Ct. 8 vs Momena Khatun & Ors
2023 Latest Caselaw 3431 Cal

SAT 388 of 2015 Item-22.

16-05-2023 Mantu Sk. @ Abdul Mannan, since deceased, sg represented by legal heirs, namely, Dulal Sk. & Ors.

             Ct. 8                                   Versus
                                          Momena Khatun & Ors.

The appellants are not represented nor any accommodation

is prayed for on behalf of the appellants.

The matter initially appeared in the warning list on 6 th

March, 2023 and thereafter transferred to the regular list on 21 st

March, 2023. There was a clear indication in the list that the

matter shall be transferred to the daily cause list on 21st March,

2023 and since then, the appeal is appearing in the list. In spite of

having due notice and knowledge that the matter is pending, the

appellants are not represented. The appellants have also not taken

any step to remove the defects as notified by the Additional Stamp

Reporter on 10th August, 2015. It is clear that the appellants are

not interested to proceed with the matter.

We could have dismissed the appeal for non-removal of the

defects. However, we propose to have a look at the judgments of

both the courts in order to find out whether the second appeal

involves any substantial question of law. We have also read the

grounds of appeal.

The appellate decree dated 25th March, 2015 passed by the

learned Civil Judge (Senior Division), Katwa, Burdwan affirming

the judgment and decree dated 29th January, 2010 passed by the

learned Civil Judge (Junior Division), Katwa, Burdwan, is the

subject matter of challenge in this second appeal.

The plaintiffs filed a suit for declaration and permanent

injunction. The Trial Court on consideration of Exhibits 2 and 3

and also on a satisfaction being recorded that Moslem Sekh and

Zekrail Sekh are same and identical person, decreed the suit. The

title of the plaintiffs is established from the said documents read

with RSROR and LRROR. The Trial Court was also otherwise of

the view that the plaintiff has better title as opposed to the

defendants' no title in respect of the suit property, relied upon the

decision of the Bombay High Court in the case of Govind Anant

Goltekar & Ors. vs. Dasharath Deoba Goltekar reported in AIR

2006 Bombay 174 (paragraph 12).

The suit was essentially in respect of khatian no. 1037 for

declaration of title only in respect of 'ka' scheduled property out

of 'kha' schedule suit property which is part and parcel of 'gha'

schedule suit property. In the plaint, the plaintiffs have prayed for

their title on 'ka' schedule suit property and in joint possession

with other co-sharers. The claim is duly proved by the record of

rights. These findings are based on cogent evidence.

Under such circumstances, we do not find any perversity in

the said findings.

The second appeal stands dismissed. However, there shall

be no order as to costs.

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