LAILY BIBI MONDAL Vs. ABDUS

JUDGEMENT

(1.) The instant second appeal arises from a judgment and decree dtd. 27/2/2023 passed by the learned Civil Judge, Senior Division, 1st Court at Baruipur in Title Appeal No. 4 of 2009 reversing the judgment and decree of the Trial Court as a consequence whereof the suit filed by the appellant was dismissed. At the very outset, we must record that the counsel of the appellant innocuously submits that since the instant second appeal against the judgment of reversal; it would proper to admit the appeal and decide the point as a 3rd Court. We could not accept the aforesaid submission that in the event one Court has decreed the suit and the appellate court has reversed the same, it would invite the automatic admission of an appeal under Sec. 100 of the Code of Civil Procedure. The Court can admit the appeal under the aforesaid provision of law provided it involves a substantial question of law which cannot be overlooked and/or bye-passed even in case of reversal of a judgment and decree of the Trial Court. In order to ascertain the involvement of the substantial question of law we invited the counsel appearing for the appellant to address us in this regard.

(2.) Before we proceed to deal with the submissions advanced by the counsel of the appellant and to arrive at the final decision whether it involves a substantial question of law or not, it would be profitable and relevant to quote the salient facts of the instant case.

(3.) The predecessors of the plaintiff-appellant filed a suit for declaration of title and permanent injunction restraining the respondents from interfering with the peaceful possession in respect of the suit property. The plaint case proceeds on an assertion that the predecessor-in-interest of the present plaintiff namely, Nefurali Mondal took the statement of the subject properties as a tenant and enjoyed the possession by making cultivation thereupon. Upon the death of the said Nefurali Mondal the subject property devolved upon the original plaintiff as his heir. It is further pleaded that the record of right stands in the name of Nefurali Mondal and, therefore, the original plaintiff not only acquired the right, title, interest and possession in respect of the property by way of inheritance but also on the coming in force of the West Bengal Estate Acquisition Act, 1948 alleviated the status that of the raiyat. It is further averred in the plaint that the LR record of right contained the name of one Abdul Khalek Mondal and Sarafat Mondal erroneously and taking advantage of such erroneous entry in the record of right, the defendants are trying to deserve the possession of the original plaintiff. The heirs of the Sarafat Mondal were also impleaded as the parties but ultimately, the defendant No. 8 contested the said suit.