Calcutta High Court (Appellete Side)
Smt. Moyna Bhattacharjee vs Sri Ashim Kumar Bhattacharjee on 5 September, 2022
Author: Soumen Sen
Bench: Soumen Sen
1
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
BEFORE:
The Hon'ble Justice Soumen Sen
And
The Hon'ble Justice Siddhartha Roy Chowdhury
SAT 25 of 2019
Smt. Moyna Bhattacharjee
Vs.
Sri Ashim Kumar Bhattacharjee
For the Appellant : Mr. Milan Chandra Bhattacharjee, Sr.
Adv.,
Mr. Sanjay Mukherjee, Adv.,
Ms. Sulagna Bhattacharya, Adv.
For the Respondent : Mr. Dhruba Ghosh, Sr. Adv.,
Mr. Soumyajit Ghosh, Adv., Ms. Sananda Ganguli, Adv., Mr. Shubradip Roy, Adv., Ms. Ajeya Chowdhury, Adv.
Order dated : 5th September, 2022 Siddhartha Roy Chowdhury, J. (Oral): This appeal is directed against the judgement and decree passed by learned Additional District Judge, 3rd Court, Alipore in Title Appeal No. 4000 of 2014, reversing the judgement and decree passed by learned Civil Judge, Senior Division, 1st Court, Alipore in Title Suit No. 52 of 2009, subject to result of FA 42 of 2014.
Fact of the case in short is that Sri Ashim Kumar Bhattacharjee depicting Smt. Moyna Bhattacharjee, Siddhartha Bhattacharjee, Aritra 2 Bhattarcharjee as licensees in respect of suit property filed a suit for their eviction. The suit property was originally owned by Dilip Kumar Bhattacharjee (since deceased). According to the plaintiff his father being the owner of the property bequeathed the same in his favour and in favour of his other brother and he was appointed as Executor of the said Will. He filed a petition seeking grant of Probate of the last Will of his father.
The defendants contested the suit by filing written statement denying all material allegations made against them. Defendant no. 1, Smt. Moyna Bhattacharjee asserted her right of residence under Section 19 of the Hindu Adoption and Maintenance Act. As the probate proceeding was pending learned Trial Court was pleased to dismiss the suit.
Challenging the said judgement of learned Trial Court the plaintiff Sri Ashim Kumar Bhattacharjee preferred an appeal which was registered as Title Appeal No. 4000 of 2014 (Title Appeal Old No. 101 of 2014).
Learned First Appellate Court, however, reversed the judgement passed by learned Trial Court and allowed the appeal provisionally keeping in mind the probable contingencies that would arise upon adjudication of FA 42 of 2014. Decree of recovery of Khas possession was granted subject to the result of F.A. 42 of 2014 pending before this High Court and if the Will is not found to be genuine the suit and appeal shall get dismissed.
As a matter of fact, we have allowed the appeal preferred by Smt. Moyna Bhattacharjee, challenging the judgement passed by learned Additional District Judge, 4th Court, Alipore, granting Probate of the Will 3 of Dilip Kumar Bhattacharjee. Consequently, the judgement and decree passed by learned Additional District Judge, 4th Court, Alipore in O.S. Case No. 19 of 2009 has been set aside.
Under such circumstances, the impugned judgement of learned Additional District Judge, 3rd Court, Alipore passed by learned Trial Court becomes the judgement of affirmance passed by learned Trial Court. Be that as it may, in view of the judgement passed in FA 42 of 2014 the appellants Smt. Moyna Bhattacharjee & Ors. cannot be said to be a licensee under the respondent Sri Ashim Kumar Bhattacharjee; rather they have acquired right title interest in the properties left by Dilip Kumar Bhattacharjee (since deceased) by way of inheritance. Under such circumstances, Second Appeal is allowed, however, without any order of cost.
I agree (Siddhartha Roy Chowdhury, J.) (Soumen Sen, J.)