Calcutta High Court (Appellete Side)
Smt. Rina Dey vs S. Jagannath Rao on 13 March, 2020
Author: Shivakant Prasad
Bench: Shivakant Prasad
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present : The Hon'ble Justice Shivakant Prasad
S.A. No. 135 of 2017
Smt. Rina Dey
Vs.
S. Jagannath Rao
For the appellant : Mr. Partha Pratim Mukhopadhyay
Mr. Amitava Pain
Mr. Subhrangshu Dutta
Mr. Nilmoni Das
For the respondent : Ms. Baisali Ghoshal
Mr. Niraj Kumar Singh
Ms. Rituparna Saha
CAV on : 12.02.2020
Judgment on : 13.03.2020
SHIVAKANT PRASAD, J.
This appeal is directed against the judgment and decree dated 29th January, 2015 passed by learned District Judge at Howrah in Title Appeal No. 37 of 2014 reversing the judgment and decree passed on 10.02.2014 by learned Civil Judge (Junior Division), 6th Court, Howrah in Title Suit No. 92 of 2011, inter alia, on the grounds that the Court below erred in reversing the judgment and decree of the Trial Court by remanding the suit to Trial Court for decision afresh on the basis of materials already on record when materials on record were sufficient to arrive at a decision of its own in terms of Order 41 Rule 25 of the Code of Civil Procedure and the Court of Appeal below has committed a substantial error of law in reversing the judgment and decree of the trial Judge when non framing issue as to whether the defendant was irrevocable licensee will not be fatal when parties knew the real issue involved in the case and as such the order of remand is bad in law; particularly, when parties have understood their case and for the purpose of proving and contesting defence of irrevocable license had adduced evidence, therefore, the findings of the Appellate Court with regard to acceptance of defence case of irrevocable license are totally perverse and is liable to be set aside.
Factual Matrix leading to this Second Appeal is that the plaintiff instituted a suit for eviction of the defendant as the licensee to the suit premises. The plaintiff became the owner of 'A' schedule suit property by virtue of a registered deed of sale executed by Sri Ajay Kr. Bag and Smt. Sangita Bag dated 29.9.2008 and the plaintiff mutated her name in LRROR recorded in the new Khatian No. 6064 and she raised pucca double storied building on the purchased land and started to reside thereat with her family since 28th February, 2010.
The plaintiff's further case is that the defendant a colleague of her husband and an employee of South Eastern Railways posted in Grade-I (CNW), in the office of Divisional Mechanical Engineer, Santragachi Loco was inducted as a licensee in respect of the first floor of the suit premises on his approach made sometime in the month of July 2010 and on his representation that he would soon be allotted his service quarter and would shift over there and as such the defendant was allowed to remain in permissive occupation in respect of the entire first floor comprising two rooms, kitchen, veranda, bath and privy as well as one room on the second floor without any license fee.
After expiry of a month, plaintiff requested the defendant to quit and vacate the suit premises but on the request of the defendant, he was allowed tenure of such license in September, 2010 and thereafter, the defendant was requested by the plaintiff and her husband to quit and vacate the licensed premises but he refused to do so and held out threat with dire consequences for which the plaintiff lodged a General Diary with Jagacha Police Station vide G.D. Entry No. 226 dated 05.09.2010 and a proceeding under Section 107 of the Cr.P.C. in Miscellaneous Petition No.1763 of 2010 was initiated against the defendant in the Court of Executive Magistrate, 2nd Court, Howrah.
The plaintiff revoked the license of the defendant w.e.f. 03.06.2011 by sending a notice dated 18.05.2011 through Sri Arindam Ganguly, Advocate under registered post with A.D. to the defendant but of no effect. Hence, the suit.
The defendant-respondent contested the suit by filing a written statement denying all the materials particulars made in the plaint and contended, inter alia, that the defendant is not a mere licensee, rather he continued and is still continuing his possession in the suit premises.
