Ct. 8 vs Kartick Chandra Mondal & Ors
2023 Latest Caselaw 279 Cal

                                                 SAT 521 of 2012
Item-14.
           10-01-2023

  sg                                    Raj Kumar Sharma & Ors.
             Ct. 8
                                                    Versus
                                       Kartick Chandra Mondal & Ors.

                              Md. Harun-All-Rashid, Adv.
                                                             ...for the appellants


                              The learned Counsel for the appellants submits that in spite

                        of beset efforts, he could not establish any contact with the

                        appellants. It appears that the defects notified by the Additional

                        Stamp Reporter in its report dated 19th October, 2012 have been

                        removed. In fact, an order dated 28-09-2016 shows that the appeal

                        was listed at the instance of Mr. Prasenjit Mukherjee, learned

                        Counsel for the respondents. Today, an adjournment is prayed for

on behalf of the appellants.

We are not inclined to adjourn this matter.

The second appeal is arising out of a decree dated 24 th July,

2012 passed by the learned Additional District and Sessions

Judge, 2nd Fast Track Court, Rampurhat affirming the decree dated

29th January, 2010 and 15th March, 2011 in a suit for declaration

with consequential reliefs.

The plaintiffs have claimed right, title and interest in respect

of the property in question on the basis of the deed of gift and

established its relationship with the donor. The trial court on the

basis of the oral and documentary evidence has concluded that the

suit property originally belonged to Jagganath Mondal. Jagganath

Mondal was the son of Sitanath Mondal. Jagganath had another

brother namely, Gangadhar Mondal. Susharibala was the wife of

Gangadhar Mondal, who was claimed as predecessor in interest of

the defendants of the suit property. The trial court further

observed that the plaintiff nos. 1 to 4 were the successors of

Jagannath Mondal in his detailed judgment while deciding the

issue nos. 7 and 8 and finally decreed the suit in favour of the

plaintiffs with an observation that at that relevant point of time,

i.e. in the year 1979, Sushari Mondal had no right over the suit

property and accordingly, she also could not have any right to

transfer the property in her capacity as owner and accordingly, the

transfer on the basis of which the defendatns were claiming their

right, title and interest does not survive. The defendants were

restrained permanently from dispossessing the plaintiffs from the

suit property and the LRROR standing in the name of the

defendants were binding upon the plaintiffs.

This order of the trial court was challenged before the first

appellate court. The trial court in deciding the issue in favour of

the plaintiffs has taken into consideration the evidence of the

parties which had means and/or knowledge with regard to the

relationship between Jagganath Mondal and Sushari and also the

deed of gift duly proved in accordance with law. The first

appellate court also considered the same set of evidence and

arrived at a same conclusion. The first appellate court in coming

to the said conclusion has taken into consideration the fact that the

plaintiffs claimed to be the legal heirs of Jagganath Mondal and

accordingly, it was contended that Sushari Mondal had no right,

title and interest over the suit property at any point of time and

accordingly, the transfer is not at all binding upon the plaintiffs.

The contention of the appellants before the appellate court was

that the plaintiffs have failed to prove that they are the legal heirs

of Jagganath Mondal and Sushari Mondal had no relation with

Jagganath. The appellants contended that they acquired right from

a person who acquired the right of an order of the Court.

The plaintiffs claimed themselves as legal heirs of Jagganath

and to establish their prima facie right, they have relied upon the

original deed of gift dated 29-09-1954 and sale deed dated 25-03-

1958. Ration card in the name of Kartick Chandra Mondal -

exhibit-6, certified copy of gift deed dated 11-01-1957 - exhibit-7

and the certified copy of the deed executed by Susharibala Dasi in

favour of Parvati Dasi - exhibit 8. These documents unmistakably

show that Jagganath Mondal and Gangadhar Mondal were the two

sons of Sitanath Mondal. Susharibala Bala Dasi was the wife of

Gangadhar Mondal, whereas the wife of Jagganath Mondal was

Dhanubala Mondal. Kartick Mondal and other plaintiffs were the

sons and daughters of Jagganath and Dhanubala as it appears from

the judgments of trial court as well as first appellate court. The

defendants failed to produced any evidence or alternative facts

emanating from the aforesaid documents.

Accordingly, if Susharibala Mondal had no right to claim,

the property of the deceased Jagganath to the effect made by her

would be automatically null and void. These findings of facts

based on cogent and credible evidence are not to be rightly

interfered with in the second appeal.

The second appeal stands dismissed at the admission stage.

However, there shall be no order as to costs.

The learned counsel for the appellants has submitted that the

parties might have compromised the matter in the meantime. In

the event any such compromise has been arrived at, the appellants

may apply before the court for modification of this order.

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