- (1.) This appeal will be heard on the following substantial question of law. Whether the Learned First Appellate Court was justified in reversing the judgement and decree of the Learned Trial Judge by passing a decree declaring the title of the plaintiffs in respect of the suit property though the suit property was not identified by boundary in the plaint and also by granting other incidental reliefs viz. recovery of possession and/or mandatory and/or permanent injunction in respect of such undefined suit property or not We are informed by Mr. Basu, learned advocate appearing for the appellant that though the State-respondent contested the suit before the Learned Trial Judge and also participated in the hearing of the appeal before the Learned First Appellate Court but the State-respondent has not filed any Second Appeal for challenging the judgement and decree passed by the Learned First Appellate Court. Since the State-respondent has not filed any appeal for challenging the judgement and decree of the Learned First Appellate Court, it is presumed that the Staterespondent has accepted the judgement and decree of the Learned First Appellate Court. As such, service of notice of appeal upon the State-respondent is dispensed with, on the prayer of the learned counsel appearing for the parties.
(2.) The appeal is thus, treated as ready as regards service as the plaintiffs/respondents are represented by their learned counsel in this appeal. Considering the question of law which is involved in this appeal, we feel that the lower court records need not be called for as the appeal can be decided on merit on the basis of the papers available before us. Thus, on the prayer of the learned counsel appearing for the parties, we have decided to consider the merit of the appeal on the basis of the materials on record by dispensing with the requirement of filing paper book in this appeal. Since the learned counsel appearing for the parties invited us to decide the merit of the appeal, we have heard the learned counsel of the parties on the merit of this appeal. Let us now consider as to how far the Learned First Appellate Court was justified in passing a decree in favour of the plaintiffs in the facts of the instant case. Here is the case where we find that the plaintiffs/respondents filed a suit for declaration of their right, title and interest in respect of the suit property and for injunction for restraining the defendants from disturbing their possession in respect of the suit property. The plaintiffs claimed that the predecessor-in-interest of the plaintiffs viz. Sumohan Chatterjee, since deceased purchased the suit property on 29th July, 1942 in a Revenue Sale and obtained delivery of possession thereof. He mutated his name in the Collector's Register in 1944 under the Land Registration Act, 1876 and paid rent to the State regularly upto the year 1972. After the death of Sumohan Chatterjee, the plaintiffs being the legal heirs inherited the suit property. When the plaintiffs tendered the rent of the suit property in 1997, the office of the Collectorate, 24-Parganas refused to accept the rent from the plaintiffs on the plea that the land had already been acquired by the State Government. Thereafter the plaintiffs applied before the Collectorate for supply of the particulars of the land acquisition proceeding in which their land was acquired.
(3.) Since such information was not supplied to the plaintiffs by the Collectorate, the plaintiffs moved a writ petition before this Hon'ble Court. The said writ petition was ultimately disposed of by the Writ Court by directing the Collector to dispose of the plaintiffs' said representation after giving the writ petitioners an opportunity of hearing. Pursuant to such direction given by the Writ Court, the Collector passed an order holding that the plaintiffs' land had already been acquired by the State Government. The Collector also advised the plaintiffs to approach the Civil Court for necessary reliefs. Acting on such advice given by the Collector, the plaintiffs have filed the present suit for declaration of their right, title and interest in respect of the suit property and for injunction. The plaintiffs alleged that their land was never acquired by the State Government and their right, title and interest in respect of the suit property remains unaffected by any acquisition proceeding. It was further alleged that no notice was ever served upon the plaintiffs for acquisition of the plaintiffs' land and no compensation was ever paid to them for acquiring their interest in the suit property. During the pendency of the said suit, the plaintiffs were dispossessed by the defendant/appellant in violation of the order of status quo passed by the Learned Trial Judge. Hence, the plaint was amended and thereby an additional relief for recovery of possession and mandatory injunction was sought for by the plaintiffs.;