Calcutta High Court (Appellete Side)
Bansibadan Koley vs Gurupada Koley & Ors on 16 August, 2016
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya
HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Jyotirmay Bhattacharya
AND
The Hon'ble Justice Ishan Chandra Das
S.A.T. 596 of 2015
(CAN 10 of 2016)
Bansibadan Koley
-versus-
Gurupada Koley & Ors.
For Appellant : Mr. Sabyasachi Bhattacharya,
Ms. Arunnava Ganguly.
For the Respondents : Mr. Ashis Chandra Bagchi,
Mr. Sandip Roy Chowdhury,
Ms. Madhumita Patra;
Heard On : 16th August, 2016.
Judgement On : 16th August, 2016.
Jyotirmay Bhattacharya, J.
This is a defective appeal. Defects are notified in the report of the Stamp Reporter. Two defects are notified. One is about expunging the name of Bimal Chandra Koley in the Court below.
On perusal of the certified copy of the decree, we find that Bimal Chandra Koley was not expunged by the learned court below. The Block Land & Land Reforms Officer, Pandua, the respondent no. 4 herein, was expunged in the court below.
As such, we grant leave to the learned advocate-on-record of the appellant to expunge the Block Land & Land Reforms Officer, the respondent no. 4, from the cause title of this memorandum of appeal. Leave is also granted to the learned advocate-on-record of the appellant to mention the name of the Judge of the learned Trial Court in the preamble of the memorandum of appeal.
This Second Appeal is directed against the judgment and decree dated 31st August, 2015 passed by the learned Additional District Judge-cum-Judge Special Court, Hooghly, in title Appeal No. 888 of 2011 reversing the judgement and decree passed on 20th September, 2007 by the learned Civil Judge, Senior Division, 1st Court at Hooghly, in title Suit No. 120 of 1996 at the instance of the added respondent/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 for hearing under the provision of Order 41 Rule 11 of the Code of Civil Procedure.
We have heard Mr. Bhattacharya, learned Senior Counsel, appearing for the appellant and have considered the materials on record, including the judgement and decree of the courts below. On perusal of the materials on record, we find that the prior partition of the suit property between Bimal Chandra Koley and his uncle Sujoy Chandra Koley is not disputed. By virtue of such partition, Bimal Chandra Koley got 10 decimals of land in the suit plot being plot no. 1929. Remaining 14 decimals of land in the suit plot no. 1929 remained joint between Bimal Chandra Koley and his uncle Sujoy Chandra Koley.
Subsequently, Bimal Chandra Koley sold 17 decimals of land in the suit property to the plaintiff, namely, Gurupada Koley. He also sold 7 decimals of land in the suit plot to the added defendant/appellant. Thus, altogether Bimal Chandra Koley, the common vendor, sold 24 decimals of land in the suit plot.
Though as per the said partition deed, Bimal Chandra Koley got 10 decimals of land exclusively and he became the co-owner of the remaining 14 decimals of land with his uncle Sanjoy Chandra Koley having half share in it, i.e. Bimal Chandra Koley at best had 10 + 7 = 17 decimals of land in the suit plot, but he sold 24 decimals of land in the suit plot. As a result, this litigation cropped up.
The plaintiff is claiming title over 17 decimals of land in the suit plot and the added defendant/appellant is making rival claim of his title in respect of 7 decimals of land.
In this context, a question came up for consideration as to whose purchase will prevail over the other. We have already said that the vendor is common. Admittedly, both the deeds were executed by the common vendor on 29th September, 1986. Both the deeds were registered on the very same day, i.e. 29th September, 1986. Since both the deeds were executed and registered on the same date, the competition between two rival claimants can only be resolved with reference to the deed which was registered earlier in point of time than the other.
It appears that the sale deed executed in favour of the plaintiff bears the Registration No. 4976 and the sale deed executed in favour of the added defendant bears the Registration No. 4979.
As such, we have no hesitation to hold that the deed which was executed by the common vendor in favour of the plaintiff will prevail over the sale deed which was executed by the common vendor in favour of the added defendant. Particularly when there was no evidence from either side, as to the time when those sale deeds were executed by the common vendor on the same day.
Thus, we hold that the learned the First Appellate Court did not commit any error in declaring the title of the plaintiff in respect of the 17 decimals of land in the suit property which he purchased from the common vendor, namely, Bimal Chandra Koley.
We, thus, do not find involvement of any substantial question of law in this appeal. We, thus, decline to admit this appeal. The appeal, thus, stands dismissed.
Since we have dismissed the appeal, no further order need be passed on the injunction application filed in connection with this appeal. The said application is also deemed to be disposed of.
(Jyotirmay Bhattacharya, J.) (Ishan Chandra Das, J.)