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Judgment
This second appeal is directed against a judgement and decree passed by the learned Additional District Judge, 1st Court, Sealdah on 28th November, 2016 in Title Appeal No. 25 of 2015 affirming the judgement and decree dated 2nd March, 2015 passed by the learned Civil Judge (Junior Division), 2nd Court, Sealdah in Title Suit No. 432 of 2001 at the instance of the defendants/appellants.
Let us now consider the merit of the appeal to find out as to whether any substantial question of law is involved in this appeal for which the appeal is required to be admitted for hearing under the provision of Order XLI Rule 11 of the Code of Civil Procedure or not.
Here is the case where we find that the father filed the suit for eviction against the son on revocation of licence. Son appeared in the said suit and filed written statement alleging therein that the suit property was originally belonged to his grandmother who during her lifetime executed a Will bequeathing the suit property in favour of grandson viz., the defendant/respondent no.1 herein. It was also alleged by him that after demise of the grandmother, he applied for grant of probate of the said Will. However, the said application for grant of probate was subsequently dismissed for default and his prayer for restoration of the said probate proceeding is still awaiting consideration before the learned probate court.
The defendant/respondent no.1, thus, claims that since the right of the testator in the suit property vested on her death upon the executor in terms of the provision contained in Section 211 of the Indian Succession Act, he being the representative of the testator cannot be evicted from the suit property before conclusion of the probate proceeding.
Fact remains that though the defendant filed the said written statement, but he did not ultimately participate in the trial of the suit. He did not adduce any evidence in the suit. He did not cross-examined the plaintiff?s witness also. The Will has not even been filed in the said eviction proceeding.
In the absence of the Will itself, court cannot consider as to who was appointed as executor of the said Will and upon whom the right of the testator vested before grant of probate under Section 211 of the Indian Succession Act. Though the defendant/respondent no.1 claims that he was not only appointed as executor under the said Will, but he is a legatee under the said Will, but in the absence of the Will, this part of assertion made by the defendant cannot be examined by the court.
When under such circumstances, the learned Trial Judge decreed the suit ex parte against the defendants and the said ex parte decree was affirmed in appeal by the learned first Appellate Court by holding that the defendant was a licensee under the father/plaintiff and his licence was duly revoked and despite revocation of licence, the defendant has not given up his possession in favour of the plaintiff, this Court does not find involvement of any substantial question of law in this appeal for which the appeal is required to be admitted for hearing under the provision of Order XLI Rule 11 of the Code of Civil Procedure. We, thus, decline to admit this appeal. The appeal, thus, stands dismissed. Re: CAN 459 of 2017 (Stay)
Since we have not admitted the appeal under the provision of Order XLI Rule 11 of the Code of Civil Procedure, no further order need be passed on the interim application for stay. The said application being CAN 459 of 2017 is, thus, deemed to be disposed of.