Prasanta K. Acharya vs Panchanana Choudhury

Ratnakar Dash, J.—Heard learned counsel for the appellant on the involvement of any substantial question of law to be decided in this Second Appeal.

In the appeal memo some substantial questions of law have been framed which are based on the appellant''s claim that the suit property is endowment property for which different provisions of Hindu Religious and Endowment Act, 1951 are applicable. But it is not shown by the learned counsel for the appellant that the appellant-defendant has taken the same defence in his written statement. Rather, materials placed before this Court make it clear that the suit property was, admittedly, the family property of one Gobinda Choudhury, grandfather of the plaintiff, who had given the suit building to the appellant and his two brothers for their residence on the conditions that they shall have no right of residence in the suit building the moment they would cease to be the priests of the deities installed by late Gobinda Choudhury in a temple constructed by him in Mouza Gosani Nuagaon with endowment of several valuable properties to the deity. In the written statement the defendants had never taken the plea that the suit premises was also endowed to the deities. It is also not specifically denied in the W.S. that the three brothers had executed an agreement on 15.3.1985 in favour of Gobinda Choudhury permitting them to occupy the suit house free of rent as licensees as long as they continued to be the priest of the deity. One of the three brothers who were licensees in respect of the suit premises and who has vacated the suit premises on being served with a notice to vacate it has deposed as P.W. 2 and has stated that all the three brothers executed the agreement dated 15.2.1985 (Ext. 1). The appellant as D.W. 1 has stated in his deposition before the learned trial Court that he had executed the agreement marked Ext. 1. In the W.S. the appellant had taken the stand that the suit premises was gifted to the defendant''s father by the respondent''s grandfather Gobinda Choudhury. But in his deposition D.W. 1 has stated that no such gift deed in respect of the suit house was executed by Gobinda Choudhury. In the W.S. it is not claimed that the suit premises has been endowed to the deity and that the suit is not maintainable under the provisions of the Hindu Religious and Endowment Act.

Under such circumstances, the substantial questions of law furnished in the memo of appeal are not actually involved in the Second Appeal. One memo is filed by the learned counsel for the appellant stating therein two proposed substantial questions of law. On the basis of the memo it is submitted that without there being any issue framed by the learned courts below and without any documentary evidence, the learned lower appellate court has recorded a finding that the suit property is the plaintiff''s family property. In this regard, it is to be stated that in the plaint the suit property is claimed to be the family property of the plaintiff which is not specifically denied by the defendant in his written statement. Therefore, question of framing of an issue as to whether the suit property is the family property of the plaintiff does not arise. The defendant in his W.S. has not taken any specific stand that right, title and interest in the suit property remains in any person other than the plaintiff. Therefore, no such substantial questions of law as enumerated in the memo can be framed in this appeal.

There are no other substantial questions of law that can be framed on the basis of the materials available on record.

In the result, the Second Appeal cannot be admitted and the appeal memo stands rejected.