(Gouranga Saha & Anr vs Jayanta Kumar
2022 Latest Caselaw 4430 Cal

    9
19.07.2022
Ct. No. 32
   rrc


                              MAT 1435 of 2019
                                     with
               IA No. CAN 1 of 2019 (Old No. CAN 9981 of 2019)
                                    with
               IA No. CAN 2 of 2019 (Old No. CAN 9982 of 2019)


                    (Gouranga Saha & Anr. Vs. Jayanta Kumar
                               Pramanic & Ors.)

                Mr. Firdous Samim
                Ms. Gopa Biswas
                Ms. Mousumi Hazra
                                         .... For the appellants

                Mr. Srijib Chakraborty
                Mr. Soumyajit Bhatta
                                         ..... For the respondent no. 1

Ms. Chama Mookherjee Mr. Bivekananda Tripathi ..... For the State

The present application being CAN 9982 of 2019 has

been preferred by two applicants, namely, Gouranga Saha

and Krishna Dey, seeking leave to prefer appeal against the

order dated 12th September, 2019 passed in the writ

petition being W.P. No. 16915 (W) of 2019.

Mr. Firdous Samim, learned advocate appearing for the

applicants submits that the applicants are essential parties

and their rights have been infringed by the order passed by

the learned Single Judge on 12th September, 2019. The said

order had been obtained by the writ petitioner upon

suppressing material facts and in a deceitful manner. The

writ petitioner is a land grabber, who wants to raise a

boundary wall and to illegally possess and utilise the land

in question. He has preferred the writ petition impleading

three persons as private respondents, who happen to be his

relatives. The learned advocate appearing for the said

respondents submitted at the time of hearing of the writ

petition that they do not have any objection to the writ

petitioner raising the boundary wall and considering such

submission the order was passed.

Drawing our attention to an application under Section

144 of the Code of Criminal Procedure preferred by the writ

petitioner and one Manoj Kumar Shaw, being M.P.Case No.

2672 of 2019, Mr. Samim submits that the opposite parties

in the said application, who were preventing the writ

petitioners from constructing the boundary wall, were not

made parties to the writ petition.

He further submits that the land in question is a vested

land and the same is being used as a playground by the

applicants and the inhabitants of the locality. The

applicants are enjoying easementary right over the property

in question. The Block Land & Land Reforms Officer, who

was a necessary party, was also not impleaded in the writ

petition. From the said sequence, it would, thus, be explicit

that the writ petitioners misled the learned Court.

Per contra, Mr. Chakraborty, learned advocate

appearing for the writ petitioner/respondent no. 1 herein

submits that the applicants have no semblance of right over

the property in question. It is a settled proposition of law

that unless any legal right is violated and prejudice is

caused due to the order impugned, the applicants cannot

pray for leave to prefer the appeal. In support of such

contention, reliance has been placed upon a judgment

delivered in the case of V. N. Krishna Murthy and Another

Vs. Ravikumar and Others, reported in 2020 (9) SCC 501.

Placing reliance upon an unreported judgment delivered

in an appeal being FMAT 463 of 2017 (Belur Sree Guru

Sangha & Ors. -vs- M/S Ghata Balaji Realded Private

Limited & Ors.), Mr. Chakraborty submits that a club

cannot claim ownership in respect of a property by way of

adverse possession against the real owner. Exercise of

possessory right by playing some games over somebody

else's property even for a long period, cannot create title.

Ms. Mookherjee, learned advocate appearing for the

State submits that pursuant to the earlier orders passed by

this Court, a report has been filed by the Commissioner of

Police, Barrackpore Police Commissionerate after

conducting a discreet enquiry. A perusal of the same would

reveal that the dispute is purely civil in nature. She has

also drawn our attention to an inspection report filed on

behalf of the municipality wherefrom it would appear that

the land in question is totally vacant.

In the order impugned, the learned Single Judge has

directed that the respondent no. 5 shall depute a personnel

at the locale to take appropriate measures to protect and

preserve the water body, if any found at the locale. It has

been further directed that the police will allow the writ

petitioner to erect boundary wall only after the respondent

no. 5 completes the exercise of inspection of land in

question and identifies the area which forms a water body

or a pond.

The applicants have preferred the application primarily

alleging that their rights have been infringed by the order

impugned dated 12th September, 2019. From the contents

of the petition under Section 144 of the Code preferred by

the applicants, it appears that the applicants were claiming

themselves to be the members of one Nandannagar Math

Bachao Committee and stating that they were using the

land as a playground along with the inhabitants of the

locality.

The pleadings as well as the other documents as placed

before us do not reveal that the applicants have any legal

right over the property in question. No material has been

placed before this Court indicating that the applicants have

suffered any legal wrong or injury, in the sense, that their

interest, recognized by law, has been prejudicially and

directly affected by the order impugned.

For the reasons discussed above the application for

leave to appeal being CAN 9982 of 2019, MAT No.1435 of

2019 and the application being CAN 9981 of 2019 are

dismissed.

There shall, however, be no order as to costs.

All parties shall act on the server copies of this order

duly downloaded from the official website of this Court.

(Raja Basu Chowdhury, J.) (Tapabrata Chakraborty, J.)