NANDA LAL AGARWALLA Vs. RAMESWAR LAL SHARMA

JUDGEMENT

(1.) These two cross objections were filed in the two appeals which arise out of the judgment and decrees passed by Shri S. K. Ghosal, Additional District Judge, 9th Court, Alipore in Title Appeal Nos. 1067 and 1148 of 1973 dated 15-5-7,6 substantially affirming those of Shri S. Chakraborty, Munsif, 4th Court, Sealdah in Title Suit Nos. 332 and 333 of 1967 dated 11-8-73.

(2.) The plaintiffs brought two suits for ejectment of the defendants on the ground of building and rebuilding and for own use and occupation. The trial court decreed the suits on both the grounds. Being aggrieved, the plaintiffs preferred two appeals before the learned District Judge. The appeals were heard by the learned Additional District Judge, who affirmed the findings of the learned Munsif that the plaintiffs were entitled to get decrees for ejectment on the ground of building and rebuilding. The learned Judge also agreed with the finding of the learned Munsif that the plaintiffs required the premises for own use and occupation. But the learned Judge refused to pass decrees for eviction on that ground as it was found by the learned Judge that the plaintiffs were not full owners of the suit premises and were only co-sharers. In that view of his finding, the learned Judge dismissed the appeals. Being aggrieved, the defendants have come up to this Court. The plaintiffs have filed two cross objections challenging the finding of the learned Judge that the plaintiffs are not entitled to get decrees for eviction on the ground of own use and occupation. On August 7, 1978 it was stated by the learned Advocate appearing on behalf of the appellants that he had instructions not to proceed with the appeals. In the circumstances, the appeals were dismissed for non-prosecution without any order as to costs. Though the two appeals were dismissed, it was mentioned by the learned advocate appearing on behalf of the cross objectors that the cross objections should be disposed of. The cross objections were then placed for hearing,

(3.) Mr. Sakti Nath Mukherji, learned Advocate appearing on behalf of the appellants, takes a preliminary objection regarding the maintainability of the cross objections. It is contended by Mr. Mukherji that the respondents got decrees for ejectment in the court of appeal below. The finding of the learned Judge that the plaintiffs are not entitled to get a decree for ejectment on the ground of own use and occupation has not been incorporated in the decree and that being so, Mr. Mukherji submits that in such circumstances, the respondents cannot challenge those decrees by filing cross objections. Mr. Mukherji contends that the decree passed by the learned court of appeal below being wholly in favour of the plaintiff the plaintiff could not have filed any appeal challenging a finding which has been made against him, inasmuch as the decrees passed by the learned court of appeal below are not based on such finding. Mr. Bidyut Kumar Banerji, learned advocate appearing on behalf of the respondents cross-objectors, contends that the plaintiff filed suits on two grounds namely, building and rebuilding and that after building and rebuilding the premises in question would be used for establishing the plaintiff's sons in business. The trial court decreed the suits for eviction on both the grounds. The court of appeal below also affirmed the findings of the trial court that the plaintiffs succeeded in proving both the grounds. But, in view of the fact that the plaintiff is not the sole owner of the property in dispute and that he is only one of the co-owners it was found that he was not entitled to get a decree for own use and occupation. The learned court of appeal below relied on the decision (Sriram Pasrisha v. Jagannath Sen). This decision was reversed by the Letters Patent Bench in the decision reported in (1975) 1 Cal LJ 413 (Jagannath Sen v. Sriram Pasrisha). The decision of the Letters Patent Bench was affirmed by the Supreme Court in a case reported in AIR 1978 SC 2335 (Sri Ram Pasrisha v. Jagannath). Now, it is the settled position that a co-owner is entitled to get a decree on the ground of own use and occupation. Mr. Mukherji states that in view of the decisions referred to above, it must be said that the finding of the court of appeal below is not correct. Mr. Banerji contends that the plaintiffs' case for eviction was on the ground of own use and occupation. For the purpose of own use and occupation, it is necessary to rebuild the suit premises. If he gets a decree only on the ground of building and rebuilding and if the decree on the ground of own use and occupation is refused, the plaintiff will be very much prejudiced. In fact, the court of appeal below found that the plaintiff required the suit premises for own use and occupation. But relying on the decision which has since been overruled, the learned court of appeal below found against the plaintiff, Mr. Benerji contends that the plaintiff has been very much affected by the finding and as such, the plaintiff's cross objections are quite maintainable. It is true that in the decree the finding has not been incorporated. But Mr. Banerji submits that the decree should be read with the judgment and in the judgment it has been clearly stated that the plaintiff cannot get a decree for eviction on the ground of own use and occupation, but he is entitled to a decree for eviction on the ground of building and rebuilding. True it has not been mentioned in the decree that the plaintiffs ground for eviction on the ground of own use and occupation has been refused, nevertheless, reading the judgment and decrees there cannot be any doubt that the plaintiff's case on the ground of own use and occupation has been negatived by the court of appeal below and that being so, the plaintiff is very much aggrieved by the decrees. Mr. Banerji in support of his contention that in the circumstances of the case, cross objections filed by the plaintiff are quite maintainable first relied on a decision reported in AIR 1950 Assam 119 (Bhubindra Narayan Bhattacharjya v. Mt. Tarupriya Debya). In this case, the question arose as to who could file an appeal. It has been held