Sashi Kaanta
Ruia Vs. M/S, Indo Minerals & Ors [2000] INSC 398 (1 August 2000)
G.B.'PATTANAK,
U.C.BANERJEE
L.I.T.J
PATTANAIK. J.
Both
these appeals are directed against a common judgment of a learned Single Judge
of Calcutta High Court, disposing of the two Second Appeals namely Second
Appeal No.
331 of
1997 and Second Appeal No. 482 of 1996. Second Appeal No. 331/97 was by the
defendants In Title Suit No.
64/84
and the said suit had been filed for eviction of the defendants and for
recovery of possession, and the suit had been dismissed by the Trial Judge. On
appeal being carried, the Lower Appellate Court allowed the appeal, decreeing
the plaintiffs suit. Defendants approached the High Court in Second Appeal and
the High Court by the impugned Judgment, set aside the judgment and decree of
the lower Appellate Court and affirmed the judgment and decree of the Trial
Judge and the plaintiffs are the appellants in the civil appeal in question.
The other civil appeal arises out of Title Suit No. 116/80. The said suit also
having been dismissed by the Trial Judge, the matter was carried in appeal by
the plaintiffs in lower Appellate Court and the Assistant District Judge, Sealdah,
allowed Title Appeal No. 144/89, thereby decreeing Title Suit No. 116/80.
Defendants carried the matter to the High Court in Second Appeal No.
482/96
and by the Impugned judgment, the High Court was of the opinion that the suit
itself was not maintainable and accordingly, allowed the second appeal and
dismissed the suit The suit for eviction was based on the ground that the land
in question had been taken under a lease deed for a period of 15 years with a
right to sub-lease, by the father of the plaintiff. In view of the terms of the
lease deed, defendants 1 and 2 had been given the sub-lease and they having
failed to pay rent, money suit had been filed for realisation of the rent.
Subsequently, suit for ejectment had been filed and stood disposed of on the
terms of agreement and in accordance with the said terms, plaintiff took over
the possession and became the lessee w.e.f. 1.2.79. The sub- lease of the
defendants had been determined w.e.f. November, 1978 but notwithstanding the
same, the defendants forcibly occupied and, therefore, the possession is that
of trespasser. The plaintiff thus filed the suit for eviction. The contesting
defendants denied the rights of the plaintiff and contended that they had
become lessee under the original lessor and not sub-lessee, as contended in the
plaint. According to them, the period of lease In favour of plaintiff's father,
having expired and there being no material to establish that the defendants
were inducted as sub-lessee under the lessee, the plaintiff has no right to
file suit for eviction and, therefore, the suit must be dismissed. The learned
Trial Judge on an, analysis of the evidence on record, came to the conclusion
that the plaintiff did not acquire any right over the land but only on the
structure and defendants became lessee under the original lessor. The Trial
Judge found that the status of the defendants is that of a trespasser, but yet
in the absence of any evidence that plaintiff had sub-let the land to the defendants,
suit for eviction will not lie. With these conclusions, the suit having been
dismissed, the matter had been carried in appeal to the lower Appellate Court.
The Lower Appellate Court on consideration of the materials on record, came to
the conclusion that the basic approach of the Trial Judge on the pleadings of
the parties was wholly erroneous. According to the lower Appellate Court, the
earlier decr,ee of the Civil
Court, awarding
damages against the defendants for unauthorised occupation, unequivocally
establishes the fact that the defendants have nc right to be on the land.
The Sower
Appellate Court also came to the conclusion that in view of the terms of the
sub-lease, the suit for sub-lease expired on 31.12.1978 and defendants cannot
claim any interest subsequent to the same. The lower Appellate Court also came
to the conclusion that the creation of sub-lease in favour of the defendants
could not have conferred a better right, which the lessee himself did not have
and also came to the conclusion that question of defendants' acquiring Thika
tenancy' really does not arise.
