Sri Arun Kumar Jana & Ors vs Smt. Saraswati Patra
2021 Latest Caselaw 4686 Cal

Form No. J(2)


                         IN THE HIGH COURT AT CALCUTA
                         CIVIL APPELLATE JURISDICTION
                                 APPELLATE SIDE


      Present : The Hon'ble Justice Biswajit Basu
                               S.A. 575 of 1999
                         Sri Arun Kumar Jana & Ors.
                                     -Vs-
                     Smt. Saraswati Patra, since deceased
                     her heirs and legal representatives
                              Rabindra Patra & Ors.


For the appellants :    Mr. Narayan Chandra Mandal,
                        Ms. Mousumi Chatterjee,
                        Mr. Bhaskar Mondal.

For the respondents : Mr. Rabindranath Mahata,

Mr. Aritra Shankar Ray.

Heard on        : September 08, 2021


Judgment on : September 08, 2021


Biswajit Basu,J. :

The present second appeal is at the instance of the defendants in

a suit for declaration and permanent injunction. The said suit being the

Title Suit No. 219 of 1990 was decreed on July 22, 1996 whereby the

plaintiffs' title over the suit property was declared with a further decree of

permanent injunction restraining the defendants from interfering with the

plaintiffs' possession over the suit property and a decree for recovery of

khas possession of the 10 decimal of land on the southeast corner of the

suit property was also passed.

The appeal from the said decree by the defendants/appellants

being Title Appeal No.90 of 1996 was dismissed by the Appeal Court

below vide judgment and decree dated March 22, 1999.

The present Second Appeal was admitted on the following question

of law:-

"Whether in view of the finding of the Learned Courts below to the effect that the plaintiff was not in possession of a part of the suit property, the suit was maintainable to the said extent, as no prayer for recovery of possession had been prayed for in the suit."

The present second appeal was once allowed by the learned

Single Judge by the judgment and order dated August 30, 2016. The

said judgment, however, was recalled on an application filed by the

plaintiffs/respondents for review being R.V.W. No. 54 of 2017.

The appeal now has been placed before this Court for hearing

afresh.

Mr. Narayan Chandra Mondal learned advocate for the

appellants submits that except the substantial question of law already

formulated he is not proposing to formulate any other substantial

question of law.

Mr. Mahato learned counsel for the plaintiffs/respondents

submits that the lower Court records connected with the present second

appeal was sent down after the appeal was allowed earlier. He files a

copy of the amended plaint of the suit to contend that it is not correct

that the plaintiffs did not pray for a decree of recovery of possession, the

said payer was subsequently incorporated in the plaint by way of

amendment and the application for said amendment was treated as a

part of the plaint.

The photocopy of the plaint and the application for said

amendment are taken on record. On perusal of the said documents it

appears that prayer of the plaintiffs for such amendment was allowed by

the learned Trial Judge, therefore, the records speak that the plaintiffs

did pray for a decree of recovery of possession of the part of the suit

property in respect of which such decree of recovery of possession has

been passed.

That being the position, substantial question of law so

formulated is not involved in the present second appeal.

S.A. 575 of 1999 is dismissed without any order as to costs.

Urgent photostat certified copy of this order, if applied for, be

supplied to the parties subject to compliance with all requisite

formalities.

(Biswajit Basu, J.)