Calcutta High Court (Appellete Side)
Sanjoy Kumar Biswas & Anr vs Sumit Biswas & Ors on 24 January, 2023
SAT 35 of 2014
Item-5. CAN 2 of 2014 (old CAN 6887 of 2014)
24-01-2023
CAN 3 of 2020 (old CAN 1443 of 2020)
sg CAN 4 of 2020 (old CAN 1983 of 20120)
Ct. 8
CAN 5 of 2022
Sanjoy Kumar Biswas & Anr.
Versus
Sumit Biswas & Ors.
Mr. Jayabrata Ghosh, Adv.
...for the appellants
The application for additional evidence at the appellate stage
is taken up for consideration along with the second appeal for
admission.
We have heard the learned Counsel for the appellants. It is
submitted that both the courts have failed to appreciate that the
cause of action in the suit filed by Dukhiram is essentially different
from the suit filed by them for declaration of title.
However, from the judgments of both the courts, it is quite
clear that Dukhiram, during his lifetime, filed a suit for declaration
and injunction. The title of Dukhiram was disputed in respect of the
suit property. In fact, Dukhiram filed a suit being TS No. 102 of
1986 against the defendant No.5 and his three other brothers,
namely, Sri Gostho Bheari Biswas and some other persons. The
said suit was dismissed for default.
From the plaint filed on 6th March, 1986 in TS 102 of 1986,
it appears that the title deed of the plaintiffs, on which the present
plaintiffs are relying in support of their title was the subject matter
in the earlier suit which Dukhiram did not pursue at all. The suit
was pending for almost 12 years for Dukhiram not taking any steps.
In the meantime, Dukhiram alleged to have transferred the suit
property in favour of the present plaintiffs. The present plaintiffs
also did not take any steps to implead themselves or substitute
themselves in the said proceeding. There was no attempt even to
recall the order of dismissal of the suit.
The trial court, in our view, has rightly dismissed the suit.
The first appellate court on appreciation of the evidence and the law
as it stands, affirmed the decree under appeal. Two documents on
which reliance is now being placed almost after eight years, do not
further the case of the plaintiffs as CS record of rights does not
create any title to the property. The trial court has discussed that a
report by the Executive Magistrate on which reliance has been
placed by the plaintiffs in support of their title is insufficient and is
not being corroborated by any other documents.
On such consideration, we do not find any reason to admit
the second appeal. Moreover, we also do not find any reason for not
disclosing the said two documents before the trial court and before
the first appellate court.
The second appeal is, thus, dismissed. However, there shall
be no order as to costs.
In view of the dismissal of the second appeal, the connected
applications being CAN 2 of 2014 (old CAN 6887 of 2014), CAN 3
of 2020 (old CAN 1443 of 2020), CAN 4 of 2020 (old CAN 1983
of 20120) and CAN 5 of 2022 are accordingly, dismissed.
The department seems to have overlooked that Mr. Ananava
Bhattacharyya, Advocate has filed vakalatnama along with the
application for injunction being CAN 3 of 2020 (old CAN 1443 of
2020).
The department shall make proper correction.
(Uday Kumar, J.) (Soumen Sen, J.)