With
these conclusions, the lower Appellate Court reversed the judgment and decree
of the Trial Judge and decreed the plaintiffs suit for eviction. The High Court
in the second appeal, curiously did not focus its attention to the findings
arrived at by the lower Appellate Court but abruptly jumped to the conclusion
that the tenancy in favour of the plaintiff is not in respect of the portion of
land in possession of the defendants but some other portion, which case has not
been made out by the defendants themselves in their written statement. The High
Court also came to the conclusion that a case of surrender not having been made
out in the plaint, the lower Appellate Court was in error that defendants
surrendered their possession after expiry of sublease on 31.12.1978.
Ultimately,
the High Court came to the finding that the plaintiff, not having acquired any
right over the disputed property, the suit for eviction will not lie, even
though the defendants may be held to be trespassers. In the other suit, on the
identical question, the High Court also held the suit for eviction to be not
maintainable. Mr.
V.A.Mohta,
the learned senior counsel, appearing for the plaintiff in Civil Appeal arising
out of S.L.P.(C) No. 8493/99 and Mr. Dipankar P. Gupta, the learned senior
counsel appearing for the plaintiff in civil appeal arising out of S.L.P.(C)
No. 8495/99 contended with force that the High Court committed serious error in
coming to the conclusion that the lease in favour of the plaintiff was only for
the structure. The learned counsel also further contended that in coming to the
conclusion that the tenancy must have been in respect of some other portion of
the land and not in respect of the portion In possession of the defendants, the
High Court has not considered the pleadings and findings of the lower Appellate
Court on that score but on the basis of surmises and conjectures, which the
second Appellate Court is not entitled to do. According to the counsel,
appearing for the plaintiffs-appellants, the High Court was also in error In
dismissing the plaintiffs' suit on a finding that plaintiffs have no better
title than the defendants. It was urged that the lower Appellate Court, which
is the final Court of fact, having considered the materials on record and
having recorded positive findings on the different questions, the High Court
could not have interfered with the judgment and decree of the lower Appellate
Court, without even discussing the same.
Mr.
S.B. Sanyat, the learned senior counsel, appearing for the defendants-respondents,
on the other hand contended that though apparently, there appears to be some
force in the contentions of the learned counsel, appearing for the appellants
but there were sufficient materials for the High Court to interfere with the ultimate
findings of the lower Appellate Court, and therefore, at the most the two
second appeals may be remitted to the High Court for reconsideration and this
court should not finally dispose of the appeals. We have carefully considered
the rival contentions as well as the judgment and decree of the lower
Appellate;
Court
in both the suits and the impugned judgment of the High Court In the two second
appeals, which were heard together and disposed of by a common judgment. A bare
perusal of the impugned judgment of the High Court would indicate that the
Court has not considered the relevant pleadings and the findings arrived
thereon after appreciation of the evidence by the lower Appellate Court and on
the other hand, the High Court has straight-away by surmises and conjectures,
interfered with the conclusions on the question of facts arrived at by the
lower Appellate Court. We really fail to understand as to how the High Court
would record a finding that the tenancy of the plaintiff was in respect of the
structure and not the land and further the lease In favour of the plaintiff was
in respect of the land other than the land on which the defendants had the
possession. Having considered the judgment of the lower Appellate Court in both
these cases, we have no hesitation to come to the conclusion that the said
lower Appellate Court has recorded findings on the materials on record and the
conclusions arrived thereunder cannot be said to be erroneous in any manner. In
this view of the matter, we see no justification for remitting the second
appeals to the High Court again for re-disposal. In our view, the High Court
committed serious error in interfering with the judgment and decree of the
lower Appellate Court in exercise of its jurisdiction undersection 100 of the Code
of Civil Procedure. We, accordingly, set aside the impugned judgment of the
High Court in the second appeals and affirm the judgments & decrees of the
lower Appellate Court and decree the suits.
The
Civil Appeals are accordingly allowed but there will be no order as to costs.
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