Gaur @ Gauranga Bauri & Ors vs Arshu Ranjan Banerjee @
2023 Latest Caselaw 283 Cal

 10.01.2023
 SL No.30
Court No.8
    (gc)


                           SAT 3 of 2015
              CAN 1 of 2015 (Old No: CAN 3794 of 2015)

                      Gaur @ Gauranga Bauri & Ors.
                                  Vs.
                        Arshu Ranjan Banerjee @
                         Bhurka Banerjee & Ors.



                      This matter appeared in the Warning List of 29th

              November, 2022 with a clear indication that this matter

              shall be transferred to the Regular List on 5th December,

              2022.    The appeal is of the year 2015. Since then the

              matter is appearing in the list.   The appellants have due

              notice of the matter. The appellants are not represented.

              The appeal is defective. Various defects have been

              indicated by the Stamp Reporter in its report dated

              15.01.2015.

                      The judgment and decree dated 28.07.2014 of the

              First Appellate Court affirming the judgment and decree

              dated 30.08.2011 by the Trial Court in a suit for

              declaration and permanent injunction is the subject

              matter of challenge in this second appeal. Although, we

              could have dismissed the second appeal for non-removal

              of defects, we, however, decided to consider the materials

              on record in order to find out the second appeal involves

              any substantial questions of law. Briefly stated, the suit

              property originally belonged to Guhiram Bouri and his

              brother Jyoti Bouri, who died leaving behind their
                    2




successors in interest namely Malati Bouri, Tulsi Bouri,

Manik Bouri & Bhodu Bouri, whose names had duly been

recorded in the R.S.R.O.R. in respect of the suit property.

Subsequently, the RS recorded owners sold out the suit

property along with others on 29.01.1971 by virtue of a

registered deed of sale to one Falguni Sakha Banerjee,

brother of the original plaintiffs, who died bachelor leaving

behind his brothers, the original plaintiffs, as his legal

heirs, who inherited the suit property. Subsequently, on

demise of original plaintiff no.1, namely; Mukti Prasad

Banerjee, his share in the suit property was devolved

upon his legal heirs namely; plaintiff Nos.1(a) to 1(h). It

was also the case of the plaintiffs/respondents that

despite having their right, title, interest and possession

over the suit property the defendants/appellants tried to

interfere with their peaceful possession therein on

08.11.1998 which drove them to file this suit praying for

'declaration' of their title in respect of the suit property

including 'permanent injunction' against the

defendants/appellants.

The defendants in their written statement has

denied the claim of parting with the suit property in

favour of Falguni Sakha Banerjee on 29.01.1971. They

had also claimed to be in possession over the suit

property. According to them, the deed of sale dated

29.01.1971 was an outcome of false personification. The

added defendants namely; Manik Bouri and Tulsi Bouri

had assailed the deed of title by taking a plea that in the

year 1971 Tusi Bouri was minor. They have also fleshed

out that the suit suffers from defect of parties.

Accordingly, the defendants/respondents had sought for

dismissal of the suit.

On the basis of the aforesaid pleadings, the Trial

Court framed seven issues. Before the Trial Court as well

as the First Appellate Court it was contended that the

transferor of the deed on 1971, namely, Tulsi Bouri was

minor when the said deed was claimed to have been

executed. It appears from record that initially the suit

was filed against the two persons, namely; Shibu Bouri

and Gour Bouri and the suit was decree against them.

Subsequently, in compliance with the order of Learned

Appellate Court, made in Title Appeal No.09 of 2001, Smt.

Tulsi Bouri and Manik Bouri were brought into.

Curiously, defendants/respondents nos.1 & 2 (the original

defendants) had not pleaded in their written statement

that Smt. Tulsi Bouri was minor in the year 1971. It was

the written statement filed by Smt. Tulsi Bouri and Manik

Bouri (added defendants) wherein such a plea had been

ground for the first time.

The Trial Court as well as the First Appellate Court

noticed inconsistencies in the pleadings and rejected the

contention of the defendants with regard to their claim in

respect of the property. In fact, the deposition of

Gouranga Bouri, the D.W.1 and Sri Manik Bouri, D.W.2

were taken into consideration in deciding the matter in

favour of the plaintiffs along with other evidence produced

on behalf of the plaintiffs.

On the basis of such evidence, the findings arrived

at cannot be said to be perverse.

Accordingly, the second appeal stands dismissed at

the admission stage.

In view of dismissal of the second appeal, the

applications also stand dismissed.

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