Biswanath Agarwalla vs Sabitri Bera & Ors

3. The suit premises is a shop situate in a small town commonly known as Raghunathpur in the district of Purulia. Appellant herein is said to have entered into possession of the suit premises in the year 1970. Originally, he claimed to have come into possession in the said premises pursuant to or in furtherance of an agreement for sale entered into on or about 18th March, 1970 by and between him and S.K. Abdul Wahid Molla, the father of Safiqur Rahaman.

The respondents purchased the suit premises from Safiqur Rahaman on 21st July, 1980 by three registered deeds of sale.

4. Indisputably, the respondent No.1 filed a suit being Title Suit No.88 of 1990 in the Court of Munsif, Raghunathpur, District Purulia (West Bengal) inter alia praying for eviction of the appellant from the suit premises 3 and mesne profit claiming themselves to be the owners and landlords thereof.

7. The respondent No.1 preferred an appeal thereagainst marked as Title Appeal No. 20/1993. By a judgment and order dated 31st May, 1995, the learned Appellate Court held that although the plaintiffs have failed to prove the relationship of landlord and tenant by and between them and the defendant or that the defendant had been let into the tenanted premises on leave and license basis, the plaintiffs - respondents are entitled to a decree for possession on the basis of his general title.

(Emphasis supplied).

(Emphasis supplied)

22. We, therefore, are of the opinion that in a case of this nature an issue was required to be framed. Furthermore, the High Court while determining the issues involved in the Second Appeal should have formulated questions of law.

23. However, we are of the opinion that keeping in view the peculiar facts and circumstances of this case and as the plaintiffs have filed the suit as far back in the year 1990, the interests of justice should be subserved if we in exercise of our jurisdiction under Article 142 of the Constitution of India issue the following directions with a view to do complete justice to the parties.

i. The plaintiffs may file an application for grant of leave to amend his plaint so as to enable him to pray for a decree for eviction of the defendant on the ground that he is a trespasser. ii. For the aforementioned purpose, he shall pay the requisite court fee in terms of the provisions of the Court Fees Act. iii. Such an application for grant of leave to amend the plaint as also requisite amount of court fees should be tendered within four weeks from date.

iv. The defendant - appellant would, in such an event, be entitled to file his additional written statement.

v. The learned trial judge shall frame an appropriate issue and the parties would be entitled to adduce any other or further evidence on such issue.

vi. All the evidences brought on record by the parties shall, however, be considered by the court for the purposes of disposal of the suit.

vii. The learned trial judge is directed to dispose of the suit as expeditiously as possible and preferably within 3 months from the date of filing of the application by the plaintiffs in terms of the aforementioned direction (i).

24. The appeals are allowed with the aforementioned directions. No costs.

August 4, 2009