Full Judgment Text
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PETITIONER:
SASHI KAANTA RUIA
Vs.
RESPONDENT:
M/S, INDO MINERALS & ORS.
DATE OF JUDGMENT: 01/08/2000
BENCH:
G.B.’PATTANAK, U.C.BANERJEE
JUDGMENT:
L.....I.........T.......T.......T.......T.......T.......T..J
PATTANAIK. J.
Both these appeals are directed against a common
judgment of a learned Single Judge of Calcutta High Court,
disposing of the two Second Appeals namely Second Appeal No.
331 of 1997 and Second Appeal No. 482 of 1996. Second
Appeal No. 331/97 was by the defendants In Title Suit No.
64/84 and the said suit had been filed for eviction of the
defendants and for recovery of possession, and the suit had
been dismissed by the Trial Judge. On appeal being carried,
the Lower Appellate Court allowed the appeal, decreeing the
plaintiffs suit. Defendants approached the High Court in
Second Appeal and the High Court by the impugned Judgment,
set aside the judgment and decree of the lower Appellate
Court and
affirmed the judgment and decree of the Trial Judge
and the plaintiffs are the appellants in the civil appeal in
question. The other civil appeal arises out of Title Suit
No. 116/80. The said suit also having been dismissed by
the Trial Judge, the matter was carried in appeal by the
plaintiffs in lower Appellate Court and the Assistant
District Judge, Sealdah, allowed Title Appeal No. 144/89,
thereby decreeing Title Suit No. 116/80. Defendants
carried the matter to the High Court in Second Appeal No.
482/96 and by the Impugned judgment, the High Court was of
the opinion that the suit itself was not maintainable and
accordingly, allowed the second appeal and dismissed the
suit The suit for eviction was based on the ground that the
land in question had been taken under a lease deed for a
period of 15 years with a right to sub-lease, by the father
of the plaintiff. In view of the terms of the lease
deed, defendants 1 and 2 had been given the sub-lease
and they having failed to pay rent, money suit had been
filed for realisation of the rent. Subsequently, suit for
ejectment had been filed and stood disposed of on the terms
of agreement and in accordance with the said terms,
plaintiff took over the possession and became the lessee
w.e.f. 1.2.79. The sub- lease of the defendants had been
determined w.e.f. November, 1978 but notwithstanding the
same, the defendants forcibly occupied and, therefore, the
possession is that of trespasser. The plaintiff thus filed
the suit for eviction. The contesting defendants denied the
rights of the plaintiff and contended that they had become
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lessee under the original lessor and not sub-lessee, as
contended in the plaint. According to them, the period of
lease In favour of plaintiff’s father, having expired and
there being no material to establish that the defendants
were inducted as sub-lessee under the
lessee, the plaintiff has no right to file suit for
eviction and, therefore, the suit must be dismissed. The
learned Trial Judge on an, analysis of the evidence on
record, came to the conclusion that the plaintiff did not
acquire any right over the land but only on the structure
and defendants became lessee under the original lessor. The
Trial Judge found that the status of the defendants is that
of a trespasser, but yet in the absence of any evidence that
plaintiff had sub-let the land to the defendants, suit for
eviction will not lie. With these conclusions, the suit
having been dismissed, the matter had been carried in appeal
to the lower Appellate Court. The Lower Appellate Court on
consideration of the materials on record, came to the
conclusion that the basic approach of the Trial Judge on the
pleadings of the parties was wholly erroneous. According to
the lower Appellate Court, the earlier decr,ee of the Civil
Court, awarding damages against the defendants for
unauthorised occupation, unequivocally establishes the
fact that the defendants have nc right to be on the land.
The Sower Appellate Court also came to the conclusion that
in view of the terms of the sub-lease, the suit for
sub-lease expired on 31.12.1978 and defendants cannot claim
any interest subsequent to the same. The lower Appellate
Court also came to the conclusion that the creation of
sub-lease in favour of the defendants could not have
conferred a better right, which the lessee himself did not
have and also came to the conclusion that question of
defendants’ acquiring Thika tenancy’ really does not arise.
