Susmita Mondal vs Sita Rani Mondal And Another

The appeal shall be heard on the following substantial questions of law:

(1) Whether is it obligatory on the part of the first appellate court to consider the appeal on all issues taking into account the evidence, pleadings and the arguments advanced at the bar?

(2) Whether the court of appeal below was justified in reversing the judgment and decree of the trial court by holding that the plaintiff/respondent no. 1 has been able to prove her title over the said property?

(3) Whether the court of appeal below was justified in declaring the title of the plaintiff/respondent no. 1, which she claimed on the basis of sale deed dated 9th November 2012 purportedly executed by the defendant no. 1 when he himself in cross-examination admitted that it was not a sale deed but a gift deed?

Re: CAN 8826 of 2018 (Stay)

This is an application for stay of the execution proceeding levied by the plaintiff/respondent no. 1.

Since we have admitted the appeal and during pending the second appeal, the appellant is dispossessed from the suit premises, it would cause greater hardship on her. We have also considered the relationship between the plaintiff/respondent no. 1 and the appellant, and, therefore, feels that an interim protection must be given pending the second appeal before this Court.

The application for stay is disposed of directing the learned Civil Judge (Junior Division), 3rd Court, Diamond Harbour not to proceed further in Title Execution Case No. 19 of 2018 till the disposal of the second appeal.

Let the hearing of the appeal be expedited.

Mr. Partha Sarathi Basu, learned Senior Advocate, appears and submits that his junior, Mr. Debdutta Basu, learned advocate, has already entered appearance on behalf of the respondent no. 1 by filing his Vakalatnama in department under filing no. A-17387 on 14th December 2018.

The service of notice of appeal upon the plaintiff/respondent no. 1 is dispensed with in view of such appearance.

The office is directed to tag the Vakalatnama in the second appeal.

It appears that the defendant no. 1/respondent no. 2 though filed written statement in the trial court but did not adduce any evidence nor participated in the trial and, therefore, the service of notice of appeal upon him is hereby dispensed with.

Let the Lower Court Records be called for through the Special Messenger at the cost of the respondent no. 1. Such costs shall be put in within one week after reopening of this Court following Christmas Vacation.

Immediately, after arrival of the Lower Court Records, office shall examine the same and shall issue notice of arrival of Lower Court Records on the learned Advocate for the respondent no. 1.

The respondent no. 1 directed to prepare and file requisite number of informal paper books - printed, typewritten or cyclostyled, as the case may be - out of court, within a period of two weeks from the date of service of notice of arrival of Lower Court Records on the learned Advocate for the respondent no. 1.

All formalities regarding preparation of paper books are dispensed with, but, the learned Advocate for the respondent no. 1 is directed to incorporate all the relevant documents in the informal paper books.

Liberty to mention the appeal for hearing before the appropriate Bench subject to convenience of His Lordship.

Urgent photostat certified copy of this order, if applied for, be given to the parties within a week from the date of the application.