Calcutta High Court (Appellete Side)
Bimal Ghosh & Ors vs Ajit Ghosh & Ors on 21 February, 2022
14 21.02.2022 SA 172 of 2019
with
Ct-08 I.A No. CAN 1 of 2018 (Old No. 7029 of 2018)
Bimal Ghosh & Ors.
Vs.
Ajit Ghosh & Ors.
ar
Mr. Debasish Roy
Mr. Bidyut Baran Biswas
... For the Appellants
The second appeal is arising out of first
appellate court's judgement and decree dated
26th March, 2018 by affirming the judgement
and decree dated 29th July, 2015 passed by the
learned Civil Judge (Junior Division), 1st Court at
Krishnagar, Nadia in Title Suit No. 107 of 2010.
The decree was passed in the said suit by
directing the defendants to quit and vacate the
suit property and deliver its khas possession to
the plaintiffs within 60 days from the date of
decree, failing which the plaintiffs shall be at
liberty to execute the same by due process of
law.
The suit property being 17 decimals of land
mentioned in the schedule of the plaint was
originally belonged to one Batakrishna Ghosh
and his name was duly recorded in C.S but
during the R.S operation the suit property was
erroneously recorded in the name of Bhiku
Ghosh, who was the predecessor-in-interest of
the defendants in respect of the suit property as
well as the non-suit property i.e. 9 decimals of
land in plot no. 263/338. Batakrishna Ghosh
had previously filed a title suit being T.S No. 62
of 1963 on 7th February, 1963 against Bhiku
Ghosh for a declaration of 16 anna title over the
suit property and for a further declaration that
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R.S.R.O.R was wrongly recorded in the name of
Bhiku Ghosh. The said suit being T.S 62 of
1963 was transferred to the Additional Court of
the learned Civil Judge (Junior Division),
Krishnagar and the same was renumbered as T.S
182 of 1965. This suit was decreed ex-parte on
30th March, 1963 with an observation that the
R.S.R.O.R recorded in the name of Bhiku Ghosh
as erroneous and the defendants were restrained
from disturbing the peaceful possession of the
plaintiffs over the suit property. The said decree
was binding against Bhiku Ghosh and Pashupati
Ghosh. The said decree was never challanged.
It is further stated that during the flood of
1971 the house of Bhiku Ghosh was completely
destroyed and as a result he had sought for
permission from Batakrishna Ghosh to reside in
a portion of the suit property and out of
sympathy he was allowed to reside there with a
condition to vacate the same as and when
required by the later. After the death of Bhiku
Ghosh in the year 1986, the plaintiffs, being the
legal heirs of Batakrishna Ghosh, revoked the
permission given to the defendants and asked
them to deliver the possession of the suit
property in their favour. The defendants again
sought for permission to reside over the suit
property for sometime by assuring to deliver its
possession to the plaintiffs as and when required
by them and such permission was granted.
However, in the year 2010 due to their personal
requirement the defendants were asked to quit
and vacate the suit property. Since the request
to leave the said premises was not adhered to,
the suit was filed. The defendants before the
trial court denied that their possession was
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permissive and tried to take shelter under the
plea that the suit was ex parte and they were not
aware of it and hence, the decree is not binding
upon them.
On the basis of the pleadings and documents
enclosed in the said proceeding, the trial court
decreed the suit in favour of the plaintiffs.
It transpires from the judgment and decree of
the trial court as well as the first appellate court
that ownership of Batakrishna Ghosh, the
predecessors-in-interest of the plaintiffs, was
established at the trial upon exhibiting certified
copy of the deed executed on 30th April, 1953.
The said exhibit was marked without any
objection. The plaintiffs all throughout
contended that Batakrishna Ghosh was the
original owner of the suit property and his name
was recorded in the C.S record. In support of
the claim certified copy of the purchased deed,
namely, exhibit-5 was exhibited.
It also transpires from Exhibit-1 and
Exhibit1/1 that Batakrishna Ghosh,
predecessor-in-interest of the respondent nos. 1
to 6, filed T.S No. 182 of 1965 before the learned
Additional Munsif, Krishnagar for declaration of
his title in respect of the suit property and said
suit was decreed ex parte against Bhiku Ghosh
and Pasupati Ghosh on 30th March, 1966
holding that Batakrishna Ghosh has title in
respect of the suit property, both Bhiku and
Pasupati were restrained from interfering with
the possession of Batakrishna Ghosh and the
entries of R.S Khatian (Exhibit-B) were
erroneous. Further, the learned Additional
Munsif while confirming the title of Batakrishna
Ghosh in respect of the suit property relied upon
the title deed dated 13th June, 1953, which was
marked as Exhibit-5 in the learned court below.
The said judgment and decree not having been
challenged by Bhiku Ghosh or the present
appellants, have attained finality and as such,
the same is binding upon them.
There was no evidence on record suggesting
acquisition of title by the predecessors-in-
interest of the appellants in respect of the suit
property and Exhibit-5 completely demolishes
any such claim. The observation regarding
erroneous entry in record of rights in Title Suit
No. 182 of 1965 was never challenged. The said
decree was fully implemented.
On the basis of such evidence, the
concurrent findings of fact arrived at by both the
courts below cannot be said to be perverse. In
view of the fact that there is no substantial
question of law involved for which the second
appeal could be admitted.
On such consideration, we do not find any
merit in the second appeal.
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 injunction under CAN
1 of 2018 (CAN 7029 of 2018) becomes
infructuous and the same is also dismissed.
(Ajoy Kumar Mukherjee,J.) (Soumen Sen, J.)
