IN THE HIGH COURT AT CALCUTTA CIVIL APPELLATE JURISDICTION APPELLATE SIDE Present:

The Hon’ble Justice Sugato Majumdar SA/413/2000 IA NO: CAN/5/2023, CAN/7/2025 Fulmala Biswas & Ors VS Biswajit Sarkar & Ors For the Appellant : Samiran Giri, Adv.

For the Respondent : Haradhan Mondal, Adv.

Heard on : 05.02.2026 Judgment on : 12.02.2026 Sugato Majumdar, J :

The instant second appeal was filed against the judgment and decree dated

30/11/1999 passed by the Learned Asst. District Judge, 1^st Court, Krishnanagar, Nadia in the Title Appeal No. 61 of 1998 whereby the said Appellate Court confirmed the judgment and decree of the Trial Court dated 18/05/1998.

At the outset, the rival pleadings of the parties raised in the Trial Court should be considered.

The Plaint case, in nutshell, is as follow:

a) The property admeasuring 15 decimal in Dag No. 1320, Khatian No. 1009 is the suit property.

b) The original owners partitioned the property on executing a deed. The property stood in the name of late Ram Gopal Ghosh. His name was in the R.S. Record of Rights.

c) The said Ram Gopal Ghosh, since deceased, sold the property to one Manmohan Roy and one Gopal Chandra Roy by a registered deed of sale dated 09/10/1956. The said two transferees began to reside therein constructing rooms. They temporarily left the premises leaving therein one Siddheswar Seal as caretaker of the premises.

d) The Defendants, taking advantage of the absence of the said Manmohan Roy and Gopal Chandra Roy, manufactured a false deed in collusion with the said Siddheswar Seal in respect of certain area land, in their favour. Thereafter, the original Defendants instituted a suit in collusion with the original owners; but the suit was dismissed for default on 12/04/1978.

e) On death of Manmohan Roy, his son inherited his share in the property and began to use and occupy his share of land, along with Gopal Chandra Roy. Sunil Chandra Roy was the son and legal heir of the said Manmohan Roy. The said Sunil Chandra Roy sold his share of land to Sunil Biswas, Jagabandhu Biswas and Bijay Kumar Byapari in terms of a registered deed of sale dated 17/10/1973. Thereafter, the said Gopal Chandra Roy sold his share of land to the Plaintiffs/Respondents and the pro-forma Defendants who mutated their names in the Record of Rights. This sale was affected in terms of a registered deed dated 21/09/1987.

The property is now let out to the tenants.

f) The original Defendants have no right, title or interest in the suit property. They forcefully occupied the suit property made pucca construction and erroneously got their names entered into the Record of Rights.

The suit was filed praying for declaration of title, permanent injunction and mandatory injunction.

The Defendant No. 1 being the present Appellant contested the suit by filing written statement, refuting all the allegations. It was pleaded that the suit is bared by the provision of Section 34 of the Specific Relief Act, 1963, since the Plaintiffs/Respondents are not in possession. The positive case of the Appellant/Defendant No.1 may be summarized as follow:

i) The suit property belonged to Kalipada Ghosh and Jogendra Nath Ghosh having equal shares. It is false that the tenants made amicable partition of the suit property, as averred, and that late Ram Gopal Ghosh, since deceased, alone possessed the suit property. It was denied that the name of Ram Gopal Ghosh had been mutated or that the property had been sold in favour of Manmohan Roy and Gopal Chandra Roy.

ii) The suit property was in the name of two brothers Jogendra Nath Ghosh and Kalipada Ghosh. The said Jogendra Nath Ghosh died leaving behind him his only son Gour Gopal Ghosh who inherited 15 decimals of land. Kalipada Ghosh died leaving behind him four sons – Shyam Sundar, Ram Gopal, Radha Gopal and Nitya Gopal.

iii) The said Gour Gopal sold his shares to the heirs of Kalipada Ghosh, since deceased. The said Shyam Sundar Ghosh died leaving behind him his only son Amresh Ghosh who inherited .04 deci