Calcutta High Court (Appellete Side)
Sudhir Kumar Sarkar vs Bhabani Sankar Majumdar on 5 July, 2022
SA 291 of 2011
Item 10. CAN 1 of 2011 (old CAN 894 of 2011)
05-07-2022
sg
Ct. 8
Sudhir Kumar Sarkar
Versus
Bhabani Sankar Majumdar
(Through Video Conference)
The second appeal appeared in the warning list on 22 nd June,
2022 and continued to appear in the list until it was transferred to
the daily cause list on 28th June, 2022.
The appellant is not represented.
This appeal is arising out of a judgment and decree passed
by the learned Additional District Judge, 1st Court, Nadia,
Krishnagar in Title Appeal No. 4 of 2006 setting aside the
judgment and decree dated 29th November, 2005 passed by the
learned Civil Judge (Junior Division), 1st Court, Krishnagar, Nadia
in Title Suit No. 105 of 2003.
We have gone through the order passed by the learned Trial
Judge as well as the First Appellate Court. The plaintiff filed a suit
for declaration of title and permanent injunction. The learned trial
judge decreed the suit on the basis of the interpretation of exhibit-
E. The learned Trial Jude was of the view that although the
defendant argued that the plaintiff and the defendant have no
right, title and interest over the suit property because before
selling 5 decimals of land to the defendant in the year 1981 the
plaintiff sold his entire 16 1/3rd decimals land to Biswanath
Mondal by Sale Deed No. 7021 dated 10 th December, 1980 (Ext.-
E). But it is found from Exhibit E that said Biswanath Mondal
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purchased 16 1/3rd decimals land out of 50 decimal land from one
Sukumar Mondal by registered Deed No. 4585 dated 12 th
September, 1965. It has not been mentioned in Exhibit E how
Sukumar Mondal got that property. On the contrary, Kshudubala
Dasi sold 49 decimals land of plot no. 4244 in the year 1060 to
Fatik Sarkar, Manohar Sarkar and Sahodeb Bala. If Kshudubala
Dasi sold 49 decimal land in 1960, subsequently, in the year 1980
no property of suit plot can be transferred. The trial court was of
the view that the defendant could not lead any evidence in details
as to how he obtained the suit property from Sukumar Mondal and
Biswanath Mondal. The Appellate Court is of the view that
Exhibit-E, being sale deed no. 7021 dated 10th December, 1980
was brought on record in the additional written statement filed by
the defendant on 18th September, 2001. The transfer of 16 1/3
decimals land by Sudhir Sarkar to Biswanath Mondal and
Rabindra Nath Mondal was on record and form part of the
pleading which was echoed by the learned trial judge as the
learned trial judge did not refer to the amendment order no. 43
dated 18th September, 2001, whereby by way of additional written
statement the said deed was disclosed and subsequently exhibited.
The position that emerged following the disclosure of the said
document and the relevant pleadings and evidence on record is
that originally the owner of the land in question was Kshudubala
Dasi. It was also admitted that the dag number of the said land as
4244. Exhibits 2, 3, 5 and 8 are the sale deeds produced by the
plaintiff to prove the transfer of the land in question from
Kshudubala Dasi to different persons. The plaintiff became the
owner of 16 1/3 decimals of land by exhibit 8. All those deeds
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show dag number of the transferred land as 4244. The later deed
bearing no. 8195 exhibit 9 executed on 22nd December, 1989
shows the dag number of the schedule land as 4244/11660. The
plaintiff claimed that he purchased 9 decimals of land by that deed
from Kshudubala Dasi. Hence, it is clear that "bata no.
4244/11660" was assigned later on. It is admitted that the bata
number was assigned later on and this does not prove that the
schedule property of exhibit E is different from the suit property.
Exhibit E was executed on 10th December, 1990. It shows dag
number of the schedule property as 4244. Exhibit A relied upon
by the plaintiff was executed at a later stage on 23 rd February,
1981 and this document shows dag number of the schedule
property as 4244/11660. In the same deed it has also been
mentioned that 4244/11660 comes from original dag no. 4244
(sabek). After close examination of the documents produced the
trial court arrived at a finding that the dag no. 4244/11660 of the
suit property originally comes from date no. 4244 of the same
khatian. The case of the plaintiff depends on the question of
transfer of 5 decimals of land to the defendant. It is evident that
exhibit 8 was executed at a later date after execution of exhibit E.
Accordingly the question of transfer of title in respect of 5
decimals of land to the defendant does not arise. After transfer of
title in respect of 16 1/3 decimals of land in dag no. 4244 the
plaintiff had no right, title and interest in the said land and as such
no title was passed to the defendant by exhibit E.
The Appellate Court on the basis of the evidence on record
arrived at a finding that since none of the parties has any right,
title or interest over the said 5 decimals of land, question of
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permanent injunction against the defendant does not arise. The
plaintiff is also not entitled to get permanent injunction against the
defendant. It was on the basis of which finding, the appeal was
allowed by the First Appellate Court. Since there was no whisper
about exhibit E in the pleadings filed by the respondent, we are of
the view that it was an error apparent on the face of the record and
on that score the learned Trial Judge could have decreed the suit
as observed by the Appellate Court that the said documents was in
existence and necessary pleadings are present and duly supported
by evidence on record, we are inclined to accept the views
expressed by the learned First Appellate Court. The finding of fact
arrived at by the First Appellate Court not being perversed and
based on evidence, we are not inclined to admit the second appeal.
Moreover, there was no substantial question involved in the
appeal.
The appeal is not admitted and the same is dismissed along
with CAN 1 of 2011 (old CAN 894 of 2011).
(Siddhartha Roy Chowdhury, J.) (Soumen Sen, J.)
