JUDGMENT
N.S. Singh, J.
1. A prayer has been made by Shri N. Majumder learned Advocate for and on behalf of the appellant for adjournment of the case for week. I have heard Shri N. Majumder, learned counsel for the appellant.
2. This second appeal was admitted on 20-5-1982. No steps was taken by the appellant for service of notice upon the respondents for a long time after the case was admitted. By an order dated 19-7-1993 this Court made the following observations:
“Records indicate that since 1982 the appellant did not take steps to deposit Talabana. Office note dated 16-7-1993 also indicate that Talabana has not been filed. Learned counsel submits that he has taken steps and deposited the Talabana.
Office is directed to enquire and report by tomorrow.
List this case tommorrow.”‘
On the same day i.e.-19-7-1993 the office made a report that on scrutiny the matter has been checked and found that Talabana has not been filed till today (19-7-1993). On 20-7-1993 the appeal was dismissed on the ground that no steps have been taken by the appellant to file Talabana or to take any steps. On an application filed on behalf of the appellant in the year 1995, this case has been restored to
file by setting aside and quashing the dis
missal order dated 20-7-1993 vide order dated
21-11-1995 passed in Civil Misc. Case No. 612
of 1995. Thereafter, on 3-1-1996 Shri B. Das,
learned senior counsel for the appellant
submitted that when he was not designated as
Senior Advocate he filed the Vokalatnama.
Now that Mr. Das has become Senior
Advocate and, such, an Advocate will have to
execute the Vokalatnama, Mr. Das contended on that day. On the prayer of Mr. B. Das,
learned senior counsel for the appellant two
weeks time was granted by this Court on 3-1-
1996. Thereafter, on 29-1-1996 this Court
considering the existing facts and circums
tances of the case an order was passed to the
extent that a notice be sent to the appellant
under registered post with A/D. As per order
of this Court passed on 29-1-1996, a notice
was sent to the appellant under registered post
with A/D. On 16-2-1996 Mr. B. Das, learned
senior counsel has entered appearance on
behalf of the appellant along with Mr. A.
Bhattacharjee, Mr. P.S. Chakraborty, Mr. R.
Debnath and Mr. N. Majumder, learned
Advocates. On 20-3-1996 a prayer has been
made for and on behalf of Mr. B. Das, learned
senior counsel for the appellant for listing the
case in the next week. On subsequent dates
viz. 21-3-1996, 25-3-1996, 26-3-1996, 27-3-
1996, 28-3-1996 and 29-3-1996 this case was
left over.
3. Now, today i.e. 3-4-1996 Mr. N. Majumder, learned Advocate for the appellant make another prayer for adjournment of this cases for a week on the ground that his senior Shri B. Das, is feeling uneasy and his health is not good. This is not a good ground for adjourment of a case particularly this case. Because Mr. N. Majumder, learned counsel is one of the conducting counsel of the appellant in this case. The appellant engaged as many as 5 Advocates including Shri B. Das, learned senior Advocate as his counsel for conducting the case. For the last more than 12 years the appellant failed to take steps for service of notice upon the respondents.
4. As this case is a very old case it requires expeditious disposal of it, From the existing and prevailing circumstances, this Court is to
examine as to whether this Second appeal can be disposed of on its own merit without service of notice upon the respondents.
5. After proper application of my mind in the matter as well as after perusal of the materials available on record, I am of the view that this can be disposed of without service of notice upon the respondents on its own merit.
6. A Suit being Title Suit No. 32 of 1979 was filed by the plaintiff-respondents in the Court of the learned Munsiff, Dharmana-nagar North Tripura for recovery of arrears of rent, compensation for over stay valued at Rs. 450/- and also for ejectment valued at Rs. 1380/-.
