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2014 DIGILAW 233 (GAU)

KAJAL GHOSH v. SANJOY GHOSH

2014-02-26

A.M.SAPRE

body2014
JUDGMENT Heard Mr. H. K. Baishya, learned counsel for the appellants and Mr. S. K. Ghosh, learned counsel for the respondents. This is a second appeal filed by the defendant under Section 100 of the Code of Civil Procedure Code against the judgment/decree dated 18.9.2012 passed by Assistant District Judge, Jorhat in Title Appeal No.25/2011 which in turn arise out of judgment/decree dated 29.9.2011 and 28.9.2011 passed by Munsiff No.1, Jorhat, in Title Suit No.54 of 2008. By impugned judgment/decree, the first appellate court reversed the judgment and decree of the trial court and allowed the plaintiff’s appeal and in turn decreed plaintiff’s suit against the defendant for his (defendant’s) eviction from the suit house. So the short question which arises for consideration in this appeal is whether first appellate court was justified in allowing plaintiff’s appeal and in turn was justified in decreeing plaintiff’s suit against defendant for his eviction in relation to the suit house and if so whether this second appeal involves any substantial question of law within the meaning of Section 100 ibid ? It is an eviction matter filed by the plaintiff against the defendant in relation to the suit house. It is not in dispute that provisions of the State Rent Laws do not apply to the suit house and hence the issue involved is required to be decided keeping in view the applicability of the provisions of Transfer of Property Act and specially Section 106 of the Act. The plaintiff as owner/landlord of the suit house filed the suit against the defendant as his tenant and claimed his eviction from the suit house. The suit was filed after determining the tenancy treating the same to be monthly by serving the quit notice on the defendant. The defendant contested the suit. The trial court dismissed the suit but the first appellate court reversed the judgment/decree of the trial court and while allowing plaintiff’s appeal decreed his suit and passed the decree against the defendant for his eviction in relation to the suit house. It was held and in my opinion rightly, that tenancy in question between the parties was monthly as alleged by the plaintiff and that it was properly determined by serving the quit notice by the plaintiff against the defendant. It is this finding which is impugned in this second appeal by the defendant. It was held and in my opinion rightly, that tenancy in question between the parties was monthly as alleged by the plaintiff and that it was properly determined by serving the quit notice by the plaintiff against the defendant. It is this finding which is impugned in this second appeal by the defendant. Having heard the learned counsel for the appellant (defendant) and on perusal of the record of the, I am of the opinion that the second appeal does not involve any question of law within the meaning of section 100 and hence the appeal deserves to be dismissed in limini. As mentioned supra, the only question involved in the appeal is whether plaintiff was able to plead and prove the tenancy, its nature namely whether it was monthly and lastly its determination i.e. whether it was properly determined as required under the provisions of Section 106 ibid ? Having perused the pleadings and the evidence adduced, I am of the view that first appellate court was right in holding that plaintiff was able to prove that tenancy in question was monthly, that it was determined by giving proper quit notice as required by Section 106 of the Transfer of property Act and that defendant failed to prove that it was yearly, as alleged by him. This issue was examined by the first appellate court with reference to the evidence adduced by the parties and a categorical finding of fact was recorded by the First Appellate Court for reversing the finding of the trial court on this issue to which I concur. Though learned counsel for the appellant (defendant) vehemently argued that tenancy in question was yearly and therefore quit notice was bad in law, but there is no material to sustain this submission. Once the finding on these material issues is returned then in my view the decree for eviction has to follow against the tenant in relation to the suit house and that is what has happened here and in my view rightly. Such being the finding of fact, it is binding on the second appeal court. It is apart from the fact that the finding is neither against the pleading, nor against the evidence and nor against any provision of law. It is also not perverse to the extent that no judicial man of average capacity can ever record. Such being the finding of fact, it is binding on the second appeal court. It is apart from the fact that the finding is neither against the pleading, nor against the evidence and nor against any provision of law. It is also not perverse to the extent that no judicial man of average capacity can ever record. In other words, perusal of the finding of the lower appellate court goes to show that it was recorded on the basis of the proper appreciation of facts and hence it is binding on this court while hearing second appeal arising out of such judgment though of reversal. In the light of foregoing discussion, I do not consider it necessary to deal with any factual issues arising in the case and find that the second appeal does not involve any substantial question of law involved within the meaning of Section 100.The appeal thus fails and is dismissed in limine. No cost.