Krishna Chandra Ghosh vs Basudeb Ghosh
2021 Latest Caselaw 4693 Cal

08.09.2021

ns Ct.04 S.A. 271 of 2016 With I.A. CAN 1 of 2015 (Old CAN 6433 of 2015)

Krishna Chandra Ghosh.

Vs.

Basudeb Ghosh.

Mr. Malay Bhattacharyya, Mr. Subrajyoti Ghosh .... for appellant.

Mr. Bhattachayya, learned advocate appears

on behalf of appellant, who was plaintiff in the suit for

eviction of licencee and recovery of khas possession. He

submits, his clients succeeded at trial but lower appellate

Court erroneously set aside the decree. Defendant has no

title to 'kha' schedule property comprising of 24 decimals.

'ka' schedule property of 8 decimals also belonged to

plaintiff. Defendant, with permission of plaintiff, built

upon 'ka' schedule property, which subsequently became

his property by operation of West Bengal Homestead

Acquisition Act, 1969. Defendant also occupied 'kha'

schedule property as licencee. The licence was revoked but

the lower appellate Court dismissed the suit as not

maintainable. Questions of law are involved as arising

from the judgment of reversal. The appeal be admitted.

We have perused both the judgments. While

the trial Court construed the plaint liberally as being

mofussil pleading, the lower appellate Court took

cognizance of inconsistencies to dismiss the suit on ground

of maintainability. The inconsistency in plaintiff's

pleading arose, according to the lower appellate Court,

because there was no averment of allowing permissive user

of 'kha' schedule property but allegation that defendant

was trying to evict plaintiff therefrom, to change status quo

position, so plaintiff revoked the permission. According to

the lower appellate Court, the suit should have been for

declaration of title and recovery of possession, of 'kha'

schedule property, obviously from trespasser.

The appeal is admitted on the following

question to be answered:-

"Does a permissive occupant have exclusive possession or the licensor retains right of entry, to be able to complain that such right is being denied, to be reason for revocation of the licence?"

Call for records of the Courts below. Appellant

shall put in the requisites for preparation of paper books,

upon receipt of the lower Court records and service of

notice of appeal.

Intimation by producing copy of this order

before the lower appellate Court below be made by

appellant.

Liberty to mention before the learned single

Judge for hearing, upon the appeal being made ready in

regard thereto.

(Arindam Sinha, J.)

(Sugato Majumdar, J.)