Calcutta High Court (Appellete Side)
Ct-08 vs Shanti Chandra Ghosh & Ors on 15 September, 2022
12 15.9.2022 SA 32 of 2022
Debasis Biswas & Ors.
Ct-08 Vs.
Shanti Chandra Ghosh & Ors.
ar The appellants are not represented, nor any
accommodation is prayed on his behalf.
The appeal was earlier listed on October 1,
2021, but none had appeared on behalf of the
appellants to move the appeal for admission.
Thereafter the matter was again appearing in the
list since September 7, 2022. We, however, propose
to decide the question of admission of the present
second appeal on the basis of the materials
available on record.
The judgment and decree of affirmation dated
December 20, 2005 passed by the learned Civil
Judge(Senior Division), First Court at Hooghy, in
Title Appeal No. 93 of 1996 arising out of judgment
and decree dated March 28, 1996 passed by the
learned Munsif, Additional Court, Hooghly, in Title
Suit No. 234 of 1991 is the subject matter of
challenge in this appeal.
The appellants are the defendants in the suit.
The suit for declaration of title is based on the deed
of gift dated 17th July, 1985. The defendants
contested the suit. The defendants filed the written
statement. In the written statement it was alleged
that Katholine Dutta never executed a deed of gift
in favour of the plaintiff. The plaintiff was engaged
by the husband of the defendant as a servant.
During the pendency of the suit Smt. Bani Biswas
and Smt. Madhabika Biswas were added as
defendant nos. 2 and 3, who also filed their written
statement denying all the plaintiff's allegations as
made out in the plaint. The added defendants
stated that their father Sudhir Kumar Dutta, his
elder brother Santosh Kumar Dutta and his
younger brother Sukumar Dutta were own
brothers, who purchased the suit property by virtue
of a registered sale deed on 5th November, 1921
wherein Sukumar Dutta being as minor was
represented by his mother as natural guardian.
The suit property is a residential house. On 20th
February, 1950 the suit property was partitioned
amicably amongst the co-sharers, who accordingly
possessed and enjoyed the suit property in
accordance with their demarcated portions.
Besides that courtyard, corridor etc. of the suit
property were kept joint and being used by all the
co-sharers.
After the death of her father, the defendant no.
2 or her men and agent used to oftenly visit to the
suit property to look after and for manage the
same. The defendant no. 2 recently settled at her
house here along with her family members. At the
relevant time the defendant no. 2 permitted the
plaintiff's mother to occupy a portion of her house
for her accommodation temporarily in exchange of
discharging her duties to lookafter the said
property and used to reside there.
Katholine Dutta, the original defendant, since
after the demise of her husband Sukumar Dutta
was very much dependant upon the plaintiff and
the plaintiff taking advantage of said dependency
and Katholina not being conversant with Bengali
language rather was not able to read and write in
Bengali practised fraud upon her for execution of
deed in his favour with intent to grab the suit
property, which is now being used as sword. The
plaintiff in order to prove the deed examined 7
witnesses. The plaintiff examined himself as P.W 1
in order to corroborate his plaint's case in suit.
The plaintiff being P.W 1 deposed that defendant
transferred the suit property in his favour by virtue
of a deed of gift and the deed of gift also witnessed
by defendant no. 2, Bani Biswas. The signature of
Bani Biswas on the deed of gift was marked as
Exhibit-1. The said Bani Biswas, the defendant no.
2, was examined in suit as D.W 5. She admitted
her said signature on the deed but stated that
when she signed the deed there were no other
signatures on the deed including of her aunt, the
said Katholina Dutta. She also stated that she put
her signature on the deed at the instance of the
plaintiff without consulting anybody of her family.
But during cross-examination she also admitted
the signature of Shipra Dutta, another witness of
the deed, which was marked as Exhibit-1/5, in
suit.
The plaintiff deposed that Katholine got the
draft of the deed from Ranjan Babu. One Nemai
Das typed the said draft deed when Katholine
herself, plaintiff and one Santosh Halder were
present.
The plaintiff has duly proved the execution and
attestation of the said deed of gift in accordance
with law. The Trial Court on appreciation of the
evidence as well as deposition of the relevant
witnesses and on proper identification of deed of
gift decreed the suit in favour of the plaintiff and
moreover, Katholine Dutta in her written statement
clearly stated that she intended to execute a deed
in favour of the plaintiff to keep the wishes of her
late husband that the plaintiff can have a right of
residence in respect of the ground floor of the suit
property. Taking into consideration the aforesaid
factors, the Trial Court decreed the suit on contest.
The first appellate court also agreed to the said
findings of the learned court below.
There is a clear finding of fact by the first
appellate court as well as by the trial court with
regard to the reasonable requirement of the plaintiff
in respect of the suit premises. The said finding is
based on cogent evidence.
In view thereof, we do not find any reason to
interfere with the concurrent findings of fact arrived
at by both the courts below. Moreover, we find no
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.
(Uday Kumar ,J.) (Soumen Sen, J.)
