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2022 DIGILAW 1060 (CAL)

Rani Bala Mistry v. Harekrishna Mondal

2022-07-21

HIRANMAY BHATTACHARYYA, SABYASACHI BHATTACHARYYA

body2022
JUDGMENT Re: SAT/8/2021 Upon hearing learned senior advocate appearing for the appellants and going through the judgments of both the courts below, we are of the opinion that the appeal shall be heard on the following substantial questions of law; 1. Whether the judgment and decree of reversal of the Appellate Court below is substantially bad in law when core issue involved in the case about due execution of the will in terms of Section 68 of Evidence Act and Section 63 of Indian Succession Act which remained undecided in the impugned judgment although Trial Court held the purported will was not duly executed in terms of Section 68 of Evidence Act and Section 63 of Indian Succession Act in terms of oral and documentary evidence on record. 2. Whether the judgment and decree of reversal as regards setting aside mutation order passed by Tehsildar is substantially bad in law when a civil suit itself, as regards praying for setting aside mutation order passed by Tehsildar in terms of section 34(1) of Andaman and Nicobar Islands Land Revenue and Land Reforms Regulation 1966 read with Rule 135 of Regulation 1968, is barred under section 204, Andaman and Nicobar Islands Land Revenue and Land Reforms Regulations 1966 read with section 80 of Code of Civil Procedure, 1908. 3. Whether the decree of permanent injunction granted by the Appellate Court below restraining the defendants including Tehsildar from giving any effect to the order dated 03.05.2010, being Exhibit 'H' to the suit, passed by the Tehsildar, Diglipur under section 34 of the Andaman and Nicobar Islands Land Revenue and Land Reforms Regulation 1966 read with section 135 of the Act, is contrary to the pleadings and prayer in the plaint of the plaintiff and consequently the order directing mutation as per provision of section 31 of Specific Relief Act is totally prohibited by the section 80 of Code of Civil Procedure, 1908. Leave is granted to the learned advocate on record for the appellants to amend the memorandum of appeal thereby incorporating the additional grounds, which have been filed today by the appellants in the form of substantial questions of law. Such amendment shall be carried out during the course of the day. Issue usual notice. Let lower courts record be called for. Such amendment shall be carried out during the course of the day. Issue usual notice. Let lower courts record be called for. Re: CAN/1/2022 A prima facie case has been made out by the appellants in terms of the substantial questions of law formulated for hearing the second appeal on merits. Considering the balance of convenience and inconvenience and the irreparable injury which the appellants may suffer in the event the interim order is refused, the Tehsildar, Diglipur is restrained from partitioning the suit property by metes and bounds and/or taking any steps in terms of the appellate court's decree on the prayer of any of the parties, or otherwise. The parties are also hereby restrained from changing the nature and character of the suit property in any manner whatsoever and/or from taking any steps in terms of the appellate court's decree. Such interim order shall be in force till the disposal of the application or until further order whichever is earlier. The appellants/petitioners shall serve copies of the application being CAN/1/2022 on the respondents, indicating that the said application shall be enlisted for hearing before the appropriate learned Single Judge in the next Circuit.