Bikash Sen And Ors vs Niharendu Das And Ors

Heard Mr. A. Sengupta, learned counsel appearing for the appellants as well as Mr. Paramartha Datta, learned counsel appearing for the respondents.

This is second appeal preferred by the defendant-appellants (hereinafter referred to as defendants)challenging the judgment and decree dated 27.08.2019 passed by learned Addl. District Judge, Unakoti Judicial District, Kailashahar in TA 18 of 2019 dismissing the First Appeal preferred by the defendants affirming the original judgment and decree dated 15.02.2019 passed by the learned Civil Judge (Jr. Division) Kailashahar Unakoti Judicial District in TS 36 of 2008 decreeing the suit of the plaintiff-respondents.

The brief facts are that, the plaintiff had instituted a suit for declaration of right, title, interest and confirmation of possession over the suit land described in the schedule of the pliant with a prayer for perpetual injunction. It is the specific case of the plaintiff that he purchased the suit land vide registered deed No.1-1550 dated 20.10.1993 from one Smt. Jyotsna Rani Das along with some other land from Aswini Kr. Deb vide registered deed No.1-620 dated 17.03.1992. The entire suit land is at present recorded in the name of the plaintiff. The suit has been filed alleging that the principal defendants were trying to disturb the possession of the plaintiff. In the present suit, the dispute is related to the land purchased by the plaintiff from the proforma-defendant i.e., Smt. Jyotsna Rani Das vide registered deed dated 20.10.1993.

The defendants had contested the suit by filing written statement. The learned Trial Court had framed issues. On the basis of the issues, the parties to the lis had adduced their respective evidences and produced material documents to justify their respective statements made in their pleadings. The learned Trial Court after considering the evidence and materials brought on record declared the right, title and interest and confirmed the possession of the plaintiff over the suit land vide judgment dated 15.02.2019 as aforestated.

Being aggrieved, the defendants preferred appeal before the learned Addl. District Judge, Unokoti Judical District, Kailashahar. After hearing the arguments, the learned First Appellate Court had confirmed and upheld the judgment and decree passed by the learned Trial Court vide judgment and decree dated 27.08.2019 as aforementioned.

Being aggrieved by and dissatisfied with the said judgment passed by the learned First Appellate Court, the defendants have preferred the instant second appeal.

Mr. Sengupta, learned counsel appearing for the appellants has submitted that the finding returned by the learned First Appellate Court as well as Trial Court in regard to the possession of the plaintiff over the suit land is not correctly appreciated. The learned counsel claims that the defendants are still in possession of the suit land. As such, the learned Courts below ought not to have decreed the suit confirming the possession of the plaintiffs over the suit land. The learned counsel further vehemently has argued that the finding of the Courts below that the defendant had admitted the fact of possession of the plaintiff is perverse.

On the other hand, Mr. P. Datta, learned counsel appearing on behalf of the plaintiff submitted that the learned Courts below after appreciating the evidence and materials on record decreed the suit in favour of the plaintiff declaring the right, title, interest and confirmation of the possession.

Mr. Sengupta, learned counsel has tried to persuade this Court to formulate the substantial question of law on the basis of the finding of the learned Courts below in regard to possession, claiming that the said finding declaring the possession of the plaintiff over the suit land is perverse.

I have re-appreciated the evidence on record and the materials introduced in course of proceeding of the suit before the Trial Court at this admission stage to examine whether it is a fit case to formulate substantial question of law. I also have perused the findings of the First Appellate Court. Both the Courts below have decreed the suit confirming the possession of the plaintiff over the suit land. When the possession is disputed and it is confirmed in favour of the plaintiff by both the Courts below, I am not inclined to interfere with the findings in regard to possession which was decreed in favour of the plaintiff by both the Courts below. If the defendants are really in possession, then, the decree would not come in the way of continuation of said possession of the defendants for the reason that the suit instituted by the plaintiff is not a suit for recovery of possession.

For the reasons stated above, I do not find merit to draw or formulate substantial question of law in the second appeal.

Having said so, I dismiss the present second appeal at the admission stage itself. Pending application, if any, also stands disposed of.