MINATI SEN Vs. KALIPADA GANGULY

JUDGEMENT

(1.) This appeal is against a judgment of affirmance in a suit for eviction. The respondent, as a plaintiff, instituted the suit against the predecessor in interest of the appellants for eviction from the premises as fully described in the schedule of the plaint on the grounds of bona fide requirement, subletting and violation of Sections 108(m) (o) (p) of the Transfer of Property Act.

(2.) So far as the ground of bona fide requirement is concerned, it appears that during the pendency of this appeal, an application for taking into consideration of subsequent events has been filed at the instance of the appellant to which affidavit in opposition and affidavit in reply have also been filed by the parties. When some argument was advanced by the learned counsel for the parties on the question of bona fide requirement, an affidavit was filed by the plaintiff/respondent from which it appears that the plaintiff/respondent does not press ground of bona fide requirement. In view of the fact that an affidavit has been filed 8 by the plaintiff/respondent in this Court saying that he is not pressing the ground of bond fide requirement for eviction of the appellant, no decree can be passed on the ground of bona fide requirement.

(3.) So far as the ground of violation of Section 108(m) (o)(p) of the Transfer of Property Act is concerned, I am of the view that the Appellate court acted illegally in granting a decree for eviction on such a ground. In the plaint, a case was made out that the tenant had illegally constructed one reservoir in the bath room of the first floor and also another reservoir on the ground floor. The fact of making such construction was however, denied by the defendant/tenant in his written statement. An issue was framed which is as follows :-"Is the defendant guilty of damaging the suit property by way of addition or alteration?"This was issue No. 7. Although this issue was not pressed by the plaintiff/respondent in the trial Court, the appellate Court however, granted a decree on this ground. In my view, when issue No. 7 was not pressed by the plaintiff/respondent in the trial Court, there was no justification for the appellate Court to go into this question and decide the same in favour of the plaintiff/ respondent.In the case of Premchand Manik Chand v. Fort Gloster Jute Manufacturing Company Ltd., (195960) 64 Cal WN 103 : (AIR 1959 Cal 620), it has been held that when a party has raised an issue in the trial Court, and deliberately has abandoned it, he cannot be allowed to raise it again at the appellate stage. Mr. Mahapatra, appearing for the plaintiff/respondent also did not seriously argue that it was open to the appellate Court to decide the said issue in appeal although the plaintiff/ respondent did not press the same in the trial Court.