AMAL KANTI BHATTACHARJI, BHATTACHARYYA

( 1 ) THIS is a defendant's appeal against a judgment and decree passed by the Sub-Judge, Second Court, Howrah, reversing a decree of dismissal passed by the Munsif, 4th Court, Howrah. The facts of the case is as follows :

( 2 ) THE plaintiff-respondent filed the suit in the Munsif's Court for evicting the defendant-appellant from the suit property claiming him to be a licensee therein. The plaintiff's case was that the suit property described in Schedule 'a' to the plaint originally belonged to one Sankar Kumar Patra who was a thicka tenant by erecting structures thereon. The said Sankar Patra sold his thicka tenancy right in respect of the entire 'a' Schedule property to one Satish Chandra Pandit, son of Manmatha Ch. Pand it, by a registered sale deed dated 22-2-67. While in possession of the property the said Satish Ch. Pandit inducted the defendant who is his own brother, there as a licensee. The plaintiff purchased the 'b' Schedule property out of the 'a' Schedule property from Satish Ch. Pandit by a registered deed dated 2-1-79. The defendant was in possession of one room in the 'b' Schedule property. According to the plaintiff the licence given to the defendant was automatically revoked with the sale of the 'b' Sch. property to him. The plaintiff subsequently served a lawyer's notice on the defendant asking him to vacate the property and the defendant having failed to vacate the same a suit was filed for his eviction.

( 3 ) THE defendant contested the suit claiming his right in the property as a co-sharer. According to him his father Manmatha Nath Pandit was the actual purchaser of the 'b' Schedule property and he purchased it in the benami of Satish Ch. Pandit with the consent of his other sons and daughter. The defendant, therefore, claimed one eighth share in the property. He denied the plaintiff's claim of granting and revocation of licence and asserted his own right as a co-sharer.

( 4 ) THE trial court found that the defendant's claim of benami purchase of the property by his father Manmatha Nath Pandit was not proved. It, therefore, held that the plaintiff had proved her title to the property by purchase from Satish Chandra Pandit. The trial court, however, held that the induction of the defendant to the property as a licensee was not proved. The said court, therefore, dismissed the suit. The appellate court concurred with the finding that the plff. had proved her title but disagreed with the trial court that the alleged licence was not proved. The said court believed the plaintiff's claim of licence and decreed the suit.

( 5 ) IN the appeal before this court the finding regarding the plaintiff-respondent's title to the suit property has not been challenged. The appeal is contested on the point that the respondent's claim of licence on the property has been wrongly decided by the lower appellate court and that it should be reversed as the evidence adduced in this regard was not considered by the appellate court.

( 6 ) ON behalf of the appellant Shri Gopal Chandra Mukherjee argues that the lower appellate Court's finding that the defendant was a licencee under the plaintiff contrary to the finding of the trial court, actually raises a point of law as the same is not based on an apprisal of the evidence actually adduced in this respect. He cites a decision of Justice Manoj Kr. Mukherjee of this Court in M/s. Laksmi Narayan Mistanna Pratisthan v. Suresh Ch. Das reported in 1980 (1) CLJ 232 in which his Lordship held that where the lower appellate court overlooked a material piece of evidence the judgment suffers from the infirmity of non-consideration of material evidence on record which is a point of law for which a concurrent finding of fact was liable to be set aside in a second appeal.

( 7 ) MR. Mukherjee also cited the Supreme Court's decision in J. B. Sharma v. State of Madhya Pradesh and another reported in AIR 1988 SC 703. In the said case a suit was dismissed in t

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