Sudhanshu Sekhar Dinda & Ors vs Sg Jamini Dinda & Ors
2022 Latest Caselaw 6703 Cal

SA 39 of 2022 Item-34.

19-09-2022 Sudhanshu Sekhar Dinda & Ors.

                                                    Versus
  sg                                        Jamini Dinda & Ors.
             Ct. 8

In view of our earlier order dated 15 th September, 2022, we

propose to consider the question of admission of the second

appeal on the basis of the available materials in absence of the

appellants.

The appeal is directed against the judgment and decree dated

12th June, 1998 affirming the judgment and decree of the trial

court dated 23rd September, 1994.

The suit was for declaration and permanent injunction. We

have carefully considered both the judgments.

The claim is in respect of Ka schedule property. The

plaintiffs contended that one Trailokya Dinda took settlement of

the suit property and was in possession thereof by paying rents to

the landlord. According to the record of rights of 1937, the suit

property was recorded in his name and after his death, his son

Phanindra Nath Dinda inherited the suit property and was in

possession thereof by paying rents. The present plaintiffs are the

successors of Phanindra Nath having inherited the suit property

and are in possession thereof by paying rents. The predecessors of

the defendants, namely, Dinabandhu Dinda has no share nor the

present defendants as his legal heirs. The plaintiffs alleged that on

15.05.1989 the defendants have threatened to dispossess the

plaintiffs from the suit property. After enquiry the plaintiffs have

come to know that in the ROR of 1960 B.S. the suit property was

erroneously recorded in the name of Phanindra Nath and

Dinabandhu in equal share instead of the plaintiffs alone. It was

on that basis, the plaintiffs failed for declaration in respect of the

entire Ka schedule land and permanent injunction.

Defendant nos. 1 to 7 contested the suit by filing the written

statement. In the written statement, it was contended that their

predecessors were in joint possession. The predecessors in interest

of the plaintiffs took settlement of the suit land from the joint

family income and his name was solely recorded in the settlement

of 1937 as karta of the joint family at the relevant time.

The trial court, on the basis of the oral and documentary

evidence, arrived at a definite finding that Trailokya Dinda was

the Karta of the join family and he performed his role as such in

respect of sale and purchase of the joint family properties. It is

further admitted by P.W.1 that the plaintiffs have no document to

show that Trailokya Dinda had personal source of income in

1937/1340 B.S.

The claim for joint possession could not be demolished

during evidence. It was on such finding, the suit was partly

decreed in favour of the plaintiffs.

The learned trial judge declared that the plaintiffs have right,

title, interest and possession only in respect of 1/2 share of the suit

property.

This was challenged in the appeal. On appreciation of

evidence, and on the basis of the deposition of PW-1 read with

other evidence, the appeal court was of the view that the trial court

was justified in allowing the suit in part in favour of the plaintiffs.

In view of such concurrent findings of fact, which on the

basis of the evidence was justified, we do not find any reason to

admit this appeal. The appeal does not involve any substantial

question of law.

The second appeal stands dismissed. However, there shall

be no order as to costs.

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