Arun Kumar Sarkar vs Kalpana Rani Biswas Alias ...
2022 Latest Caselaw 6400 Cal

Dl.   September
34.    8, 2022
                                          S.A. 93 of 2021

                                 Arun Kumar Sarkar
                                         Vs.
                        Kalpana Rani Biswas alias Sannyasi & ors.

                              None appears on behalf of the appellant nor any

                  accommodation is prayed on his behalf. The present appeal was

                  presented on November 13, 2006 without any effort or desire to

                  move the appeal for admission. The matter was appearing in the list

                  since July 25, 2022. The appellant has sufficient notice and

                  knowledge of listing of this matter. However, we propose to decide

                  the question of admission of the second appeal on the basis of the

                  materials available on record.

                              The present appeal has arisen out of a judgment and

                  decree of affirmance dated March 29, 2006 passed by the learned

                  Civil Judge (Senior Division) at Ranaghat, Nadia, in Title Appeal

                  No. 8 of 2002 arising out of judgment and decree dated December

                  15, 2001 passed by the learned Civil Judge (Junior Division),

                  Second Court at Ramagjat, Nadia, in Title Suit No. 44 of 1993,

                  which is a suit for declaration of title and permanent injunction.

                              Briefly stated, the suit property along with the non-suit

                  property originally belonged to Chhion Nabi Mondal and Ayatan

                  Hossain Mondal and others having 8 annas share each and their

                  names were recorded in the cadestral settlement record of rights.

                  Chhion executed a power of attorney in favour of Rajendra Nath

                  Basu, who sold away 8 annas share of Chhion to Bela Rani Basu

                  and Gita Rani Pal. Ayatan Hossain Mondal and others executed also
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a power of attorney and sold away their 8 annas share in the suit

property to Rajendra Nath Basu, Rathindra Nath Basu, Sudhangshu

Basu and Binapani Basu. Rajendra Nath Basu executed a deed of

gift in favour of Bhabotosh Basu relating to his share. By reason of

an oral partition of the property of Bela Rani Basu and other and B

habatosh Basu and others, they became the absolute owners in

respect of some dags and used to receive income from such property

absolutely. Based on such oral partition, the revisional settlement

record of rights was prepared. Bhabatosh Basu and others executed

a registered deed of partition amongst themselves in the year 1957

and on the basis of the said partition deed, Bhabatosh got the suit

property absolutely. Bhabatosh sold away the suit property to Haran

Chandra Biswas by way of a registered deed of sale dated May 26,

1971. Haran subsequently gifted the suit property to Kalpana Rani

Biswas, the plaintiff/respondent no. 1, on April 17, 1979. The

defendant no. 1 sold away her 8 annas share in the suit property to

Arun Kumar Sarkar.

The defendants no. 1 and 2 contested the suit by filing

written statement. In the written statement, they contended that the

plaintiff had no right, title and interest in the suit property. It was

contended that Chhion by virtue of a power of attorney through

Rajendra Nath Basu sole away his 8 annas share and her husband

Rathindra Basu got 4 annas share. Rathindra Nath Basu died

leaving behind his wife Bela Rani Basu and three sons, namely,

Swapan Basu, Arun Basu and Tapas Basu and three daughters,

namely, Shipra Mitra, Tapati Basu and Sharmistha Halder. The sons

and daughters of the deceased Rathindra executed a power of

attorney on March 18, 1987 in favour of their mother, that is, the

defendant no. 1. The defendant no. 1 subsequently sold her share

including the shares of her sons and daughters to the defendant no.

2 on July 15, 1991 by virtue of a power of attorney. Accordingly,

the suit property was required to be partitioned. In the additional

written statement it was contended that the defendant no. 2 used to

possess the property as bhag chasi before purchase.

The trial court framed eight issues. In deciding the said

issues the trial court arrived at a finding that the plaintiff/respondent

was able to establish her title in the suit property on the basis of the

oral and documentary evidence. There is a clear finding that

Bhabatosh became the absolute owner of the suit property which he

sold away to Haran Chandra Biswas, who in turn gifted the same to

the plaintiff by way of a registered deed of gift. All the deeds from

the side of Bhabatosh are prior deed than that of the deeds executed

by the defendant no. 1 in favour of the defendant no. 2. The oral and

documentary evidence also speak that Bela Rani Basu and Gita

Rani Pal did not acquire any interest in the suit property by virtue of

the oral partition. Their names were not reflected in the Revisional

Settlement Record of Rights. The defendants also failed to produce

any Land Revenue Record of Rights in support of their claim. It

was concluded that the defendant no. 1 had no right, title and

interest to transfer her share to the defendant no. 2.

The concurrent findings of fact arrived at by both the

courts below cannot be said to be perverse and does not call for any

interference in the second appeal as those are based on cogent

evidence. Moreover, we do not find any substantial question of law

involved in this appeal for which the same is required to be

admitted.

The second appeal is, therefore, summarily dismissed

under Order XLI Rule 11 of the Code of Civil Procedure.

There will be no order as to costs.

                                                   ( Soumen Sen, J. )



dns                                                ( Uday Kumar, J. )