SRIMATI NISHARANI MOOKHERJEE Vs. PURAN CHAND JAIN

JUDGEMENT

(1.) Both the above appeals are being decided by this common judgment.

(2.) The appellant of F.M.A. No. 693 of 1991 filed in Title Suit No. 117 of 1988 before the trial Court as plaintiff-landlady for eviction of the tenant- respondent from the suit premises on the ground of reasonable requirement for her, for unauthorised construction on the roof of the 1st floor and of subletting without consent. The ground of subletting appears to have been abandoned as neither any issue was framed by learned trial Court nor any evidence was laid on this point by P.W.-1, the plaintiff- landlady. The trial Court found that the plaintiff was the owner of the suit premises by virtue of registered deed of gift, husband (Ext.-1). The decree of eviction was passed against the tenant on the ground of reasonable requirement of the plaintiff and for raising unlawful construction on the roof of the suit premises. The tenant preferred the appeal against the decree for eviction and the learned 1st appellate Court affirmed the findings of the trial Court on the point of reasonable requirement and raising unauthorised construction on the roof. The learned 1st appellate Court, however, held that the deed of gift (Ext.-1) was not validly proved by examining attesting witnesses so the learned appellate Court sent the suit back on remand by passing the following order :

(3.) Both the parties preferred appeal against the order of remand but on two different grounds. The Defendant filed the F.M.A. No. 693 of 1991 as appellant herein on the ground that the order of remand not being consistent with any of the provisions under Order 41 Rules 23, 23-A and 25 Code of Civil Procedure is bad in law and liable to be set aside. The F.M.A. 694 of 1991 has been filed by the plaintiff- landlady on the ground that the 1st Appellate Court should have decided the issue of ownership from the materials on record as the deed of gift, Ext. 1 has been duly proved by PW-1, the son of the plaintiff and that the execution of the deed of gift was never challenged by the tenant. }he e question of proving the execution of the gift by attesting witnesses does not arise and this Court may treat the appeal by the plaintiff-appellant as a second appeal inasmuch as all the points have been raised therein and this Court may very well dispose of the second appeal on the basis of the documents and oral evidence on record.