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2016 DIGILAW 777 (CAL)

Sita Ram Shaw v. Mira Singh

2016-09-29

ISHAN CHANDRA DAS, JYOTIRMAY BHATTACHARYA

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JUDGMENT : Jyotirmay Bhattacharya, J. 1. This second appeal is directed against the judgment and decree dated 13th February, 2012 passed by the Learned Judge, Small Causes Court at Sealdah in Title Appeal No. 35 of 2011 affirming the judgment and decree dated 3rd March, 2011 passed by the Learned Civil Judge (Junior Division), 1st Court at Sealdah in Title Suit No. 146 of 1992, at the instance of the defendant/appellant. 2. Let us now consider as to whether any substantial question of law is involved in this second appeal for which the appeal is required to be admitted for hearing under the provision of Order XLI Rule 11 of the Code of Civil Procedure. 3. Here is the case where we find that the plaintiffs/respondents filed a suit for eviction on the ground of reasonable requirement. The defendant/appellant contested the said suit by filing written statement. The parties led evidence with regard to their respective claim and/or defence in the suit. 4. Both the courts below after considering the pleadings of the parties and their evidence, came to the conclusion that the plaintiffs reasonably required the suit premises for their own occupation and for the occupation of the members of their family. Both the courts below also held that the plaintiffs are the owners of the suit property. Both the courts below also held that the plaintiffs do not have any other alternative accommodation elsewhere to satisfy their requirement. 5. When under such circumstances, the learned Trial Court was pleased to decree the said suit and the learned first Appellate Court affirmed the said decree of the learned Trial Court, we, sitting in this jurisdiction, do not find any justifiable ground to upset such concurrent findings of the courts below, particularly, when we do not find any perversity in the judgments and decrees of the courts below. Accordingly, we refuse to admit this appeal as we do not find any involvement of any substantial question of law in this second appeal. 6. The appeal is, thus, dismissed. 7. Mr. Banerjee, learned senior advocate appearing for the appellant however, prays for a year’s time for vacating the suit premises by his client. 8. Accordingly, we refuse to admit this appeal as we do not find any involvement of any substantial question of law in this second appeal. 6. The appeal is, thus, dismissed. 7. Mr. Banerjee, learned senior advocate appearing for the appellant however, prays for a year’s time for vacating the suit premises by his client. 8. Considering the long pendency of the suit and the nature of the decree passed by the courts below, we are of the view that justice will not be sub-served if we allow the defendant/appellant a year’s time to vacate the suit premises. 9. However, considering the fact that the defendant has been staying in the suit premises for a period of about 40 years, we permit the defendant to stay and/or occupy the suit premises till 31st May, 2017 subject to fulfilment of the following conditions:- 1. The defendant/appellant will have to deposit all arrear occupational charges of the suit premises up to the month of October, 2016 at the last paid contractual rate with the learned Executing Court within 30th November, 2016. 2. The defendant/appellant will have to deposit the occupational charges for the current month commencing from November, 2016 onwards till the month of April, 2017 @ Rs. 1000/- per month in the Executing Court. First of such deposit for the month of November, 2016 will be deposited by the defendant/appellant with the learned Executing Court by 7th of December, 2016 and for the subsequent months within 7th of each following month. 3. The defendant/appellant will have to deposit the occupational charges for the month of May, 2017 in advance within 15th of May, 2017 with the learned Executing Court. 4. The defendant/appellant will have to submit an undertaking before the learned Executing Court stating therein that during the period of the stay, they will not sublet and/or underlet and create any third party interest in the suit premises and will also not cause any damage thereto and they will vacate the suit premises and will give up vacant and peaceful possession thereof to the plaintiffs/respondents on 31st May, 2017. Such undertaking should be given before the learned Executing Court within one week after reopening of the Court after Puja Vacation. 10. In case such deposits are made, the plaintiffs/respondents will be entitled to withdraw such deposit without furnishing any security for such withdrawal. 11. Such undertaking should be given before the learned Executing Court within one week after reopening of the Court after Puja Vacation. 10. In case such deposits are made, the plaintiffs/respondents will be entitled to withdraw such deposit without furnishing any security for such withdrawal. 11. It is made clear that in default of deposit of the arrear occupational charges within the time as fixed above and/or in case of default of deposit of the current occupational charges of the said premises for any single month, the permission to stay in the suit premises will stand automatically recalled. 12. Thus, all further proceedings of the execution case being Title Execution Case No. 15 of 2011 pending before the learned Civil Judge (Junior Division), 3rd Court at Sealdah will remain stayed conditionally till 31st May, 2017, with this rider that in default of compliance of any of the conditions as mentioned above, the stay as granted above will stand vacated and in that event, the learned Executing Court will grant police help to the plaintiffs/respondents for recovering the khas possession of the suit premises from the defendant/appellant and/or their men and representatives even without any further proceeding being initiated by the appellant in this regard.