Specific case of the defendant is that the husband of the plaintiff made a proposal to the defendant for helping him by giving a sum of money as friendly accommodation loan on account of purchasing a piece of land for residential house of his own and the defendant agreed and gave a sum of Rs. 40,000/- only to the husband of the plaintiff who returned the said loan by way of installment to the defendant and the husband of the plaintiff again proposed to him for financial help on condition that he would be allowed to live in the two rooms on the first floor of the proposed two storied building and accordingly two storied pucca building consisting of four rooms, two on the ground floor and two on the first floor, one kitchen along with privy and bath on each floor stair case and attic was constructed with the building materials including all the wooden doors and windows and also materials for electrification of the entire building purchased by the defendant at his cost and on completion of the said building the defendant was allowed to occupy the entire first floor portion and the attic divided into two rooms of the newly constructed building and he has been residing together with other members of his family but the plaintiff has not as yet registered the sale deed in favour of the defendant. Accordingly, the defendant's claimed that his status is that of an irrevocable licensee.
On the above pleadings, the trial Court framed following issues:
1. Is the suit maintainable in its present form?
2. Is there is any valid and legal cause of action for the suit?
3. Is the defendant a licensee under the plaintiff in respect of the suit property?
4. Is the plaintiff entitled to get the decree as prayed for?
5. To what other relief, if any, the plaintiff is entitled under law and equity?
Parties to the suit adduced evidence and upon hearing them, the trial on evidence the learned trial Court decreed the suit in favour of the plaintiff- appellant for recovery of Khas possession of 'B' Schedule property on eviction of the defendant-respondent and directed him to quit and vacate and deliver up peaceful and 'Khas' possession of the suit property in favour of the plaintiff within 90 days from the date of the decree failing which the plaintiff-appellant was given liberty to execute the decree through Court by the judgment dated 10th February, 2014.
The defendant-respondent being aggrieved by the judgment of the trial Court preferred Title Apple No. 37/2014, on the grounds, inter alia, that the learned trial Court did not frame any issue as to whether licence granted in favour of the defendant by the plaintiff was an irrevocable license. Accordingly, upon hearing the parties, the Appeal Court below set aside the judgement and decree dated 10.02.2014 passed in TS No. 92/2011 by the 6th Court of learned Civil Judge (Jr. Division), Howrah with the direction to decide the following issues on the basis of evidence already on record and to write fresh judgment to dispose of the suit by the appellate judgment dated 29.01.2015 which is in Appeal before this Court.
The issue germane to the instant Appeal is whether the Appellate Court below unnecessarily remitted the case to the trial Court for decision afresh on the issue recasted by it to the effect as to whether the licence granted in favour of the defendant-respondent is revocable in nature.
It is submitted on behalf of the appellant that when the issue in the suit could be decided by the Appeal Court itself on the basis of the evidence already on record, there was no justification for the learned Court to remand the suit to the trial Court for fresh decision because the First Appellate Court is the Court of facts as well as law.
The plaintiff was examined as only PW and defendant was examined as DW 1 and other 4 witnesses, DW 2, DW 3, DW 4 and DW5.
The plaintiff deposed in chief that she raised two storied building on her purchased 'A' Schedule property and started to reside there with her family on and from 28.2.2010. In cross-examination of PW 1, the defendant gave suggestion to PW 1 that the defendant was in possession of the suit property since 2008 to which the plaintiff denied and further denied the suggestion that there was any agreement of sale between the defendant and the plaintiff in respect of 1st floor but the defendant claimed to be the owner of 1st floor. The defendant has no such document from which it can be seen that he is owner of the suit property. That apart, the defendant's case of irrevocable license can not be accepted on the face of his oral evidence claiming ownership of the property by virtue of agreement for sale though he claimed to have purchased building materials 23.5.2009, 19.8.2010, 4.6.2010, 11.8.2010, 24.8.2010, 12.6.2010, 2.9.2010, 5.8.2010, 10.10.2010 and 10.6.2009 being Exhibit-A series which are post suit document and appear to be manufactured in view of the fact that defendant gave suggestion in cross of PW 1 that defendant started to reside in the suit property since 2008. Moreso, none of the DW 2, DW 3, DW 4 and DW 5 gave evidence that alleged building materials were utilized for raising building and they could not produce any trade license and any other documents to prove that they are having trade for supplying building materials. Moreover the defendant in cross-examination deposed that he did not obtain any permission from Railway and he did not intimate to his employer about the construction of any such building. On the contrary, he admitted that the plaintiff is the owner of the suit property and has no allegation or claim against the plaintiff. Moreover, the defendant did not prove that the purchased building materials were utilized for construction of a building at the suit property.
