Calcutta High Court (Appellete Side)
Ab vs Siraj Gazi And Others on 17 August, 2023
14 17.08. SAT 102 of 2023
2023 IA No. CAN 1 of 2023
Ct. No. 04
Aminuddin Laskar
ab
Vs.
Siraj Gazi and others.
---------------------
Mr. Kallol Basu,
Mr. Nilanjan Pal,
Mr. Samik Sarkar,
Mr. Moidul Laskar.
... for the appellant.
Leave is granted to the Advocate-on-Record of the
appellant to put signature in the last page of the
Memorandum of Appeal here and now.
The appeal shall be heard on the following
substantial questions of law:
(1) Whether both the courts below were justified
in dismissing a suit for partition solely on the
basis of the fact that the common vendor of
the parties has divested his right, title and
interest in respect of the suit premises and,
therefore, debarred from divesting the same
again subsequently without looking into the
fact that some of the properties were outside
the ambit of an earlier deed?
(2) Whether both the courts below were justified
in dismissing the suit solely on the ground of
oral testimony of the parties when the
document effecting the title in respect of the
property demonstrate otherwise?
(3) Whether the oral testimony would prevail
over the documentary evidence and the court
can proceed only on the basis of oral
evidence ignoring the documentary evidence,
which reflects otherwise or contrary thereto?
(4) Whether both the courts below have
interpreted the deeds relied upon by the
respective parties in such a manner, which
appears to be inconsistent with the schedule
appended thereto and, therefore, the
judgment may be regarded as perverse?
Let hearing of the appeal be expedited.
The plaintiff/appellant is, therefore, directed to put
in the requisites, namely, postal costs, written up notice
forms and correct postal address of the
defendants/respondents for effecting service of notice of
appeal by registered post with acknowledgement due
within 21st August 2023. In default, put up for final
orders.
The office is directed to effect service upon the
defendants/respondents immediately and upon
completion of service shall put a note that the appeal is
ready as regards service.
Let the Lower Court's Records be called for through
the Special Messenger at the cost of the
plaintiff/appellant. Such cost shall be put in within 21st
August 2023.
Immediately, after arrival of the Lower Court's
Records, office shall examine the same and if found
complete, shall issue notice of arrival of Lower Court's
Records on the Advocate-on-Record of the
plaintiff/appellant under Rule 12 of Chapter IX of the
Appellate Side Rules.
The plaintiff/appellant is directed to prepare and
file eight copies of informal paper books - printed,
typewritten or cyclostyled, as the case may be - out of
court, within a period of six weeks from date.
All other formalities regarding preparation of paper
books are dispensed with.
After fulfillment of all other formalities, the office
shall put a certificate that the appeal is otherwise ready
for hearing and liberty is given to the parties to pray for
early disposal of the appeal.
Re: CAN 1 of 2023.
The plaintiff/appellant is directed to serve the copy
of the instant application upon the
defendants/respondents by speed post and shall file
affidavit of service the on the returnable date.
The application is made returnable after three
weeks before the appropriate Bench.
(Harish Tandon, J.)
(Ajay Kumar Gupta, J.)
