Shrimati Sabita Ghosh & Ors vs Unknown
2022 Latest Caselaw 55 Cal

10.01.2022
Court No.8
Item No.20
SB / TGH
                            SA 116 of 2021

                       (via video conference)


              In the matter of : Shrimati Sabita Ghosh & Ors.


                   Mr. Rabindranath Mahato .... For the Appellants




                   This second appeal is directed against the judgment and

             decree dated 28th August, 2020 passed by the learned Civil

             Judge, Senior Division, affirming the judgment and decree

             dated 18th September, 2018 passed by the learned Civil Judge,

             Junior Division, 2nd Court at Katwa, Burdwan, in Title Suit No.

             132 of 2012.

                   Mr. Rabindranath Mahato, learned Counsel appearing on

             behalf of the appellants, has submitted that both the Courts

             have committed error in law in dismissing the suit on a

             misconception of law inasmuch as the learned Judges ought to

             have directed the respondent authorities to produce the

documents relating to surrender of dealership in accordance

with the pleadings and having not done so, the decree of

affirmation has caused serious miscarriage of justice.

The argument of Mr. Mahato turns of the aforesaid issue

being answered in favour of the appellants.

The appellants are the legal heirs of one Gyanendra

Nath Ghosh, since deceased. Gyanendra died intestate on 26th April, 2007 leaving behind the plaintiffs as his legal heirs and

representatives. This suit was instituted by such legal heirs in

the year 2012 claiming declaration and permanent injunction

against the defendants in respect of the ration shop and the

licence alleged to have been held or stood in the name of

Gyanendra during his lifetime. During trial it had come up that

since 29th November, 1973 the licence in respect of the said

ration business was deposited by respondent no.5 till the death

of Gyanendra. It further transpires that during lifetime

Gyanendra, under certain profit sharing arrangement, received

certain amount from respondent no.5. Over these years, the

licence never stood in the name of Gyanendra. Both the Courts,

accordingly, had arrived at a finding that having regard to the

long passage of time since 1973 till the death of Gyanendra, the

licence never stood in the name of Gyanendra, it shall be

presumed that Gyanendra is not the dealer. Moreover, the

licence is not heritable in terms of the West Bengal Public

Distribution System (Maintenance and Control) Order enacted

by the Governor in exercise of the power conferred by Section 3

of the Essential Commodities Act, 1955.

In view of the fact that the dealership licence of a ration

shop is non-heritable and the evidence, both document and

oral, shows that Gyanendra had no right since 29th November,

1973 and also having regard to the evidence of PW 1 admitting

that he collected ration from Biswanath for almost last 20 years,

we find that there is no substantial question of law involved in

this appeal.

Accordingly, the appeal stands dismissed.

However, there shall be no order as to costs.

(Kesang Doma Bhutia, J.)                 (Soumen Sen, J.)