LALIT MOHAN DUTTA Vs. SITANATH DUTTA

JUDGEMENT

(1.) The subject matter of suit arises out of conditions of Clauses under (m), (o) and (p) under Sec. 106 of the Transfer of Property Act being a ground of ejectment.

(2.) The Court of first instance held in favour of the plaintiff/landlord which was affirmed by the first Appellate Court in the Appeal. Since there is no specific point available for the purpose of admission of the appeal, as against the question of the Court, the learned Counsel appearing for the appellant stated that grounds No. III, IV, V, VI, IX are the necessary grounds for consideration by the Second Appellate Court. Under the normal circumstances, the Second Appellate Court does not interfere with the factual disputes available before the Court below, particularly, when there is concurrent findings of the fact. Yet the High Court is not debarred from taking into account the substantial question of law available herein. The relevant point for consideration before the Court is the intention of the landlord and the non-examination of the pleader commissioner appointed for the purpose of taking inspection of the facts. Subsequently, the learned Counsel appearing for the appellant wanted to agitate about making specific grounds of eviction in the notice. But, I find that even in the Court of first instance such issue was not pressed. Therefore, there is no necessity to go into such aspect of the matter by the Second Appellate Court.

(3.) Now, the two questions are very relevant as aforesaid in resnect of coming to conclusion. The clauses (m), (o) and (p) under Sec. 108 of the Transfer of Property Act can be adjudged independently or as a whole depending upon the facts and circumstances of the case as well as points taken before the Court below and in the Court of first Appeal. Here, the case as made out is of the clauses (m), (o) and (p). Therefore, if there is any lapses as regards any of the clauses as aforesaid, the entire proceeding cannot be vitiated. The clause (p) says that one must not without the lessor's consent erect in the property and permanent structure. This is not the specific ground herein that anything was erected by way of permanent structure without the lessor's consent. This a particular case wherein the addition and alteration were caused by which the property was materially changed, the condition of which is destructive or permanently injurious thereto. It is the categorical observation of the first appellate Court being the last fact finding Court that the appellant constructed a concrete beam on the ceiling level of the doors and demolished the supporting pillar in between the two doors and also installed a collapsible gate on the suit premises. The appellant also constructed sun- shade measuring about 10 ft. in length and one and half ft. on the breadth on the southern side of the suit premises. If this factual findings are available before the Court below, how the Second Appellate Court intervene into such aspect of the matter, is totally unknown. Till the day I have come across several judgments in respect of this point, and I find that the material facts for the purpose of coming to conclusion in respect of such clauses is depending upon the facts of the particular case. Therefore, it will vary from one case to other. No straight-jacket formula can be applied in coming to conclusion. Can it be said the observation of the fact finding Courts below as held concurrently in favour of the plaintiff, as wrong by the Second Appellate Court that the substantial question of law will be adjudged ? My answer is 'no'.