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2016 DIGILAW 856 (CAL)

Kabita Jana @ Dingal v. Pratap Chandra Jana

2016-11-07

ISHAN CHANDRA DAS, JYOTIRMAY BHATTACHARYA

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JUDGMENT : Jyotirmay Bhattacharya, J. 1. This Second Appeal is directed against the judgment and decree dated 23rd March, 2015 passed by the learned Civil Judge, Senior Division, 1st Court at Contai, District Midnapore (East) in Title Appeal No. 21 of 2010 affirming the judgment and decree dated 25th March, 2010 passed by the learned Civil Judge, Junior Division, 2nd Additional Court at Contai, District, Midnapore (East) in Title Suit No. 29 of 2007 at the instance of the defendant/ appellant. 2. The parties are closely related to each other. The appellant is the daughter of the plaintiff/respondent. The plaintiff/respondent filed a suit for declaration and injunction. He claimed that the defendant/appellant procured the deed of gift from her father by way of misrepresentation and fraud. 3. The defendant/appellant contested the said suit by filing written statement alleging that the father gifted the suit property in her favour by executing a deed of gift voluntarily and having full knowledge about the nature of the deed he executed in favour of her. The allegation of commission of fraud and misrepresentation upon the father in course of execution of such deed of gift by the daughter was denied by the defendant/appellant. 4. The parties led evidence in support of their respective claims. The learned Trial Judge was pleased to decree the said suit on contest by holding inter-alia that the execution of the deed of gift by the father voluntarily and consciously could not be proved by the defendant/ appellant. Even the attesting witnesses were not examined by the defendant/ appellant. Since the requirement of proving the deed of gift as per the provision of Section 68 of the Evidence Act could not be satisfied by the defendant/appellant, the learned Trial Judge held that the deed of gift could not be proved by the defendant/appellant and as such, decree was passed in favour of the plaintiff/respondent. 5. Being aggrieved by and dissatisfied with the said judgment and decree passed by the learned Trial Judge, the defendant/appellant filed an appeal before the learned First Appellate Court. The learned First Appellate Court also dismissed the said appeal by affirming the judgment and decree of the learned Trial Court. 6. After hearing Mr. 5. Being aggrieved by and dissatisfied with the said judgment and decree passed by the learned Trial Judge, the defendant/appellant filed an appeal before the learned First Appellate Court. The learned First Appellate Court also dismissed the said appeal by affirming the judgment and decree of the learned Trial Court. 6. After hearing Mr. Mahato, learned advocate, appearing for the appellant and after considering the materials on record, we do not find involvement of any substantial question of law in this appeal as we find that the defendant/appellant did not take any effective step to get the attesting witnesses examined in the suit. Though, the defendant/appellant filed an application for issuance of summons upon the attesting witnesses and the said attesting witnesses inspite of being served did not turn up, the defendant/appellant did not press her application for issuance of warrant for procuring the attendance of the said attesting witnesses in court. 7. Under such circumstances, we hold that both the courts below did not commit any illegality in passing a decree for declaration of the plaintiff's title in the suit property and/or maintaining the said decree by the First Appellate Court in appeal. 8. Thus, we decline to admit this appeal for hearing. The appeal, thus, stands dismissed. Consequently, the application for injunction filed in connection with this appeal is disposed of accordingly.