Hasiyat Rahaman & Anr vs Abdus Samad & Ors
2023 Latest Caselaw 3174 Cal

03.05.2023
SL No.19
Court No.8
    (gc)


                         SAT 293 of 2015
             CAN 1 of 2018 (Old No: CAN 4026 of 2018)

                       Hasiyat Rahaman & Anr.
                                 Vs.
                         Abdus Samad & Ors.



                   The    appellants    are   not    represented,     nor    any

             accommodation is prayed for on behalf of the appellants.

             The appeal is of the year 2015.              The matter initially

             appeared in the Warning List on 6th March, 2023 and

             thereafter transferred to the Regular List on 21st March,

             2023. Since then the matter is appearing in the list. The

             appellants have due notice about the listing of the matter.

                          Re: CAN 1 of 2018
                     (Old No: CAN 4026 of 2018)


                   Ignoring the trivial defects, we propose to consider

             the   application   for   substitution       and   thereafter   the

             question of admission of the second appeal.                     The

             application for substitution was filed consequent upon the

             death of the respondent No.2 who died intestate on

31.03.2018 leaving behind his legal heirs and

representatives as mentioned in Paragraph 2 of the

application for substitution. It is stated that the said legal

heirs are all major, sui juris and of sound mind.

Under such circumstances, the application for

substitution is allowed.

The department is directed to record the death of

the respondent No.2 and bring on record the legal heirs

and representatives of the respondent No.2 as mentioned

in Paragraph 2 of the application within 10 days from date

in the memorandum of appeal and all related cause

papers.

The application being CAN 4026 of 2018 stands

disposed of.

Re: SAT 293 of 2015

The appellate judgment and decree dated

30.08.2014 affirming the judgment and decree dated

15.01.2012 passed by the Trial Court in a suit for

declaration of title and permanent injunction is a subject

matter of challenge in this second appeal. The Trial Court

in a suit for declaration and permanent injunction

decreed the suit in favour of the plaintiff and against the

defendant Nos.1, 2, 6 and 7 on contest and ex parte

against the other defendants. The said suit was decreed

after the First Appellate Court remanded the matter to the

Trial Court directing the Trial Court to allow the

appellants/defendants to rely on expert evidence to

disprove the genuineness of the deed dated 24.11.1943

(Exhibit-2). However, it transpires from the judgment and

order of the Trial Court and the First Appellate Court that

the appellant did not take any steps in this regard,

although the Appellate Court was persuaded to remand

the matter to the Trial Court for fresh consideration of the

genuineness of the said deed upon expert evidence. The

Appellate Court has also directed the Trial Court to take

fresh evidence both documentary and oral in relation to

the said deed. The Trial Court has recorded that no fresh

evidence was adduced. The Trial Court recorded that as

there was no evidence of any expert opinion, it can be

safely presumed that the said deed was genuine as

regards title of the suit property the plaintiff filed certified

copies of C.S.R.O.R. The said record of rights disproved

the case of the plaintiff. It has been duly recorded by the

Trial Court as well as the First Appellate Court.

On such consideration, we do not find any reason to

admit the second appeal.

The second appeal stands dismissed at the

admission stage.

However, there shall be no order as to costs.

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