Jahiruddin Halder v. Sudarshan Maity

1. The appeal will be heard on the following substantial questions of law:

a) Whether both the courts below substantially erred in law in invoking Section 44 of the Transfer of Property Act to decree the suit, in spite of a final decree having been passed in a previous suit for partition between the parties in respect of the self-same property.

b) Whether, in view of an apparent admission of the plaintiff/respondent in the plaint as to the parties being in possession of their respective separate portions on the eastern and western sides of the suit property, both the courts below committed a substantial error of law in holding that the possession of the parties was joint.

2. Since the appeal involves substantial questions of law, as indicated above, and there is a prima facie case to go to final hearing, there will be an order of stay of operation of the impugned judgments and decrees till the disposal of the appeal.

3. The lower court records be brought by special messenger, costs for which are to be put in by the respondent within a fortnight from date. Immediately upon the arrival of the lower court records, the concerned department will serve a notice on Advocate for the appellant. Advocate for the appellant will prepare and file the requisite number of informal paper-books within four weeks from service of such notice of arrival of the lower court records.

4. In view of the appearance, service of notice of appeal on the respondent is dispensed with.

5. Liberty to mention for inclusion in the list for hearing of the appeal before the appropriate Bench.

6. CAN 4080 of 2015 is disposed of without any order as to costs.

7. Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.