Calcutta High Court (Appellete Side)
Maya Chongdhar & Ors vs Bhaswati Mondal on 23 September, 2022
Dl. September
46. 23, 2022
S.A. 36 of 2022
Maya Chongdhar & ors.
Vs.
Bhaswati Mondal
The present appeal is of the year 1998, but no attempt
was made to move the same after presentation. The matter was
listed on September 9, 2022. Since then the matter is appearing in
the list. In spite of sufficient notice, the appellants are not
represented, nor any accommodation is prayed for. However, we
propose to consider the question of admission of the present second
appeal on the basis of the materials available on record.
The judgment and decree of affirmance dated
September 30, 1997 passed by the learned Additional District
Judge, Second Court at Burdwan, in Title Appeal No. 34 of 1997
arising out of judgment and decree dated January 31, 1997 passed
by the learned Munsif, Second Court at Burdwan in Title Suit No.
60 of 1996, which is a suit for declaration and permanent
injunction, is the subject matter of challenge in this appeal.
The suit was dismissed on contest. The
plaintiffs/appellants were not able to establish their right in respect
of the suit property.
The original plaintiff, namely, Prafulla Chongdar,
contended that one Asit Kumar Dey was the owner-cum-landlord
suit premises in respect of which he was a monthly tenant. The said
Asit Kumar Dey transferred the suit premises in favour of the
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defendant/respondent to whom the plaintiff agreed to pay rent. The
defendant/respondent declined to accept rent from the plaintiff. It
was further contended that the defendant/respondent on February
20, 1996 illegally demolished the roof of the suit premises with an
oblique motive to oust the plaintiff from the suit premises.
The defendant/respondent contested the suit by filing
written statement denying the allegations made in the plaint. The
defendant/respondent contended that she requested the plaintiff to
clear up the arrears along with the current rent, but the plaintiff did
not pay any rent or occupational charges. When the husband of the
defendant went to the plaintiff for collecting rent, he found the roof
of the suit premises in a dilapidated condition. At that time the
plaintiff requested the husband of the defendant to repair the roof of
the suit premises. In the month of September 1995, certain portion
of the roof of the suit premises collapsed when the plaintiff
surrendered the tenancy, but the arrears of rent remained to be let
off.
Before the trial court, the fact of surrender of tenancy
could not be proved by the plaintiff and in the first appellate court,
the evidence to the aforesaid effect has remained unshaken.
In view of concurrent findings of fact arrived at by both
the courts below with regard to the question of surrender of tenancy
and non-payment of arrears of rent, we do not find any reason to
interfere with such concurrent findings of fact. As such, we do not
find any substantial question of law involved in this appeal for
which the same is required to be admitted.
The second appeal is, therefore, summarily dismissed
under Order XLI Rule 11 of the Code of Civil Procedure.
There will be no order as to costs.
( Soumen Sen, J. )
dns ( Uday Kumar, J. )
