KALABATI DEBI Vs. PRATAPI DEVI

JUDGEMENT

(1.) This second appeal is against a judgment and decree dated 21st April, 2005 of the learned 1st Additional District Judge at Alipore, District South 24 Parganas in Title Appeal No. 265 of 1992 affirming the judgment and decree dated 15th June, 1992 passed by the 8th Additional District Judge at Alipore, District South 24 Parganas in Title Suit No. 92 of 1977.

(2.) By an order dated 28th November, 2005, a Division Bench of this Court admitted the appeal on the following questions of law: (a) whether the learned Courts below committed substantial error of law in passing a decree for eviction by totally overlooking the fact that a previous suit filed by the plaintiff in the year 1974 being Title Suit No. 110 of 1974 was not pressed, without taking leave to file fresh suit; (b) whether the appellate Court below committed a substantial error of law in overlooking the fact that the cause of action of the present suit was substantially the same as in the earlier Suit No. 110 of 1974 if the plaints were read as a whole.

(3.) The appellants claim to be tenants of the suit premises, which had been purchased by the respondent's husband, on or about 27th April, 1958. According to the appellants, the respondent's husband inducted the predecessor in interest of the appellants as tenant of the suit premises in 1967. The respondent, however contends that the appellants illegally occupied the suit property in 1973 and started the business of Shiv Shankarlal & Co.