SMT. GITARANI PAUL versus DIBYENDRA KUNDU ALIAS DIBYENDRA KUMAR KUNDU

Citation: [1990] SUPP. 3 S.C.R. 464 · Decided: 06-12-1990 · Supreme Court of India · Bench: KULDIP SINGH · Disposal: Appeal(s) allowed

Judgment (excerpt)

A 
B 
SMT. GITARANI PAUL 
v. 
DIBYENDRA KUNDU ALIAS DIBYENDRA KUMAR KUNDU 
DECEMBER 6, 1990 
[KULDIP SINGH AND K. RAMASWAMY, JJ.] 
Civil Procedure Code, 1908: Section 100--Concutrentfinding of 
facts-Ignoring of in Second appeal-Issue not raised or argued before 
Courts below-Acceptance of-Whether justified. 
C 
West Bengal Estates Acquisition Act, 1953: Under-Raiyats-Sale 
of their rights-Approval of higher authorities-Whether required. 
The appeUant purchased the suit land from Banries, the uoder-
Raiyats by way of sale deeds, after the coming into force of the West 
D Bengal Estates Acquisition Act, 1953_ It was stated that defendants 1 
and 2 accompanied by some Policemen had disturbed the possession of 
the appellant-plaintiff by destroying the standing crop and planting 
gamagrass seedlings in the land. Hence the appellant instituted a suit 
for declaration of title and possession of the suit land. The trial Court 
decreed the suit in favour of the appellant-plaintiff. 
E 
On an appeal rued by the Defendants, the First Appellate Court 
atrll"10ed the fmdiogs of the trial Court. 
Aggrieved, Defendant No. 1 filed a Second appeal before the High 
Court- Reaching a finding that the actual date of dispossession was not 
F specifically mentioned in the plaint and unless the same was pleaded 
and proved, the suit for possession was not competent, the High Court 
allowed the appeal and set aside the judgments of the Courts below. 
G 
The appellaot-plaiotilT bas preferred the present appeal, by 
special leave, against the High Court judgment. 
Allowing the appeal, this Court, 
HELD: 1. The High Court fell into error in ignoring the concur-
rent fmdings of the Courts below and accepting the appeal on an issue 
which was neither raised nor argued before the Courts below. The High 
H Court misread the pleadings and the evidence on the record. [ 467B-D] 
464 
SMT. GITA/lANI v. D. KUNDU [KULDIP SINGH, J.] 
465 
2. In the face of clear pleadings aod the evidence on record the 
High Court was wrong in reaching the conclusion that there was no 
pleadings and evidence regarding dispossession. Even otherwise in th~ 
face of the finding of the Courts below that the appeUant-plaintiff had 
proved her title it was not necessary for the High Court to go into the 
question of ascertaining the date of dispossession. [ 468A-B] 
t 
3. There is nothing on record to show that the Bauries could not 
sell their rights as under-Raiyats without the approval of the higher 
authorities. Neither there are aoy pleadings on this point nor aoy 
evidence was led before the trial Court. [ 468C] 
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4050 
of 1985. 
· 
From the Judgment and Order dated 12. 7. 1984 of the Calcutta 
High Court in Appeal from Appellate Decree No. 203 of 1970. 
A 
B 
c 
D.N. Mukherjee (N.P.), N.R. Choudhary and Ranjan Mukher-
D 
jee for the appellant. 
D.P. Mukherjee and G.S. Chatterjee for the respondent. 
The Judgment of the Court was delivered by 
KULDIP SINGH, J. Gitarani Paul instituted a suit for declara-
tion of title and possession in respect of thirteen plots of land in Mouza 
Boinchee, Police Station Pandua, State of West Bengal. It was averred 
in the plaint that the said land was under the possession of Bauries who 
were under-Raiyats. The original owner of the land was Dasarathi 
Dutta but the land has throughout been under the holding of the 
F 
under-Raiyats. After the coming into force of the West Bengal Estates 
Acquisition Act, 1953 Da.arathi Dutta ceased to have any right or 
intrest in the land and the same stood vested in the State of West 
Bengal. Gitarani Paul purchased the land from the Bauries by way of 
sale deeds dated February 19, 20 and 26, 1960. According to her the 
possession of the land was also delivered to her by the Bauries. It was 
G 
further stated in the plaint that on June 5, 1960 one Dibyendra Kundu 
armed with gun and accompanied by some police-men came to the 
land in dispute and destroyed the standing crop of the plaintiff. It was 
also alleged that Dibyendra Kundu ploughed the land and planted 
gama grass seedlings in the land. It was on these facts that the suit was 
filed. Dibyendra Kundu and Dasarathi Dutta were arrayed as defen-
H 
466 
SUPREME COURT REPORTS 
[1990] Supp. 3 S.C.R. 
A dant 1 and defendant 2 in the suit. The Bauries were impleaded as 
Proforma defendants. 
B 
c 
D 
E 
F 
G 
H 
Dasarathi Dutta controverted the stand of the plaintiff. Accord-
ing to him, the Bauries sur

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