DW 2 deposed that he constructed the building on being engaged by the defendant and for purchase of the construction materials, he used to make payment and the defendant used to reimburse the same but admittedly he has no licence for building construction work and no knowledge about building material bills being Exhibits A to R series. DW2 has no knowledge about relationship of the plaintiff and the defendant. Exbt. A/1, Exbt. A/3 Exbt. D dated 04.06.2010, 23.05.2009 and 10.06.2009 respectively are prior to July, 2010 but the person who issued the said bills did not depose.
DW 3 alleged that he was the saleman of J.K. Construction but there is no proof of his such employment. Besides he has no personal knowledge as to where the material were utilized. Likewise, DW 4 has no licence for civil work and no knowledge about subject matter of the suit property. DW 5 owner of Ansari Hardware has issued Bills Exhibits- G series but it was not possible for him to say that the bills issued to the defendant was for construction at what place.
The plaintiff deposed in chief that she entered the suit building in February 2010 and defendant did not cross-examine the said fact, rather suggestion given to PW 1 was that defendant started to reside since 2008. Therefore, alleged purchase of building material by defendant during 2009 to 2012 vide the Exhibit- A series have got no probative value in support of the defendant's case and when the defendant claims to have incurred expenditure for raising construction as part of sale consideration for sale of 1st floor Flat, the case of defendant's irrevocable license stands destroyed by his own evidence. It is argued that the defendant has not filed any suit for specific performance of contract against the plaintiff as there was no privity of contract. The defendant could not even claim such privity of contract with the husband of the plaintiff in respect of the property owned by the plaintiff. I fully agree with the submissions of learned counsel for the plaintiff as the doctrine of privity of contract provides that a contract cannot confer rights or impose obligations arising under it on any person or agent except the parties to it. It means that only those involved in striking a bargain would have standing to enforce it.
The Trial Court decreed the suit on finding that the defendant was licensee. The case of the defendant about irrevocable license was disbelieved but the appellate court without going into the merits of the case remanded the case for de novo trial when evidence documental and oral are available on record and both sides participated in the trial knowing fully well real issue involved in the case, and thus non-framing issue as to irrevocable license as alleged by the defendant does not prejudice the defendant in the trial inasmuch as the appellate court decided the ownership of the suit property in favour of the plaintiff on finding that the defendant never disputed the ownership of the plaintiff over the suit property. Yet, the appellate court remitted the suit for de novo trial after framing the following four issues:
1. Was the licence in favour of the defendant is irrevocable licence?
2. Did the defendant spent considerable amount of money for construction of the suit building of permanent character?
3. Is the plaintiff entitled to a decree subject to payment of adequate compensation to the defendant?
4. If the answer is affirmative what should be the amount of compsensation?
Learned counsel for the appellant has contended that appellate court's judgment for remanding the suit is violative of Order 41 Rule 24 of CP Code and not sustainable for the reasons that for deciding the issues framed by the appellate court, evidence both oral and documentary were available on record and the appellate court itself ought to have decided the case on merit instead of burdening the responsibility to the Trial court under Order 41 Rule 24 of the Code of Civil Procedure and relied on the following authority in support of his contention:
1) 33 CWN 1211 Page 1214-1215
2) 1999(3) SCC 161 para 8
In case of Promotha Nath Mazumdar vs. Nagendra Nath Mazumdar reported in 33 CWN 1211 at p.1214-1215 it has been observed thus:
"Having several difficult questions before him which had been determined by the trial Court in one way, it was the duty of the Subordinate Judge, if he was dissatisfied with the view taken by the first Court, to come to a conclusion on the evidence for himself after arriving at the necessary finding of facts and of law. I must strongly deprecate delivering a lecture on points of law to the trial Court and sending a case back for de novo trial to that Court when there is no reason whatever to think that either party had not an opportunity of producing all the evidence that it desired to produce in the first instance. That appears to me to amount merely to throwing the work of the Court on somebody else. It multiplies proceedings. I need not say that ordinarily, if an Appellate Court disagrees with the lower Court and is not satisfied with that Court's opinion, its duty is to come to a proper conclusion for itself. Prior to the recent amendment of the Civil Procedure Code, this Court in second appeal being unable at times to come to findings of fact was in the unfortunate position of having to order a remand after an endeavour to explain the law applicable to the case. That is not now the law even in this Court. The learned Subordinate Judge in the present case ought to have come to proper findings for himself instead of entailing on the parties unnecessary trouble and expenses of a de novo trial."
