S.A.T. 235 of 2016 and CAN 6975 of 2016. Case: Sujit Kumar Khan Vs Susanta Kumar Khan. High Court of Calcutta (India)

Case NumberS.A.T. 235 of 2016 and CAN 6975 of 2016
CounselFor Appellant: Ashis Kumar Sanyal and Vinay Misra, Advs. and For Respondents: Biswajit Hazra, Adv.
JudgesJyotirmay Bhattacharya and Asha Arora, JJ.
IssueCode of Civil Procedure, 1908 (CPC) - Order XLI Rules 27, 28, 29; Indian Evidence Act, 1872 - Section 73; Transfer of Property Act, 1882 - Section 106
Judgement DateMarch 21, 2017
CourtHigh Court of Calcutta (India)

Judgment:

Jyotirmay Bhattacharya, J.

  1. Deficit court fees of Rs. 60/- which was put in by the appellant out of time, is acceptable.

  2. Leave is granted to the learned advocate-on-record of the appellant to rectify the defect in the memorandum of appeal in terms of the report of the Stamp Reporter.

  3. This appeal will be heard on the following substantial question of law.

    Whether the learned First Appellate Court was justified in admitting the title deed of the plaintiff by way of additional evidence at the appellate stage without following the provision contained in Order 41 Rule 28 of the Code of Civil Procedure or not?

  4. Immediately after the appeal was admitted for hearing, when the application for injunction filed in connection with the said appeal, was taken up for hearing, we were requested by the learned counsel appearing for the respondent to dispose of the appeal itself on merit on the basis of the papers available before us.

  5. Since the fate of the appeal is dependent on the decision of this Court on a pure question of law, we have decided to dispose of the appeal on the basis of the papers available before us by dispensing with the requirement of filing paper books in this appeal.

  6. Here is the case where we find that the parties are two brothers. The plaintiff being the brother of the defendant filed a suit for eviction of the defendant from the suit shop room after service of notice under Section 106 of the Transfer of Property Act.

  7. The defendant contested the said suit by filing a written statement denying the allegations made out by the plaintiff in the plaint. He stated that the parties are two brothers and their father used to carry on radio repairing business from the suit shop room. According to the defendant, on the death of their father, both the brothers jointly inherited the said suit shop room. He thus, disputed the existence of relationship of landlord and tenant between them. He prayed for dismissal of the suit on the ground that he being a co-sharer of the suit property cannot be evicted by the plaintiff upon service of notice under Section 106 of the Transfer of Property Act.

  8. Parties led evidence in support of their respective claims. The learned Trial Judge after considering the pleadings of the parities as well as their evidence, was pleased to dismiss the said suit by holding, inter alia, that in a suit where the tenant having not been inducted by the landlord, the tenant can challenge the title of the...

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