Sandhya Kundu & Anr vs Ashis Ghatak & Ors
2022 Latest Caselaw 955 Cal

02.03.2022 SL No.15 Court No.8 (gc)

SAT 144 of 2013 With CAN 1 of 2018 (Old No: CAN 8440 of 2018)

Sandhya Kundu & Anr.

Vs.

Ashis Ghatak & Ors.

(Via Video Conference)

Mr. Nilendra Narayan Roy, ....for the Appellants.

The second appeal is directed against the judgment

and decree dated 6th December, 2012 affirming the

judgment and decree 8th December, 2020 passed in T.S.

20 of 2006 by the learned Civil Judge (Junior Division),

2nd Court, Bankura.

We have carefully gone through both the judgments

and heard the learned Counsel for the appellant. The

learned Counsel for the appellant submits that under the

Panchayat Act, some portion of the property is kept to be

vacant for pathway and this fact was ignored by both the

Courts. We do not find any argument to that effect either

before the Trial Court or before the Appellate Court. A

point not urged before the Trial Court or before the

Appellate Court cannot be raised at this stage. The

appellant cannot make out a new case at the admission

stage of the second appeal. If both the Courts have come

to a definite finding that the defendants were unable to

produce any document to show that the claim over a

particular strip of land which is claimed to be the

pathway, was either mentioned in deed of purchase or

there was any evidence like settlement map to show that

the said path was ever used by the villagers or commoners

as a village pathway. The registered deed disclosed by

defendants also does not mention right of passage to the

suit plot No.564.

In the evidence, the appellants have admitted that

the predecessor of the plaintiff was the owner of the suit

property and, accordingly, the case of the defendants that

the defendants acquired right, title and interest in respect

of the said alleged pathway by adverse possession has got

no leg to stand. The findings by both the Courts below

were arrived at on careful scrutiny of the pleadings and on

appreciation of the evidence. The concurrent findings of

fact of both the Courts that the said pathway was never

used as a village pathway and was never mentioned in the

deed cannot be said to be perverse. Moreover, the

defendants have admitted during their cross-examination

that they have no document or paper to show that the

strip of land was used by them ever or by any of the

villagers or that it was treated as a village pathway.

We are of the opinion that no substantial question of

law is involved for which the second appeal can be

admitted.

Accordingly, the second appeal being SAT 144 of 2013

and the application being CAN 1 of 2018 (Old No: CAN

8440 of 2018) stand dismissed.

However, there shall 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.

(Ajoy Kumar Mukherjee, J.) (Soumen Sen, J.)