Sri Subhas Chandra Das vs Smt. Alpana Das
2022 Latest Caselaw 391 Cal

Dl.   February
14.    8, 2022
                                       S.A.T. 216 of 2019

                                    Sri Subhas Chandra Das
                                              Vs.
                                        Smt. Alpana Das

                              Mr. Malay Kumar Das,
                              Mr. Doibyajyoti Raha,
                                         ...for the appellant.

                              Re: CAN 2 of 2021 (restoration)
                                 filed on September 16, 2021.


                              Sufficient cause being shown for non-representation of

                 the appellant on July 25, 2019 when the appeal stood dismissed for

                 default, we recall the order dismissing the appeal for default and

                 restore the appeal to its original file and number.



                              The application for restoration is, thus, allowed

                 without, however, any order as to costs.



                              Now we take up the appeal for admission hearing.



                              The appellant is aggrieved by the judgment and decree

                 dated March 30, 2019 passed by the learned Additional District

                 Judge, Fast Track Court No. III at Krishnagar, Nadia, in Title

                 Appeal No. 128 of 2016 affirming the judgment and decree dated

                 September 20, 2016 passed by the learned Civil Judge (Senior

                 Division), First Court at Krishnagar, Nadia in Title Suit No. 195 of

                 2007 with certain modifications.
                         2




            The dispute relates to the declaration of shares in

respect of 'ka' scheduled property and the claim of exclusive

possession of the plaintiff/respondent in relation to 'kha' scheduled

property. The evidence on record shows that the 'kha' scheduled

property is a part of 'ka' scheduled land where the

plaintiff/respondent constructed a dwelling house out of her own

fund. The construction was made in the year 1981. The husband of

the plaintiff, at the relevant time, was an employee of Food

Corporation of India. The defendant was unemployed till 1989.

Although the lands were purchased in the joint names of the

plaintiff and the defendant, but the evidence shows that the

defendant could not prove that he had contributed towards

construction of the dwelling house or was capable to raise such

construction on the 'kha' scheduled property. The defendant also

had failed to substantiate his claim of purchase of the 'ka' scheduled

land and construction of the dwelling house on the 'kha' scheduled

land from his own fund. It is not in dispute that the plaintiff had the

fund to purchase and raise construction on the 'kha' scheduled land.

The error committed by the learned trial judge has been

duly corrected by the lower appellate court by making following

observations :-

"Ld. Advocate for the appellant argued that when the

Ld. Trial Court came to the conclusion that the ka

schedule land is the joint property of the plaintiff and

defendant then how the kha schedule dwelling house is

to be declared in favour of the plaintiff alleged to have

been constructed by her. But this arguments of the Ld.

Advocate is also cannot be accepted because when in a

certain portion land of ka schedule land, kha schedule

dwelling house was constructed by plaintiff then at the

time of partition by metes and bounds by the Ld.

Advocate Commissioner is to see, so that the land with

the kha schedule dwelling house is allotted in the share

of plaintiff as far as possible and practicable and if, lthe

kha schedule house is constructed exceeding the share

of land purchased by the plaintiff, then the owelty

money is to be paid by the plaintiff/respondent to the

defendant/appellant in respect of that excess land on

which that kha schedule land was constructed and

extended.

So regard being had to the facts and circumstances of

the instant case and the discussion made above, this

court is of the opinion that there is no need for

interference of this court in the impugned judgement

passed by the Ld. Trial Court excepting slight

modification in respect of partition of land by the Ld.

Advocate Commissioner at the time of final decree as

state above."

In view of the aforesaid, we do not find any substantial

question of law involved in this appeal for which the same is

required to be admitted.

The second appeal is, therefore, summarily dismissed

under Order XLI Rule 11 of the Code of Civil Procedure.

In view of dismissal of the appeal, the connected

application for stay filed under CAN 6480 of 2019 becomes

infructuous and the same is also dismissed.

There will be no order as to costs.

( Soumen Sen, J. )

( Ajoy Kumar Mukherjee, J. ) dns