- (1.) Heard the learned counsel for the appellants. Though the notices have been issued, nobody responded on behalf of the respondents. The proceeding has been initiated by the plaintiff/respondent for delivery of the possession of the suit property. The said suit was decreed, against which appeal was preferred. The order of the learned Trial Court was affirmed.
(2.) Being aggrieved, the instant appeal has been preferred and this Hon'ble Court by means of order dated July 8, 1999 while admitting the appeal has been pleased to frame a question of law as under:- "in view of the findings of the learned courts below to the effrect that the plaintiff was not in possession of a part of the suit property, the suit was maintainable to the said extent, as no prayer for recovery of possession had been prayed for in the suit -
(3.) It has been submitted that the appellants/petitioners inherited and in physical possession of 30 decimals of land out of 64 decimals of land on Plot No. 695, Khatian no. 171, J.L. 192, Mouza- Dhuipara, Police Station-Mohanpur, District- Paschim Midnapore along with structures thereon. It has been further submitted that they are residing in the said premises. The said plot over which structures have been raised is in possession of the appellants since their predecessors. But subsequently Srihari Jana was allegedly in possession of the aforesaid suit property claiming himself to be an adopted son of late Kshirodmoni Dasi over the said 30 decimals of land on the basis of rights recorded in R.S.Settlement as well as L.R.Settlement and further they used to pay rent to the Government of West Bengal. The present respondent/opposite party is the daughter of late Krishna Jana who owned and possessed 34 decimals of land out of 64 decimals and the property is duly demarcated and they are enjoying the respective demarcated portion. But the respondent/opposite party in the year 1990 filed a suit against the appellants/petitioners for declaration as well as permanent injunction in respect of 50 decimals of land inherited and possessed by the appellants claiming themselves the absolute owners of the entire property and further threatening to dispossess them. The suit was contested and the same was finally disposed of vide judgment and decree dated July 22, 1996 by the learned Munsif declaring the title of the plaintiff/opposite party over the said suit property against which appeal was preferred, which was dismissed resulting in filing of the aforesaid second appeal and the same was admitted by this Court on the above mentioned substantial question of law. Though the Courts decided the question of title in favour of the plaintiff/respondent, but no consequential relief for delivery of possession was not claimed and as such this Hon'ble Court while entertaining the instant appeal has framed the question as reproduced hereinabove and it has been submitted that in the absence of consequential relief for possession, the suit is not maintainable.;