First Appeal Under Section 96 CPC against judgment and decree dated 15th day of May’ 2025

 

IN THE COURT OF THE LEARNED DISTRICT JUDGE, ALIPORE

SOUTH 24 PARGANAS

 

Civil Appeal No. ___ of 2025

 

In the matter of:
Sri [Defendant No. 2 Full Name],
S/o Late Amarendra Nath Chakraborty,
Residing at [Full Address], Kolkata – 700027.

… Appellant / Defendant No. 2

 

Versus

 

1.  Sri Samar Chandra Chandra,

2.  Sri Samir Chandra Chandra,

3.  Smt. [Surviving Daughter 1],

4.  Smt. [Surviving Daughter 2],

5.  Smt. [Surviving Daughter 3],

6.  [Granddaughter 1 of Anurupa Dutta],

7.  [Granddaughter 2 of Anurupa Dutta],

… Respondents / Plaintiffs

 

MEMORANDUM OF APPEAL

 

Under Section 96 CPC against judgment and decree dated 15^th day of May’ 2025, passed in Ejectment Suit No. 139 of 2009, by the Learned Civil Judge (Junior Division) 2^nd Court, Alipore, South 24 Parganas

 

The Appellant respectfully submits as follows:

 

1.   Facts and Background of the Case ;

 

The plaintiffs/respondents claim ownership over premises no. 84A, Peary Mohan Roy Road, Kolkata, inherited via partition deed dated 05.06.1972. They allege the tenancy was created in favour of Late Amarendra Nath Chakraborty under agreement dated 12.05.1989, and that after the death of Amarendra and his wife Tripti Kana Chakraborty, the tenancy continued under their legal heirs (including the appellant).

 

The plaintiffs allege the defendants defaulted on rent from June 2007, abandoned the premises, and were misusing the property for nuisance activities, including attempts to convert it into a law chamber. On 20.02.2009, they issued a notice under Section 6(4) of the West Bengal Premises Tenancy Act, 1997, terminating the tenancy. The suit was filed seeking eviction, khas possession, mesne profits, and related reliefs.

 

The appellant contested the suit, asserting lawful tenancy rights, denying abandonment or default, and alleging illegal acts by the plaintiffs, who forcibly locked up the premises and disrupted possession.

 

2.   Issues Framed by the Court ;

 

On perusing the record, it appears that several times the court framed issues in the suit, though inadvertently repeating or overlapping them. For clarity, the learned trial court recast and merged the issues into the following consolidated form for adjudication:

 

1.   Is the suit maintainable in its present form and prayer?

2.   Is there any cause of action to file the instant suit?

3.   Whether the suit is barred by the principle of waiver, acquiescence, and estoppel?

4.   Whether the plaintiffs issued a legally valid notice and the said notice was properly served upon the defendants?

5.   Whether the defendants are defaulters in payment of rent?

6.   Whether the defendants are guilty of causing nuisance with respect to the suit property?

7.   Whether the defendants are guilty of causing damage by keeping the suit property under lock and key?

8.   Whether the plaintiffs are entitled to get relief as prayed for?

9.   To what other relief(s) are the plaintiffs entitled?

 

After framing these issues, the trial court proceeded to record evidence and fixed the matter for peremptory hearing.

 

3.   Evidence on Record ;

 

A.   On behalf of Plaintiffs:

 

The plaintiffs examined PW-1, Samir Chandra Chandra, who filed affidavit-in-chief and was cross-examined. The following exhibits were marked on 11.08.2023:

 

·         Exhibit 1 (collectively): Eviction notice dated 20.02.2009, nine postal receipts, and three signed A/D cards.

·         Exhibit 2 (collectively): Two envelopes, two notices, and two A/D cards.

·         Exhibit 3: Letter sent under certificate of posting.

·         Exhibit 4: KMC tax receipt.

No further evidence was adduced by the plaintiffs.

 

B.   On behalf of Defendants ;

The appellant/defendant no. 2 deposed as DW-1, filed affidavit-in-chief, and was cross-examined. The following were marked:

 

·         Marked for identification:

o    Photocopy of letter dated 07.09.1992.

o    Photocopy of mother’s death certificate.

o    Photocopy of cremation money receipt.

o    Photocopy of CMRI-issued death certificate.

o    Photocopy of tenancy agreement (1989) and photocopy of rent receipt.

o    Six rent receipts in the name of the mother/father of the defendant.

o    Six money order receipts sent by Tapasi Das.