7. The case of the plaintiff is that the defendant being a monthly tenant had been possessing the suit property for a long time till the lease was terminated on the expiry in the month of July, 1978. The monthly rent payable at the expiry of. each English Calendar month was initially fixed at Rs. 30/-, subsequently raised to Rs. 40/- since 5/6 years last. The defendant stopped the payment of monthly rent since November, 1976. The suit property was a shop bhiti consisting of two rooms the southern room was let out to the defendant and the northern room was allotted to one Prahallad Paul (defendant in T. S. No. 33 of 1978). The plaintiffs served eviction notice on 1-7-1978 demanding the payment of the arrears of rents and also requiring the defendants to vacate the suit property on the expiry of July, 1979. But the defendant did not comply with the said notice. Accordingly, the suit was filed by the plaintiffs on 18-9-1978.
8. The suit was contested by the defendants by filing a written statement. In the written statement the defendant contended that the defendant being a statutory in the suit property he cannot be evicted. Defendant had been possessing the suit property being tenant under the plaintiff at a monthly rent of Rs. 30/ – which was subsequently raised to Rs. 40/ – per month payable monthly according to the Bengali Calender month. The defendant further contended that the plaintiffs proposed to sell the suit property — one room to the
defendant and another room to the tenant/ defendant in T. S. No. 33 of 1978 of the Court of learned Munsiff,: Dharmanagar, North Tripura, Defendant further stated that the settlement was arrived amongst the plaintiffs and defendant that the price of the suit property (each room) should be at Rupees 10,000/-. Thereafter, the defendant advanced Rs. 2,000/- for transfer of southern room of the suit property. The defendant further contended that he continued his possession over the suit property by virtue of the part performance of agreement for sale and as such, plaintiffs have no legal right to seek for the eviction of the defendant.
9. The learned Munsiff framed as many as six issues for just determination of the real point of controvercies between the parties. The issues are quoted below :
(i) Is there any cause of action against the defendant?
(ii) Is the suit barred by law of limitation ?
(iii) Whether notice for eviction is valid, legal and served upon the defendant property?
(iv) Whether there was any relationship of landlord and monthly tenant in between the plaintiffs and the defendant ?
(v) Whether the plaintiffs are entitled to get the decree as prayed for ?
(vi) What relief/reliefs are the parties entitled to ?
10. After hearing the parties, learned Munsiff decreed the suit on contest and the following reliefs have been granted to the plaintiffs/ respondents.
The plaintiffs are entitled to realise Rs. 480/- being arrears of rent plus Rs. 390/-being the compensation money as the defendant over stayed after the limitation of lease. The plaintiffs must pay the Court-fees, if falls short, on that amount within seven days. As to the costs the conditional orders have been made in the following terms:
“If the defendant vacates the suit property and pay the arrears of rent and compensation
awarded within a month he (defendant) would be exempted from paying the costs of this suit. But if the defendant desirest have his luck tested in appeal and/or if he does not comply with the decree within one month he will have to pay the costs of this suit.”
11. The defendant preferred an appeal from the judgment and decree passed by the learned Munsiff in Title Suit No. 32 of 1978. The said appeal was registered as Title Appeal No. 29 of 1979 (Title Appeal No. 3 of 1981 of the Court of learned District Judge, North Tripura, Kailashahar.
12. Learned First appellate Court dismissed the appeal with a little modification as to the compensation awarded by the learned Munisiff. So far as the compensation is concerned the first appellate Court allowed the plaintiff-appellate to get compensation @ 6% per annum from 1-8-1978. Being dissatisfied with the judgment and decree passed by the learned District Judge, North Tripura Kailashahar in Title Appeal No. 29/79 (Title Appeal No. 3 of 1981), the plaintiff has preferred the present Second appeal No. 41 of 1982.
13. While admitting the second appeal, this Court formulated two substantial questions of law which are quoted below:
(1) Whether the learned Munsiff’s finding regarding period of lease is or erroneous in absence of an issue regarding terms of agreement of the lease?
(2) Whether the learned Munsiff ought to have framed an issue regarding agreement of sale which was the disputed matter between the parties ?
