Shibtala Palli Sangha & Ors vs Mohanlal Roy & Ors
2023 Latest Caselaw 6842 Cal

06.10.2023
 SL No.15
Court No.8
    (gc)


                  RVW 62 of 2023
                   CAN 1 of 2023
                        In
                  SAT 103 of 2013

             Shibtala Palli Sangha & Ors.
                          Vs.
                Mohanlal Roy & Ors.


                           Mr. Sanat Kr. Roy,
                           Mr. Abhishek Banerjee,
                                         ...for the Applicants.
                           Mr. Mahendra Prasad Gupta,
                           Mr. D.K. Saila,
                           Mr. A. Panja,
                                      ...for the Respondents.

1. This is an application for review of the

judgment and order dated 2nd March,

2023.

2. The second appeal was not admitted by

this Bench on 2nd March, 2023. In

absence of the appellants, we have

meticulously read the order of the Trial

Court as well as the First Appellate Court

and thereafter we arrived at a finding that

the appeal does not involve any substantial

questions of law. Both the Courts have

returned the finding of facts on

consideration of the evidence on record.

3. It is submitted on behalf of the applicants

that the gift deed was obtained by fraud.

Surprisingly, the plaintiffs did not lead any

evidence before the Trial Court. They did

not even make any prayer for remanding

the matter to the Trail Court in order to

enable them to prove fraud as alleged. It is

elementary that the plaintiff has to aver

and prove at the trial in respect of the facts

pleaded in the plaint in order to enable the

Court to decide the issue. The plaintiffs

cannot establish their right on the basis of

the evidence of the defendants.

4. The plaintiffs did not adduce any evidence

with regard to the gift deed to establish

that the said deed was procured by fraud.

The case of the plaintiffs is based on oral

gift of an immovable property which is not

permissible in law. In contrast to the claim

of the plaintiffs, the defendants have

produced the certified copy of the gift deed

and, in fact, RSROR, and assessment

register was produced to show that

consequent upon the gift deed, the names

of the defendants were duly mutated. In

fact, D.W.4, an employee of the District

Registry Office has proved the certified

copy of the deed of gift.

5. In view thereof, we do not find any reason

to review the order passed by this Bench in

which the second appeal was dismissed at

the admission stage.

6. Accordingly, the review application being

RVW 62 of 2023 stands dismissed.

7. In view of dismissal of the review

application, the application being CAN 1 of

2023 also stand dismissed.

8. However, there shall be no order as to

costs.

9. Urgent Photostat certified copy of this

order, if applied for, be given to the parties

on usual undertaking.

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