Calcutta High Court (Appellete Side)
Sk. Abdul Alim vs Sri Tarak Das & Ors on 6 May, 2022
52
SK
Ct. No. 18
06.05.2022
S.A.T. No. 131 of 2020
I.A. No : CAN 1 of 2021
CAN 2 of 2022
Sk. Abdul Alim
Vs.
Sri Tarak Das & Ors.
Mr. Buddhadeb Ghosal,
Md. Younush Mondal ... For the appellant/applicant.
Mr. Gopal Chandra Ghosh,
Mr. Prasanta Bishal ... For the respondents.
Re : I.A. No : CAN 2 of 2022
This is an application for occupation charges filed
by the respondents.
The applicants are the plaintiffs of the suit out of
which the present Second Appeal arises. The
applicants in the said suit prayed eviction of the
appellant from the suit property on the ground that he
is a trespasser therein.
The Trial Court decreed the suit but the Appeal
Court below reversed it. The appellate decree is under
challenge in the present second appeal.
Mr. Buddhadeb Ghosal, learned counsel appearing
on behalf of the appellant submits that the Appeal
Court below has dismissed the suit only on the
ground that in view of the decision of Title Suit No. 24
of 1997, the suit is barred by principle of res judicata
but findings of the learned Trial Judge regarding the
ownership of the applicants over the suit property vis-
à-vis the status of the appellant therein have not been
disturbed, moreover the present appeal has been
admitted only on the substantial questions of law,
whether the Appeal Court below was right in holding
that the suit was barred by the principle of res
judicata, as such pending diposal of the present
second appeal, the appellant cannot enjoy the suit
property without payment of occupational charges.
Mr. Gopal Chandra Ghosh, learned counsel
appearing for the respondents/opposite parties on the
other hand submits that so long the right, title
interest of the parties over the suit property are not
finally decided, the appellant is not obliged to pay any
occupational charges for his occupation over the suit
property.
Heard learned counsel for the parties, perused the
materials-on-record.
The Appeal Court below has set aside the entire
judgment and decree of the learned Trial Judge,
therefore I am unable to accept the contention of Mr.
Ghosal, that in spite of the suit being dismissed by the
appeal Court below, the findings of the learned Trial
Judge regarding the right, title interest of the parties
in respect of the suit property remain.
Moreover, the correctness of the finding of the
Appeal Court below that appellant once decided to
have a title over the suit property cannot be held to be
a trespasser therein, is required to be investigated in
the present appeal and pending such investigation,
prayer of the respondents to put the appellant under a
condition of payment of occupational charges to enjoy
the possession of the suit property is misconceived.
The application being Re: I.A. No: CAN 2 of 2022 is
dismissed without any order as to costs.
Re : S.A.T. 131 of 2020
To expedite the hearing of the appeal the Lower
Court Records be called for by Special Messenger at
the costs of the appellant, such costs be put in within
a week from date.
The appellant is at liberty to prepare requisite
number of paper books without certificate and without
comparing with that of the original record, a copy of
such paper book be served upon the learned advocate
for the respondents.
Liberty to mention for early hearing.
(Biswajit Basu, J.)
