Calcutta High Court (Appellete Side)
Latika Saha vs Parimal Kumar Saha & Anr on 7 January, 2021
07.01.2021 SAT 145 of 2020
Court No. 02
with
Item No. DL - 15
nandy
CAN 1 of 2019
(Appeal Admitted)
Latika Saha
Vs.
Parimal Kumar Saha & Anr.
Mr. Sibasish Ghosh, Advocate
Mr. Sourav Sen, Advocate
......for the Appellant
Leave is granted to the learned Advocate for the
appellant to remove the defect pointed out by the
Stamp Reporter here and now.
The appeal shall be heard on the following
substantial questions of law:-
i) Whether the Court of appeal below was justified
in dismissing the suit of the plaintiff/appellant
solely on the ground that the suit for recovery of
possession on the ground of revocation of
license was filed after the expiration of twelve
years and, therefore, the defendant has
presumably perfected the title by way of adverse
possession while admittedly the defendant did
not take any defence of adverse possession in
the written-statement?
ii) Whether the learned Judge of the Lower
Appellate Court substantially erred in law in
reversing the judgment of the learned trial Judge
on a misconception of law by not holding that the
Article 55 of the Limitation Act is not attracted in
the present case since the defendants did not
specifically plead when the possession of the
said defendants have become hostile and
2
adverse to the plaintiff and therefore, the
impugned judgment and decree cannot be
sustained?
The office is directed to formally register the
appeal.
CAN 1 of 2020
The appellant has sought for an interim
protection against the defendants/respondents so that
the suit property cannot be transferred and/or dealt
with by him pursuant to the judgment of the first
appellate Court. It is undeniable that a suit for
revocation of license was filed by the plaintiff/appellant,
which stood decreed in the trial Court. Although the
defendants did not take any plea of adverse
possession in the written-statement nor any issue was
framed in this regard yet the first appellate Court suo
motu drew a presumption of perfection of title by way of
adverse possession.
In such backdrop, the plaintiff/appellant alleges
that taking advantage of the title having conferred on
the basis of the impugned judgment of the first
appellate Court, the defendant/respondents are
contemplating to deal with the property.
We find that the appellant has been able to make
out a prima facie case of balance of convenience and
inconvenience and irreparable loss and injury in his
favour.
The defendants/respondents are hereby
restrained from transferring, alienating, encumbering
and/or dealing with the property in any manner
whatsoever and shall not create any third party interest
in respect of the suit property till eight weeks from date
or until further order, whichever is earlier.
The appellant is directed to serve a copy of the
application upon the defendants/respondents by speed
post and shall file affidavit of service on the returnable
date.
The application is made returnable four weeks
hence.
(Kausik Chanda, J.) (Harish Tandon, J.)
