Gayatri Sardar vs Samar Sardar & Ors
2022 Latest Caselaw 8520 Cal

Item-46.                                       SAT 274 of 2009
           20-12-2022
                                      CAN 1 of 2013 (old CAN 783 of 2013)
                                     CAN 2 of 2019 (old CAN 11953 of 2019)
  sg                                 CAN 3 of 2019 (old CAN 11961 of 2019)
             Ct. 8

                                                      Gayatri Sardar
                                                      Versus
                                                Samar Sardar & Ors.




                                      The matter appeared in the warning list on 29 th

                        November, 2022 and thereafter transferred to the regular list on 5 th

                        December, 2022. There was a clear indication in the list that the

                        matter shall be transferred to the daily cause list on 5th December,

                        2022 and since then the appeal is appearing in the list.

                                The appellant is not represented nor any accommodation is

                        prayed for on behalf of the appellants. The appeal is of the year

                        2009.

                                It appears from record that on 20th January, 2022, on the

                        prayer of the learned Counsel for the appellant, the matter was

                        directed to go out of list.

                                It appears that the defect as notified on 12th January, 2011

                        was attempted to be removed by filing two applications. CAN

                        11961 of 2019 is an application filed by the appellant/plaintiff for

                        granting a leave to continue the second appeal against the legal

                        heirs of the deceased respondent no.3 mentioned in paragraph 5.

The appellant has also filed an application for substitution on the

death of the respondent no.3 being CAN 11953 of 2019. But no

attempt was made so far to move these applications.

The second appeal is arising our of a judgment and decree of

the First Appellate Court dated 9th February, 2009 affirming the

decree dated 28th February, 2003 in a suit for declaration of the

plaintiff's title and for recover of khas possession is the subject

matter of challenge in this second appeal. Both the courts, on the

basis of the pleadings and evidence on record, had arrived at a

finding that the plaintiff has failed to establish that the defendant

is a licencee.

The Trial Court as well as the First Appellate Court has

taken into consideration the oral and documentary evidence which

would show that the suit property belonged to one Jitendra Nath

Sardar and Surendra Nath Sarkar. PW-1 has admitted that suit plot

belonged to Jiten and Suren. Surendra Nath Sardar gifted 08

decimals land from western portion of the suit plot to Gouri Bala

Sen by a deed of gift. The Exhibits D and D(1) would reveal that

Surendra Nath Sardar has 1/2 share in 14 decimals land of the suit

plot and Gouri had acquired 07 decimals of suit plot. The

defendant nos. 1 and 3 acquired only 07 decimals land of the suit

plot by virtue of a deed of gift from Gouri Bala. During cross-

examination, the PW-1 has deposed that her mother and two

brothers, Sadhan and Samar are co-sharers of the suit plot.

The plaintiff had failed to prove that her mother acquired

title in the suit plot by way of purchase from Manick Lal Ghosh.

PW-1 has deposed that Sadhan (defendant no.3) has been residing

in the suit plot and that he has two pucca rooms. The evidence on

record would show that the deed of gift of Surendra and Gouri

being Exhibits C and D were acted upon.

The findings arrived at by the Trial Court as well as First

Appellate Court on the basis of the aforesaid oral and

documentary evidence, do not appear to be perverse.

On the basis of the said evidence, the views taken by both

the courts are plausible. The evidences are based on cogent and

credible evidence.

The second appeal is dismissed at the admission stage.

In view of the aforesaid, the application for injunction being

CAN 1 of 2013 (old CAN 783 of 2013) stands dismissed.

CAN 2 of 2019 (old CAN 11953 of 2019) is the application

for substitution of the respondent no.3, who died intestate on 2 nd

June, 2009 leaving behind his legal heirs mentioned in paragraph

2 of the said petition. All the substituted defendants are major, sui

juri and of sound mind.

The department shall substituted the legal heirs of the

deceased respondent no.3 in place and instead of the said deceased

defendant within two weeks from date and carry out necessary

amendments in the memorandum of appeal.

CAN 2 of 2019 (old CAN 11953 of 2019) is accordingly,

disposed of.

CAN 3 of 2019 (old CAN 11961 of 2019) is also disposed

of.

(Uday Kumar, J.)                                 (Soumen Sen, J.)