Calcutta High Court (Appellete Side)
Sg vs Ct. 8 Hari Narayan Ghosh & Ors on 18 May, 2023
SAT 319 of 2016
Item-30.
18-05-2023
Tapan Kumar Ghosh
sg
Versus
Ct. 8 Hari Narayan Ghosh & Ors.
The appellant is not represented nor any accommodation is
prayed for on behalf of the appellant.
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 appellant is not represented.
The appeal is defective since 5th August, 2016.
The appellate judgement and decree of the First Appellate
Court dated 21st March, 2016 affirming the judgment and decree
of the Trial court dated 31st March, 1995 in a suit for declaration
and permanent injunction is the subject matter of challenge in this
second appeal.
We have read the judgments of both the courts. The plaintiff
could not prove its claim and the suit was dismissed. Smt.
Probhamoyi Ghosh, since deceased, was the original plaintiff. She
claimed to be owner of the suit property purchased out of her
stridhan property in 1948 and after purchase she constructed two
storeyed pucca building on the suit land and used to reside therein
with her two sons. The defendants used to look after her said
property as she was suffering from various ailments. She was
about 80 years. The defendants asked her to execute power of
attorney in order to enable them to look after her properties and
she was asked to put signature on several papers without
explaining the contents thereof. Suddenly, in June, 1995 she was
asked to leave the house of the defendants in order to enable the
defendants to raise construction. When she refused, the defendant
disclosed to her she lost her title in the suit property as she had
already gifted the suit property in favour of the defendants by
executing a deed of gift on 7th April, 1982 followed a rectification
deed dated 19th September, 1989. The suit was decreed. The
defendant no.2 contested the said suit. He relied upon the deed of
gift to prove his claim. Both the parties adduced evidence on the
basis of oral and documentary evidence.
The trial court has arrived at a finding that this deed of gift
was fraudulently obtained from the original plaintiff. The fact that
she never executed any deed of gift was proved. It was established
from evidence of DWs. 1 and 2 that they used to look after the
plaintiff and taking advantage of the old age of the mother and
exercising their dominating position, they executed the deed of
gift without proper understanding of the contents of the said deed
by their mother. DW-1 did not file any written statement. DW-3
has stated that he was ignored about the said deed. There was no
evidence to show that the principal plaintiff had ever put her
signature after knowing the contents of the deed. There was no
evidence to show that the plaintiff executed an affidavit on her
own in support of the mutation of the appellant before the
concerned authority.
On the basis of the preponderance of probabilities, the Trial
Court decreed the suit and the First Appellate Court has affirmed
the said decree. On such consideration, we do not find any reason
to interfere with the judgment and order passed by the First
Appellate Court in affirming the judgment of the Trial Court.
The appeal stands dismissed at the admission stage.
(Uday Kumar, J.) (Soumen Sen, J.)
