DIPAK BASAK Vs. GOUTAM MUKHERJEE

JUDGEMENT

(1.) Judgment and decree dtd. 27/1/2017 passed by the learned Civil Judge (Senior Division) Small Causes Court and Sessions Court at Sealdah in Title Suit no. 18 of 2010, whereby the suit preferred by one Dipak Basak (in short, Dipak) and the counter-claim of the defendants, namely, Goutam Mukherjee (in short, Goutam) and Rani Mukhejee (in short, Rani) were dismissed, have been impugned in the present appeal. The appeal against the dismissal of suit has been registered as FA 134 of 2018 and the appeal against rejection of the counter-claim has been registered as FA 66 of 2023. As both the appeals arise out of the same judgment, the same have been heard analogously.

(2.) Facts spelt out in the plaint, in brief, are that one Saraswati Devi (in short, Saraswati) happened to be absolute owner of the land and building at 11/48, Ultadanga Road, Kolkata - 700004 under police station Ultadanga. The plaintiff, namely, Dipak came to know that Saraswati was interested to dispose of the entire ground floor, second floor together with the roof over the second floor of the building and he accordingly approached her to purchase the same at a consideration of Rs.4,00,000.00. Both sides having agreed, two separate deeds of conveyance were executed on 16/11/2000 in consideration of Rs.4,00,000.00. Thereafter, the possession of the suit property was handed over to Dipak and he put his belongings in the same. Defendant no.1, namely, Goutam is the son of Saraswati and the defendant - 2, namely, Rani is the wife of Goutam, who are residing in the 1st floor of the building. Saraswati was a resident of the ground floor and 2nd floor of the suit property and after delivery of possession, she left Kolkata on 16/1/2000 with her youngest daughter, namely, Dola Chakraborty and went to Mumbai. On the next date, Goutam and Rani with some antisocial put padlock at the ground floor and 2nd floor of the suit property and prevented Dipak to enter into the suit property. Aggrieved thereby, Dipak filed a petition u/s 144 (2) of the Code of Criminal Procedure (in short, the said Code) before the learned Executive Magistrate, Sealdah. Goutam and Rani have no right, title and interest over the suit premises and they dispossessed the plaintiff from the suit property in utter violation of the law and as such, the suit.

(3.) The defendants, namely, Goutam and Rani filed a written statement on 27/3/2002 contending inter alia that Saraswati never proposed to sell the property to Dipak and that the deeds claimed to have been executed are illegal and invalid. The original deeds are fabricated because Saraswati had no capacity to sign or put any thumb impression as she was suffering from serious illness during that time. Saraswati always used to put her signature in Bengali and Dola forcibly took away Saraswati from the custody of Goutam and Rani. The thumb impression in the deeds are not of Saraswati. If at all any such deed was executed, the contents of the same were never explained to Saraswati and she did not receive the consideration money. The only witness to those deeds was the conspirator Dola, a resident of Mumbai whose intention was to oust Goutam from the suit property. Goutam and Rani denied the allegation of putting padlock at the suit property. Dipak never got possession of any portion of the suit property and he cannot be dispossessed.