Narugopal Faujdar vs Kalabati Debi & Anr
2023 Latest Caselaw 1237 Cal

17.02.2023 SL No.21 Court No.8 (gc)

SAT 9 of 2014

Narugopal Faujdar Vs.

Kalabati Debi & Anr.

The appellant is not represented nor any

accommodation is prayed for on behalf of the appellant.

We have seen the report of the department.

The second appeal is arising out of a judgment of

reversal in a suit for eviction of a licensee. The Trial Court

dismissed the suit on the ground that the plaintiff was

unable to furnish chain deeds of title. The schedule to the

plaint would make it clear that the suit property was only

fraction of suit plot and the plaintiff admitted in course of

her cross-examination that there are co-sharers in the

suit plot with whom no partition was effected. One of the

issues before the Trial Court was whether the plaintiff

filed a suit for eviction of a trespasser without impleading

the other co-sharers, in other words, whether the suit

would be bad for defect of parties. The plaintiff before the

courts below relied upon four decisions of different High

Courts including our Court, namely, Ram Niranjan Das

& Ors. Vs. Loknath Mandal & Ors. reported at AIR

1970 Patna 1, Committee of Management, Ratan

Muni Jain Inter College & Ors. Vs. III Additional Civil

Judge, Agra & Ors. reported at AIR 1995 Allahabad 7,

Durga Das & Ors. Vs. Solace and Association reported

at 2013(1) ICC Calcutta 307 and Sona Mian Vs. Kebal

Kanti Nandi & Anr. reported at 2013 (1) ICC Gauhati

421 in support of his contention that one co-sharer can

maintain the suit for eviction of a trespasser without

impleading other co-sharers. The present appellant before

the Appellate Court contended that no map was appended

to the plaint and they are tried to demonstrate certain

discrepancies with regard to the area and nature and

extent of interest of the plaintiff in the suit property. In

order to prove his title, the plaintiff produced her title

deed (Exhibit-1), L.R.R.O.R. (Exhibit-1/a) and Khajna

Dakhila (Exhibit-1/b). The appellant contended before

the First Appellate Court that he is a licensee in the suit

property. In his examination-in-chief he tried to contend

that he is in possession of the plot No.222 for the last

20/22 years but he could not produce his title in respect

of the property. The possession of the appellant in the

suit property is of permissive possession. The appellant

could not establish acquisition of title by adverse

possession. The Appellate Court proceeded on the basis

that when the plaintiff was able to prove her possession of

3.5 decimals of land in plot No.222 of the relevant Mouza,

there is no requirement to pray for recovery of possession

in the light of the decision of the Gauhati High Court

reported in Sona Mian (supra).

Moreover, it is established that the status of the

defendant in a suit for eviction is not proved; it should be

presumed that the defendant is a licensee. (see Bhagwati

Prasad Vs. Chandramaul reported at AIR 1966 SC

735).

Insofar as the right of the plaintiff to obtain a decree

for possession by evicting a trespasser without making

other co-sharers party in the suit, the First Appellate

Court had relied upon a decision of our Court in Durga

Das (supra) and a Coordinate Bench decision in Sanat

Kumar Mullick Vs. Octavious Tea and Industries Ltd.

& Ors. reported at 2006(2) CHN 280 Paragraph 12.

Under such circumstances, we do not find any

reason to admit the second appeal.

The second appeal does not involve any substantial

question of law and, accordingly, stands dismissed at the

admission stage.

However, there shall be no order as to costs.

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