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2017 DIGILAW 427 (CAL)

Kartic Dey v. Nisharani Bose

2017-04-27

ASHA ARORA, JYOTIRMAY BHATTACHARYA

body2017
JUDGMENT : Jyotirmay Bhattacharya, J. This second appeal is directed against the judgement and order dated 7th March, 2017 passed by the learned Additional District Judge, Alipurduar in Title Appeal No. 17 of 2014 rejecting the appellant's application for condonation of delay in filing the appeal at the instance of the defendant/appellant. 2. Let us now consider the merit of the appeal to find out 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 or not. 3. Here is the case where we find that the plaintiff/respondent filed a suit for declaration of her right, title and interest in respect of the suit property and for recovery of possession from the defendant. The defendant was described as a licensee in respect of the suit property. Since even after revocation of the licence of the defendant, the defendant did not vacate the suit premises, the plaintiff filed the suit for declaration and for recovery of possession. 4. The defendant appeared in the said suit and filed written statement contending therein that the plaintiff is not the owner of the suit property. He claimed that one Chunilal Bose was the owner of the suit property and he was inducted as tenant in the suit premises by the said Chunilal Bose. He, thus, not only disputed the title of the plaintiff, but also disputed the existence of any relationship of licenser and licensee between the plaintiff and the said defendant. 5. The parties led evidence in support of their respective claims. 6. Learned Trial Judge after considering the pleadings of the parties and/or the evidence led by the parties came to the conclusion that the plaintiff succeeded in proving her title in the suit property and the title deed being exhibit-1 through which she is claiming title in the suit property remains unchallenged. It was also held by the learned Trial Judge that previously the said Chunilal Bose filed a suit for declaration of his right, title and interest in respect of the suit property against the husband of the plaintiff. The said suit being O.C. Suit No. 63/77 was dismissed summarily by the learned Trial Court. 7. It was also held by the learned Trial Judge that previously the said Chunilal Bose filed a suit for declaration of his right, title and interest in respect of the suit property against the husband of the plaintiff. The said suit being O.C. Suit No. 63/77 was dismissed summarily by the learned Trial Court. 7. Learned Trial Judge held that Chunilal Bose had no right, title and interest in the suit property. Being aggrieved by the said judgement and decree, an appeal was preferred by the said Chunilal Bose, but he ultimately failed to succeed therein. Thus, Chunilal Bose failed to establish his title in respect of the suit property. 8. Learned Trial Judge further held that the plaintiff has purchased the suit property from Ayesha Khatun through a registered deed of sale being exhibit-1. Learned Trial Judge also held that the legality of the said sale deed vide exhibit-1 remains unchallenged. Learned Trial Judge also held that the defendant has failed to establish that the defendant /appellant was inducted as a tenant in respect of the suit property by the said Chunilal Bose. The defendant/appellant claimed that after the death of Chunilal Bose, his nephew viz., Pradip Bose collected rent from the defendant/appellant. The defendant/appellant also claimed that for the last 10 to 15 years, no rent was collected from the defendant/appellant by the said Pradip Bose. 9. Learned Trial Judge disbelieved the defendant's claim that he was inducted by Chunilal Bose as a tenant in the suit premises and ultimately believed the plaintiff's claim that the defendant/appellant was inducted as licensee in the suit property by the plaintiff. Since after revocation of the said licence, the defendant/appellant refused to vacate the suit premises, the learned Trial Judge passed a decree for eviction against the said defendant. 10. Being aggrieved by and dissatisfied with the said judgement and decree, the defendant/appellant preferred an appeal before the learned first Appellate Court. Since the appeal was not filed within the prescribed period of limitation, the defendant/ appellant filed an application for condonation of delay. 11. Learned first Appellate Court refused to condone the delay in filing the said appeal as the reason for the delay was not sufficiently explained. Learned first Appellate Court recorded in the impugned order that the suit was decreed on contest on 30th July, 2014, but, in fact, an appeal was filed on 29th July, 2016. 12. 11. Learned first Appellate Court refused to condone the delay in filing the said appeal as the reason for the delay was not sufficiently explained. Learned first Appellate Court recorded in the impugned order that the suit was decreed on contest on 30th July, 2014, but, in fact, an appeal was filed on 29th July, 2016. 12. Mr. Sinha, learned advocate appearing for the defendant/appellant submits that it was not correct to say that the appeal was filed on 29th July, 2016. By producing a photostat copy of the order-sheet, he has drawn our attention to Order No. 1 dated 3rd November, 2014 wherein it was recorded that an appeal along with the application was filed on 3rd November, 2014. 13. Even assuming that the appeal was presented on 3rd November, 2014, still then, we are of the view that the said appeal was an incompetent appeal as the memorandum of appeal was presented without the certified copies of the judgement and decree of the learned Trial Court. It is recorded in the impugned order that the certified copies of the judgement and decree were obtained by the appellant on 29th July, 2016 and on the very same day, the said certified copies were filed in the appeal. Thus, the defect in the appeal was, in fact, rectified on 29th July, 2016. As such, we do not find any apparent mistake in recording the facts by the learned first Appellate Court in the impugned order that a competent appeal, in fact, was filed on 29th July, 2016. 14. When under such circumstances, the learned first Appellate Court held that such enormous delay of two years has not been sufficiently explained by the defendant/ appellant, we, after perusing the materials on record, do not find any justifiable reason to interfere with the impugned order as we do not find any unreasonableness in the impugned order. We also do not find any apparent error and/or mistake in recording facts regarding the period of delay in filing the appeal. In our view, the delay has not been properly explained. As such, we hold that no substantial question of law is involved in this second 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, thus, decline to admit this appeal. In our view, the delay has not been properly explained. As such, we hold that no substantial question of law is involved in this second 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, thus, decline to admit this appeal. The appeal, thus, stands dismissed as we also find no merit in this appeal. 15. In view of dismissal of the appeal in the manner as aforesaid, no further order need be passed on the stay application. The said application being CAN 2522 of 2017 is, thus, deemed to be disposed of.