MAHADEB CHANDRA RAY Vs. DULAL CHANDRA RAY

JUDGEMENT

(1.) Defendant tenant of Ejectment Suit No. 574 of 2000 preferred this Second Appeal challenging the judgment and decree dated 29th August, 2002 and 13th September, 2002 respectively passed by the learned Judge, 11th Bench, City Civil Court, Calcutta in Title Appeal No. 20 of 2002 whereunder the original judgment and decree of the Trial Court dated 23rd March, 2001 and 31st March, 2001 passed by the learned Judge, 2nd Bench, Small Causes Court, Calcutta was confirmed.

(2.) While admitting the present appeal, two substantial questions of law for disposal of the appeal were formulated and they are given hereinbelow :- Para 1, "Whether the findings of the Court below that the instant Ejectment Suit has been filed on separate cause of action was bad in law, illegal and erroneous inasmuch as, the earlier Ejectment Suit and the subsequent Ejectment Suit have been filed for self-same grounds and cause of action, as such, barred under Order 23 Rules 1 and 3 of the Code of Civil Procedure and the Courts below have erred in law by not dismissing the suit holding that it was not maintainable in law because of statutory bar as no leave was granted to file a fresh suit ; Para 2. Whetherthe plaintiff, being one of the landlords having filed the Ejectment Suit claiming as absolute owner by virtue of a will, Ext. 1 executed by Kanai Lal Ray, his father, probate of the will having not obtained and filed and/or any other ownership documents not filed and proved, as such, the Court of Appeal below have erred in law by not dismissing the suit holding that plaintiff failed to prove his ownership of the suit property as such not entitled to get decree."

(3.) Liberty was, however, given to the appellant to urge other grounds, if necessary at the time of hearing of the appeal. It is pertinent to mention that the learned Advocate appearing for the appellant has only placed the two substantial questions of law as indicated above and he has not placed any other grounds in support of the appeal.