14. From the records it is very much clear that the learned Munsiff framed as-many-as six issues for just determination of real points of controvercies between the parties. Reference may be made at this stage the issue No. (iii), (iv) which are quoted as below :
(iii) Whether notice for eviction is valid, legal and served upon the defendant property ?
(iv) Whether there was any relationship of
landlord and monthly tenant in between the
plaintiffs and the defendant ?
15. On these issues it has been revealed that the learned Court below make an exhaustive finding with reference to the relationship amongst the plaintiffs-respondents and the defendant-appellant as landlord and tenant, meaning thereby a finding on the point relating to the existing of lease etc. between the landlord and tenant i.e. between the plaintiff-respondents and appellant-defendant. The relevant issue Nos. (iv)(v) and (vi) covers the matter relating to the existence of agreement of sale etc. or not.
16. It is true that there is no specific issue regarding the agreement of sale which was the disputed matter between parties. But there is a pleading on it as made by the defendant-appellant in his written statement. The defendant in his written statement stated that the talks as top sale was began and finalised in the last part of poush, 1383 B. S. and the price of the suit property (each room) was settled at Rs. 10,000/- and the defendant having been agreed to purchase the southern room of the suit property paid Rs. 2,000/- advance to the defendant No. 2 and the other tenant Shri Prahallad Paul also being agreed to the oral agreement for sale paid also Rs. 2,000/- to the defendant No. 2 in the last part of Poush 1383 B. S. The defendant went on to state that as some of the Vendors (plaintiffs) were minors, their guardiaship certificate would be obtained and the sale deed would be executed within six months, but the plaintiffs without complying with the agreement served eviction notice once on 5-7-1977 and later on 1-7-1978. In this regard, both the learned Courts below made concurrent and exhaustive finding and turned down the pleadings of the defendant-appellant with regard to the existence of the agreement for sale of the suit preperty.
17. The learned Munisff, Dharmanagar, North Tripura made a reasoned finding on this point and the same finds place in paragraphs 7, 8 and 9 of the judgment. While giving the findings on that point, the learned Munsiff held that both defendants and the D.W. 2 deposed that the talks as to sale was held with the defendant No. 2 in the month of
Agrahayan and having finalised the proposal, they paid Rs. 2,000/- each to the plaintiff No. 2 in the last part of Poush 1382 B.S.; but in the written statement it is stated that the talks of sale began to have commenced in Poush. Similarly, the first appellate Court also gave a detail finding on this point in paragraphs 11 and 12 of the impugned judgment affirming the judgment of the learned Munsiff.
18. It is well settled law that the decision of a case cannot be based on grounds outside the pleadings of the parties and it is the case pleaded that has to be found. The findings which is not based on pleading or evidence is not justified. In this connection a reference may be made in two cases between Trajan & Co. Nagappa Chettiar, respondent reported in AIR 1953 SC 235 and the case between Deoki Nandan v. Murlidhar reported in AIR 1957 SC 133 in which the Apex Court held that the decision of a case cannot be based on grounds outside the pleadings of the parties and that the findings which is not based on pleading or evidence is not justified. But in the instant case there is a specific pleading and evidence on record and, there is concurrent findings of both the learned Courts below. In the instant case the parties did not give up their respective pleadings and the foundation of their cases. On the basis of the pleadings of the parties, the Original Court as well as the First Appellate Court gave their reasoned findings.
19. For the reasons stated above, no injustice has been caused to the defendant-appellant in not framing a particular and, specific issue regarding the said agreement of sale which was the disputed matter between the parties inasmuch as a reasoned finding have been arrived with proper pleadings made by the parties concerned in the matter.
20. It is well settled law that the High Court is not empowered to interfere with a finding of fact in Second Appeal on the ground on its being erroneous unless there is substantial error or defect in procedure prescribed by law; which may have produced error or defect in the decision of the case upon merits.
21. For the reasons stated above, I find no illegalities or incorrectness in the impugned judgment and decree. This Second appeal has no merit. Accordingly, this Second appeal is dismissed. No costs.
The interim order staying the execution of the impugned judgment and decree is hereby vacated.