Calcutta High Court (Appellete Side)
Jachimuddin Laskar & Ors vs Nechar Laskar on 9 March, 2022
14. SAT 92 of 2019
09-03-2022
sg
CAN 1 of 2019 (old CAN 5742 of 2019)
CAN 2 of 2019 (old CAN 5743 of 2019)
Ct. 8
CAN 3 of 2019 (old CAN 5745 of 2019)
CAN 4 of 2021
Jachimuddin Laskar & Ors.
Versus
Nechar Laskar, since deceased,
represented by Saleya Laskar & Ors.
(Through Video Conference)
Mr. Sounak Bhattacharya, Adv.
Mr. Sounak Mondal, Adv.
...for the appellants
Mr. Amit Baran Dash, Adv.
...for the respondent nos. 1(a)-1(c),
1(g)-1(j), 1(l), 3,4,5 and 9(c)
The second appeal has come up for admission. We have
heard Mr. Sounak Bhattacharya, learned Counsel appearing on
behalf of the appellants.
Sworn of details, the plaintiffs had filed a suit for
declaration and injunction. The claims of the plaintiffs briefly are;
that the suit property as described in the scheduled of plaint
previously belongs to the plaintiffs' predecessor, Enait Laskar. He
died leaving behind his two sons and three daughters. All the
aforesaid legal heirs inherited the property and had been
possessing the said property jointly. While the parties were in
joint possession, Chhamad Laskar died leaving behind his two
wives, five sons and three daughters. They are the plaintiff nos. 2
to 11. They inherited the share of the property left by Chhamad
Laskar and have been possessing the suit property. The plaintiffs
alleged that the defendants have no right, title, interest and
possession in and over the suit property. The said defendants have
threatened to dispossess the plaintiffs from the suit property on
23rd March, 1999. It was, at this stage, the suit was filed.
The defendants contested the suit by filing the written
statement. In the written statement, it is alleged that the plaintiffs
have no right to the said property as they were not in possession
for over 12 years. The plaintiffs have not able to establish their
title in the suit property. It was alleged that the father of the
defendants took settlement of the suit property from one Nanda
Kumar Mistiri in the year 1340 B.S. and had constructed 'gola
ghar' and had been using the usufruct without any let or
hindrance. The defendants have inherited the suit property and
have been using the suit property continuously and
uninterruptedly. It was alleged that since the predecessors of the
defendants were threatened by the predecessors of the plaintiffs, a
case was filed against the predecessors of the plaintiffs and others
being Civil Rule no. 20229(w)/1965 and the Rule issued by the
learned Single Judge was subsequently made absolutely.
On the basis of the oral and documentary evidence and
primarily relying upon the judgment of the Hon'ble High Court in
Civil Rule No. 20229(w)/1965, the suit was dismissed. An appeal
was preferred against the said judgment and decree. The appeal
was also dismissed after taking into consideration that the order
the Hon'ble High Court in the earlier proceeding clearly
established that the predecessors of the defendants have acquired
the suit land from the superior landlord, Nanda Mistiri, in 1340
B.S. at the rental of Rs.2 yearly basis 'dhakhilas' and the property
was settled in their favour and it was also held that the entries in
the RS khatian was wrong. The said order also protected the
interest of the respondents. The Settlement Officer was also
directed to open a new Khatian under CS khatian no. 216 and the
Rule was made absolute on 8th April, 1975.
In view of such clear findings in the earlier proceeding, the
learned Appellate Court has no other choice but to affirm the
order passed by the learned Trial Court.
Mr. Sounak Bhattacharya, learned Counsel submits that
the record of rights would show that the appellants are in
possession and the order was passed on a total misconstruction of
the judgment passed by a learned Single Judge in the earlier
proceeding. An attempt was made to submit that the said
judgment never existed.
However, we do not find that at any stage of trial, the
appellants had ever raised any issue with regard to the existence of
said judgment halving regard to Section 43 of the Indian Evidence
Act, 1872. Unless the existence of such judgment is a fact in issue,
there is no scope for the appellants at this stage to argue that the
said judgment never existed. No issue was also framed by the
learned Trial Court with regard to existence of the said judgment.
The belated attempt to raise such issue, however, reflects in
quagmire of despondence on the part of the appellants to frustrate
an order.
The second appeal is dismissed with costs assessed at
Rs.10,000/- to be paid by the appellant to the High Court Legal
Services Committee. The said amount shall be utilized for the
welfare of the street children.
Certified copy of the order of the learned Single Judge was
tendered in evidence without any objection and marked as
Exhibit-'kha' before the learned Trial Court.
In view dismissal of the appeal, CAN 3 of 2019 (old CAN
5745 of 2019) stands dismissed.
However, it is recorded that CAN 1 of 2019 (old CAN
5742 of 2019) and CAN 4 of 2021 were disposed of on 7 th April,
2021 and CAN 2 of 2019 (old CAN 5743 of 2019) was disposed
of on 11th February, 2021.
The department is directed to make proper endorsement
with regard to the disposal of the appeal as well as of all the
connected application and the same shall to be shown as pending.
Urgent photostat certified copy of this order, if applied for,
be supplied to the parties upon compliance of all requisite
formalities.
(Ajoy Kumar Mukherjee, J.) (Soumen Sen, J.)
