Sarbani Deb vs Pradip Bhattacharya And Others
2022 Latest Caselaw 3497 Cal

June 23, 2022 Sl. No.66 Court No.8 s.biswas FMA 371 of 2016 With CAN 1 of 2014 (Old No.CAN 8751 of 2014)

Sarbani Deb vs.

Pradip Bhattacharya and others

The appellant is not represented. Nor any

accommodation is prayed for on behalf of the appellant.

The appeal is arising out of judgment and decree

dated 18th June, 2014 passed by the learned Additional

District and Sessions Judge, Nabadwip, Nadia in Title

Appeal No.3 of 2010 by the which the judgment and

decree passed by the Civil Judge (Junior Division),

Nabadwip, Nadia in Title Suit No.224 of 1993 was

affirmed.

In this appeal the appellant has prayed for

admission of the appeal on the ground that the Trial

Court as well as First Appellate Court has, on a complete

misleading of the evidence on record, dismissed the suit.

It is contended that the First Appellate Court also

did not consider the petition filed under Order 41 Rule 27

of the Code of Civil Procedure.

We may briefly indicate the fact of the case to see

whether any substantial question of law involved in this

appeal. The plaintiff claimed that 'Ka' schedule property

mentioned in the plaint belonging to one Sudhangshu

Sekhar Ghosh, since deceased, who was the father of the

plaintiff and the proforma defendants. Said Sudhanshu

Sekhar during his life time purchased a property from

one Panchanan Pramanick by a deed of sale dated 5th

February, 1941 to the extent of an area of 33 cents in

respect of Plot No.5497. Afterwards he also purchased

another one cent of land from one Debendra Nath

Chatterjee by a registered deed of sale dated 14.06.1952

and he became the owner of 34 cents of land in respect of

plot no.5497 along with the other co-sharers in respect of

said property.

In a suit for partition amongst the co-sharers of the

plot no.5497, the Commissioner demarcated the property

amongst the co-sharers and Sudhangshu Sekhar

purchased a demarcated land during his life time.

The plaintiff and the proforma defendants became

the owner and possessor of 16 annas share in ezmal

upon the 'Ka' schedule property though the plaintiff alone

reside in the said property and the proforma defendants

are residing in other places.

To reach 'Ka' schedule proerty the plaintiff and the

proforma defendants have a personal passage which has

been described in the 'Kha' schedule property in the

plaint and by using the said passage they reach the

Municiapal Road.

'Kha' schedue property is approximately 40 hands at

length and 14 hands at breadth. There is a gate of the

plaintiff's house which is facing west and the said gate is

installed upon the 'Kha' schedule property. There is a

land at the northern side of the 'Kha' schedule property

measuring about 1 katha and the said land along with

the gate is the part and parcel of the 'Kha' schedule

property and the said land measuring 1 katha is

described in the plaint at 'Kha-1' schedule property and

the said land has been recorded as shown in the partition

map as well as settlement map.

The plaintiff alleged that the defendant on 13th July,

1993 purchased 'Ga' schedule property and became the

owner and possessor of the said property and the

defendant is residing in the 'Ga' schedule property.

The defendant in the month of February, 2003

constructed a vat in the property of the plaintiff taking

the advantage of absence of the plaintiff due to her

daughter's marriage and at the time of construction of the

vat the defendant had violated the injunction order

passed in the suit on the basis of interlocutory

application. The defendant also had placed a cement slab

in front of vat and covered it with soil.

The plaintiff filed a suit for removal of the said

unauthorized construction and obstruction caused by the

defendant as the defendant tried to use the 'Kha-1'

schedule property as a storage of his construction

materials.

The defendant in the written statement has stated

that the defendant is in possession of 1 katha land and it

is purchased by him as would be evident from the

documents he has disclosed.

Both the parties adduced oral and documentary

evidence. In order to ascertain whether the 'Kha-1'

schedule property is the part of 'Kha' schedule property,

the Trial Court has relied upon the evidence of P.W.2 and

Exhibit 4. Learned Trial has noticed that in the earlier

proceeding on the basis of which final decree was drawn

up, did not measure the passage which is the subject

matter of challenge in this proceeding. PW1 in her

evidence has stated that 'Ka' schedule property was

purchased in the year 1952, this is corroborated by Ext.4.

The area is 1 cent. But on actual measurement it is

found that the 'Ka' and 'Kha-1' schedule property is 1

cent. The First Appellate Court has in fact relied upon

one certified copy of R.S.R.O.R. wherever it appears that

5497/12147 is the road which is used by the owner of

Dage No. 5497/11687. This document itself shows that

Dag No. 5497/12147 is not the property of plaintiff. The

plaintiff however claimed right in respect of Dag No.

5497/12147 on the ground that her predecessor-in-

interest was the owner of plot no.5497.

Thus, the concurrent findings of facts fails from oral

and documentary evidence and cannot be said to be

perverse.

There is no substantial question of law involved in

the case.

The Second Appeal is dismissed.

In view of the dismissal of the appeal itself, the

connected application stands dismissed.

(Siddhartha Roy Chowdhury, J.) (Soumen Sen, J.)