application under
Section 17 ( 2) and (2A) of the West Bengal Premises Tenancy Act and
also the judgment and decree passed by the trial judge at the time of
final disposal of the suit.

13. As it has been mentioned earlier during discussion that the
appellant herein throughout the entire lis has mentioned the defendant
to be a monthly premises tenant and has sought for determination of all
relationship of landlord and tenant, cannot at this stage seek for abiding
the provisions of the Transfer of Property Act and also cannot seek
eviction of the defendant as per the provisions of the Transfer of Property
Act, 1882. When the appellant plaintiff himself has mentioned the
defendant to be a monthly premises tenant and has sought for
determination of all relationship of landlord and tenant cannot seek for
applicability of the judgments which have been relied upon on behalf of
the appellant. The question of issue not been framed during the hearing
of the application filed under Section 17 (2) and (2 A) of the West Bengal
Premises Tenancy Act does not have any bearing in the present lis. As
regards to the issue of res judicata the authority published at 1995 SCC
online Calcutta 83 , is applicable, but where the appellant plaintiff
himself has termed the defendant to be a monthly premises tenant and

25

has sought for determination of the relationship of landlord and tenant
the aforementioned judgment does not come to the aid of the appellant.
As regards to the judgment passed in CO 1943 of 2021, the said issue of
non-applicability of Section 7 of the West Bengal Premises Tenancy Act
also does not come into play in the present lis and is not at all helpful to
the appellant.
As regards to the applicability of the judgment passed in SA 33 of 2017
and SA 34 of 2017 which has been referred on behalf of the appellant,
also does not have a bearing on the present lis when the plaintiff himself
has mentioned the defendant to be a monthly premises tenant and has
sought for determination of all relationship of landlord and tenant. So
when the plaintiff himself has prayed for being dealt by the provisions of
the West Bengal Premises Tenancy Act cannot now seek for being dealt
under the provisions of the Transfer of Property Act. As such all the
authorities relied upon on behalf of the appellant are of no help to the
appellant plaintiff.
14. Conclusion :-
From the aforementioned discussion it is apparently clear that the
plaintiff himself has mentioned the defendant to be a monthly premises
tenant and has sought for determination of the relationship of the
landlord and tenant. In such situation this Court is of the view that the
impugned judgment passed by the learned first appellate court does not
require interference .

26

15. Hence the impugned judgment passed by the Ld. First Appellate
Court is not interfered with.
16. The present second appeal being SA 114 of 2022 is dismissed
without any cost.
17. Parties shall be entitled to act on the basis of the server copy of the
judgment and order placed on the official website of the Court.

18. Urgent Xerox certified photo copies of this judgment, if applied for,
be given to the parties upon compliance of the requisite formalities.

(Supratim Bhattacharya, J.)