It is apt to notice the observations in para 7 & 8 of the Hon'ble Supreme Court in the case of Ashwinkumar K. Patel vs. Upendra J. Patel & Others [(1999) 3 Supreme Court Cases 161] for profitable consideration thus :
"7.The point for consideration is whether the order of the High Court in remitting the matter to the trial Court was necessary. Question also is whether this court should remand the case to the High Court in the event of this Court holding that the remand by the High Court was not called for. If not, whether the order of the trial Court is to be sustained.
8. In our view, the High Court should not ordinarily remand a case under Order 41 Rule 23 CPC to the lower Court merely because it considered that the reasoning of the lower Court in some respects was wrong. Such remand orders lead to unnecessary delays and cause prejudice to the parties to the case. When the material was available before the High Court, it should have itself decided the appeal one way or other. It could have considered the various aspects of the case mentioned in the order of the trial Court and considered whether the order of the trial Court ought to be confirmed or reversed or modified. It could have easily considered the documents and affidavits and decided about the prima-facie case on the material available. In matters involving agreements of 1980 (and 1996) on the one hand and an agreement of 1991 on the other, as in this case, such remand orders would lead to further delay and uncertainty. We are, therefore, of the view that the remand by the High Court was not necessary."
Thus, on respectful consideration of the above cited decisions this Court finds that the remand of the case by the Appellate Court was deprecated by the Hon'ble Supreme Court.
In second fold argument learned counsel for the appellant submitted that the Appellate Court finding that trial is fatal for non-framing of issues on pleadings is contrary to law in view of a decision in case of Bhagwati Prasad vs. Chandramaul (AIR 1966 Supreme Court 735) which is a case in respect of eviction of a licensee. It has been observed that--
"it is necessary to bear in mind the other principle that considerations of form cannot override the legitimate considerations of substance. If a plea is not specifically made and yet it is covered by an issue by implication, and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon it if it is satisfactorily proved by evidence. The general rule no doubt is that the relief should be founded on pleadings made by the parties. But where the substantial matters relating to the title of both parties to the suit are touched, though indirectly or even obscurely in the issue, and evidence has been led about them, then the argument that a particular matter was not expressly taken in the pleadings would be purely formal and technical and cannot succeed in every case. What the Court has to consider in dealing with such an objection is: did the parties know that the matter in question was involved in the trial, and did they lead evidence about it? If it appears that the parties did not know that the matter was in issue at the trial and one of them has had no opportunity to lead evidence in respect of it that undoubtedly would be a different matter. To allow one party to rely upon a matter in respect of which the other party did not lead evidence and has had no opportunity to lead evidence, would introduce considerations of prejudice, and in doing justice to one party, the Court cannot do injustice to another."
Reliance is further placed on the observation made in para12 of the cited decision thus:
"12. Turning then to the pleadings and evidence in this case, there can be little doubt that the defendant knew what he was specifically pleading. He had admitted the title of the plaintiff in regard to the plot and set up a case as to the manner in which he spent his own money in constructing the house. The plaintiff led evidence about the tenancy set up by him and the defendant led evidence about the agreement on which he relied. Both the pleas are clear and specific and the common basis of both the pleas was that the plaintiff was the owner and the defendant was in possession by his permission. In such a case the relationship between the parties would be either that of a landlord and tenant, or that of an owner of property and a person put into possession if it by the owner's licence. No other alternative is logically or legitimately possible. When parties led evidence in this case, clearly they were conscious of this position, and so, when the High Court came to the conclusion that the tenancy had not been proved, but the defendant's argument also had not been established, it clearly followed that the defendant was in possession of the suit premises by the leave and licence of the plaintiff. Once this conclusion was reached, the question as to whether any relief can be granted to the plaintiff or not was a mere matter of law, and in deciding this point in favour of the plaintiff, it cannot be said that any prejudice had been caused to the defendant."
Yet, another decision in case of Bhairab Chandra Nandan vs. Ranadhir Chandra Dutta (AIR 1988 SC 396) has been relied upon by the learned counsel for the appellant for the proposition that even if no specific issue is framed but when parties went to trial and adduced evidence keeping that issue in mind understanding their case and drew attention of the court in that regard for the purpose of proving the respective parties case, then non-framing of issue is not fatal to the case in the trial as the Appellate Court itself can frame issue and decide the case on merit when materials are available on record for such decision in conformity with Order 41 Rule 24 of Code of Civil Procedure and the appeal need not be remanded for a finding on that issue whether the licence granted to the defendant -respondent is irrevocable.
