JUDGMENT :

SHIVAKANT PRASAD, J.

1. This appeal is directed against the order dated 23.06.2011 passed by the learned Judge, 3rd Bench, City Civil Court at Calcutta in Miscellaneous Appeal No. 23 of 2010 affirming the judgment and order dated 11.03.2010 passed by the learned Judge, 5th Bench Presidency Small Causes Court, Calcutta in Miscellaneous Case No. 17 of 2008 under Order 21 Rule 97 of the Code of Civil Procedure in connection with Title Execution Case No. 256 of 2007 arising out of Ejectment Suit No. 468 of 2001 (original Ejectment Suit No. 452 of 1995 in the City Civil Court at Calcutta), inter-alia on the grounds that the learned Trial Judge on the preliminary point of case should have sent it on remand under the provisions of Order 41 Rule 23 of the Code of Civil Procedure instead of deciding the Appeal on merits at the Appellate stage for the first time.

2. Secondly, the learned Judge of the Court of Appeal below ought to have held that the suit was not maintainable in law and in fact because on the death of the original tenant Bhaskar Chandra Ghosh, all his sons and daughters who were residing with him at the time of his death became tenants-in-common and the notice of evic