Calcutta High Court (Appellete Side)
Swapan Chakraborty vs Amit Banerjee Also Known As Amit … on 2 March, 2026
Author: Supratim Bhattacharya
Bench: Supratim Bhattacharya
2026:CHC-AS:357-DB
A-11
Ct No.16
02.03.2026
TN
SAT 167 of 2025
IA No: CAN 1 of 2026
Swapan Chakraborty
Vs.
Amit Banerjee also known as Amit Bandyopadhyay and
others
Mr. Sounak Bhattacharya,
Mr. Sounak Mondal,
Ms. Bipasha Bhattacharyya
....for the appellant
[
1. The present second appeal has been preferred against
a judgment of affirmance, whereby both the trial court
and the first appellate court granted a decree of
eviction against the defendant/appellant on multiple
grounds.
2. Simultaneously, the learned courts below held that
the plaintiffs/landlords/respondents were entitled to a
decree of eviction on the ground of reasonable
requirement, as contemplated in Section 6 of the West
Bengal Premises Tenancy Act, 1997 (hereinafter
referred to as “the 1997 Act”) and also observed that
since the appellant has ceased to be a tenant by
operation of Section 2(g) of the said Act, the plaintiffs
were, in any event, entitled to eviction.
3. Learned counsel for the appellant raises certain
questions. First, it is argued that the suit itself was
initiated on the premise of a notice under Section 6(4)
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of the 1997 Act. Moreover, throughout the plaint,
averments were made on the premise that the
appellant is a tenant. Within the four corners of the
plaint, it is contended, no pleading of the appellant
being rendered a trespasser by operation of Section
2(g) of the 1997 Act has been mentioned.
4. Moreover, the learned Trial Judge, as it appears from
the impugned judgment of the said court, framed the
issue of Section 2(g) additionally.
5. It is argued, by placing reliance on a judgment of a
learned Single Judge of this Court (one of us) in the
matter of Samir Kumar Kundu vs. Dipali Roy and
others, reported at 2019 SCC OnLine Cal 8172, that
where such contradictory pleadings are made,
premised on the footing that the defendants are
tenants as well as that Section 2(g) operates, the
courts erred in law in granting a decree of eviction.
6. Learned counsel appearing for the appellant also cites
an unreported order of a coordinate Bench of this
Court in SAT 159 of 2017 (Smt. Manu Kar & Ors. vs.
Sri Hironmoy Das). In the said order, the coordinate
Bench was pleased to admit a second appeal by
framing a substantial question of law as to whether
the First Appellate Court therein was justified in
passing a decree for eviction against the
defendant/appellant by referring to the provision
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contained in Section 2(g) of the 1997 Act even though
the suit for eviction was not founded on the ground of
extinguishment of the tenancy of the defendant in
conformity with the provision of Section 2(g) of the
said Act or not.
7. Learned counsel further argues that in the event the
appellant was decided to be a trespasser, the frame of
the suit would be bad, since simultaneously, an
eviction suit cannot be filed on the grounds for
eviction of a tenant under the provisions of the 1997
Act, which is a special statute, and as an ordinary
civil suit for eviction of a trespasser.
8. However, in our opinion, none of the above grounds
can be said to be debatable substantial questions of
law.
9. Insofar as the absence of specific pleadings in the
plaint with regard to the appellant having been
rendered a trespasser by operation of Section 2(g) of
the 1997 Act is concerned, the said rendering of a
person as trespasser under the said provision after
the moratorium period of five years from the demise of
the original tenant is by operation of law and it is well-
settled that law need not be pleaded in the pleadings,
particularly if the foundational facts are otherwise
evident from the pleadings and the materials on
record.
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10. Secondly, we find that not only did the learned Trial
Judge frame an additional issue specifically on the
operation of Section 2(g) but both the parties,
including the defendant/appellant, advanced their
arguments thereon. Thus, it also cannot be said that
the defendant/appellant was taken by surprise at the
time of trial on the said issue.
11. Thirdly, as to the maintainability of the suit before the
trial court, since the 1997 Act provides that an
eviction suit under Section 6 of the said Act shall be
filed before a learned “Civil Judge”, without any
indication that such investiture of power is in the
capacity of a persona designata, and a Civil Judge
also has the determination, by default, to entertain a
suit for eviction of a trespasser, we do not see any
difficulty in the maintainability of the suit both on the
grounds of the appellant being rendered a trespasser
and on reasonable requirement. Even otherwise, the
alteration of the capacity of the appellant from a
tenant to a trespasser is not a standalone feature but
a necessary fallout of the 1997 Act itself. Hence,
broadly speaking, a suit for eviction under the 1997
Act may contemplate a lesser relief of the defendant
being rendered a trespasser under a provision of the
self-same statute without such reliefs being labelled
as contradictory.
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12. Even otherwise, the lack of specific pleadings in the
plaint as to the operation of Section 2(g) of the 1997
Act does not deter the court from passing such a
decree, since it is also well-settled that there cannot
be any estoppel or acquiescence against the statute.
13. In the matter of Samir Kumar Kundu (supra), the
Court observed in paragraph no.25 that in the said
case, the consistent pleading of the plaintiff was that
the defendants were original tenants and the court
distinguished between a tenancy-in-common created
upon the death of the original tenant and an original
tenancy, in case of the latter there being no scope of
operation of Section 2(g) of the 1997 Act.
14. Thus, the said judgment is distinguishable on such
count.
15. Inasmuch as the judgment of the coordinate Bench in
Smt. Manu Kar (supra) is concerned, the learned
Division Bench had only formulated a substantial
question of law and did not lay down any proposition
either way on the said issue. Hence, with utmost
respect, the said judgment is also not a binding
precedent on the issue at hand.
16. In view of the above findings, we are of the opinion
that no substantial question of law is involved in the
appeal.
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17. Accordingly, SAT 167 of 2025 is dismissed under
Order XLI Rule 11 of the Code of Civil Procedure.
Consequentially, CAN 1 of 2026 is also dismissed.
18. There will be no order as to costs.
19. Urgent photostat certified copies of this order, if
applied for, be made available to the parties upon
compliance with the requisite formalities.
(Sabyasachi Bhattacharyya, J.)
(Supratim Bhattacharya, J.)