- (1.) A suit for declaration and permanent injunction instituted by the appellant was dismissed by the trial court by its judgment and decree dated July 31, 2012. The decree passed by the trial court was carried in appeal; however, the first appellate court by its judgment and decree dated December 18, 2014 upheld the decree and dismissed the appeal. This second appeal is directed against the aforesaid decree of the first appellate court.
(2.) Mr. Basu, learned senior advocate for the appellant, submits that a substantial question of law is involved in the second appeal requiring adjudication by this Court. According to him, the first appellate court contrary to all evidence on record erred in law in returning a finding that the property-in-suit is a public debuttor property, although the trial court had held it to be a private debuttor property. It is submitted that only because the local people have been using the 'pukur' (being part of the property-in-suit) would not make it a public property.
(3.) While hearing Mr. Basu, we have looked into the documents annexed to the application for stay, more particularly the plaint. What struck us immediately was the pleading in paragraph 19 of the plaint and the prayer clauses, which are quoted below: "19. That the plaintiff and the proforma defendant no. 1 and 2 are jointly entitled to declaratory relieves from the Ld. Court that i. They have right, title and interest to the suit property which is mention in the schedule bellow. ii. That the plaintiff and the Proforma defendants No. 1 and 2 are the Rayat in respect of the suit property. iii. That the properties mentioned in schedule bellow that is the pond 'Kathma Dighi' is not liable to vest in the defendant state." ******** "The plaintiff there for prays:- ;