Dinabandhu Kundu vs Gobinda Chandra Kundu

Being aggrieved by and dissatisfied with the judgement and decree dated March 28, 2018 passed by the learned Additional District & Sessions Judge, 2nd Court at Arambagh, District Hooghly, in Title Appeal No.50 of 2016, affirming the judgement and decree dated April 29, 2016 passed by the learned Civil Judge, Junior Division, 2nd Court at Arambagh District Highly, in Title Suit no. 9 of 2013, the defendant has preferred this appeal.

This appeal will be heard on the following substantial questions of law :

i)Whether the learned Courts below erred in law in decreeing the suit on a misconception and wrong impression that the defendant/appellant's father was the plaintiff in Title Suit No. 226 of 1994. ii)Whether the learned Courts below

erred in law in not considering the material evidence on record which would clearly show that the plaintiff was allotted Kundu Tea Stall situated on the suit property of T.S. No. 226 of 1994 and that Gobinda Kundu was not the father of the defendant but Banshi Badan Kundu was the father of the defendant, who was allotted the separate room in the suit property.

iii) Whether the learned Courts of appeal below erred in law in holding that the father of the defendant was allotted Kundu Tea Stall in the suit plot no. 475, and the defendant could not have any other room in the suit property.

iv)Whether the learned Courts below erred in decreeing the suit thereby evicting the defendant/appellant therefrom without considering the accepted position that the property had not been partitioned and in absence of such partition every co-sharer was the owner of every inch of the property.

Let the decree of the Trial Court be sent down to the Court of Civil Judge (Junior Division) 2nd Court at Arambagh, District Hooghly for rectification and insertion of the correct date of the judgement within a week after reopening of the Court after the Christmas vacation.

The learned Trial Court is directed to send back the rectified copy of the decree after making necessary correction within a week from receipt thereof.

The appeal be regularized after the aforementioned rectification is done.

In re: C.A.N. 4859 of 2018

This is an application for stay of Title Execution Case No. 5 of 2016 pending before the learned Civil Judge(Junior Division) 2nd Court at Arambagh, District Hooghly.

Having considered the prima facie case and balance of convenience and/or inconvenience, let there be an order of stay of all further proceedings in Title Execution Case No.5 of 2016 pending before the learned Civil Judge (Junior Division) 2nd Court at Arambagh, District Hooghly for a period of eight weeks after reopening of the Court after the Christmas vacation.

Parties will be at liberty to pray for extension and/or modification of the above interim order upon notice to the other side.

The learned Advocate on record for the appellant is directed to serve a copy of the application upon the respondents by speed post with A/D and to file affidavit of service on the next date of hearing.

Liberty to mention.

Urgent Photostat certified copy of this order, if applied for, be given to the parties on priority basis.