The main legal point established in the judgment is that a person who suffered a decree for eviction under the West Bengal Premises Tenancy Act, 1956 cannot be regarded as a tenant and is not entitled to claim any right as a tenant, even if the decree for eviction is not executed.

JUDGMENT :

Harish Tandon, J.

1. The suit for recovery of possession against the trespasser stood decreed by the Trial Court and such decree affirmed by the First Appellate Court, the defendant/appellant is assailing the concurrent finding of facts in the instant second appeal asserting that it involves substantial question of law and, therefore, to be admitted under Order 41 Rule 11 of the Code.

2. A little prelude to the facts emerged from the record are adumbrated herein below:

3. Undeniably one Trilokya Kumar Dutta Roy purchased the plot of land from one Ishwar Prasad Goenka & Ors. on the basis of the sale-deed dated 12.4.1960 and, thereafter, constructed a four storied building thereupon as per the sanction plan approved by the Kolkata Municipal Corporation. The said owner died intestate leaving behind him surviving his widow namely Smt. Dipti Rani Dutta Roy and two sons namely Sandeep Dutta Roy and Sudeep Dutta Roy and a daughter Jayasree Sengupta. A partition suit was filed by one of the son giving rise to registration of TS 72 of 1981 which was decreed on compromise on 19.6.1982. The terms of the compromise so entered revealed that the entire ground floor of the said building was allotted to Sandeep Dutta Roy, the first floor was allotted to Dipti Rani Dutta Roy, the second floor to Sudeep Dutta Roy and the third floor to Jayasree Sengupta. It further stipulates that the office in the ground floor, the staircase, garage and the other common passages would remain in common between the aforesaid co-sharers. The record would further reveal that though the partition suit was decreed in final form on the basis of a compromise decree yet the same was not engrossed on the stamp paper which led the appellant to contend that the property remain unpartitioned and, therefore, the suit at the behest of the respondent is not maintainable.

4. In support of the aforesaid contentions, the reliance is placed upon a judgment of this Court rendered in case of Prabhat Kumar Mukherjee vs. Santi Ranjan Banerjee, reported in 61 CWN 553. It is further contended that the appellant was a tenant in respect of the suit premises and subsequently, became the owner on the basis of a sale-deed executed on 7.10.1998 by the admitted owner and, therefore, it cannot be said that the appellant is a trespasser in respect of a property. It is further contended that a suit for eviction was filed for eviction of the appellant being Title Suit no. 319 of 1996 which was decreed ex parte but the said decree was never put into execution as subsequently the owner transferred the suit premises by executing the sale-deed and, therefore, the present suit for recovery of possession treating the appellant as trespasser is not maintainable.

5. It would be pertinent to record that though the decree for eviction passed against the appellant was not executed but subsequently, a suit was filed by the original plaintiff being Title Suit no. 280 of 2001 in the Court which was ultimately decreed on contest declaring the purported sale-deed dated 7.10.1998 to be void and the said decree has not been assailed further and, therefore, attained finality.

6. Three points have been raised in the instant appeal which according to the Counsel for the appellant involves substantial question of law. Firstly, it is contended that so long the final decree passed on compromise is not engrossed on the stamp paper, it does not severe the rights of the co-sharers and, therefore, the property would remain a joint property and, therefore, the suit for recovery of possession filed by one of such co-sharer is not maintainable. Secondly, even if the suit seeking declaration of the purported sale-deed to be void, is decreed on contest, it does not ipso facto render the status of a tenant as trespasser but restored the original status as tenant which he originally possessed in respect of a suit premises. Thirdly, the decree for eviction passed against the appellant was not executed and the period of limitati