Bimala Saha & Ors vs Bela Rani Kundu & Ors
2022 Latest Caselaw 4660 Cal

Dl.   July 22,
17.    2022
                                         S.A. 18 of 2015

                                     Bimala Saha & ors.
                                             Vs.
                                   Bela Rani Kundu & ors.

                             None appears on behalf of the appellants, nor any

                 accommodation is prayed on their behalf. The appellants were also

                 remained unrepresented on July 11, 2022. The present appeal was

                 presented in the year 2013 without any effort or desire to move the

                 appeal for admission. The matter was dismissed for default earlier

                 and subsequently restored. However, in view of the earlier order

                 dated July 11, 2022, we propose to decide the question of admission

                 of the second appeal.

                             The present appeal has arisen out of a judgment and

                 decree of affirmance dated December 17, 2012 passed by the

                 learned Additional District Judge, Second Court at Krishnagar,

                 Nadia, in Title Appeal No. 42 of 2008 arising out of judgment and

                 decree dated January 29, 2008 passed by the learned Civil Judge

                 (Junior Division), Second Court at Krishnagar, Nadia, in Title Suit

                 No. 3 of 1995, which is a suit for eviction, recovery of khas

                 possession and mesne profit.

                             Both the courts below, on the basis of the evidence -

                 oral as well as the documentary - adduced by the parties, have

                 arrived at a finding that the defendants/appellants are the tenants in

                 respect of the property in suit but not under the legal heirs of

                 Tarapada Chattopadhyay. The original defendant contended that he

                 was not a tenant under the legal heirs of Satyahari and never paid
                       2




any rent to them. It was further contended that he and his sons

purchased the share of Sasthidas and half share of Prandas

Chattopadhyay, who are the legal heirs of Tarapada Chattopadhyay

and became the co-owners of the property in suit. The plaintiffs

contended that after demise of Satyahari, who was the exclusive

owner of the suit plot, the suit plot belonged to his legal heirs,

namely, Swapan, Shyamal, Agamoni and Narayani and that after

purchase from the aforesaid persons, the plaintiffs became the

exclusive owners of the property in suit.

            One of the issues that arose before the trial court as to

whether the defendants are the tenants under the plaintiffs or under

the legal heirs of Tarapada. The relationship of landlord and tenant

between the appellants and respondents found to be proved from

Exhibit 3-series which is rent receipts issued by Shyamal

Chattopadhyay in favour of the original defendant, namely,

Bidhubhusan Saha. The defendants claimed that they are the tenants

under the legal heirs of Tarapada, which could not be proved by

producing any documentary evidence or any other reliable evidence.

The Defendants' witness no. 2, who is one of the sons of Tarapada,

also failed to establish that the defendants were the tenants under

him.

The concurrent findings of facts arrived at by both the

courts below on the basis of the evidence adduced by the parties

that the appellants are not the tenants under the legal heirs of

Tarapada cannot be said to be perverse and does not call for any

interference in the second appeal. Moreover, 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, nothings remains to

be decided in the connected applications filed under DCAN 4164 of

2013 and CAN 7204 of 2016 and those are also dismissed.

There will be no order as to costs.

                                                   ( Soumen Sen, J. )



dns                                      ( Siddhartha Roy Chowdhury, J. )