Anita Chowdhury & Ors vs Pulak Kumar Chowdhury & Ors
2022 Latest Caselaw 8521 Cal

20.12.2022 SL No.61 Court No.8 (gc) SAT 91 of 2010

Anita Chowdhury & Ors.

Vs.

Pulak Kumar Chowdhury & Ors.

This matter appeared in the Warning List of 29th

November, 2022 with a clear indication that this matter

shall be transferred to the Regular Bench on 5th

December, 2022. Since then the matter is appearing in

the list. The appeal is of the year 2010. The appellants

have due notice of the matter. The appellants are not

represented.

The department has reported that the defects

pointed by the Additional Stamp Report in its report dated

17th March, 2010 have not yet been removed. We find

from the record that the Coordinate Bench on 9th

November, 2011 noticing such defects had directed the

appellants to remove the defects within a period of two

weeks and the matter was directed to be listed after two

weeks. Since then the matter did not appear until the

matter was listed in the Warning List of 29th November,

2022.

We could have dismissed the second appeal for non-

removal of defects. However, we propose to consider

whether the second appeal involves any substantial

question of law. The appellate decree dated 25th

November, 2009 affirming the judgment and decree of the

Trial Court dated 9th September, 2008 in a suit for

declaration of right, title and interest and permanent

injunction and for declaration that the proceeding

No.14/Misc./04 (proceeding for correction of record) is

wrong and illegal. The Trial Court dismissed the suit

having noticed that plaintiffs had failed to show any

documentary evidence that the several plots of land of

Mouza Noapara were, in fact, belonging to them and

subsequently those properties were recorded in the name

of the defendant No.1 in lieu of transfer by way of

exchange. These facts have not been established at the

Trial Court and the Appellate Court having concurred

with the view of the Trial Court upon taking into

consideration such facts dismissed the appeal on contest.

The Appellate Court has also noticed that the

predecessor-in-interest of the parties, i.e. Gosai Das

Choudhury who was the original owner of the suit

property and other properties transferred the suit

property by registered deed of gift in favour of the

defendant No.1 Pulak Choudhury which is clear from

Ext.A. on the other hand, the subject matter of deed of

gift (Ext.B) was given to Padmabarna, the predecessor of

the plaintiff/appellants. For reasons not disclosed by the

plaintiff/appellants there is no averment in the plaint as

to how the said deed of gift (Ext.B) the property convert

thereunder was dealt with and disposed of. It is also not

the plaintiffs' case that the defendant No.1 has been in

possession of that property i.e. the property transferred

under Ext.B. This clearly established that the plaintiffs

have failed to prove the case of exchange which was duly

taken note of by the Trial Court. The Appellate Court has

also rightly observed that the suit was filed to thwart the

proceeding of the Review Authority initiated by the

defendant No.1 seeking correction of the entry of the

R.O.R based on Exhibit A and B.

The second appeal, accordingly, stands dismissed at

the admission stage.

However, there shall be no order as to costs.

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