IN THE HIGH COURT AT CALCUTTA CIVIL APPELLATE JURISDICTION APPELLATE SIDE Present: The Hon’ble Justice Sugato Majumdar SA/251/2009 SHRI GOBINDA SAHA VS SMT SEFALI SAHA AND ANR For the Appellant : Mr. Aniruddha Chatterjee, Sr. Adv. Mr. Iftekar Munshi, Adv. Hearing concluded on : 28.07.2026 Judgment on : 30.07.2026 Sugato Majumdar, J. : This Second Appeal was filed against the Judgment and Decree dated 11/02/2009 passed by the Learned Additional District Judge, First Track Third Court at Sealdah in T.A. No. 10 of 2008 whereby the Learned Court, being the First Appellate Court, set aside the Judgment and Decree dated 31/01/2008, passed by the Learned Trial Judge, being the Civil Judge, Junior Division, Second Court at Sealdah. The sum and substance of the plaint case is that:- a) One Debashis Chowdhury was the absolute owner of the property located at 81/2B, Raja Dinendra Street, Kolkata – 700006, consisting of four rooms. b) One Hare Krishna Saha, the uncle of the Applicant/Plaintiff was a tenant in respect of four rooms under the said Debashis Chowdhury. The Respondent/Defendant and other three persons were in P a g e | 2 occupation of one room each as licensee under the said Hare Krishna Saha, since deceased. c) The said Hare Krishna Saha, since deceased, breathed his last in the year 1985 leaving behind him his widow Subhasini Saha who succeeded the tenancy. d) The Appellant/Plaintiff purchased the right title and interests of the premises no. 81/2A and 81/2B, Raja Dinendra Street, Kolkata – 700006 in the month of May 1989. Since then, the said Subhasini Saha became a tenant under the Applicant/Plaintiff. The said Subhasini Saha paid rent to the Appellant/Plaintiff till the month of August 1989 and surrendered the tenancy right thereafter. The other three persons beside the Respondent/Defendant approached the Appellant/Plaintiff for negotiation to convert their respective occupations to tenancy. A settlement took place in the month of September, 1989. e) The Respondent/Defendant, being the step brother of the Appellant/Plaintiff, approached him for allowing to stay in the room as licensee. The Appellant/Plaintiff allowed him to stay there as licensee from the month of September, 1989. This licence was in respect of a small room on the first floor of the premises no. 81/2B, Raja Dinendra Street, Kolkata – 700006. The licence was extended till the Bengali month of Chaitra, 1396, corresponding to 14th April 1990. f) After revocation of the said licence with effect from 1st Baishak, 1397 B.S., corresponding to 15/04/1990, the Respondent/Defendant did P a g e | 3 not vacate the said room. Therefore, the Appellant/Plaintiff filed the instant suit for recovery of possession along with other reliefs. The Respondent/Defendant contested the suit by filing written statement denying all the allegations. The sum and substance of the written statement may be summarized as follow:- i) It was denied that the Appellant/Plaintiff was the real owner of the premises but was simply a rent collector of the real owner Debashis Chowdhury. ii) The Respondent/Defendant was a monthly tenant in respect of the suit premises along with some other portions since long and is in possession for a long period. He used to pay monthly rent to the owner of the suit premises through the rent collector being the Appellant/Plaintiff. iii) The Respondent/Defendant denied his status as licensee. The other rooms are also covered under his tenancy and the other brothers of the Respondent/Defendant are in occupation of the other rooms as licensee under him. These rooms are not suitable for dwelling purpose. iv) The said Subhasini Saha, since deceased, paid rent to the Appellant/Plaintiff from July 1989 to October 1989 without surrendering the tenancy either to the said Debashis Chowdhury or to the Appellant/Plaintiff during her lifetime. v) The Respondent/Defendant had been residing in the suit premises with his uncle late Hare Krishna Saha and thereafter with late P a g e | 4 Subhasini Saha as their adopted son during their last years of life. He also performed shradh ceremonies of late Hare Krishna Saha and late Subhasini Saha. The Appellant/Plaintiff forcibly received rent from the ground floor licensees although the legal heirs of late Subhasini Saha including Respondent/Defendant became tenants- in-common in respect of the entire suit premises. vi) The Respondent/Defendant, prayed, accordingly, dismissal of the suit. On the basis of rival pleadings, the following issues were framed: 1) Is the suit maintainable in its present form? 2) Is there any cause of action for this suit? 3) Is the defendant a licensee under the Plaintiff? 