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PETITIONER: SASHI KAANTA RUIA

       Vs.

RESPONDENT: M/S, INDO MINERALS & ORS.

DATE OF JUDGMENT:       01/08/2000

BENCH: G.B.’PATTANAK, U.C.BANERJEE

JUDGMENT:

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     PATTANAIK.  J.

     Both  these  appeals  are directed  against  a  common judgment  of a learned Single Judge of Calcutta High  Court, disposing of the two Second Appeals namely Second Appeal No. 331  of  1997  and Second Appeal No.  482 of  1996.   Second Appeal  No.  331/97 was by the defendants In Title Suit  No. 64/84  and the said suit had been filed for eviction of  the defendants  and for recovery of possession, and the suit had been dismissed by the Trial Judge.  On appeal being carried, the  Lower Appellate Court allowed the appeal, decreeing the plaintiffs  suit.   Defendants approached the High Court  in Second  Appeal and the High Court by the impugned  Judgment, set  aside  the judgment and decree of the  lower  Appellate Court and

     affirmed  the  judgment and decree of the Trial  Judge and the plaintiffs are the appellants in the civil appeal in question.   The other civil appeal arises out of Title  Suit No.   116/80.   The said suit also having been dismissed  by the  Trial  Judge, the matter was carried in appeal  by  the plaintiffs  in  lower  Appellate  Court  and  the  Assistant District  Judge, Sealdah, allowed Title Appeal No.   144/89, thereby  decreeing  Title  Suit   No.   116/80.   Defendants carried  the  matter to the High Court in Second Appeal  No. 482/96  and by the Impugned judgment, the High Court was  of the  opinion  that the suit itself was not maintainable  and accordingly,  allowed  the second appeal and  dismissed  the suit  The suit for eviction was based on the ground that the land  in  question had been taken under a lease deed  for  a period  of 15 years with a right to sub-lease, by the father of the plaintiff.  In view of the terms of the lease

     deed,  defendants 1 and 2 had been given the sub-lease and  they  having  failed to pay rent, money suit  had  been filed  for realisation of the rent.  Subsequently, suit  for ejectment  had been filed and stood disposed of on the terms of  agreement  and  in  accordance   with  the  said  terms, plaintiff  took  over the possession and became  the  lessee w.e.f.   1.2.79.  The sub- lease of the defendants had  been determined  w.e.f.   November, 1978 but notwithstanding  the same,  the defendants forcibly occupied and, therefore,  the possession  is that of trespasser.  The plaintiff thus filed the suit for eviction.  The contesting defendants denied the rights  of the plaintiff and contended that they had  become

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lessee  under  the  original lessor and not  sub-lessee,  as contended  in the plaint.  According to them, the period  of lease  In  favour of plaintiff’s father, having expired  and there  being  no material to establish that  the  defendants were inducted as sub-lessee under the

     lessee,  the  plaintiff has no right to file suit  for eviction  and,  therefore, the suit must be dismissed.   The learned  Trial  Judge  on an, analysis of  the  evidence  on record,  came  to the conclusion that the plaintiff did  not acquire  any  right over the land but only on the  structure and defendants became lessee under the original lessor.  The Trial  Judge found that the status of the defendants is that of a trespasser, but yet in the absence of any evidence that plaintiff  had sub-let the land to the defendants, suit  for eviction  will  not lie.  With these conclusions,  the  suit having been dismissed, the matter had been carried in appeal to  the lower Appellate Court.  The Lower Appellate Court on consideration  of  the  materials  on record,  came  to  the conclusion that the basic approach of the Trial Judge on the pleadings of the parties was wholly erroneous.  According to the  lower Appellate Court, the earlier decr,ee of the Civil Court, awarding damages against the defendants for

     unauthorised occupation, unequivocally establishes the fact  that  the defendants have nc right to be on the  land. The  Sower Appellate Court also came to the conclusion  that in  view  of  the  terms  of the  sub-lease,  the  suit  for sub-lease  expired on 31.12.1978 and defendants cannot claim any  interest  subsequent to the same.  The lower  Appellate Court  also  came  to the conclusion that  the  creation  of sub-lease  in  favour  of  the  defendants  could  not  have conferred  a better right, which the lessee himself did  not have  and  also  came  to the conclusion  that  question  of defendants’  acquiring Thika tenancy’ really does not arise. With  these conclusions, the lower Appellate Court  reversed the  judgment and decree of the Trial Judge and decreed  the plaintiffs  suit for eviction.  The High Court in the second appeal,  curiously  did  not  focus  its  attention  to  the findings  arrived  at  by  the  lower  Appellate  Court  but abruptly jumped to the conclusion that the tenancy in

