Sg Ct. 8 vs Minati Das & Ors
2022 Latest Caselaw 599 Cal

SA 123 of 2021 Item-33 16-02-2022 Kashinath Dhara sg Ct. 8 Versus Minati Das & Ors.

(Through Video Conference)

Mr. Tanmay Mukherjee, Adv.

Mr. Kajal Ray, Adv.

Mr. Aditya Sen, Adv.

Mr. K. Raihan Ahmed, Adv.

...for the appellant

This second appeal has come up for admission.

Mr. Tanmay Mukherjee, learned Counsel appearing on

behalf of the appellant submits that the learned Trial Court has

caused substantial error of law in arriving at a finding that the

defendant is a licensee on a complete misreading of the evidence

and prayed for admission of this appeal on Ground No. vii,

which reads as follows:

"(vii) For that the Learned Judge in the both Courts below ought to have discussed about the evidence which lead to the conclusion that the defendant is a licensee but only one line judgment has been passed by the Learned Court below while deciding issue no. 7 and 8 which is perverse and cannot stand in the eye of law".

In order of appreciate the said argument on behalf of the

appellant, it is necessary to refer to some of the facts.

The plaintiffs filed a suit for declaration and eviction of

licensee. The plaintiff claimed that the suit property originally

belonged to one Ram Chandra Das, who is the husband of the

plaintiff no.1 and father of the plaintiff nos. 2 to 5. He died on

15th June, 1992 leaving behind the plaintiffs as legal heirs and

owners of the suit property. The defendant is the brother of the

plaintiff no.1 and out of love and affection, he was allowed to

live in the suit premises after the death of the plaintiff no.1.

In 2009, a dispute arose between the plaintiff nos.2 to 4

and the same defendant in respect of the another property and

the plaintiffs filed a title suit being T.S. 220 of 2009 against the

present defendant and in the said suit, the defendant alleged to

have admitted that he is living in the suit property as licensee.

The said suit was dismissed. The plaintiffs alleged that upon

dismissal of the said suit, the defendant started challenging the

plaintiffs' right, title and interest over the suit premises and on 1st

October, 2014, the defendant employed labourers to make

addition and alteration on the suit premises without permission

of the plaintiffs. It is due to such conduct, the plaintiffs revoked

the licence of the defendant and asked the defendant to quit and

vacate the suit property.

The defendant entered appearance in the suit and filed

written statement. In the written statement, he denied the

relationship between the plaintiffs and the defendant as one of

the licensee. The defendant, however, admitted the earlier suit

and it is alleged that the plaintiffs have never informed him that

he would be treated as licensee in respect of the suit premises.

The only issue that is necessary for consideration was whether

the defendant was a licensee of the plaintiffs in respect of the

suit premises.

The plaintiffs exhibited five exhibits, namely, certified

copy of the registered power of attorney being Exhibit-1,

certified copy of partition deed being no. 2387/1983 being

Exhibit-2, certified copy of deposition sheet of witness DW1 in

T.S. 220 of 2009 being Exhibit 3, Khajna receipt issued by BL &

LRO office being Exhibit-4 and Panchayat tax receipt being

Exhibit-5. The defendant in support of his case has exhibited one

LRROR being Exhibit-A and certified copy of judgment and

decree passed in T.S. 220 of 2009 being Exhibit-B.

On the basis of the oral and documentary evidence, the

learned Trial Court arrived at a finding that the certified copy of

the judgment and decree in T.S. 220 of 2009 would show that

the previous suit filed between the parties was dismissed on

contest but the same suit was not for eviction of the defendant

from the suit property but for declaration filed by the plaintiffs

which is against the defendant. However, the said suit was not

concerning the suit plot of the present suit. Moreover, the

learned Trial Court had relied upon the deposition of the

defendant in the previously instituted suit where the defendant

was cross-examined. The defendant admitted that he resided in

his sister's house namely, plaintiff no.1. This evidence was

accepted by the learned Trial Court to return a finding that the

defendant has no right, title and interest over the suit property.

This decree was challenged before the learned Appellate Court.

The Appellate Court on appreciation of the evidence, both

oral and documentary, accepted the findings of the learned Trial

Court. There is a clear finding of fact that the suit properties of

the suits are different not only with regard to the properties but

also with regard to the reliefs claimed.

The defendant appears to have been changed his status in

the present suit from licensee to a rightful occupant. Admittedly,

the defendant is not a legal heir of the original owner of the

property. The defendant has to establish at the trial that he has

right, title and interest over the suit property, which he had been

failed to establish. The plaintiffs have discharged initial onus by

establishing their right, title and interest in the suit property.

Moreover, apart from the documentary evidence, the plaintiffs

ware able to establish the status of the defendant as a licensee on

the basis of the admission of the defendant in the Title Suit 220

of 2009.

Admission is the best piece of evidence. The second

appeal can be admitted provided there is substantial questions of

law involved. Having noticed no perversity in the findings of the

learned Trial Court or the learned Appellate Court, we are not

inclined to admit the second appeal.

The appeal stands dismissed.

Urgent photostat certified copy of this order, if applied for,

be supplied to the parties upon compliance of all requisite

formalities.

(Ajoy Kumar Mukherjee, J.) (Soumen Sen, J.)