IMPORTANT POINT
High Court in second appeal cannot interfere with findings of first appellate court based on evidence.

JUDGMENT

SUDHANSU JYOTI MUKHOPADHAYA, J

Leave granted.

2. These appeals have been preferred by the appellant against the judgment dated 29th February, 2012 passed by the High Court at Calcutta in S.A. No. 149 of 2007 with C.A.N. No. 10467 of 2009. By the impugned judgment, the High Court set aside the judgment and decree passed by the courts below and remanded the matter back for adjudication of the suit afresh.

3. The factual matrix of the case is as follows:

The appellant-plaintiff (hereinafter referred to as the ‘plaintiff’) filed a suit for eviction being O.S. No. 242 of 2001 before Civil Judge (Jr. Division), Paschim Medinipore against the predecessor in interest of the respondents (hereinafter referred to as the ‘defendant’) on the following grounds:

(i) That the defendant defaulted in payment of rent from the month of July, 2000.

(ii) That the plaintiff reasonably requires the suit premises for his own use and occupation.

(iii) That the plaintiff is not in possession of any reasonably suitable accommodation. The plaintiff wants to demolish the existing structures in the suit premises and the building therein and wants to make a new building for his own use and occupation for residence and for business. That the plaintiff reasonably requires the suit premises for building and rebuilding and to works of. Such building and rebuilding cannot be carried out without the suit premises being vacated by the defendant.

(iv) That the defendant is guilty of act of waste, negligence, annoyance and nuisance to the neighbours including the plaintiff landlord.

(v) That the defendant has made an illegal and un-authorised shed in the northern side of the suit premises without any previous permission of the plaintiff or from previous landlords.

(vi) That the defendant is also guilty of the breach of Provision of Clause (m), (o) and (p) of Section 108 of the Transfer of Property Act.

4. The defendant filed a written statement and denied the default of payment of rent on the ground that the defendant was not a tenant under Jatindra Nath Sen but he is a monthly tenant in respect of the suit premises under Khadims of Lohani Pir Sahib. The defendant further took plea that the agreement dated 8th May, 1994 relied by plaintiff is a fraudulent and fabricated. He also denied the statement made by the plaintiff at paragraph 6 to 8 of the plaint that the plaintiff requires the suit premises for his own use and occupation. He also denied the allegation of making any annoyance and nuisance or illegal and unauthorized construction.

5. On the basis of the pleadings of the parties, the trial court framed the following issues:

“1. Is the suit maintainable in its present form and prayer?

2. What is the cause of action of this suit?

3. What is the locus-standi of the plaintiff to bring this suit?

4. Is the suit barred by the Principles of Specific Relief Act and Law of Limitation?

5. Is the suit barred by the Principles of res-judicata?

6. Is the suit defective for non-joinder of the parties?

7. Had the plaintiff been dispossessed by the defendant from the possession of the schedule land of plaint?

8. Is the plaintiff entitled to get relief as prayed for?

9. To what other relief, the plaintiff is entitled to get?

10. Has the sufficient Court Fees been paid?”

An additional issue about legality and validity of notice of eviction was also framed.

6. The trial court on hearing parties and appreciation of evidence by judgment dated 17th February, 2006 held that the suit is not maintainable as the relationship between the parties has not been sufficiently proved as landlord and tenant and hence the notice of eviction is not at all binding.

7. On appeal being Appeal No. 36 of 2006 preferred by the appellant the Additional District Judge, Fast Track, 2nd Court, Paschim Medinipore by judgment and decree dated 21st August, 2006 allowed the same. On appreciation of evidence, the Appellate Court held that the plaintiff has proved very clearly that he is the owner of the suit property and during