·         Exhibit A (with objection): Original receiving copy of GDE dated 02.02.2024.

The defense closed evidence thereafter, and the court fixed the matter for argument.

 

4.   Impugned Judgment ;

 

By judgment dated 15^th day of May’ 2025, the learned Civil Judge (Junior Division), 2^nd Court, Alipore, decreed the suit in favour of the plaintiffs, granting eviction and khas possession, with directions for the defendants to vacate within 60 days.

 

5.   Grounds of Appeal ;

 

A.   Erroneous findings on maintainability and cause of action. The court wrongly held the suit maintainable despite lack of a valid cause of action, ignoring the defense of lawful possession and non-abandonment.

 

B.   isapplication of waiver, acquiescence, and estoppels. The findings ignored material facts showing that the plaintiffs themselves accepted rent or failed to promptly act, waiving and acquiescing to continued tenancy.

 

C.   Improper appreciation of notice validity.
The service of notice was incomplete or defective, as it was not addressed to all tenants-in-common. The court’s reliance on Exhibit 1 series was erroneous.

 

D.   Faulty conclusion on default and nuisance.
The court failed to properly weigh defense evidence, including rent receipts, tenancy agreements, and money order receipts, which disproved the claims of default and nuisance.

 

E.   Procedural irregularity on abatement. The suit abated against deceased defendant no. 3 under Order 22 CPC, and no decree could be passed without substitution.

 

F.   Excessive grant of relief. The relief granted, including khas possession and mesne profits, was disproportionate and unsupported by evidence.

 

G.   The trial court failed to appreciate that the appellant no. 3 had filed the necessary application under Section 7(2) of the West Bengal Premises Tenancy Act, 1997, seeking relief, which was improperly disposed of without adequate opportunity or consideration.

 

H.   The learned court erred in holding that the appellant(s) kept the suit property under lock and key without concrete evidence and inferences drawn solely from absence at the premises, ignoring that the appellant(s) continued to maintain interest and control over the premises.

 

I.     The trial court wrongly held that use of the suit property by the husband of appellant no. 3 as a law chamber amounted to unauthorized change of user and nuisance, without any proof that such use caused actual damage or inconvenience to the respondents or altered the tenancy conditions.

 

J.    The trial court failed to consider that the appellant(s) did not receive proper and valid notice as per law, and that the eviction notice was not served at the proper address nor was the appellant(s) given adequate time to comply, thereby violating principles of natural justice.

 

K.   The court erred in rejecting the plea of the appellant(s) on the ground of non-compliance with the provisions of the WBPT Act, 1997, particularly with regard to Section 7(1) and 7(2), where the appellant(s) complied in part, and were prevented from full compliance due to extraneous circumstances beyond their control.

 

L.    The trial court overlooked the fact that the eviction proceedings are harsh in nature and require strict proof and compliance with statutory provisions which were not adhered to by the respondent(s).

 

M.  The impugned judgment and decree are therefore contrary to law, perverse, and liable to be set aside.

 

N.   The learned trial court failed to appreciate the principle enunciated in Nair Service Society Ltd. v. K.C. Alexander, AIR 1968 SC 1169, that valid and proper service of notice is indispensable for eviction proceedings. Similarly, the acceptance of rent by the plaintiffs despite alleged default amounts to waiver and acquiescence as held in Municipal Corporation of Delhi v. Gurnam Kaur, (1989) 3 SCC 321. Moreover, strict compliance with the provisions of the West Bengal Premises Tenancy Act, 1997, is mandatory, as reiterated in Swadeshi Cotton Mills Co. Ltd. v. Union of India, (1981) 1 SCC 664.

 

6.   Prayer ;

 

The appellant respectfully prays that this Hon’ble Court may be pleased to;

a) Admit this appeal and call for the records of Ejectment Suit No. 139 of 2009;

b) Stay the execution of the impugned judgment and decree;

c) Set aside the judgment and decree dated 15^th day of May’ 2025, passed by the Learned Civil Judge (Junior Division), 2^nd Court, Alipore;

d) Dismiss the plaintiffs’ suit in entirety;

e) Award costs of this appeal;

f) Pass such further or other orders as this Hon’ble Court may deem fit and proper.

 

Verification

 

I, [Appellant’s Full Name], do hereby verify that the contents of this memorandum of appeal are true and correct to my knowledge and belief, and nothing material has been concealed.

 

Date:
Place: Kolkata

[Signature of Appellant / Defendant No. 2]