Calcutta High Court (Appellete Side)
Suprakash Maity & Ors vs Contai Manjuri Gosthi & Ors on 21 November, 2014
Author: Girish Chandra Gupta
Bench: Girish Chandra Gupta
1
21.11.2014
35
RP Ct.04
SA 122 of 2013
Suprakash Maity & Ors.
vs.
Contai Manjuri Gosthi & Ors.
Mr. Pushpendu Bikash Sahu
Mr. Sudhakar Biswas
.... For the Appellants
The plaintiffs filed a suit claiming declaration, permanent
injunction and mandatory injunction on the basis that they
were the owners of the piece of land measuring 7 decimals. It
was alleged that Satyabrata, the ancestor of the plaintiffs, gifted
1.5 decimals of land to the defendant club. The defendant club however wrongfully and illegally has put up a boundary wall encircling the entire piece of land and therefore a prayer for mandatory injunction was made that the boundary wall should be removed and permanent injunction was also claimed in order to restrain the defendant club from encroaching the land in future.
The alleged gift of 1.5 decimals of land admittedly, even according to the plaintiffs, is an oral gift. There was no document in support thereof. The defendants have produced the record of rights which go to show that they are in permissive occupation of 7 decimals of land. The permission to occupy has admittedly not been revoked nor is that the case of the plaintiffs. In that view of the matter the defendant club is entitled to remain in possession. They are also entitled to keep the wall intact. The allegation that the construction of the wall was the proximate reason for filing the suit has also not been proved. A local inspection was held by the PW 3. He after visiting the locale filed a report indicating that it was not possible to ascertain the age of the wall. Therefore the allegation that the 2 wall had been made immediately prior to filing of the suit was also not proved.
Another significant fact has transpired during the trial that the land in question has been vested in the State. The plaintiffs tried to show that in Title Suit No.107 of 1980 filed against the State a permanent injunction was passed against the State. The State however did not obey the order and purported to vest the land. Contention obviously is that the vesting is illegal. Whether the vesting is illegal or legal was not an issue before the trial Court. The trial Court dismissed the suit for appropriate reasons namely the plaintiffs failed to prove
(a) that there was any gift for 1.5 decimals of land as alleged by them; (b) that the plaintiffs were in possession of the land; (c) on the contrary possession of the defendant club was proved by the record of rights; (d) when the club is in possession they are entitled to put up the boundary wall. Therefore the plaintiffs' suit was dismissed for appropriate reasons. The learned Appellate Court dismissed the appeal preferred by the plaintiff. The plaintiffs have come up in second appeal.
Mr. Sahu, learned Advocate submitted that there is evidence to show that the land belonged to Abanindra, the father of Satyabrata. The plaintiffs are the successors of Satyabrata. Therefore the right of the plaintiffs is well proved and therefore an order of injunction could not have been refused.
We are unable to agree with Mr. Sahu. Even assuming that the plaintiffs have the title, there is unimpeachable evidence to show that the defendant club is in permissive occupation thereof and that permission has not been revoked. Therefore the plaintiffs have no right either to claim demolition of the boundary wall or to claim possession of the land. We are not however to be understood to have expressed any opinion 3 that the plaintiffs are the lawful owners of the land. That is not required of us for the purpose of disposal of this appeal.
On the top of that admittedly there is some vesting proceedings in violation of the order of the Court according to the plaintiffs. Therefore steps in that regard may have to be taken. We are satisfied that this appeal does not raise any question of law far less any substantial question of law. Therefore we refuse to admit the appeal which is accordingly dismissed.
(Girish Chandra Gupta, J. ) (Shib Sadhan Sadhu, J.)