Dilip Kumar Sinha Roy vs Debu Bhaduri & Anr
2023 Latest Caselaw 3175 Cal

03.05.2023 SL No.20 Court No.8 (gc)

SAT 331 of 2015 CAN 1 of 2015 (Old No: CAN 12042 of 2015)

Dilip Kumar Sinha Roy Vs.

Debu Bhaduri & Anr.

Mr. Pinaki Ranjan Mitra, Mr. Sugata Mukhopadhyay, ...for the Appellant.

Re: CAN 1 of 2015 (Old No: CAN 12042 of 2015)

The application for substitution was disposed of by

the order of the Registrar Administration on 01.04.2016.

The department is directed to take necessary steps

in this regard.

Re: SAT 331 of 2015

We have heard the learned Counsel for the

appellant. We have considered the judgment of the both

the Courts. The suit was filed for declaration and

injunction. The plaintiff failed to establish title over a

strip of land. The learned Trial Judge as well as the

Appellate Court has elaborately dealt with the evidence

and held that for the common passage over which a claim

is now being made has not been proved. In fact, the

plaintiff claimed ownership over the said passage. The

plaintiff in the suit has prayed for a declaration that 'B'

schedule property is part and parcel of the 'A' schedule

property. The 4 feet wide common passage was shown as

'B' schedule property in the plaint. The plaintiff alleged

that the defendants encroached upon the B portion of the

property. The Appellate Court on consideration of the

pleading found that having regard to the pleading of the

plaintiff, he appears to have been dispossessed from the

'A' schedule property but he did not pray for recovery of

possession. In any event, the report of the Commissioner

was considered wherefrom it was found that the existence

of 4 feet common passage as described in 'B' schedule

property does not belong to the plaintiff. The plaintiff

claimed that he was only the owner of 3 cottahs 5 chittaks

of land together with structure of the suit property by

virtue of deed of sale being No.1967 dated 08.07.1977.

In view thereof, we do not find any reason to

interfere with the concurrent findings of facts based on

cogent evidence.

The learned Counsel for the appellant submits that

in the appeal, an application was filed for additional

evidence but the said application was not considered at

the time of disposal of the appeal. We do not find any

reflection in the impugned order about any application

being filed by the appellant for adducing additional

evidence. In absence of production of any order by which

such application was taken on record and/or ordered to

be considered along with the appeal, we are unable to deal

with the issue at this stage.

The second appeal, accordingly, stands dismissed at

the admission stage.

However, there shall be no order as to costs.

Urgent Photostat certified copy of this order, if

applied for, be given to the parties on usual undertaking.

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