Calcutta High Court (Appellete Side)
Sg vs Ct. 8 on 18 May, 2023
SAT 316 of 2016
Item-28.
18-05-2023
Subhas Chandra Das Adhikari & Ors.
sg Versus
Ct. 8
Bhusan Chandra Das & Anr.
The appellants are not represented nor any accommodation
is prayed for on behalf of the appellants.
The matter is appearing in the daily cause list since 14 th
February, 2023. In spite of having due notice and knowledge that
the matter is pending, the appellants are not represented.
The appeal is defective since 1st August, 2016.
The appellate judgement and decree dated 1st April, 2016
affirming the judgment and decree of the trial court dated 4 th
December, 2009 in a suit for declaration and permanent injunction
is the subject matter of challenge in this second appeal.
The suit was decreed in faovur of the plaintiffs upon
establishing their right in respect of the suit property which would
be evidence from the Sale Deed (exhibit 2) along with the oral and
documentary evidence. The case is also otherwise proved by the
deed of gift (exhibit 1) and the orders passed in J. Misc. Case No.
70 of 1992 pursuant whereof, the writ of delivery of possession
under Order 21 Rule 35 of the Code of Civil Procedure was issued
on execution with no objection from the respondents/appellants.
The Appellate Court on re-appreciation of the evidence both oral
and documentary, observed that tabulation is admitted namely:
a) That the total area of the suit plot no. 207 measures 75
decimals of land as mentioned in Kha schedule of the
plaint;
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b) That the Kha schedule property belonged to Mathan
Chandra Upadhyay;
c) That 22 decimals of land out of Kha schedule property
was acquired by the State;
d) That Mathan Chandra Upadhyay transferred the
remaining 53 decimals of land as mentioned in the Ka
schedule of the plaint to his wife Gouribala Upadhyay
by executing deed of gift being no. 6493 of 1978 which
also gets corroboration from Exbt.-1;
e) That Gouribala Upadhyay alienated 24 decimals of land
out of the Ka scheudle property to the
plaintiffs/respondents by exeucting deed of sale being
no.-2117 of 1983 i.e. Exbt. -2; and
f) That Gouribala Upadhyay also transferred her remaining
share i.e. 29 decimals of land in the Ka schedule
property to the defendant nos. 1 to 4/appelalnts by dint
of deed of sale being no. 903 of 1990 i.e. Exbt. B.
It appears from the judgment of the First Appellate Court
that these facts are admitted. The First Appellate Court has taken
into consideration the Exhibits 5, 5A and C from which it would
be clear that the plaintiffs filed an application under Section 8 of
the West Bengal Land Reforms Act against the defendant nos. 1 to
4 before the learned Civil Judge (Junior Division), 2nd Court,
Contai praying for transfer of the respective share which
Gouribala Upadhyay transferred to the defendant nos. 1 to 4 by
virtue of Exhibit B, to the plaintiffs in Misc. Judicial Case No. 70
of 1992. The said application under 8 of the said Act was allowed
by the learned Civil Judge (Junior Division), 2 nd Court at Contai
and consequently, the transfer in favour of the defendant nos. 1 to
4 was reversed. The relevant observations of the learned First
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Appellate Court, in this regard, are reproduced as follows:
"Referring to the schedule of the application under
section 8 the appellants have pointed out that in the schedule
0.29 decimals of land; not 29 decimals of land has been
mentioned and so by that order the plaintiffs acquired title
over 0.29 decimals of land; not over 29 decimals of land. It is
settled principles of law the pleading has to be considered
entirely; not in piece-meal. From the application under
section 8 it is crystal clear that the plaintiffs filed that
application for transfer of the respective share, which
Gouribala Upadhyay transferred to the defendant nos. 1 to 4
by virtue of Exhibit B. From Exhibit B it is glittered that
through that deed Gouribala Upadhyay transferred 29
decimals of land; not 0.29 decimals of land to the defendant
nos. 1 to 4. In his judgement also in Misc. Judl. Case No. 70
of 1992 the Ld. Civil Judge (Junior Division) 2nd Court,
Contai has categorically stated that "The impugned deed was
registered on 24.2.90 by which Gouri transferred a portion
or share of the holding to the O.P. Ext. 1(a). The land
measured 29 decimals of land." Moreover, it is not the case
of the defendant nos. 1 to 4 that they purchased 0.29 decimals
of land; not 29 decimals of land. So, from all aspects the fact
remains that by virtue of Misc. Judl. Case No. 70 of 1992 the
plaintiffs acquired right, title, interest and possession of 29
decimals of land in plot no. 207 which was transferred to the
defendant nos. 1 to 4 by Gouribala Upadhyay through Exbt.-
B.
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In terms of above analysis it is epilogued that the
plaintiffs acquired right, title and interest in the entire Ka
schedule property by virtue of deed of sale being no.-2177 of
1983 and on the strength of preemption case vide Misc. Judl.
Case No. -70 of 1992.".
In view thereof, we do not find any reason to interfere with
the concurrent findings of both the courts.
The second appeal stands, accordingly, dismissed. There
shall be no order as to costs.
(Uday Kumar, J.) (Soumen Sen, J.)