With these conclusions, the lower Appellate Court reversed
the judgment and decree of the Trial Judge and decreed the
plaintiffs suit for eviction. The High Court in the second
appeal, curiously did not focus its attention to the
findings arrived at by the lower Appellate Court but
abruptly jumped to the conclusion that the tenancy in
favour of the plaintiff is not in respect of the
portion of land in possession of the defendants but some
other portion, which case has not been made out by the
defendants themselves in their written statement. The High
Court also came to the conclusion that a case of surrender
not having been made out in the plaint, the lower Appellate
Court was in error that defendants surrendered their
possession after expiry of sublease on 31.12.1978.
Ultimately, the High Court came to the finding that the
plaintiff, not having acquired any right over the disputed
property, the suit for eviction will not lie, even though
the defendants may be held to be trespassers. In the other
suit, on the identical question, the High Court also held
the suit for eviction to be not maintainable. Mr.
V.A.Mohta, the learned senior counsel, appearing for the
plaintiff in Civil Appeal arising out of
S.L.P.(C) No. 8493/99 and Mr. Dipankar P. Gupta,
the learned senior counsel appearing for the plaintiff in
civil appeal arising out of S.L.P.(C) No. 8495/99 contended
with force that the High Court committed serious error in
coming to the conclusion that the lease in favour of the
plaintiff was only for the structure. The learned counsel
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also further contended that in coming to the conclusion that
the tenancy must have been in respect of some other portion
of the land and not in respect of the portion In possession
of the defendants, the High Court has not considered the
pleadings and findings of the lower Appellate Court on that
score but on the basis of surmises and conjectures, which
the second Appellate Court is not entitled to do. According
to the counsel, appearing for the plaintiffs-appellants, the
High Court was also in error In dismissing the plaintiffs’
suit on a finding that plaintiffs have no better title than
the defendants. It was urged that the lower Appellate
Court, which is the final Court of fact, having
considered the materials on record and having recorded
positive findings on the different questions, the High Court
could not have interfered with the judgment and decree of
the lower Appellate Court, without even discussing the same.
Mr. S.B. Sanyat, the learned senior counsel, appearing for
the defendants-respondents, on the other hand contended that
though apparently, there appears to be some force in the
contentions of the learned counsel, appearing for the
appellants but there were sufficient materials for the High
Court to interfere with the ultimate findings of the lower
Appellate Court, and therefore, at the most the two second
appeals may be remitted to the High Court for
reconsideration and this court should not finally dispose of
the appeals. We have carefully considered the rival
contentions as well
as the judgment and decree of the lower Appellate;
Court in both the suits and the impugned judgment of the
High Court In the two second appeals, which were heard
together and disposed of by a common judgment. A bare
perusal of the impugned judgment of the High Court would
indicate that the Court has not considered the relevant
pleadings and the findings arrived thereon after
appreciation of the evidence by the lower Appellate Court
and on the other hand, the High Court has straight-away by
surmises and conjectures, interfered with the conclusions on
the question of facts arrived at by the lower Appellate
Court. We really fail to understand as to how the High
Court would record a finding that the tenancy of the
plaintiff was in respect of the structure and not the land
and further the lease In favour of the plaintiff was in
respect of the land other than the land on which the
defendants had the possession. Having considered the
judgment of the lower Appellate Court in both these
cases, we have no hesitation to come to the conclusion that
the said lower Appellate Court has recorded findings on the
materials on record and the conclusions arrived thereunder
cannot be said to be erroneous in any manner. In this view
of the matter, we see no justification for remitting the
second appeals to the High Court again for re-disposal. In
our view, the High Court committed serious error in
interfering with the judgment and decree of the lower
Appellate Court in exercise of its jurisdiction undersection
100 of the Code of Civil Procedure. We, accordingly, set
aside the impugned judgment of the High Court in the second
appeals and affirm the judgments & decrees of the lower
Appellate Court and decree the suits.
The Civil Appeals are accordingly allowed but there
will be no order as to costs.
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