Raju Ghosh & Anr. vs Kalidasi Naskar & Ors.

C.A.N. 11258 of 2011

This is an application seeking leave to prefer appeal by third party intervener, namely, the petitioners herein. The petitioners here are Raju Ghosh and

Biju Ghosh who claims to have purchased the property from the substituted heirs of one Kanailal Ghosh. Kanailal Ghosh filed Title Suit No.25 of 1990

for declaration, injunction and recovery of khas possession against one Naba Kumar Naskar who was the defendant in the suit. The learned Trial

Court decreed the suit on contest on February 25, 1994. Defendant filed an appeal therefrom and the learned Appellate Court below ultimately, by a

judgment and decree dated May 11, 2007 allowed the appeal ex parte.

It is the contention of the petitioners that the suit property has been transferred by the successors of Kanailal Ghosh, i.e., the substituted plaintiff, in

favour of the present petitioner by a registered deed on September 23, 2009. The same has been effected after the learned First Appellate Court

allowed the appeal ex parte setting aside the judgment and decree passed in Title Suit No.25 of 1990.

It is the case of the petitioners before this Court in support of their prayer for leave to prefer appeal is that after purchase of the suit property by virtue

of a registered deed sometime in November 2009, they filed an application under Section 144(2) of the Code of Criminal Procedure before the learned

Executive Magistrate at Baruipur in the District of South 24 Parganas. In the said proceeding, the respondents disclosed the fact that they suffered an

ex parte decree in the appeal before the learned Appellate Court.

The petitioners further submit that after purchase they filed an application bona fide before the concerned authority in the Department of Land &

Land Reforms for mutation of their names on the basis of registered deed dated May 11, 2007. Copy of the said application is handed up before this

Court and on the basis of the said application, the concerned Land & Land Reforms Officer mutated the petitioners’ names under two separate

khatians.

The petitioners further submit that after enquiry in the Court of Baruipur, they ascertained about the appeal and the ex parte decree passed therein.

However, after information they requested their vendor to challenge the ex parte decree. But, ultimately, they did not file any appeal and under

compulsion, the petitioners have come before this Court by way of this application for leave to appeal. They have also filed a memorandum of appeal

against the judgment and decree passed by the learned Lower Appellate Court below. Supplementary affidavits and counter affidavits have been used

by the parties.

From the averment made in this application for leave to appeal and counter affidavits made by the respondents, it appears that the petitioners acted

bona fide to challenge the ex parte decree passed by the learned Appellate Court below. Although there has been some delay in filing the

memorandum of appeal, but otherwise, the petitioners have made out a case in relating to an order for grant of leave to file an appeal against the

judgment and decree passed by the learned Lower Appellate Court below.

From the record placed before this Court by way of application and supplementary affidavit thereto, it appears that the names have already been

recorded in respect of the suit land. Therefore, there is no reason to disbelieve that the petitioners had a bona fide attempt to protect their interests in

the suit property nor does it appear that deliberately they waited for a long time to challenge the judgment and decree.

On perusal of the ex parte judgment and decree passed by the learned lower Appellate Court below, it appears that the very right of the defendant in

the suit in question as to whether he is a rightful owner of the suit property or not, is directly in question and whether the petitioner's vendors were the

rightful owners thereof. Until and unless, leave is granted to the present petitioners, their interest will be severely prejudiced. That apart, this question

cannot be decided whether the vendor of the petitioners had a transferable title or not and whether the title allegedly acquired by the petitioners by

virtue of the deed of sale from the said successors of Kanailal Ghosh is superior to that of the right, title and interest of the defendant which was

declared by the trial court in Title Suit No.25 of 2009.

Once the present petitioners are granted leave and the appeal is heard on merit, all these doubts will be cleared. Accordingly, leave is granted to the

petitioners in terms of the prayer made in the application. Accordingly, the application for leave to prefer appeal being C.A.N. 11258 of 2011 stands

allowed. However, it is apparent from the record that the petitioners were not very serious in coming before this Court to pursue their relief by way of

the second appeal and in that view of the matter, it will be just and proper if the petitioners are directed to pay a cost of Rs.10,000/- (Rupees Ten

Thousand only) to the respondents.

Leave to prefer appeal is granted subject to payment of costs to the respondents through their learned Advocate-on-Record as directed above within a

week from date. Let the appeal along with application for condonation of delay be listed on June 26, 2018 under the heading “Applicationâ€​.