TAPAS KUMAR SAMANTAversusSARBANI SEN & ANR.

                    [2015]28.C.R.163


                 TAPAS KUMAR SAMANTA                          A
                             v.
                   SARBANI SEN &ANR.
          (Civil Appeal Nos. 1831-1832 of2015)
                    FEBRUARY 12, 2015
                                                               B
         [SUDHANSU JYOTI MUKHOPADHAYA
              AND N.V. RAMANA, JJ.]
     Code of Civil Procedure, 1908 : s. 100 - Substantial
question of law- Suit for eviction dismissed by trial court on
the ground that the relationship between the parties as C
landlord and tenant was not sufficiently proved - Appellate
court held that the plaintiff proved very clearly that he was
the owner of the suit property and ground of eviction was made
out- High Court reversed the judgment of first appellate court
holding that it discussed alleged grounds for eviction very D
perfunctorily while concluding the judgment, without
discussing the evidence on record - HELD: High Court was
not correct in entertaining the second appeal by interfering
with finding of fact arrived at by the first appellate court- The
finding of appellate court being based on evidence, the High E
Court erred in interfering with the judgment passed by the
appellate court while deciding a second appeal u/s. 100.

    Allowing the appeals, the Court
                                                         F
    HELD: 1. All the evidences were noticed and
appreciated by the appellate court to come to a definite
finding about the relationship of plaintiff and the
defendant as landlord and tenant and the need for
demolishing the existing building for construction of a G
new building for his personal use. The appellate court
also held that the defendants-tenant had not paid rent
to the plaintiff-landlord since he purchased the suit

                             163                               H
164         SUPREME COURT REPORTS                   [2015] 2 S.C.R.



A property. Evidence being also on record, relationship -
  which was the only dispute raised by the defendant
  without disputing the other pleadings about personal
  necessity of plaintiff or non-payment of arrears of rent
  by defendant having established, the High Court was
B not correct in entertaining the Second Appeal by
  interfering with finding of fact arrived at by the appellate
  court. [Paras 14, 15] [169-D-G]

          CIVIL APPELLATE JURISDICTION: Civil Appeal No.
c 1831-1832 of 2015
          From the Judgment and Order dated 29.02.2012 of the
      High Court at Calcutta in S. A. 149 of 2007 with C. A. N. 10467
      of2009

D        Soamya Chakrobarty, Danish Zubair Khan for the
      Appellant.

            M. K. Choudhary, Namita Choudhary, Yudhister Bhardwaj
      for the Respondents.

E         The Judgment of the Court was delivered by

          SUDHANSU JYOTI MUKHOPADHAYA,J 1. Leave
      granted.

          2. These appeals have been preferred by the appellant
F against the judgment dated 291h February, 2012 passed by
  the High Court at Calcutta in S.A. No.149 of 2007 with C.A. N.
  No.10467 of 2009. By the impugned judgment, the High Court
  set aside the judgment and decree passed by the courts below
G and remanded the matter back for adjudication of the suit
  afresh.

          3. The factual matrix of the case is as follows:

           The appellant-plaintiff (hereinafter referred to as the
H     'plaintiff') filed a suit for eviction being O.S. No.242 of 2001
   TAPAS KUMAR SAMANTA v. SARBANI SEN &ANR.                      165
       [SUDHANSU JYOTI MUKHOPADHAYA,J.]

before Civil Judge (Jr. Division), Paschim Medinipore against A
the predecessor in interest of the respondents (hereinafter
referred to as the 'defendant') on the following grounds:

    (i)   That the defendant defaulted in payment of rent from
          the month of July, 2000.                                B
    (ii) That the plaintiff reasonably requires the suit
         premises for his own use and occupation.

    (iii) That the plaintiff is not in possession of any
          reasonably suitable accommodation. The plaintiff C
          wants to demolish the existing structures in the suit
          premises and the building therein and wants to make
          a new building for his own use and occupation for
          residence and for business. That the plaintiff
          reasonably requires the suit premises for building D
          and rebuilding and to works of. Such building and
          rebuilding cannot be carried out without the suit
          premises being vacated by the defendant.

