Sri Satyanarayan Chattopadhyay & ... vs Smt. Sadhana Dutta & Ors
2022 Latest Caselaw 6237 Cal

05.09.2022
 SL No.30
Court No.8
    (gc)
                             SA 71 of 2022

              Sri Satyanarayan Chattopadhyay & Ors.
                               Vs.
                     Smt. Sadhana Dutta & Ors.




                   The second appeal has come up for admission. This

             matter was adjourned on until number of occasions on the

             prayer of the learned Advocate for the appellants.        The

             learned Advocate for the appellants is not represented.

                   We propose to consider the appeal for admission on

             the basis of the available record and the question of law

             framed for admission. The second appeal is arising out of a

             judgment and decree dated 10th April, 2015 passed by the

             learned Civil Judge (Senior Division), Bolpur, Birbhum in

             Title Appeal No.51 of 2011, affirming the judgment and

             decree dated 6th August, 2011 passed by the learned Judge

             (Junior Division), 2nd Court, Bolpur, Birbhum in Title Suit

             No.72 of 2003 claiming that the original owner of the suit

             property was one Panchkori Chatterjee (Bhattacharjee), the

             uncle of the plaintiffs.   Panchkori died on 10th January,

             1974 issueless and hence his properties devolved upon his

             nephews. In the year, 1994, one Baneshwar Dutta claimed

             that the entire properties had been recorded in the name of

             his wife. The plaintiffs having come to know of such fact,

             approached the BL & LRO but could not immediately obtain

             any information and ultimately they approached the High

             Court by filing writ petition following which an order was

             passed restraining the present defendants/respondents from

interfering with the possession of the appellants. Thereafter

the defendant No.1/respondent No.1 preferred an appeal

against the said order being FMAT 3588 of 1994, the learned

Single Judge in the said proceeding admitted the appeal and

set aside the decree. Thereafter, BL & LRO at Labpur in

deciding Misc. Case No.3 of 2000 relied on the decree passed

in TS No.117 of 1972 and passed an order refusing to alter

the recording of the name of the defendant No.1 in the

LRROR. In the meantime, the plaintiffs/appellants obtained

the certified copies of the proceeding in TS No.117 of 1972

wherein it appears that without effecting the service of

summons upon the said Panchkori Chatterjee, the said suit

was proceeded and decreed without bringing on record the

legal heirs of the said deceased. The title suit was filed for

declaration and permanent injunction.

The defendants contended that the said proceeding by

filing a written statement denying the material allegations

leveled against them. The defendants specifically contended

that Panchkori Chattopadhyay and one Panchakori

Bhattacharjee are not the same and identical person. The

mother of the defendant No.1 namely Niharbala Dutta had

received the suit property along with other properties by way

of lease from Jadablal Estate and thereafter her name was

recorded in the other properties but the suit property was

recorded in the name of Panchkori Chattopadhyay. In view

thereof, Nirharbala Dutta filed a suit in TS No.117 of 1972

against said Panchkori Chattopadhyay, State of West Bengal

and Jadablal Debattar Estate in which the Trial Court

passed a decree on 30th July, 1976. The amalnama in

favour of the said Niharbala Dutta was impounded and

proper fines and fees were paid thereafter. Thereafter

proceedings for execution on the basis of the said decree was

undertaken being T. Exe No.9 of 1985 and the records were

cored under Section 44(2A) of WBEA Act. The respondents

accordingly contended that the plaintiffs have no right, title

and interest over the suit property. The Trial Court framed

six issues and examined. The parties adduced oral and

documentary evidence. On the basis of the oral and

documentary evidence, the Trial Court arrived at a finding

that on perusal of the documentary evidence both RS and

CS record of rights shows that the names of one Panchakori

Bhattacharya and Panchakori Chatterjee but which R.S.

record has been declared to be baseless in T.S. 117 of 1972.

Apart from the CS and RS record of rights being Exhibit 2

and 3 the plaintiffs have filed no document to support their

evidence in the suit. Exhibit F(1) shows the name of

Santosh Kumar Garai, defendant No.1(Ka) (vendee in Exhibit

F(2)) in respect of 0.0656 decimals in the suit dag 1311.

Exhibit I also shows that the name of Nisith Kumar

Pramanik, defendant No.1(kha) (heir of the vendee in Exhibit

G) has been recorded in respect of 0.0750 decimals in the

suit Dag. On perusal of Exhibit G and G(1), the Trial Court

arrived at a finding that the permission was sought by

Brojokishore Das, defendant No.1(Ga) to make construction

in the suit Dag and which was granted by the Pradhan of the

Labpur No.I Gram Panchayat. On the other hand apart from

the C.S. and R.S. record of rights being Exhibit 2 and 3 the

plaintiffs have filed no document to support their evidence in

the suit. The latest recordings shall prevail over the earlier

recordings and carry the presumption of the recorded

persons being in possession until such presumption is

rebutted by cogent evidence. From the LR record of rights it

appears that the defendant No.1(ka) to 1(ga) are in

possession and this presumption is no way rebutted by the

evidence as led by the plaintiffs. Apart from the record of

rights which was altered in the L.R. records, there was no

documentary evidence to show that the plaintiffs were in

possession at the time of filing of the suit. The plaintiffs

being unable to establish that they were in possession of the

suit property, the suit was held to be not maintainable

under Section 34 of the Specific Relief Act.

On the basis of Exhibit 9(b) and 9(c), the Trial Court

arrived at a finding that Panchkori Chatterjee and Panchkori

Bhattachargee are the same and identical person. The said

report was prepared on the basis of local enquiry and read

with other documents and evidence on record the said

finding was arrived at. The First Appellate Court relying

upon the LR record of rights being Exhibit I, Exhibit F(I) and

Exhibit C relating to the suit property being the latest ROR's

arrived at a finding that the said exhibits clearly establish

the possession of the defendants in respect of the suit

property. The names of the defendant Nos.1(ka) to 1(ga)

recorded therein is inferred the presumption that they have

been in possession over the suit property which, however,

could not be rebutted by any cogent evidence by the

plaintiffs.

In the light of the aforesaid discussion, The First

Appellate Court has affirmed the finding of the learned Trial

Court. Both the Trial Court and the First Appellate Court

has elaborately discussed the various exhibits and have

arrived at a finding that on the basis of the latest available

record, it can be safely inferred that the defendants are in

possession of the property and they are also able to establish

their title. This concurrent findings of facts are based on

cogent evidence. The concurrent findings of facts are not to

be easily discussed in the second appeal unless it appears to

be perverse.

In view of the aforesaid, we do not find any

substantial question of law involved in the second appeal

and dismissed at the admission stage.

Accordingly, the appeal being SA 71 of 2022 stands

dismissed.

However, there shall be no order as to costs.

Urgent Photostat certified copy of this order, if applied

for, be given to the parties on usual undertaking.

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