SUJOY BHOWMIK & ANR. Vs. SRI PRASANTA NANDY

JUDGEMENT

(1.) This revisional application is directed against the judgment and decree dated 11.5.2013 passed by Learned Civil Judge (Senior Division), Howrah, in Title Suit No. 90 of 2009, inter alia, on the grounds that learned Judge has failed to appreciate the fact and law that the evidence of D.W 1 for the purpose of maintaining peace and tranquility and preventing intruders filed an application under Section 144(2) Cr.P.C , 1973on 27.01.2009 and considering all the documents the learned Magistrate vide order dated 28.01.2009 issued an order of enquiry and directed the parties to maintain peace and to see the local Police Station that the peace be maintained. Violating such order the plaintiff/opposite party tried to invade into the whole property and the petitioners had all the documents in their possession which is ready to hand over as exhibit before the learned Court. But neither his learned advocate produced such documents before the learned Court nor the learned Court exercised its power under section 165 of the Indian Evidence Act to call for such documents for the ends of justice.

(2.) The petitioners have also made out a ground that the learned Trial Court while pronouncing the judgment failed to appreciate the fact and law that in terms of the provision of section 44 of the Transfer of Property Act, 1882 the plaintiff is not entitled to any possession of the property in question being the third party of the undivided and un-demarcated and un-partitioned family property. It has also been contended as a ground that the learned Court failed to appreciate the fact and law that in terms of the provisions of section 44 of the Transfer of Property Act, 1882 the erstwhile interest holder of the plaintiff had relinquished and released all his title, possession and interest in favour of the predecessor in interest of the petitioners and save and except his wife's interest, the said predecessor-in-interest of the plaintiff cannot establish his legal possession in terms to the law.

(3.) Mr. Hiranmoy Bhattacharyya, learned advocate for the petitioners, at the outset invited my attention to the plaint case as made out by the plaintiff/opposite party here. It is understood that the suit property is a two storied building, as mentioned in the schedule to the plaint, was owned and possessed by Harendra Nath Roy and Smt. Roma Roy, wife of Dhirendra Nath Roy. According to the plaintiff/opposite party, the ground floor and the suit building was in possession of Roma Roy, as per the amicable arrangement by and between them. The said Harendra Nath Roy died on 3rd August, 1999 leaving behind his only daughter Smt. Mira Bhowmick, defendant no. 2 in the suit, where as the defendant no. 1 was the son of Mira Bhowmick. After the death of Roma Roy on 22.11.2007 her husband Dhirendra Nath Roy remained in possession in respect of the entire ground floor of the said building, who subsequently sold the property to the plaintiff by a registered deed of sale on 12.01.2009.