    (iv) That the defendant is guilty of act of waste,            E
         negligence, annoyance and nuisance to the
         neighbours including the plaintiff landlord.

    (v) That the defendant has made an illegal and un-
        authorised shed in the northern side of the suit
        premises without any previous permission of the           F
        plaintiff or from previous landlords.

    (vi) That the defendant is also guilty of the breach of
         Provision of Clause (m}, (o) and (p) of Section 108
         of the Transfer of Property Act.                    G

    4. The defendant filed a written statement and denied the
default of payment of rent on the ground that the defendant
was not a tenant under Jatindra Nath Sen but he is a monthly
tenant in respect of the suit premises under Khadims of Lohani    H
166           SUPREME COURT REPORTS                     [2015] 2 S.C.R.


A Pir Sahib. The defendant further took plea that the agreement
  dated 8th May, 1994 relied by plaintiff is a fraudulent and
  fabricated. He also denied the statement made by the plaintiff
  at paragraph 6 to 8 of the plaint that the plaintiff requires the
  suit premises for his own use and occupation. He also denied
B the allegation of making any annoyance and nuisance or illegal
  and unauthorized construction.
          5. On the basis of the pleadings of the parties, the trial
      court framed the following issues:
c        "1. Is the suit maintainable in its present form and
             prayer?

         2.    What is the cause of action of this suit ?

         3.    What is the locus-standi of the plaintiff to bring
 D
               this suit?

         4.    Is the suit barred by the Principles of Specific
               Relief Act and Law of Limitation?

 E       5.    Is the suit barred by the Principles of res-
               judicata?

         6.    Is the suit defective for non-joinder of the
               parties?

 F       7.    Had the plaintiff been dispossessed by the
               defendant from the possession of the schedule
               land of plaint ?

         8.    Is the plaintiff entitled to get relief as prayed
               for?
 G
         9.    To what other relief, the plaintiff is entitled to get?
         10. Has the sufficient Court Fees been paid?"
       An additional issue about legality and validity of notice
 H of eviction was also framed.
   TAPAS KUMAR SAMANTAv. SARBANI SEN &ANR.                    167
       [SUDHANSU JYOTI MUKHOPADHAY~,J.]

      6. The trial court on hearing parties and appreciation of A
evidence by judgment dated 17th February, 2006 held that the
suit is not maintainable as the relationship between the parties
has not been sufficiently proved as landlord and tenant and
hence the notice of eviction is not at all binding.
                                                                  B
      7. On appeal being Appeal No.36 of 2006 preferred by
the appellant the Additional District Judge, Fast Track, 2nd
Court, Paschim Medinipore by judgment and decree dated
21st August, 2006 allowed the same. On appreciation of
evidence, the Appellate Court held that the plaintiff has proved c
very clearly that he is the owner of the suit property and during
the time of ownership of the suit property by the previous owner
- Mr. Sen, Mr. Sen inducted the defendants as tenants. The
Appellate court further held that when the plaintiff acquired the
suit property the defendant became tenant under the plaintiff D
w.e.f. July, 2000. It was further held that the notice issued by
the plaintiff to the defendant-tenant was legal and valid. With
regard to the reasonable requirement of the plaintiff and the
illegalities done by the defendant with respect to suit property,
the Appellate Court held that there are sufficient evidences to E
prove that the plaintiff required the suit premises for his own
use and occupation and the defendant made unauthorized
construction in the suit property without permission of the
plaintiff and the defendant is guilty of nuisance.
                                                                  F
      8. By the impugned judgment, the High Court in Second
Appeal held that the lower Appellate Court discussed the
issues as to landlord-tenant relationship between the parties
and validity of eviction notice exhaustively but alleged grounds
for eviction were discussed very perfunctorily while concluding G
the judgment, without discussing the evidence on record.
      9. Learned counsel for the appellant submitted that the
High Court erred in interfering with the finding of facts while
sitting in Second Appeal. In fact, the questions of law framed
by the High Court are not substantial questions of law.         H
168         SUPREME COURT REPORTS                    [2015] 2 S.C.R.



