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2012 Supreme(Cal) 543
IN THE HIGH COURT OF CALCUTTA
PRASENJIT MANDAL, J.
Bibhu Bhusan Das – Appellant
Vs.
Sudhir Kumar Dey & Ors. – Respondents
S.A. No. 268 of 2008
Decided On: 26.06.2012
Advocate Appeared:
For Appellant/Petitioner/Plaintiff: Mr. Aniruddha Chatterjee, Mr. Kushal Chatterjee and Mrs. S. Das
For Respondents/Defendant: Mr. Samit Kr. Datta
Perversity in the findings of fact by the lower courts can be considered a substantial question of law and can be entertained in a second appeal under Section 100 of the Code of Civil Procedure.
Headnote:
EVICTION SUIT - POSSESSION - CPC ORDER 21 RULE 35 - EXECUTION OF DECREE - TRESPASSER STATUS - SUBSTANTIAL QUESTION OF LAW - SECOND APPEAL - CPC SECTION 100 - PERVERSE FINDING OF FACT:
Fact of the Case:
Plaintiff filed a suit for eviction against the defendants, treating them as trespassers, after he was forcibly evicted from the suit premises despite obtaining a decree for eviction in an earlier suit. The trial court and the lower appellate court dismissed the suit, holding that the plaintiff failed to get possession of the property in execution of the earlier decree.
Finding of the Court:
The High Court allowed the second appeal, holding that the lower courts committed substantial errors of law in dismissing the suit and the appeal by overlooking convincing evidence that the plaintiff got possession of the premises in the earlier suit by execution of the decree. The court held that the defendants' status in respect of the suit premises was that of trespassers and that the subsequent suit for eviction was maintainable.
Issues: 1. Whether the lower courts erred in dismissing the suit on the ground that the plaintiff did not get possession of the property, despite the earlier decree in his favor, overlooking the fact that a second suit for eviction by treating the defendant as a trespasser was maintainable? 2. Whether the lower courts erred in holding that the appellant failed to get possession in execution of the earlier decree by disbelieving the Bailiff's report without any just cause?
Ratio Decidendi: 1. The plaintiff proved that he got possession of the suit premises in the earlier suit by execution of the decree on August 1, 1988. 2. The evidence of the process server who went to deliver possession of the suit premises in favor of the petitioner was corroborated by the execution report submitted jointly by the two process servers. 3. The observations of the courts below that there was no order by the Executing Court for breaking upon the padlock by the process server is contrary to the materials-on-record. 4. The subsequent suit has been filed for eviction of the trespassers accordingly.
Final Decision: The second appeal was allowed, and the judgments and decrees passed by both the courts below were set aside. The plaintiff was granted a decree for recovery of possession of the suit premises by evicting the defendants therefrom, along with mesne profits from the date of institution of the suit till recovery of possession.
Prasenjit Mandal, J.
1. This second appeal is at the instance of the plaintiff/appellant and is directed against the judgment and decree dated August 31, 2004 passed by the learned Additional District Judge. 1st Track Court. Sealdah in Title Appeal No. 41 of 2000 thereby affirming the judgment and decree dated January 28, 2000 passed by the learned Civil Judge (Junior Division). 1st Court. Sealdah in Title Suit No. 49 of 1989. The plaintiff/appellant/petitioner herein instituted a suit being Title-Suit No. 49 of 1989 contending, inter alia. that previously he instituted a suit being Title Suit No. 374 of 1986 against the respondents/opposite parties for ejectment on the ground of, inter alia, default. The said suit was decreed ex parte with costs against the defendants on March 18, 1988.
2. The defendants filed an application under Order 9 Rule 13 of the CPC for setting aside the said ex parte decree and that application was dismissed on contests. He did not take any step thereafter and then the plaintiff/petitioner filed an application for execution of the said decree and he got possession of the suit premises on August 1, 1988. but. surprisingly on August 2, 1988. the defendants/opposite parties herein forcibly evicted the plaintiff/petitioner from the suit premises. The plaintiff lodged a G.D. entry on August 3, 1988 and thereafter, he filed a suit for eviction against the defendants/opposite parties herein as trespassers.
3. The defendants/respondents/opposite parties herein contested the said suit. Both the parties adduced evidence and on the basis of the evidence on record, the learned Trial Judge dismissed the said suit.
4. The Lower Appellate Court affirmed the said judgment and decree. Being aggrieved, this second appeal has been preferred by the plaintiff/appellant/ petitioner herein. At the time of admission of the second appeal, it was held that the second appeal would be heard on the following substantial questions of law:-
(a) Whether the learned Courts below committed substantial error of law in dismissing the suit on the ground that in spite of the earlier decree passed in favour of the plaintiff, he did not get possession of the property by totally overlooking the fact that even in such a case, the second suit for eviction by treating the defendant as trespasser was maintainable and the defendant having already suffered a decree for eviction, his status is no better than that of trespasser:
(b) Whether the learned Courts below committed substantial error of law in holding that the appellant failed to get possession in execution of the earlier decree by totally disbelieving the Bailiffs report without any just cause:
5. Upon hearing the learned Counsel for the parties and on going through the materials-on-record, I find that both the Courts below have committed substantial errors of law in dismissing the suit and the appeal by holding that the plaintiff did not get possession of the premises in suit by overlooking the convincing evidence on record. In support of the delivery of possession in favour of the decree-holder, if it is proved that the decree-holder/petitioner herein got possession of the suit premises in the earlier suit by execution of the decree, the status of the defendants/ judgment-debtors/respondents/petitioners herein in respect of the suit premises would be nothing but that of trespassers. The P.W. 1 has stated on Oath that he got possession of the suit property by execution of the decree dated March 18, 1988 on August 1, 1988. The evidence of the P.W. 1 is corroborated by one of the joint process servers who went to deliver possession of the suit premises in favour of the petitioner.
6. The defendant/judgment-debtor contended that the suit premises was kept under lock and key and there was no order for delivery of possession by breaking open the padlock or by removing any kind of construction. But. such contention of the judgment debtor has been wiped out by the overwhelming evidence of the p
