Calcutta High Court (Appellete Side)
Sekh Mustakim & Ors vs Sekh Munsur & Ors on 13 December, 2022
13.12.2022
SL No.22
Court No.8
(gc)
SAT 55 of 2016
CAN 1 of 2016 (Old No: CAN 1653 of 2016)
Sekh Mustakim & Ors.
Vs.
Sekh Munsur & Ors.
Mr. Tapas Kr. Ghosh,
Mr. Tanmoy Chowdhury,
...for the Appellants.
The appellate order dated 21st January, 2016
affirming the order passed by the Trial Court on 16th
March, 1996 in a suit for declaration of title and
permanent injunction is the subject matter of the second
appeal. The decree dated 16th March, 1996 was
challenged before the Appellate Court in the year 2016.
The First Appellate Court has recorded in the order that
the certified copy of the judgment and decree was received
by the appellants on 29.01.2010 and thereafter they did
not take any steps to prefer any appeal. No reasonable
explanation was offered for the petitioner. The Appellate
Court has observed that the appeal was filed after 19
years. The certified copy of the judgment was not
annexed to the memorandum of appeal. The land in
question originally belonged to one Sk. Mohammad and
Sk. Kajem Ali. They purchased the suit property in Rent
Suit Execution Case No.447/35 in auction sale.
Thereafter, they used to possess the suit property
amicably. Previously the suit property belonged to Mihilal
Sk., Ashda Bibi, Sabura Bibi, Hasema Bibi and Nurjan
Bibi. They could not pay the rent of the suit property and
that is why one Mohammad Abdul Hafiz filed Rent Suit
No.831/34 before the learned Munsif, 2nd Court claiming
the arrear rent of the suit properties and the said suit was
accordingly decreed in favour of Mohammad Hafiz. The
suit property was auctioned in Rent Suit Execution Case
No.447/35 and Sk. Mohammad along with Kajem Ali had
purchased the suit property in auction sale. The dispute
started at the time of revisional survey operation in
respect of plot no.760 where according to the plaintiff the
name of the nephew of Janhar Bibi, that is, Sk. Altaf was
recorded as possessor. The share of Janhar to the extent
of 29 decimal of land has been erroneously recorded as 26
decimal of land in the name of Kajem Ali. The principal
defendants did not contest the suit. The only proforma
defendants contested the suit by filing written statement.
During trail, it transpires that the proforma defendants in
C.S. Plot No.760 have not contested the suit and they
have not challenged the tracing of title by the plaintiffs.
The plaintiff no.3 examined as P.W.1. He has in detail
narrated the acquisition of the properties by the plaintiffs.
The narrative towards the acquisition was never
challenged in the cross-examination. It appears from the
Exhibit-3 that Sk. Mohammad and Sk. Kajem Ali got the
suit property in auction sale in Rent Suit Execution Case
No.447/35 as mentioned above. The plaintiffs have also
proved payment of rents of the suit properties vide
Exhibits 2 to 2(f). These documents clearly establish that
the predecessor-in-interest of the plaintiffs have duly
acquired the suit property and they were in possession
and they used the suit property upon payment of rents to
the State of West Bengal. Exhibit-1 and 1(a), that is the
R.S.R.O.R. shows that the plot no.760 measuring 2.09
has been recorded in the name of Altaf and plot
no.760/866 has been recorded in the name of Kajem Ali.
The Trial Court has scanned the evidence of P.W.1 and
considered such evidence in the light of Exhibit-3 and
thereafter arrived at a conclusion that R.S.R.O.R. has
been erroneously prepared and not in accordance with the
share of the plaintiffs and Sk.Altaf, the only heir of Janhar
Bibi. The case of the plaintiffs was also proved by
Exhibit-3 produced by the employee of Suri Sadar sub-
registry office.
In view of the aforesaid, the learned Trial Court
decreed the suit on 16th March, 1996 as observed by the
First Appellate Court, the appeal was preferred almost
after 19 years without any sufficient cause being shown
for not being able to prefer the appeal with the aforesaid
period of limitation. Undoubtedly, valuable right has been
accrued in favour of the plaintiffs by virtue of long
passage of time.
We do not find any substantial question of law
involved in the second appeal for which the second appeal
can be admitted.
Accordingly, the second appeal is dismissed at the
admission stage.
In view of dismissal of the second appeal, the
application also stands dismissed.
However, there shall be no order as to costs.
(Uday Kumar, J.) (Soumen Sen, J.)
