- (1.) The plaintiffs, being the appellants have filed this second appeal challenging the judgment and decree of first appellate Court, being the learned Additional District Judge, 3rd Court at Burdwan dated 6.5.89 passed in Title Appeal No. 11 of 1982 reversing the judgment and decree of the learned Munsif, 3rd Court at Burdwan dated 18.12.81 in Title 5 'it No. 75 of 1971.
(2.) Originally, when this appeal was admitted under Order 41 Rule 11 of the Code of Civil Procedure, a Division Bench of this Court, by the order dated 24.6.97, simply passed an order that appeal would be heard. No substantial question of law was framed for hearing of this second appeal. After the amendment of Code of Civil Procedure, it is a mandatory provision in terms of Section 100 of the Code of Civil Procedure to frame a substantial question of law before final hearing of a second appeal. On that score the parties were invited to submit their respective submissions for necessary determination by this Court as to whether there exists any substantial question of law.
(3.) Learned Advocate for the appellants has vehemently contended that the first appellate Court did not at all consider the relevant material documents, namely, Ext. 7 and Ext. F in determining the rights of the parties. Ext. 7 is the certified copy of solenama filed in Title Suit No. 38 of 1949 and Ext. F is a Kabuliyat executed in favour of one Dwijapada Das by the defendant No. 1 in the year 1356 B.S. To substantiate that point that the learned first appellate Court since at all had not considered that question in its true and proper perspective, learned Advocate for the appellants had drawn the attention of this Court on the findings as recorded by the learned first appellate Court as well as the judgment of the learned trial Court wherein the appellants succeeded. The suit out of which this appeal arises was filed in a composite manner. Except the defendant No. 1 other defendants were made parties in the suit for necessary relief of decree for partition of the joint properties, whereas the defendant No.1 was made a party for having necessary declaration that the defendant No. 1 had no possession over the property and the record of rights, that is revisional record of rights as prepared was erroneous. The learned trial Court considered the matter on issue of possession of the suit plot No. 5238 having its character as a danga land measuring .63 decimals, wherein the defendant No. 1 claimed his possession on the strength and basis of the record of rights prepared under the West Bengal Estates Acquisition Act, and which culminated to a final proceeding under Section 44(2a) of the West Bengal Estates Acquisition Act, wherefrom no appeal was preferred by the plaintiffs. However, learned Advocate for the respondents has opposed the contention of the learned Advocate for the appellants that substantial question of law is involved in adjudicating this appeal. Learned Advocate for the respondents submitted that so far as possession is concerned, learned first appellate Court considered at length all the evidence on record and this Court sitting in the jurisdiction of second appeal will not distrub the factual findings made by the last Court of fact, that is first appellate Court. Further, it is contended that since it is not at all a question of title between the parties inter se the plaintiffs and the defendant No. 1, substantial question of law as thrashed by relying upon the judgment of the Supreme Court by the learned Advocate for the appellants, has no basis. It is contended that the possessory right of the parties concerned was considered and adjudicated upon by the learned first appellate Court. This Court accordingly has considered the findings of the learned first appellate Court on the particular issue of Ext. 7 and Ext. F. It appears from the judgment of the first appellate Court that the learned Court below considered Ext. 7, which was a certified copy of the solenama filed in Title Suit No. 38 of 1949. The said suit was a family partition suit wherein solenama was filed in between the parties concerned in respect of the joint properties and ultimately in terms of the solenama the said suit was decreed. The learned first appellate Court did not find the suit plot No. 5238 in that solenama and accordingly the learned first appellate Court held that: "Since the time of the ancestor, the appellant (originally defendant No. 3 Jnanada) had been in actual possession of the same and because of such long possession to the notice of all including the respondents, he (appellant) acquired indefeasible title to the suit property by way of adverse possession and prescription. During his such possession the appellant let out a portion of the suit plot to Dwijapada Das for using the same as Bhagar a dumping site of carcass, at a monthly rent of As. 25/- till 1371 B.S and kept himself in actual possession of the rest of the suit land by enjoyment of the sale proceeds of the trees standing thereon. The enteries in the C.S. record of rights regarding the names of the plaintiffs is fraudulent and the result of collusion between the respondents and the settlement employees. The right of the appellant was subsisting at the time of the R.S record of rights and was duly entered therein and was finally published after the objection thereto raised by the respondents was over-ruled in the duly drawn up proceeding under Section 44(2a) of the W.B.E.A Act after due local enquiry and to the full satisfaction of revenue authorities. The respondents had no manner of possession in the suit property. That being so the respondents had no title and interest in the suit property and cannot get any declaration in respect of any share in the suit property and claim for partition is a myth.";