Satyabrata Mitra & Anr vs Sasanka Sekhar Mitra
2022 Latest Caselaw 6416 Cal

08.09.2022
 SL No.28
Court No.8
    (gc)
                             SA 79 of 2021

                       Satyabrata Mitra & Anr.
                                 Vs.
                        Sasanka Sekhar Mitra




                   The second appeal appeared in the daily list on 25th

             July, 2022 and no interest was shown by the appellants

             to move the second appeal.

                   The appellants are also not represented today nor

             any accommodation is prayed for on behalf of the

             appellants.   Although,   the   appellants   have   sufficient

             knowledge and notice of the listing of this matter.

                   The second appeal was presented on 5th August,

             2010 but thereafter no attempt was made to move the

             second appeal for admission.

                   The second appeal is arising out of an appellate

             decree dated 17th February, 2005 passed by the Fast

             Track Court in T.A. No.223 of 2002 affirming the

             judgment and decree dated 26th April, 2002 passed by the

             learned Civil Judge (Junior Division), Alipore in T.S.

             No.168 of 1997. The plaintiff filed a suit for recovery of

             possession. Although it was mentioned as a suit under

             Section 6 of the Specific Relief Act but in effect is a title

             suit where the issue of title came up for consideration

             while deciding the claim of the plaintiff    for recovery of

             khas possession.    It appears from the judgment of the

             Trial Court as well as the First Appellate Court that the
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suit property was originally belonged to Smt. Bidyut

Mitra, that is the mother o the present appellants and wife

of the respondent.    Due to wayward behaviour of the

appellants, the mother of the appellants, Smt. Mitra

executed a deed of trust and settled the property in favour

of the plaintiff on 31st December, 1996 and thereafter she

has executed a Will dated 7th January, 1997 in respect of

the suit property in favour of her elder son. The

appellants contended that the plaintiff is not the absolute

owner of the property claimed joint possession. In course

of evidence, it transpired that the trust deed read with the

Will shows that the intention of their mother is to confer

absolute title on his eldest son. The execution of the deed

of trust is not in dispute. It was by reason of such deed of

trust, the plaintiff claims trustee over the suit property.

The appellants could not dislodge the claim of the plaintiff

with regard to the deed of trust excepting a bare denial.

The plaintiff contended that on 28th December, 1996, the

appellants forcibly entered to the house and dispossessed

the plaintiff from the room of the suit premises which was

under the direct possession of the plaintiff. P.W.1 in his

evidence further stated that while he was dispossessed by

the appellant No.1, he lodged a police complaint and filed

a complaint case before the Judicial Magistrate. The deed

of trust was proved in accordance with law. The deed of

trust would show that the plaintiff was in possession of

the suit property after the death of the wife. The proof of

possession having been established both before the Trial

Court as well as before the Appellate Court, the plaintiff is

entitled to recover khas possession of the room from

which he was dispossessed.

The concurrent findings of facts by the Trial Court

as well as the First Appellate Court with regard to the

possession of the plaintiff in respect of the suit property

from which he was dispossessed does not appear to be

perverse or based on no evidence. There is no substantial

question of law is involved in this second appeal.

Accordingly, the second appeal stands dismissed at

the admission stage.

However, there shall be no order as to costs.

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