Shri Sabyasachi Das @ Raju & Anr vs Narayan Chandra Saha
2021 Latest Caselaw 4325 Cal

19.08.2021
Item No. 29
Ct. No. 04
RP


                                S.A. 363 of 2016
                                         r




                       Shri Sabyasachi Das @ Raju & Anr.
                                      Vs.
                              Narayan Chandra Saha

                              (Via Video Conference)



                       Mr. Mrinal Kanti Ghosh, adv.

                                             ..... for appellants

                       Mr. Ghosh, learned advocate appears on

              behalf of appellants, who were defendants in the suit

              for declaration and injunction.          The trial Court

              decreed the suit without mandatory injunction, also

              claimed as a relief. Plaintiff obtained declaration of

              having 16 anas right, title and interest in respect of

              the suit 'Ka' schedule property with consequent

              restraint order on defendants.

                       He relies on section 105, Code of Civil

              Procedure to urge ground VIII with reference to

              following extract from judgment of the lower appellate

              Court.

                       "It is also a matter on record that the gift

                       deed   of   the   appellant's     mother   dated

                       21.11.1967 is neither proved nor relayed by

                       the LD Survey passed Commissioner to show

                       that the disputed passage as well as the

                       vacant land squarely fell within the 6½
                    2




         decimals of land owned by her mother by

         purchase and by way of gift."

        Plaintiff had tendered, inter alia, sale deed

no.2750 dated 18th February, 1956. The trial Court

had directed local inspection.       Commissioner filed

report, to which no objection was filed by defendants.

The trial Court said, inter alia, as follows regarding

the Commission.

        "The    Ld.     Advocate    Commissioner     was

        examined        on   27.08.12.   In   his   cross-

        examination he stated that he had selected

        the fixed point on the southern side of the suit

        land on the basis of the suit land itself. He

        did his survey worked as per writ issued to

        him in connection with the suit. He surveyed

        the entire plot."

         ....

"On the other hand, from the Ld Advocate

Commissioner's report, the result of the local

investigation appears as:-

"1. That the suit land as well as

the kobala land after being relayed in

the field and on super imposition on RS

map falls on RS plot number 95 of

mouja Maheshmati and which is shown

in red colour and area is 5 decimal (.05

acre).

2. That the northern portion of

the suit land I find plaintiffs house and

southern portion of breadth 8 foot

within suit land is vacant. The vacant

land also falls on the suit land as well

as kobala land.""

It is clear plaintiff got his declaration and

restraint order made upon defendants on proof of his

title deed and the commission carried out on the

basis thereof. Mr. Ghosh's submission that the

Commissioner did not relay or investigate with

reference to the gift deed dated 21 st November, 1967,

produced by his client, thereby giving rise to a

question of law suggested by ground VIII applying

section 105, cannot be accepted because the

investigation was made with reference to plaintiff's

deed. Both Courts found concurrently that the

Commissioner had reported the disputed land or

passage to be within the property covered by

plaintiff's deed. On such concurrent finding of fact no

question of law can arise.

SA 363 of 2016 is dismissed.

(Arindam Sinha, J.)

(Saugata Bhattacharyya, J.)