Ava Saha @ Shaw & Ors. vs Mira Shaw

This second appeal is directed against the judgement and decree dated 9th June, 2016 passed by the Learned Additional District Judge, First Track Court No. II, Sealdah in Ejectment appeal No. 03 of 2012 affirming the judgement and decree dated 26th September, 2011 passed by the Learned Civil Judge (Junior Division), Additional Court at Sealdah in Ejectment Suit No. 231 of 2004, at the instance of the defendants/appellants.

Let us now consider as to whether any substantial question of law is involved in this appeal for which the appeal is required to be admitted under the provision of Order 41 Rule 11 of the Code of Civil Procedure, or not.

Heard the learned counsel appearing for the appellants. Considered the materials on record including the judgements and decrees of the courts below.

Here is the case where we find that the plaintiff/respondent filed a suit for eviction against the defendant/appellant/tenant on several grounds available under the West Bengal Premises Tenancy Act, 1997.

Service of ejectment notice under Section 6(4) of the said Act upon the defendant is not disputed. Legality of such notice has also not been challenged. Both the courts below concurrently found that the defendant/appellant, has violated the provision of Clause (p) of Section 108 of the Transfer of Property Act by constructing a mezzanine floor within the tenancy shop room. With such a concurrent findings of fact both the courts below held that the plaintiff is entitled to get a decree for eviction as the defendant constructed the mezzanine floor within the tenancy shop room without taking prior consent of the landlord in writing.

The learned advocate appearing for the appellants tried to convince us by submitting that the findings of the courts below cannot be supported, as, such findings were arrived at by the learned courts below without holding any local inspection of the suit premises by any advocate commissioner. Identical argument was also advanced on behalf of the defendant/appellant before the learned First Appellate Court but the learned First Appellate Court discarded such submission of the appellant by referring to the admission made by the defendant/appellant in her cross-examination where she admitted the existence of the mezzanine floor in the suit room by saying that the shop room at present has got a mezzanine level and a ground level. The said witness of the defendant being DW 1 has also admitted in her evidence that the defendant used to run two separate business i.e. one from the ground floor another from the mezzanine floor.

When relying upon such evidence of the defendant, both the courts below came to the concurrent findings that the defendant is guilty of violation of provision of Clause (p) of Section 108 of the Transfer of Property Act, this court sitting in this jurisdiction does not find any justifiable reason to upset such findings of the courts below.

In these set of facts, we feel that no substantial question of law is involved in this appeal for which the appeal is required to be admitted under the provision of Order 41 Rule 11 of the Code of Civil Procedure.

Accordingly, we decline to admit this appeal.

The appeal is, thus, dismissed.

Since the appeal is disposed of in the manner as aforesaid, no further order need be passed on the stay application.

The application for stay being CAN 9061 of 2016 is thus, deemed to be disposed of.

Urgent Photostat certified copy of this order, if applied for, be supplied to the Learned advocates for the parties immediately.