4) Is the Plaintiff entitled to get the decree as prayed for? 5) To what other reliefs, is the Plaintiff entitled to? The Learned Trial Court decided the Issue no. 1 and 2 in favour of the Appellant/Plaintiff. The Learned Trial Judge further observed that surrender of tenancy by late Subhasini Saha in the month of August 1989 has not been proved because the Respondent/Defendant produced rent receipts for the months of September 1989 and October 1989 (marked as Ext-A) which established that tenancy of late Subhasini Saha continued till the month of October 1989 in which month she expired. But after death of late Subhasini Saha, no rent receipt had been issued to the Respondent/Defendant. It was also observed by the Learned Trial Court that the Respondent/Defendant failed to establish that he was the adopted son of the late P a g e | 5 Subhasini Saha. On appreciation of evidence, the Learned Trial Court allowed the suit and directed the Respondent/Defendant to vacate the suit premises. The First Appellate Court set aside the judgment and decree passed by the learned Trial Court observing that the Appellant/Plaintiff failed to establish the surrender of tenancy. On being aggrieved and dissatisfied, the instant appeal was filed. The following substantial questions of law were framed: I. Whether the learned judge in the lower appellate court, substantially, erred in law in dismissing the suit for eviction, when the defendant/respondent failed to prove that he, being the heir and legal representative of Subhasini, has inherited the right of tenancy in respect of the premises in suit? II. Whether the learned judge in the lower appellate court, substantially, erred in law in reversing the decree of eviction passed by the learned trial judge, when the plaintiff/appellant has proved that he is the absolute owner of the suit property by producing his deeds of title, namely, deed of conveyance, municipal tax receipt and rent receipts being exhibits 1, 2 and 3 respectively? Mr. Munshi, the Learned Counsel for the Appellant, led by Mr. Chatterjee, the Learned Senior Counsel, argued that the Learned First Appellate Court erred in law in reversing the judgment of the Learned Trial Court. In fact, as argued, the Learned First Appellate Court made out a third case which was not the subject matter of the suit. The Learned Trial Court considered the actual issue and decided P a g e | 6 the same in favour of the Appellant on appreciation of evidence. According to the Learned Counsels for the Appellant, the impugned judgment, passed by the First Appellate Court is liable to be set aside. The substantive issues involved in the suit were whether the Appellant is the owner of the suit property, whether the Respondent was licensee, whether the license had been revoked and whether the Appellant is entitled to a decree of eviction. The Appellant produced title deeds which were marked as exhibits. There is no room to conclude that the Appellant is not the owner of the suit property. Both the courts concurrently held that the Appellant failed to establish that the said Subhasini Saha surrendered tenancy and held that there existed a landlord-tenant relationship between the Appellant and the said Subhasini Saha. On her death tenancy was supposed to devolve on her legal heir. The Respondent took a plea that he is adopted son of the said Subhasini Saha. Had this be so, obviously tenancy would have devolved on him. The Respondent did not produce any document to show existence of a valid adoption. Card of sraddh ceremony is not prove of any valid adoption. The Learned Trial Court correctly held that the Respondent failed to establish that he is the adopted son of the said Subhasini Saha. Since it is not proved that the Respondent is not the adopted son of the said Subhasini Saha, tenancy did not devolve on him by way of succession. There is nothing on record that the Respondent paid rent or any consideration money for occupation of the suit property, to the Appellant. The Respondent deposed to the extent that he was neither tenant nor licensee. There was no payment of rent or license fee by the Respondent to the Appellant. In that case, the Respondent is nothing but a gratuitous licensee whose license is liable to be revoked by the Appellant and in fact revoked. P a g e | 7 The Learned First Appellate Court stopped abruptly concluding that the Appellant failed to establish surrender of tenancy by Subhasini Saha, since deceased and interfered with the judgment and decree passed by the Learned Trial Court. The Learned First Appellate Court failed to understand that the whole dispute did not hinge on the death of Subhasini Saha. This is incidental to decide the actual issue of existence of licensor-licensee relationship, not the whole of the case. Therefore, the judgment and decree passed by the First Appellate Court cannot be upheld and is liable to be set aside. In nutshell, the instant appeal succeeds for the reasons aforesaid. The Judgment and Decree dated 11/02/2009 passed by the Learned Additional District Judge, First Track Third Court at Sealdah in T.A. No. 10 of 2008 is hereby set aside and the Judgment and Decree dated 31/01/2008, passed by the Learned Trial Judge, being the Civil Judge, Junior Division, Second Court at Sealdah in Title Suit No. 245 of 1990 is upheld. The Respondent is directed to hand over vacant and peaceful possession of the suit property to the Appellant within 60 days from the date of drawing up of the decree in case of default of which the Appellant will be at liberty to draw up execution proceeding. The Appellant is also at liberty to file separate suit for mesne-profit. The instant Appeal is disposed of along with all pending applications, if any. T.C.R be returned. Decree be drawn up. (Sugato Majumdar, J.)