     favour  of  the  plaintiff is not in  respect  of  the portion  of  land in possession of the defendants  but  some other  portion,  which  case has not been made  out  by  the defendants  themselves in their written statement.  The High Court  also came to the conclusion that a case of  surrender not  having been made out in the plaint, the lower Appellate Court  was  in  error   that  defendants  surrendered  their possession   after  expiry  of   sublease   on   31.12.1978. Ultimately,  the  High  Court came to the finding  that  the plaintiff,  not having acquired any right over the  disputed property,  the  suit for eviction will not lie, even  though the  defendants may be held to be trespassers.  In the other suit,  on  the identical question, the High Court also  held the  suit  for  eviction  to   be  not  maintainable.    Mr. V.A.Mohta,  the  learned senior counsel, appearing  for  the plaintiff in Civil Appeal arising out of

     S.L.P.(C)  No.   8493/99 and Mr.  Dipankar P.   Gupta, the  learned  senior counsel appearing for the plaintiff  in civil appeal arising out of S.L.P.(C) No.  8495/99 contended with  force  that the High Court committed serious error  in coming  to  the conclusion that the lease in favour  of  the plaintiff  was only for the structure.  The learned  counsel

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also further contended that in coming to the conclusion that the  tenancy must have been in respect of some other portion of  the land and not in respect of the portion In possession of  the  defendants, the High Court has not  considered  the pleadings  and findings of the lower Appellate Court on that score  but  on the basis of surmises and conjectures,  which the second Appellate Court is not entitled to do.  According to the counsel, appearing for the plaintiffs-appellants, the High  Court was also in error In dismissing the  plaintiffs’ suit  on a finding that plaintiffs have no better title than the defendants.  It was urged that the lower Appellate

     Court,  which  is  the  final Court  of  fact,  having considered  the  materials  on record  and  having  recorded positive findings on the different questions, the High Court could  not  have interfered with the judgment and decree  of the lower Appellate Court, without even discussing the same. Mr.  S.B.  Sanyat, the learned senior counsel, appearing for the defendants-respondents, on the other hand contended that though  apparently,  there appears to be some force  in  the contentions  of  the  learned  counsel,  appearing  for  the appellants  but there were sufficient materials for the High Court  to interfere with the ultimate findings of the  lower Appellate  Court, and therefore, at the most the two  second appeals   may   be   remitted  to   the   High   Court   for reconsideration and this court should not finally dispose of the  appeals.   We  have   carefully  considered  the  rival contentions as well

     as  the  judgment and decree of the  lower  Appellate; Court  in  both the suits and the impugned judgment  of  the High  Court  In  the two second appeals,  which  were  heard together  and  disposed  of by a common  judgment.   A  bare perusal  of  the impugned judgment of the High  Court  would indicate  that  the  Court has not considered  the  relevant pleadings   and   the  findings    arrived   thereon   after appreciation  of  the evidence by the lower Appellate  Court and  on the other hand, the High Court has straight-away  by surmises and conjectures, interfered with the conclusions on the  question  of  facts arrived at by the  lower  Appellate Court.   We  really  fail to understand as to how  the  High Court  would  record  a  finding that  the  tenancy  of  the plaintiff  was in respect of the structure and not the  land and  further  the  lease In favour of the plaintiff  was  in respect  of  the  land  other than the  land  on  which  the defendants had the possession.  Having considered the

     judgment  of  the lower Appellate Court in both  these cases,  we have no hesitation to come to the conclusion that the  said lower Appellate Court has recorded findings on the materials  on record and the conclusions arrived  thereunder cannot  be said to be erroneous in any manner.  In this view of  the  matter, we see no justification for  remitting  the second  appeals to the High Court again for re-disposal.  In our  view,  the  High  Court   committed  serious  error  in interfering  with  the  judgment  and decree  of  the  lower Appellate Court in exercise of its jurisdiction undersection 100  of  the Code of Civil Procedure.  We, accordingly,  set aside  the impugned judgment of the High Court in the second appeals  and  affirm  the judgments & decrees of  the  lower Appellate Court and decree the suits.

     The  Civil  Appeals are accordingly allowed but  there will be no order as to costs.

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