Sri Haradhan Nama And Anr vs Smti Anima Dey (Saha)
2023 Latest Caselaw 114 Tri

                             Page 1 of 3


                    HIGH COURT OF TRIPURA
                          AGARTALA

                        RSA No.50 of 2022

Sri Haradhan Nama and Anr.
                                                             ---Appellants
                                     Versus
Smti Anima Dey (Saha)
                                                            ---Respondent

For Appellant(s) : Mr. Pradip Chakraborty, Advocate For respondent(s) : None

HON'BLE MR. JUSTICE ARINDAM LODH

Order 31/01/2023

Heard Mr. Pradip Chakraborty, learned counsel appearing for the

appellants, who were the original defendants.

The plaintiff had instituted the suit for declaration of right title and

interest and recovery of possession.

Despite receipt of notice, the defendants did not appear before the

learned trial Court and the suit was proceeded ex-parte.

On consideration of evidence and materials on record, the learned

trial Court below had passed the decree directing the defendants to

vacate the suit land.

The defendants preferred first appeal before the court of learned

District Judge, West Tripura, Agartala wherefrom it was transferred to

the Court of learned Addl. District Judge, West Tripura Agartala.

The learned Addl. Dist Judge after hearing the learned counsels

appearing for the parties upheld and affirmed the judgment and decree

passed by the learned trial Court.

Hence this second appeal before this Court.

At the time of hearing of the appeal at the admission stage, this

court has inquired from the learned counsel for the appellants whether

any execution proceeding is pending before the executing court. Mr.

Chakraborty, learned counsel for the appellants has submitted that an

execution proceeding is going on and the appellants have submitted

objection under Section 47 of the Code of Civil Procedure, 1908.

However, Mr. Chakraborty in support of the present second appeal has

proposed for formulating two substantial questions of law which are as

under:-

1. The plaintiff has failed to prove his possession and

subsequent dispossession from the suit land.

2. Another substantial question of law learned counsel has tried

to propose is that learned Addl. District Judge while disposing of

the first appeal has not complied with the essentialities as

contemplated under Order-41 Rule-31 of the CPC.

I have considered the submissions of learned counsel for the

appellants.

To deal with the first substantial question of law as proposed by the

learned counsel for the appellants, I am of the considered view that the

possession and dispossession is a true question of fact and when both the

trial Court as well as the first appellate Court came to a conclusion over

the possession and dispossession, then, this Court will not interfere with

such questions of fact, which have already been decided by both the

learned courts below.

In view of the above, I find no merit in the first substantial question

of law as tried to be proposed by the learned counsel for the appellants.

To deal with the second proposed substantial question of law, I

have perused the judgment passed by learned Addl. District Judge,

wherefrom I do not find any merit in the submission of learned counsel

for the appellants that the essentialities as contemplated under Order 41

Rule 31 of the CPC have not been complied with.

In view of the above discussions, the proposed substantial

questions of law as proposed to be formulated stand rejected. However,

under Section-47 of CPC, the executing court has every right to decide

all questions to be raised against the judgment and decree dated

23.09.2022.

The matter is decided accordingly.

In the light of above observations, the present second appeal stands

disposed.

JUDGE

Rohit