NISHA RANI MOOKHERJEE Vs. PURAN CHAND JAIN

JUDGEMENT

(1.) These four appeals are interlinked. Civil Appeals nos. 5460-61 of 2000 have been filed by Nisha Rani Mookherjee (hereinafter referred to as the landlady). In these appeals Puran Chand Jain, the appellant in Civil Appeals Nos. 5462-63 of 2000 (hereinafter referred to as the tenant) is the respondent. All these appeals have a common matrix i. e. the judgment of the Calcutta High Court dated 1/3/2000. Two appeals were filed before the calcutta High Court which were numbered as FMAs Nos. 693-94 of 1991.

(2.) The factual background needs to be noted in brief: the landlady filed Title Suit No. 117 of 1988 before the trial court i. e. the court of Additional Munsif, Sealdah. Though filed in the year 1982, at the time of disposal by the trial court i. e. the Additional Munsif, same was renumbered as Title Suit No. 117 of 1988. The suit was filed for eviction of the tenant from the premises on three grounds i. e. (a) reasonable requirement for self, (b) for unauthorised construction on the roof of the first floor, and (c) sub-letting without consent. The ground of sub-letting was abandoned. Five issues were framed by the trial court. The major issues related to alleged unauthorised construction and bona fide requirement for personal use. On consideration of the evidence led by the parties, the trial court found that the plaintiff was the owner of the suit premises by virtue of registered deed of gift from her husband. The decree of eviction was passed against the tenant on the ground of bona fide requirement of the plaintiff and for raising unauthorised construction on the roof of the suit premises. The tenant preferred an appeal against the decree of eviction and the first appellate court affirmed the findings of the trial court on the issues of reasonable requirement and raising unauthorised construction. However, it felt that the question of validity of the deed of gift was to be examined by examining the attesting witnesses. Accordingly, the appellate court remanded the matter to the trial court with, inter alia, the following directions:

(3.) Both the landlady and the tenant preferred appeals before the Calcutta high Court but on different grounds. According to the tenant there should not have been restricted remand and it should have been left open to the trial court for adjudicating all issues. The landlady on the other hand challenged the remand for the purpose of examining the validity of the deed of gift. According to her, even if the ownership is considered to be not there for the sake of arguments, yet in view of the provisions of the West Bengal Premises tenancy Act, 1956 (in short "the Act") finding regarding the unauthorised construction was sufficient to direct eviction. The High Court by the impugned judgment set aside the order of remand passed by the appellate court as also the "order" portion of the judgment without disturbing the finding of the first appellate court on other issues except the issues relating to the ownership.