Smt. Chabirani Bhattacharyya & ... vs Subodh Upadhyay & Ors
2022 Latest Caselaw 6401 Cal

Dl.   September
33.    8, 2022
                                          S.A. 92 of 2021

                           Smt. Chabirani Bhattacharyya & ors.
                                           Vs.
                                 Subodh Upadhyay & ors.

                              None appears on behalf of the appellants nor any

                  accommodation is prayed on their behalf. The present appeal was

                  presented on October 27, 2006 without any effort or desire to move

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

                  July 25, 2022. The appellants have 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 July 12, 2006 passed by the learned

                  Civil Judge (Senior Division), First Court at Krishnagar, Nadia, in

                  Title Appeal No. 95 of 2005 arising out of judgment and decree

                  dated April 30, 2005 passed by the learned Civil Judge (Junior

                  Division) at Tehatta, Nadia, in Title Suit No. 422 of 2004, which is

                  a suit for declaration of title and permanent injunction.

                              The plaintiffs/appellants claimed that 3 decimals of

                  land in plot no. 1264/6392 as described in the schedule to the plaint

                  originally belonged to Roypada Upadhyay, Saktipada and Devendra

                  in equal shares and that their names were duly recorded in the

                  relevant revisional settlement records of right. The said three co-

                  owners amicably and orally partitioned the said property amongst

                  themselves with specific demarcation and, as such, Roypada started
                        2




possessing 1 decimal of land with specific demarcation and during

his enjoyment of the said 1 decimal of land, he transferred ½

decimal on the southern side adjacent to the pucca road with proper

demarcation      to   the    predecessor      in    interest   of     the

plaintiffs/appellants, namely Subodh Chandra Bhattacharyya, on

July 10, 1964 by virtue of a registered deed of arpannama and put

him in possession thereof. Subodh thereafter raised a kachha

construction with tile shed on the said plot of land and filed an

application before the concerned settlement office concerned for

mutation. Subodh died on November 31, 1981 and, as such,

Roypada had no saleable interest to transfer the suit property to any

third party. After the death of Roypada, his remaining ½ decimal of

land in the suit property devolved upon his heirs and legal

representatives, who are the proforma defendants/respondents.

The plaintiffs/appellants alleged that the defendant no.

1/respondent taking advantage of erroneous recording of his name

in respect of the suit property was trying to dispossess the

plaintiffs/appellants by forcibly entering into the suit property,

which instigated the plaintiffs/appellants to institute the present suit.

The defendant no. 1/respondent contested the suit by

filing written statement and additional written statement. In the

written statement, the defendant no. 1/respondent alleged that

during the joint possession and enjoyment by the revisional

settlement recorded tenants, one of them , namely, Roypada

transferred ½ decimal of land along with other non-suit properties

in favour of the predecessor in interest of the plaintiffs/appellants,

namely, Subodh, by a registered deed of arpannama creating life

interest in his favour. The defendant no. 1/respondent contended

that the said Subodh died on July 21, 1968 and, therefore, the said

½ decimal of land in the suit property reverted back to Roypada,

who again becoming owner to the extent of 1/3rd share in the suit

property transferred 1 decimal of land by a registered deed of sale

dated April 2, 1969 to the defendant no. 1/respondent and put him

in possession thereof. Since then the defendant no. 1/respondent has

been in possession of the said land for more than twelve years

adversely, openly, uninterruptedly and continuously to the

knowledge of all the plaintiffs.

The trial court and more significantly the first appellate

court on consideration of the registered deed of arpannama being

exhibit-1 and the certified copy thereof being exhibit-D have arrived

at a concurrent finding that Roypada created only life interest in

respect of ½ decimal of land in favour of the predecessor in interest

of the plaintiffs reserving his right in respect of the said ½ decimal

of land to the effect that after the death of the predecessor in interest

of the plaintiffs the said ½ decimal of land would revert back to

Roypada or to his heirs and legal representatives. In view of such

clear and unambiguous terms in the arpannama, no right can accrue

in favour of the plaintiffs/appellants after the death of Roypada.

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. 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. )