KHAGENDRA LALL DUTTA Vs. JACOB SOLE JACOB

JUDGEMENT

(1.) Leave granted.

(2.) This appeal by special leave arises from the judgment of the division bench of the High court of Calcutta dated 22/9/1992 made in appeal from Original Decree No. 130 of 1988. The facts are not in dispute.

(3.) The appellant had demised ground floor flat bearing No. 25-A, situated in Royd Street, Calcutta to one Mr Stayner in 1940. After his death, his wife Mrs Stayner,succeeded to tenancy rights and she died on 9/7/1981. Thereafter the appellant laid the suit for ejectment of the respondent from the premises with the plea that when the appellant had been to the demised premises to take khas possession, to their surprise, they found the respondent in the occupation of the suit premises. When possession was demanded, she obstructed. Consequently, treating the respondent as a trespasser, the appellant laid the suit for eviction. The trial court granted the decree for eviction. On appeal, the division bench set aside the decree solely on theground that from an affidavit of Mrs Stayner filed before the Metropolitan Magistrate, it appeared as if Mr Stayner was alive on the date of the suit; and without determining the tenancy of Mr Stayner, the suit for ejectment was not maintainable; and so, it dismissed the suit. Thus this appeal by special leave.