( 1 ) THESE two Full Bench References involving interpretation of section 100 of the Code of Civil Procedure, 1908 as amended, arise out of two several appeals entertained by a Division Bench of this Court. Each of the said appeals is directed against the judgment and decree of the District Court in first appeal reversing the decree for eviction of the sole defendant-tenant in each of the two several suits decreed by the trial court.

( 2 ) KISHORILAL Goenka, respondent in S. A. No. 354 of 1982 and Satya Narain Goenka, respondent in S. A. No. 355 of 1982 are brothers who had been occupying the second and first floors of the suit property respectively as tenants under separate tenancy.

( 3 ) THERE are three plaintiffs, who are the appellants herein. The first plaintiff, a Partnership firm, claims to be the owner of the one-half undivided share of the property and the second plaintiff is the owner of the rest half. Initially, the fast two plaintiffs filed two several suits jointly, for eviction of the respective tenant (the respective respondent) on diverse grounds. The first ground is that they had made unauthorised constructions in the respective parts of the suit property under their tenancy. During the pendency of the suit, the third plaintiff was added and the plaint allowed to be amended because meanwhile the third plaintiff purchased the suit property from the first and second plaintiffs and sought for eviction of the tenants on grounds of reasonable requirements. The Trial Court on appreciation of evidence of witnesses and documents passed the decree for eviction finding all the grounds to be valid. The first appeal court, however, reversed the decree on holding that the first plaintiff, the Partnership firm, is not the owner of the one-half share, but the said share was owned by its Partner. Therefore, the notice for eviction was bad. The appeal court also found that the constructions were not unauthorised and were made with consent of the owners. It further held that the third plaintiff viz. Shankara Hall and Shankara Institute of Philosophy and Culture cannot be said to have reasonable requirement to occupy the whole property for the fulfillment of its objects.

( 4 ) IT is from that judgment and decree of the first appellate court that the present appeal has been filed. The gist of the grounds of appeal is that the decision in the first appeal is perverse, the finding of facts being contradictory of evidence on record, based on no evidence and on illegal assumptions and vitiated by irrelevant consideration and exclusion of relevant materials and erroneous application of law.

( 5 ) THE Respondents now challenge the maintainability of these second appeals under the provisions of section 100 of the Code as amended in 1976.

( 6 ) BEFORE the Division Bench of this Court presided over by Shamsuddin Ahmed J. , the Respondents-Defendants relied on an earlier decision of the Division Bench of this Court presided over by A. M. Bhattacharjee J, (as he then was), in Debakinandan Boobna v. Harasunder Sarkar, reported in 1986 (1) CLJ 278. There it was decided that no second appeal could lie under amended section 100 of the Code solely on the ground that the fording of the first appellate court has been arrived at on no evidence or is such as could not be arrived at on the evidence on record by any reasonable man or even on ground of the finding having been arrived at on an erroneous application of law which is, otherwise, settled.

( 7 ) HOWEVER, the Division Bench presided over by Shamsuddin Ahmed J. , hearing the instant appeals on this preliminary question could not persuade itself to share the view taken in Boobna's case (supra) and is inclined to hold that legality of inference on facts is as well justiciable under section 100 of the Code as a substantial question of law within the meaning of its amended provision.

( 8 ) IF we go by the decision in Boobna's case (supra), the appeal is not maintainable. T