A      10. Learned counsel appearing on behalf of the
   respondents submitted that neither the trial court nor the
   Appellate Court has framed issue or discussed evidence to
   hold personal necessity of the appellant. Therefore, the
   judgment and decree passed by the Appellant Court was set
 B aside and the matter is remitted back to the trial court for
   determination of suit afresh.

           11. From the plaint it is clear that the plaintiff had
      specifically pleaded that the defendants defaulted in payment
c     of rent from the month of July, 2000 and the plaintiff reasonably
      required the suit premises for his own use and occupation.
      The plaintiff wanted to demolish the existing structure in the
      suit premises and make a new building therein for his own
      use. He also pleaded that the defendant is guilty of the act of
 o    waste, negligence, annoyance and nuisance to the plaintiff as
      well as neighbours. The defendant has made the illegal and
      unauthorized shed in the northern side of the suit premises
      and found guilty of the breach of Provision of Clause (m), (o)
      and (p) of Section 108 of the T.P. Act.
 E      12. The defendant in the written statement has not denied
   the personal necessity of the plaintiff and non-payment of rent.
   The defendant denied the relationship between the plaintiff and
   the defendant resulting denial of personal necessity and non-
 F payment of rent. DW.1- Smt. Srabani Sen in her statement
   stated that the plaintiff never attorned the deceased (original)
   defendant in the month of July 2000 or any date the deceased
   defendant also never paid any rent to the plaintiff. She stated
   that the deceased (original) defendant was a monthly tenant
 G in the suit premises under Hazi SekhawatAli Khan and Hazi
   SamsuAli Khan both Khadim's of Lohani Pir Saheb. Service
   of notice given by plaintiff was admitted. In her cross-
   examination she admitted that the Medicine Shop under the
    name and style "Sen Pharmacy" was existing in the suit
 H premises. She denied about the relationship in between
   TAPAS KUMAR SAMANTAv. SARBANI SEN &ANR.                          169
       [SUDHANSU JYOTI MUKHOPADHAYA,J.]

Dakshina Rajan Sen and Tapas Kumar Samanta. In her cross-            A
examination she said that she was unable to say about the
name of the owner of the suit property and that the plaintiff had
issued an eviction notice.

     13. Deposition of PW-1, Ta pas Kumar Samanta is also            8
on record. In his statement he stated that he is the owner of the
suit premises pursuant to the Registered Sale Deed dated
191h June, 2000. He stated that he has no house of his own, he
is a married man and he has other two brothers and a sister.
He needs the building to rebuild the existing house by               c
demolishing the same which cannot be done without the suit
premises being vacated by the defendant. He further stated
that he also wants to reside in a portion of the house to be
reconstructed and he has the capacity to spend for
reconstruction of house.                                             D

     14. All the aforesaid evidences were noticed and
appreciated by the Appellate Court to come to a definite finding
about the relationship of plaintiff and the defendant as landlord
and tenant and the need for demolishing the existing building        E
for construction of a new building for his personal use. The
Appellate Court also held that the defendants-tenant had not
paid rent to the plaintiff-landlord since he purchased the suit
property.

     15. Evidence being also on record, relationship - which F
was the only dispute raised by the defendant without disputing
the other pleadings about personal necessity of plaintiff or non-
payment of arrears of rent by defendant having established,
we are of the view that the High Court was not correct in
entertaining the Second Appeal by interfering with finding of G
fact arrived at by the Appellate Court. The finding of appellate
court being based on evidence, the High Court erred in
interfering with the judgment and decree passed by the
Appellate Court while deciding a second appeal under Section
 100 C.P.C.                                                       H
170          SUPREME COURT REPORTS                [2015] 2 S.C.R.


A         16. For the reasons aforesaid, we set aside the impugned
      judgment dated 291h February, 2012 passed by the High Court
      in S.A.No.149 of 2007 with C.A.N.No.10467 of 2009 and
      upheld the judgment and decree passed by the Appellate
      Court. The appeals are allowed. No costs.
B
      Devika Gujral                                 Appeals allowed