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IN THE HIGH COURT AT CALCUTTA

CIVIL APPELLATE JURISDICTION

APPELLATE SIDE

Present:

The Hon’ble Justice Sugato Majumdar

SA 57 of 2013

With

IA NO: CAN 1 of 2013 (Old No: CAN 2642 of 2013)

CAN 2 of 2023

CAN 3 of 2025

Basudev Dhang

Vs

Joydev Dhang

For the Plaintiff : Mr. Sukumar Bhattacharyya, Adv.

Ms. Piyali Shaw, Adv.

Ms. Oindrila Chatterjee, Adv.

Ms. Puja Sarkar, Adv.

Ms. Subhangi Bhattacharya, Adv.

For the Defendant : Mr. Subhash Chandra Sarkar, Adv.

Hearing concluded on : 12.05.2026

Judgment on : 19.05.2026

Sugato Majumdar, J :

The instant Second Appeal was filed against the judgment and decree passed

by the First Appellate Court dated 18/02/2010 being the Additional District Judge,

Fast Track 2^nd Court, Howrah in Title Appeal No. 125 of 2006.

The plaint case in nutshell is that the Appellant/Plaintiff and the

Respondent/Defendant are brothers. The paternal aunt of the parties herein

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intended to gift her property to both the brothers. However, she executed a gift deed

only in favour of the Respondent/Defendant being the elder brother though the

property was treated as a joint property. The Appellant/Plaintiff became the owner

of the property in Schedule-A within holding no. 47/4 (part), presently 47/4A, Sree

Ram Dhang Road, District: Howrah and the Respondent/Defendant became owner

of the property in Schedule-B of the suit, within holding no. 47/4 (part), presently

47/4B, Sree Ram Dhang Road along with undivided half share of land, by virtue of a

deed of partition dated 06/03/1995 which was duly registered. By virtue of the

aforesaid deed of partition, the Appellant/Plaintiff became owner of Schedule-A

property lying at the ground floor of the premises, the Respondent/Defendant

became owner of the Schedule-B property being the 1^st Floor along with all right,

easement, privileges and amenities including undivided share of land over the said

property. The Appellant/Plaintiff got mutation in respect of Schedule-A property

and has been paying tax to the Howrah Municipal Corporation. On the eastern side

of Schedule-A property, there is a vacant plot within holding no. 47/4 Shri Ram

Dhang Road. 50 % of the said vacant plot of land lying and situated on the north

eastern side has been allotted to the Appellant/Plaintiff whereas rest 50% of the

south eastern side was allotted to the Respondent/Defendant in terms of the deed of

partition. However, there is no demarcation of plot of land which was Schedule-C

property. Now Respondent/Defendant was taking law on his own hand and

demarcated more than 50% of the said vacant plot of land and has also illegally

encroached the Schedule-C property. It was also alleged that the

Respondent/Defendant may construct illegal and unauthorized construction of

building in Schedule-C property. In this context of facts, the Appellant/Plaintiff filed

the suit, praying for decree of declaration to the effect that the Appellant/Plaintiff has

right, title and interest over Schedule-C property on which the

Respondent/Defendant has no right to make a legal construction; decree of

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declaration that the Respondent/Defendant has no right to disturb or interfere the

common user of staircase and other easement privileges annexed; decree of

permanent injunction, restraining the Respondent/Defendant from disturbing

and/or interfering with peaceful possession of the Appellant/Plaintiff in Schedule-C

property along with other prayers.

The Respondent/Defendant contested the suit by filing written statement

denying all allegations. It was contended that the Respondent/Defendant being the

elder brother allowed the Appellant/Plaintiff to stay and reside within the suit

property. It was contended that the partition deed was a pseudo document which

was never a lawful partition but an amicable arrangement similar to provide the right

of occupation of the Appellant/Plaintiff in a portion of suit property. It was further

contended that the Appellant/Plaintiff could never acquire any ownership at any

point of time as the gift deed dated 03/10/19