Thirdly, it is submitted that High Court being Second Appellate Court is entitled to record its own findings on merits as per provision of Section 103 CPC which enjoins that High Court is entitled to decide the case on merits even on facts which remained undecided by Appellate Court.
The provision of Section 103 CPC is reproduced hereunder--
"103. Power of High Court to determine issues of fact.-- In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal,--
(a)Which has not been determined by the lower Appellate Court or both by the Court of first instance and the lower Appellate Court, or
(b)Which has been wrongly determined by such Court or Courts by reason of a decision on such question of law as is referred to in Section
100."
Learned counsel placed reliance in case of Leela Soni & Ors. Vs. Rajesh Goyal & Ors (AIR 2001 SC 3601) to argue for the proposition that the High Court in second appeal is entitled to record findings on facts under Section 103 of CPC even if the appellate court below did not frame issue and decide the case on merits. Thus, it is very clear that the High Court can determine any issue on facts and law.
In rebuttal, learned counsel for the respondent placed reliance on reported decisions in case of Ram Sarup Gupta (Dead) By Lrs vs Bishun Narain Inter College & Ors. reported in AIR (1987) 2 Supreme Court Cases 555; Municipal Committee, Hoshiarpur Vs Punjab State Electricity Board & Ors. (2010 (13) SCC
216) for the proposition that when the defendant raised permanent construction, his interest in license is coupled with grant being irrevocable one. In Ram Sarup Gupta (supra) it has been held that where licence is oral, purpose of its grant and circumstances leading to the grant as also conduct of the parties have to be considered to determine whether it is irrevocable - on facts held, the oral licence was irrevocable.It has been observed thus:
"The principle behind Section 60 is that if a person allows another to build on his land in furtherance of the purpose for which he had granted licence, subject to any agreement to the contrary, he cannot turn round later on to revoke the licence. Section 60 is not exhaustive. The parties may agree expressly or impliedly that a licence which is prima facie revocable not falling within either of the two categories of licence as contemplated by Section 60 of the Act shall be irrevocable. Similarly, even if the two clauses of Section 60 are fulfilled to render the licence irrevocable yet it may not be so if the parties agree to the contrary. Such agreements may be in writing or otherwise and their terms or conditions may be express or implied. A licence may be oral also and in that case terms, conditions and the nature of the licence can be gathered from the purpose for which the licence is granted coupled with the conduct of the parties and the circumstances which may have led to the grant of the licence. License as defined by Section 52 of the Act means grant of permission, by a person to the other, a right to do or continue to do, in or upon, the immovable property of the grantor, something which would, in the absence of such right, be unlawful. Such right does not amount to an easement or any interest in the property. The rights so conferred is license. The grant of license may be express or implied which can be inferred from the conduct of the grantor. Section 60 provides that a license may be revoked by the grantor unless; (a) it is coupled with a transfer of property and such transfer is in force; (b) the licensee, acting upon the license, has executed a work of permanent character and incurred expenses in the execution. Revocation of license may be express or implied. Section 62 enumerates circumstances on the existence of which the license is deemed to be revoked. One of such conditions contemplate that where license is granted for a specific purpose and the purpose is attained, or abandoned, or if it becomes impracticable, the license shall be deemed to be revoked. Section 63 and 64 deal with license's right on revocation of the license to have a reasonable time to leave the property and remove the goods which he may have placed on the property and the licensee is further entitled to compensation if the license was granted for consideration and the license was terminated without any fault of his own. These provisions indicate that a license is revocable at the will of the grantor and the revocation may be expressed or implied. Section 60 enumerates the conditions under which a license is irrevocable. Firstly, the license is irrevocable if it is coupled with transfer of property and such right is enforced and secondly, if the licensee acting upon the license executes work of permanent character and incurs expenses in execution. Section 60 is not exhaustive."
The ratio of decision in case of Ram Sarup Gupta (supra) is distinguishable and not well nigh within the facts and circumstances of the instant case, as in the cited case, the grantor of the license had allowed the licensee for running school in the building and for using the open land for the purpose of school and in pursuance of the license so granted, school had constructed permanent building which was admitted by the owner but in the present case, the plaintiff disputed the defendant's act of alleged raising of permanent construction on the strength of license and defendant has failed to prove the case of irrevocable license; moreso, when in evidence the defendant has admitted in unequivocal term that the plaintiff is owner of the suit property but there was no privity of contract with the plaintiff-appellant to execute and register a deed of sale in respect of 1st floor in favour of defendant-respondent in lieu of consideration money allegedly for raising construction by the defendant-respondent.
