Saraswati Singh & Anr vs Jasimuddin Ahamed
2022 Latest Caselaw 6033 Cal

29.08.2022
Sl. 5                 (Via Video Conference)
Ct.No. 3
Amalranjan
             IN THE HIGH COURT AT CALCUTTA
              CIVIL APPELLATE JURISDICTION
                     APPELLATE SIDE

                         SA 124 of 2022
                             With
                         CAN 1 of 2022

                    Saraswati Singh & Anr.
                              Vs.
                     Jasimuddin Ahamed


              Mr.   Partha Sarathi Bhattacharyya, Sr. Adv.
              Mr.   Mihir Kundu
              Mr.   Raju Bhattacharyya
              Mr.   Arunava Maity
              Mr.   Tanweer J. Mandol
                                   ...for the appellants/plaintiffs

              Mr. Arijit Bardhan
              Mr. Salman Hasan
                               ...for the respondent/defendant

Re: CAN 1 of 2022 (Stay)

We have examined the impugned judgment

and decree dated 6th January, 2022 of the

learned District Judge, Malda in Title Appeal No.

43 of 2018.

Several issues were involved in that appeal,

the most fundamental of which was whether

there was due determination of the monthly

tenancy by the appellants upon service of a

notice under Section 106 of the Transfer of

Property Act, 1882 upon the respondent.

We find that the learned first court and the

learned first appellate court have not addressed

themselves adequately to these issues. Whereas

the learned first court has opined that upon

proof of despatch of the notice, the burden of

proof shifted to the tenant, the learned first

appellate court went further, holding the

plaintiffs had not been able to prove service of

the said notice.

Proof of proper service of the said notice is,

in our opinion, the backbone of this proceeding.

The plaintiffs were under an obligation to

furnish more substantial evidence or argument

to support his case of proper issuance and

service of the said notice under Section 106 as

this fact was within their special knowledge.

The defendant need not have furnished any

further proof apart from saying that he did not

receive the notice. He was not required to

furnish proof of non-service i.e., how the notice

was handed over to the postal authority and was

lost in transit etc. etc.

The other issues would only become

germane on proof of the above issue.

In those circumstances, we set aside the

judgment and decree dated 6th January, 2022

and remand the matter back to the learned court

of the District Judge, Malda, with a direction

that the issue regarding service of notice under

Section 106 of the Code of Civil Procedure shall

have to be decided afresh.

Upon determination of the said issue the

other issues may be re-adjudicated if necessary.

In exercise of his powers under order 41 of

the Code of Civil Procedure the learned Judge

will be at liberty to invite further evidence to be

adduced in the matter.

We request the learned District Judge,

Malda to decide afresh this appeal as early as

possible not later than 31st December, 2022.

The appeal and the connected application

are disposed of.

( Subhendu Samanta,J. ) ( I. P. Mukerji,J. )