Calcutta High Court (Appellete Side)
Biswanath Modak & Ors vs Krishna Chandra Modak & Anr on 16 May, 2023
16.05.2023
SL No.14
Court No.8
(gc)
SAT 261 of 2015
Biswanath Modak & Ors.
Vs.
Krishna Chandra Modak & Anr.
Mr. Soumik Ganguli,
Mr. Sayan Ray,
...for the Appellants.
We have heard Mr. Ganguli, learned Counsel
appearing on behalf of the appellants. The Appellate
Court judgment and decree affirming the Trial Court
judgment and decree in a suit for declaration and
permanent injunction is a subject matter of challenge in
this second appeal.
Mr. Ganguli has submitted that the Trial Court in
decreeing the suit has observed that the plaintiffs' right,
title and interest over 'Kha' Schedule property is in
dispute. Though it is not clear whether the suit property
is being possessed by the defendants or not. However, it
appears that the defendants have admitted that the
plaintiff is the owner in respect of 'Ka' Schedule property.
The defendants have also admitted that there was a
transfer of 'Kha' Schedule property from Jadu Modak to
the plaintiffs by way of gift deed. This was further
clarified by the First Appellate Court on re-appreciation of
the evidence where the Exhibit-3, Exhibit-C and
L.R.R.O.R record were considered. The findings of the
First Appellate Court in this regard are:-
2
"From the evidence adduced on behalf of both
the parties it is established that
defendants/appellants are possessing 3 decimals of
land and it is bounded by 'pakka' boundary wall.
From Ext.1 i.e. the sale deed executed in favour of
Jadu Modak by Habu Mondal, I find that Habu
Mondal transferred 5 1/3 to Jadu Modak from plot
no.1417 butted and bounded by Biman Mondal in
eastern side, 2 cubits wide road of Harias in the
western side, 'Mansamela' in the northern side and
'pakka' rasta on the southern side. From Ext.3, I
find that Jadu Modak gifted 2 ½ decimals of land out
of 18 decimals of land to the plaintiffs/respondents
being butted and bounded by Tapan Bagdi in the
east, Biswanath Modak in the west. Hari Para in the
north and road in the south. The name of
plaintiffs/respondents are recorded in L.R.R.O.R to
the extent of 2 decimals of land. On perusal of Ext.
C, I find that Jadu Modak transferred 3 decimals of
land from 18 decimals of to defendant
no.01/appellant no.01 being butted and bounded by
Habu Mondal in the east, way to Hari Para in the
west, Hari Para in the north and road in the south.
The name of defendant no.01/appellant.01 is
recorded in R.O.R. to the extent of 3 decimals of land.
Defendants/appellants in their W/S have candidly
stated that Habu Mondal transferred 5 1/3 decimals
of land from the suit plot to Jadu Modal and
delivered possession. So, now
defendants/appellants cannot take the plea that
Jadu Modak did not had 5 1/3 decimals of land in his
possession. Further, defendants/appellants are also
claiming title from Jadu Modak. So, if they rely on
their deed then they have no right to challenge the
deed of plaintiffs/respondents. Further, both the
parties are possessing their respective portion being
butted and bounded by boundaries as mentioned in
their respective deeds. There is no cogent evidence
on record on behalf of defendants/appellants that
plaintiffs/respondents are not possessing 2 ½
sataks of land in the suit plot. As
plaintiffs/respondents have established their title on
'kha' schedule property it is presumed that
possession follows title. Regarding the threat of
encroachment by the defendants/appellants as
alleged by the plaintiffs/respondents, I find that
there is no cross-examination of P.W.01 to this effect.
Even no denial was given to P.W.01 by Ld. Lawyer
for the defendants/appellants to the effect that the
allegation made by plaintiffs/respondents are false."
On such consideration, these are essential
questions of fact and established at the trial on the basis
of the evidence on record.
There is no substantial question of law involved in
this second appeal.
Accordingly, the second appeal 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.)
