Sambhu Mondal vs Shdhir Chandra Mondal & Ors.

This second appeal is directed against the judgement and decree dated 27th August, 2015 passed by the Learned Additional District & Sessions Judge, Malda in O.C. Appeal No. 10 of 2012 affirming the judgement and decree dated 13th January, 2012 passed by the Learned Civil Judge (Junior Division), 1st Court at Malda in O.C. Suit No. 222 of 1998, at the instance of the defendant/appellant.

Let us now consider as to whether any substantial question of law is involved in this appeal for which the appeal is required to be admitted under the provision of Order 41 Rule 11 of the Code of Civil Procedure, or not.

Here is the case where we find that the plaintiffs/respondents filed a suit for eviction against the defendant/appellant on revocation of their licence.

The defendant/appellant contested the said suit by filing a written statement. He claimed that he trespassed in the suit property in the year 1970 and since then he has been continuously possessing the suit property by raising a temporary structure therein. He not only denied the execution of the ''Anumatipatra'' but tried to protect his possession by claiming adverse possession.

The parties led evidence in support of their respective claims in the said suit. The learned Trial Judge after considering the pleadings of the parties and their evidence came to the conclusion that the plaintiffs are the owner of the ''Ka'' schedule Property and the ''Kha'' schedule property was a part of ''Ka'' schedule property. Such conclusion was drawn on the basis of two title deeds which were exhibited in the suit on proof by the plaintiffs/respondents. Those documents were marked as exhibits without any objection from the side of the defendant. Though the defendant denied execution of the ''Anumatipatra'' but he has not taken any positive step to substantiate such contention in course of trial of the suit. On the contrary, the ''Anumatipatra'' and the signature of the defendant appearing on the said ''Anumatipatra'' were proved and admitted into evidence without any objection. The ''Anumatipatra'' was exhibited as Ext. 3 and the signature of the defendant appearing on the said ''Anumatipatra'' was exhibited as Ext.3/1.

The learned Trial Judge, thus, came to the conclusion that the plaintiffs having title over the suit property are the licensors of the defendant and since after revocation of such licence, the defendant did not vacate the suit premises. The plaintiffs are entitled to get a decree for eviction against the defendant/appellant. Accordingly an eviction decree was passed against the defendant/appellant.

Being aggrieved by and dissatisfied with the said judgment and decree of the learned Trial Court, the defendant/ appellant preferred and appeal before the learned First Appellate Court. The learned First Appellate Court dismissed the said appeal by affirming the judgment and decree of the learned Trial Court. The instant Second Appeal is directed against such concurrent findings of fact of the Courts below.

After hearing the learned Advocate for the appellant and after considering the materials on record including the judgment of the Courts below, we are of the view that both the Courts below did not commit any illegality in passing a decree for eviction against the defendant/appellant in the facts of the instant case where the plaintiffs were found to be owners of the suit property and the defendant is possessing the suit property as a trespasser since the time of revocation of his licence. Even the effort which was made by the defendant to get the record of rights corrected failed as the concerned Revenue Officer refused to alter the entry in the record of rights as regards the nature of his possession which is permissible in nature.

When under these set of facts, the decree for eviction was passed against the defendant/appellant, we sitting in this jurisdiction, does not find it reasonable to disturb such concurrent findings of fact of the Courts below.

Accordingly, we feel that no substantial question of law is involved in this appeal for which the appeal is required to be admitted under the provision of Order 41 Rule 11 of the Code of Civil Procedure.

Accordingly, we decline to admit this appeal.

The appeal is, thus, dismissed.

In view of the disposal of the appeal itself, no further order need be passed on the application which is deemed to be disposed of.

The application for stay being CAN 5783 of 2016 is thus, deemed to be disposed of.

Let the information which was supplied by the learned First Appellate Court as to the fact that the decree has not yet been drawn up by the learned First Appellate Court, which is filed in Court today, be kept with the record.

Urgent Photostat certified copy of this order, if applied for, be supplied to the Learned advocates for the parties immediately.