Therefore, the contention of the learned counsel for the respondent that the respondent averred in the written statement of being irrevocable licensee for the permission to raise construction of permanent nature or that the plaintiff- appellant had verbally assured for transfer of part of the property by a deed of conveyance to the defendant-respondent holds no water.
It is submitted that under Section 100 of CP Code while admitting the Appeal the law has to be formulated and since there is no point of law taken by the appellant under Order 41 Rule 24 CPC the appellant is debarred from arguing the point. It is also argued that Section 103 CPC does give right to Hon'ble High Court to examine the case under fresh point of law without formulating the same. Accordingly, it is submitted that the matter should be remanded back to the learned Lower Appellate Court for fresh hearing of the Appeal.
I am unable to accept such contention in view of provision of Section 103 CPC as noted in the foregoing paragraph which authorizes the High Court to determine any issue necessary for the disposal of the appeal provided the evidence on it is sufficient on any of the two situations as mentioned in clause (a) and (b) of Section 103 CPC which makes it clear that provision of this section appears to be proviso and explanation to Section 100 of CPC and empowers the High Court determine any issue on the said two contingencies.
In case of Municipal Committee, Hoshiarpur (supra) vs. Punjab State Electricity Board & Ors. (2010) 13 SCC 216 for the proposition, as to when findings in second appeal can be interfered with. In the said cited case it was observed by the Hon'ble Supreme Court that the High Court was justified in reappreciating the facts without formulating a substantial question of law in view of the provision of Section 103 CPC. Contention of the appellant is that the 1st Appellate Court refused to decide the fact relating to an issue on irrevocable licence framed by him and remanded the case without deciding the case on merits when evidence both documentary and oral were available before the Appellate Court.
It has been held that there is no prohibition on entertaining a second appeal even on a question of fact provided the court is satisfied that the findings of fact recorded by the courts below stood vitiated by non-consideration of relevant evidence or by showing an erroneous approach to the matter i.e. that the findings of fact are found to be perverse.Therefore, the Appellate Court misdirected in law in failing to decide the case on merits by itself in gross violation of Order 41 Rule 24 of CPC which amounts to erroneous approach of the Appellate Court below and hence High Court is entitled to upset the judgment under Section 100 CPC.
Learned counsel for the respondent further referred to a decision in case reported in 2014 (3) WBLR Cal. 242 to argue that when licensee was allowed to raise permanent construction, he should be compensated before eviction, but the said case is quite distinguishable on facts as the parties to the suit are related with each other as brother and the plaintiff had permitted the defendant to raise permanent construction as per the agreement. So the decree for eviction was passed subject to payment of compensation on account of expenditure incurred in construction. Thus the cited case is distinguishable on facts since the appellant is admitted owner of the suit property by the defendant and the latter having failed to prove his case of license coupled with irrevocable grant, the decree for eviction is a matter of course. Therefore, the Trial Court was justified in passing decree of eviction. (See : 2006(3) CHN 1; AIR 1991 Cal. 405; AIR 1966 SC 735 para 10 and 12).
It was held that the ownership of the plaintiff having been admitted , the defendant was aware of his position and that his relationship with the plaintiff in regard to the property in dispute having not been proved , it must be held that he was licencee on the property.
Therefore, the decree of ejectment should not have been interfered with by the appellate court below. In the context above, bearing in mind the facts on record and proposition of law discussed in the foregoing paragraphs, this Court holds that the impugned judgment suffers from the illegality and is devoid of merit. Cosequently, the impugned judgment and the decree dated 29th January, 2015 in Title Appeal No. 37 of 2014 passed by the distict Judge Howrah reversing the judgment and decree dated 10th February, 2014 passed by learned Civil Judge (Junior Division), 6th Court, Howrah in Title Suit No. 92 of 2011 is hereby set aside and that of the trial Court is restored.
Accordingly, the Appeal being S.A. No. 135 of 2017 is allowed with cost. Department to send the LCR to the learned Court below forthwith. Certified website copies of the judgment, if applied for, be urgently made available to the parties, subject to compliance with all requisite formalities.
(SHIVAKANT PRASAD, J.)