Gyanti Devi & Others vs Laxmi Devi & Others

We are informed by Mr. Roy Chowdhury, learned senior counsel appearing for the defendants/appellants that deficit court fees of Rs.8/- has been

deposited by his clients on 20th June, 2018 vide Filing No. A-7243. The defect as mentioned in the report of the Stamp Reporter has thus been

rectified. This second appeal will be heard on the following substantial questions of law :-

Whether both the learned courts below have committed substantial error of law in holding that the Exhibit Nos. ‘H’ and ‘I’ cannot be

considered in view of bar of Section 49 of the Registration Act, 1982 inasmuch as the defendants by those exhibits wanted to establish the contribution

of money of defendant No.1 and her husband, Doman Shaw (since deceased) in the matter of contribution of the suit building thereby, to establish

their status as non-evictable licensees in the suit property under Section 60 of the Indian Easement Act, 1882?

Whether both the learned courts below have committed substantial error of law in not holding that even if the defendant No.1 and her children are

considered as licensees under the plaintiff, when the defendant No.1 and her husband, Doman Shaw (since deceased) have contributed money in

raising the construction of the suit building acting on such licence the plaintiff is not entitled to revoke said licence and to evict the defendants from suit

property in view of the bar of the Section 60 of the Indian Easement Act, 1882?

Whether both the learned courts below have committed substantial error of law in not holding that the defendant Nos. 2 to 7 cannot be evicted from

the suit property being the sons and daughters of Doman Shaw (since deceased) born out of the marriage with the defendant No.1 since on the death

of said Doman Shaw the defendant Nos. 2 to 7 are entitled to whatever right, title and interest that their father had in the suit building in view of

Section 16(3) of the Hindu Marriage Act, 1955?

Whether both the learned courts below have committed substantial error of law in holding that the plaintiff Smt. Shanti Devi is the absolute owner

and the title holder of the suit property and she is not the benamdar of Doman Shaw (since deceased) inasmuch as the daughter of the plaintiff being

PW-1 in her cross-examination in the suit specifically stated that her mother was a housewife and her father used to spend money for family

expenditure? Call for the records. Issue usual notice.

Re: CAN 2089 of 2018 (Stay)

On the prayer of Mr. Mukherjee, learned counsel appearing for the plaintiffs/respondent Nos. 1 to 4, leave is granted to the respondents to file

affidavit-in-opposition to the application for stay filed by the defendants/appellants within three weeks from date; reply, if any, be filed by the

defendants/appellants within a week thereafter. Let the application for stay be listed for hearing six weeks hence before the appropriate Bench. There

will be an unconditional stay of further proceedings of the execution case being Title Execution Case No. 2 of 2014 pending before the learned Civil

Judge (Junior Division), 3rd Court at Howrah till 7th August, 2018 and such stay will continue subject to compliance of the following conditions :-

(i) The defendants/appellants will have to deposit a sum of Rs.20,000/- (rupees twenty thousand only) on account of occupational charges in the

Executing Court within 7th August, 2018.

(ii) The defendants/appellants will have to deposit the occupational charges for the subsequent months in the Executing Court within 7th of each

following month till the disposal of this application. In default of compliance of any of the conditions, as mentioned above, interim stay, as granted

above, shall stand vacated automatically and in that event, the plaintiffs/respondent Nos. 1 to 4 will be at liberty to execute the eviction decree in

accordance with law.

It is made clear that the plaintiffs/respondent Nos. 1 to 4 will not be permitted to withdraw such deposit without the leave of the Court and the fate of

such deposit will be ultimately decided in this application. It is also made clear that since we have fixed the occupational charges before exchange of

affidavits between the parties, fixation of such occupational charges to be deposited by the defendants/appellants is tentative. Urgent photostat

certified copy of this order, if applied for, be given to the parties as expeditiously as possible.