Arun Chakraborty & Ors vs Parikshit Mallick
2022 Latest Caselaw 7357 Cal

04.11.2022
  SL No.22
 Court No.8
    (gc)
                                   SA 32 of 2016

                          Arun Chakraborty & Ors.
                                    Vs.
                             Parikshit Mallick

                                             Mr. Soumyadeep Biswas,
                                                        ...for the Appellants.


                      The judgment of affirmation dated 5th April, 2013 is

              the subject matter of challenge in the second appeal. The

              plaintiff filed a suit for permanent injunction.               It is an

              undisputed fact that Nrisingha Prosad Bhattacharyya was

              the original owner of the property in question. The legal

              heirs of Nrisingha Prosad sold their respective shares in

              favour of the different persons who are possessing their

              respective lands. The appellants are also claiming their

              right by virtue of the deed of purchase.                 Therefore, as

              rightly pointed out by both the Courts that the appellants

              cannot claim that the plaintiff has no right, title and

              interest in respect of the suit property.              The title to the

              property arose from the deed of purchase. The appellants

              also did not claim that bakery shops and other shops are

              not situated on the suit property.                The bakery shop is

              being    run    by    the    plaintiff.      Both the      Courts   on

              consideration of Exhibits-E,F,G,H & I, hold that those

              documents would indicate that the tenancy is created on

              such plots are all situated in the suit property of which

              the plaintiff is claiming his right.             Exhibit-1 also clearly

              describes      the    part   of   the     land    purchased    by   the
                   2




plaintiff/respondent and the schedule of the plaint also

contains the exact description of the land purchased by

the plaintiff/respondent. The defendants have also

purchased their property from the legal heirs having

demarcated partitions. The learned Trial Court after

considering the aforesaid materials on record held that

description of the property in respect of which the plaintiff

claims decree of both the documents are based on deed of

sale, that is, Exhibit-1 and the same is identical with the

description of the properties mentioned in the plaint and

having arrived at such finding, the learned Trial Court

rejected the contention of the respondent that the suit

property is vague. Once the property is clearly

demarcated and identifiable and the person is found to be

in possession, other persons or any other person cannot

disturb the possession of the plaintiff.

The learned Trial Court as well as the First

Appellate Court has rightly relied upon the decision of the

Hon'ble High Court reported in AIR 1973 Cal 128 which

has clearly stated that the person in whose name the

property stands is presumed to be the owner and the

person who denies his ownership must prove it. Having

regard to the fact that the title deed, namely, Exhibit-1

was proved and the said document has established that

the property stands in the name of the plaintiff and the

fact that the appellants did not deny the ownership of the

plaintiff in respect of the suit property, the decree passed

by the learned Trial Court as well as the First Appellate

Court does not call for any interference. The learned Trial

Court also referred to the earlier litigation between the

parties and the settlement arrived at between Shibdas

Bhattacharyya and the legal heirs of Dharmadas

Bhattacharyya by which they mutually partitioned the

properties and on the basis thereof, all the co-sharers

have settled and determined their respective shares and

has demarcated the properties in such a manner that one

does not overlap with the other and has proceeded on that

basis. The plaintiff and the defendants have purchased

the said portion of the demarcated land from the co-

sharers. The description in the deed, that is, Exhibit-1,

proved that after the disposal of the suit between the legal

heirs of Nrisingha Prosad being T.S. 308 of 1963, all the

co-sharers have amicably settled their shares and they

sold whole demarcated portion of the property in favour of

various persons. The plaintiff before the Trial Court has

relied upon documents, namely, settlement record, tax

receipts and other relevant documents showing proof of

possession.

The concurrent findings of facts based on such

documentary and oral evidence are not likely to be

interfered with in the second appeal. Once the plaintiff

was able to establish lawful possession, the

plaintiff/respondent is entitled to injunction. The

judgment is based on proper appreciation of evidence.

There is no perversity in the finding of the learned Trial

Court or by the First Appellate Court.

Under such circumstances, we do not find any

reason to admit the second appeal.

The second appeal being SA 32 of 2016 stands

dismissed at the admission stage.

However, there shall be no order as to costs.

(Uday Kumar, J.)                       (Soumen Sen, J.)