Prabir Kumar Kundu vs Ashis Kumar Samanta
2023 Latest Caselaw 378 Cal

13.01.2023 SL No.9 Court No.8 (gc)

SAT 503 of 2015 CAN 1 of 2015 (Old No: CAN 11900 of 2015)

Prabir Kumar Kundu Vs.

Ashis Kumar Samanta

Mr. Sayantan Chattopadhyay, ...for the Appellant.

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. Since then the matter is appearing in the list.

An adjournment is prayed for on behalf of the

appellant.

The appeal is pending since 2015 without any

attempt being made to move the second appeal. Mr.

Sayantan Chattopadhyay, learned Advocate appears and

prays for an adjournment. Unfortunately, neither Mr.

Rabi Sankar Chatterjee, Advocate nor Mr. Suman Sankar

Chatterjee, Advocate who have been engaged to this

matter appear to move the second appeal. It only shows

that the learned Advocate engaged in a matter like this

has sent a junior member to pray for an adjournment who

is no way connected with the matter. We strongly

deprecate this kind of practice of sending the junior to

seek adjournment without proper instruction.

Accordingly, we politely decline the prayer for

adjournment. Reason for non-appearance is quite

obvious as the appellate decree was passed on 24th July,

2015 by which the judgment and decree of the Trial Court

dated 28th November, 2014 was affirmed.

We have carefully read the judgment of the First

Appellate Court as well as the Trial Court. Undoubtedly,

the tenancy was determinable under Section 106(1) of the

Transfer of Property Act and this precisely was done by

the plaintiff. The service of notice was duly proved.

Although it appears from the judgment of both the Courts

that an attempt was made to make a claim of pre-emption

but the Trial Court as well as the First Appellate Court

has recorded that Ashis Kr. Samanta on 17th May, 2011

purchased the suit property to the extent of 3 decimals of

land along with pucca structure being plot no.332 from

the previous owner. This document is not under

challenge. The appellant before the First Appellate Court

as well as the Trial Court was unable to produce any

materials relating to the pre-emption case filed before the

Trial Court. The L.C.R. does not contain any proceeding

or order of any pre-emption case which the appellant

referred to in his objection before the Trial Court as well

as before the First Appellate Court. The title deed was

proved in accordance with law. The L.R.R.O.R (Exhibit 3)

shows possession of the plaintiff over and in respect of the

land. Tax receipts have also been produced to show

possession and title of the plaintiff over the suit property.

The concurrent finding of facts based on such oral and

documentary evidence does not appear to be perverse

and, accordingly, does not call for any interference in the

second appeal. No substantial question of law is involved

in the second appeal.

Accordingly, the second appeal stands dismissed at

the admission stage.

In view of dismissal of the second appeal, the

application also stands dismissed.

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