S.A 486 of 2006. Case: Sankar Chakraborty and Ors. Vs Chittoranjan Dutta and Ors.. High Court of Calcutta (India)
| Case Number | S.A 486 of 2006 |
| Counsel | For Appellant: Mrinal Kanti Mukherjee, Adv. and For Respondents: Pratima Mishra, Adv. |
| Judges | Prabhat Kumar Dey, J. |
| Issue | Civil Procedure Code (CPC) - Order 41, Rule 27 |
| Judgement Date | August 12, 2011 |
| Court | High Court of Calcutta (India) |
Judgment:
Prabhat Kumar Dey, J.
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This appeal is directed against the judgment and decree dated 7th April, 2006 passed by the Ld. Civil Judge (Senior Division), Ranaghat, Nadia in Title Appeal No. 17 of 2003 whereby set aside the judgment and decree dated 3rd March, 2003 passed by the Ld. Civil Judge (Junior Division), 2nd Court, Ranaghat in Title Suit No. 33 of 1995.
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During admission of the appeal the Ld. Division Bench formulated the following substantial questions of law:
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Whether the Ld. Court of appeal below committed the substantial error of law in setting aside the judgment and decree passed by the Ld. trial Judge by entering into the question whether the Government in this case executed the deed of gift in favour of the Plaintiff in accordance with law by totally overlooking the fact that the Defendants did not file any suit disputing the said deed of gift.
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The Plaintiff having acquire title to the property by virtue of the deed of gift executed by the Governor of West Bengal, whether the learned court of appeal below committed substantial error of law in refusing to grant declaration of title and recovering of possession from the Defendants, who admittedly had no better title than that of the government.
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In absence of any suit filed by the Appellant challenging the deed of gift executed in favour of the Plaintiff, whether the learned court of appeal below committed substantial error of law in dismissing the suit filed by the Plaintiff on the ground that he did not acquire valid title by virtue of the said deed of gift.
In order to decide the aforesaid points, it is not necessary to make the detail reference to the backdrop of the litigation between the parties. We may, however, briefly narrate the facts.
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The Appellant herein was the Plaintiff before the trial court in Title Suit No. 33 of 1995. The Plaintiff Sankar Chakraborty made out the specific case in the plaint that his father Nihar Ranjan Chakraborty after migrating from East Pakistan to India in 1953 after partition started residing in the refugee camp of Coopers and thereafter he went to "Ka" schedule property and started residing therein after raising Pucca construction. Thereafter, the father of the Plaintiff gifted the said property to the Plaintiff and since then the Plaintiff was in possession of the suit property by residing thereon. The Relief and Rehabilitation Department of Govt. of West Bengal executed a gift deed in favour of the Plaintiff and transferred the ownership of "Ka" schedule property on 29th June, 1989. On 4th September, 1990, principal Defendants forcibly raised structure of tiled roof, bamboo pole and fence made of darma on 1 « Cottahs of land on the extreme southern side "Ka" schedule property. When the mother of the Plaintiff went to obstruct the Defendants, she was assaulted by them. On 4th February, 1993, principal Defendants started raising pucca privy and bathroom on the suit property and threatening the Plaintiff that they will forcibly enter into the remaining portion of "Ka" schedule property and will cut away Mango tree, Sirish tree etc., planted by the Plaintiff in the "Ka" schedule property. As a result, the Plaintiff filed the suit for declaration of title and recovery of possession and permanent injunction.
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The Defendant No. 1 contested the suit by filling written statement containing inter alia that the Plaintiff has no title in "Ka" schedule property and the West Bengal Government had no locus standi to execute any gift deed in favour of the Plaintiff. This Defendant, possesses 8 annas i.e. 2 « cottahs of land in Lay Out Plot No. 648. The Plaintiff does not possess any portion of Lay Out Plot No. 648. Lay Out Plot No. 649 is adjoining south of suit Plot No. 648. The Defendant No. 3 resides in Lay Out Plot No. 649. The Defendant No. 1 further stated that the father of the Plaintiff all along used to reside in Lay Out Plot No. 647 and he never resided in "Ka" schedule property. There was long standing dispute between the Plaintiff and the Defendants and so as to restore peace, the respectable persons of the locality settled the dispute of the Plaintiff and Defendants by way of salish. By the said salish, the suit property was divided into 2 halves which were accordingly, transferred to both the Plaintiff and the Defendants and each got 2 « cottahs of land. The Plaintiff himself signed on that salishnama. Since then both the parties are residing thereon with their families by raising house thereon. It is further case of the Defendant No. 1 that the gift deed executed in favour of the Plaintiff is a fraudulent deed and is not binding upon the Defendant. He prayed for dismissal of the suit.
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Before the trial court, the Plaintiff examined two witnesses including himself as P.W-1 and produced documentary evidence (gift deed) which was marked as Exhibit.1. Neither the Defendants nor any person was examined on behalf of the Defendants.
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The trial court after hearing both the parties and on appreciation of the evidence on record declared Plaintiff's title and possession in the suit property and thereafter decreed the suit and restrained the Defendants permanently from interfering with the Plaintiff's possession in the suit property vide judgment dated 3rd March, 2003.
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Being aggrieved by the judgment and decree of the trial court, the Defendant No. 1 approached the Civil Judge (Senior Division), Ranaghat, Nadia in Title Appeal No. 17 of 2003. The first appellate court by its judgment dated 7th April, 2006 set aside the judgment and decree passed by the learned trial court and thereby allowed the appeal against which the present appeal being No. S.A. 486 of 2006 has been preferred.
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During hearing of the appeal, it was contended by the learned advocate appearing on behalf of the Appellant that the private Respondents did not challenge the alleged deed of gift granted by the State-Respondents in favour of the Appellant in a separate proceeding. It was also...
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