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2017 Supreme(Gau) 1148
IN THE HIGH COURT OF GAUHATI
Kalyan Rai Surana, J.
Sri Ramawatar Agarwalla & Anr. S/o Sri Banshidhar Agarwalla - Petitioners
Versus
Sri Laxman Prasad Agarwalla S/o Sri Bansidhar Agarwala - Respondent
RSA No. 177 and 182 of 2017
Decided On : 14-08-2017
For the Petitioner: Mr. D. Mazumdar, Mr. S. Biswas, Ms. J. Kalkoti
For the Respondents: Mr. M.K. Choudhary, Mr. A. Barkakti, Mr. B. Dutta, Mr. P. Bhardwaj, Mr. N. Baruah
Headnote:
Civil Procedure Code, 1908 – Order 41I Rule 11 – Section 100 – Evidence – Suit premises – Physical possession – Permanent Injunction – Learned Senior Counsel respondent had submitted that he may be permitted to argue in order to satisfy this court that there does not exist any good grounds not to speak of any substantial questions of law for admitting appeal – Owing to nature of case and despite strong objection by learned Senior Counsel appellant for proposing to hear learned counsel at the stage of hearing under Order 41, Rule 11 CPC, this court has deemed it fit to hear learned counsel for both sides on the issue of admission as well as on interim stay to prevent repetition of respective arguments by both sides – Held, Court is not convinced to accept argument advanced by learned Senior Counsel appellant that there has been any misconstruction of any document or that there has been a wrong application of any principle of law in construing of any document involved in this case been no misreading of evidence by learned courts below – Ratio of case of cited by appellant does not appear to help appellants – Similarly, despite strenuous argument made by learned Senior Counsel for appellant, court is of considered opinion that there is nothing from which it can be held that concurrent findings recorded by both courts below is vitiated by perversity as such – Case of Municipal Committee cited on point does not appear to help appellant in any way – Appeals stand dismissed.
Kalyan Rai Surana, J.
The appellants are the plaintiffs in TS No. 5/2001, and they are the defendants in TS No. 65/2007, which was a counter-claim filed by the defendant No. 2 in TS No. 5/2001.
2. These two appeals under section 100 of the Civil Procedure Code are directed against the concurrent finding recorded by both the learned courts below.
a. RSA No. 182/2017 is directed against the judgment and decree dated 19.04.2017 passed by the learned court of Civil Judge, Tinsukia, in T.A. No. 8/2014, by which the judgment and decree dated 24.02.2014 passed by the learned Munsiff No.1, Tinsukia, in TS No. 5/2001 was upheld. By the said judgment, the suit was dismissed.
b. RSA No. 177/2017 is directed against the judgment and decree dated 19.04.2017 passed by the learned court of Civil Judge, Tinsukia, in T.A. No. 9/2014, by which the judgment and decree dated 24.02.2014 passed by the learned Munsiff No. 1, Tinsukia, in TS No. 65/2007 was upheld. By the said judgment, the defendants (i.e. plaintiffs in TS No. 5/2001) were held liable to be evicted from the suit premises described in Schedule-B of the plaint.
3. The sole respondent herein had appeared by filing a caveat. The respondent's side has filed two separate paper-books in both appeals, being a compilation of plaint, written statement, evidence of the witnesses, exhibits, memo of first appeal and judgment and decree passed by both the courts below.
4. At the commencement of the hearing of the appeal under Order 41I Rule 11 CPC, the learned Senior Counsel for the respondent had submitted that he may be permitted to argue in order to satisfy this court that there does not exist any good grounds, not to speak of any substantial questions of law for admitting the appeal. Owing to the nature of the case, and despite strong objection by the learned Senior Counsel for the appellant for proposing to hear the learned counsel at the stage of hearing under Order 41, Rule 11 CPC, this court has deemed it fit to hear the learned counsel for both sides on the issue of admission as well as on interim stay to prevent repetition of the respective arguments by both sides.
5. It appears that the bone of contention between the parties in half portion of a tenanted commercial premises, being shop No. 33 in a commercial market in Tinsukia Town of Assam. In the said commercial market there are two adjoining shops, one is numbered 'Shop No. 2' and the other is 'Shop No. 33'. One Sri Shyam Sunder Agarwal, who was arrayed as defendant No. 1, is the tenant in respect of Shop No. 2, from where he was doing business in the name of M/s. Shyam Sundar Binod Kumar. As per the plaint, the original tenant of shop No. 33 was Sri Banshidhar Agarwal, the father of the appellant-plaintiff No. 1 and the respondent-defendant No. 2, from where and doing business in the name of M/s. Kashiram Ramawatar. These two shops were merged and a departmental store in the name of appellant No. 2 i.e. M/s. Kamdhenu had been started by the appellant No. 1.
6. On 05.02.2001, Sri Ramawatar Agarwala as Plaintiff No. 1 (appellant No. 1 herein) and M/s. Kamdhenu, as plaintiff No. 2 (appellant No. 2 herein) filed a suit for declaration and permanent injunction against Sri Shyam Sunder Agarwala, Defendant No. 1 (not a party herein, hence he is referred herein as 'Defendant No. 1) and Sri Laxman Prasad Agarwala, Defendant No. 2 (sole respondent herein), which was registered before the Court of the learned Munsiff No. 1, Tinsukia, as T.S. No. 5/2001. For the sake of convenience, except for defendant No. 1, the parties to this appeal are referred as arrayed in the cause title.
7. In the plaint of TS 5/2001, it was projected the appellant No. 1 developed the business of the appellant No. 2, and by dint of his hard work labour and investment of huge money, the said appellant No. 2 firm became a household name of Tinsukia Town. By hatching conspiracy, at about 12.30 pm of 31.01.2001, the defendants with the help of some associates a
