Calcutta High Court (Appellete Side)
Sayada Bibi & Ors vs Rafat Ara @ Rajat Ara And Ors on 7 May, 2025
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
PRESENT:
THE HON'BLE DR. JUSTICE AJOY KUMAR MUKHERJEE
SA 350 of 2005
Sayada Bibi & Ors.
Vs.
Rafat Ara @ Rajat Ara and Ors.
For the Appellants : Mr. Partha Ganguly
Mr. A. Chakraborty
Ms. Nandini Sharma
For the Respondents : Mr. Puspendu Chakraborty
Mr. Sandip Ray
Heard on : 25.02.2025
Judgment on : 07.05.2025
Dr. Ajoy Kumar Mukherjee , J.:
1. Being aggrieved by and dissatisfied with the judgment and decree
dated 11th September, 2002 passed by learned judge, Small Causes Court,
Sealdah in Title Appeal no. 3 of 1997, present second appeal has been
preferred. By the judgment impugned learned court below has reversed the
judgment and decree passed by the Trial Court on 30th may 1996 in Title
Suit no. 22 of 1978.
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2. Plaintiff/respondent herein before the trial court filed aforesaid Title
Suit being no. 22 of 1978 contending that, one Sk. Khali Choudhury was a
thika tenant in respect of premises no. 83E/1E Belgachia Road, under
erstwhile Zamindar Sachindra Nath Dey. Said premises no. 83E/1E, which
are the suit property comprised of land measuring more or less 4 cotttahs 1
chittak together with structure of 21 rooms. Said Khalil Choudhury had
also earnings as owner of vehicle and from tenanted structure at premises
no. 83E Belgachia Road and he used to pay rent to the Zamindar during
his lifetime. After the death of Khalil the original defendant no. 1 took
charge of his proprieties and business. The present plaintiffs being sons
and widow became the owner of the structure on the suit property and they
are in occupation of eight rooms in the suit property and on the contrary
defendant no. 1 is in occupation of two rooms. Subsequently the plaintiffs
came to know that the defendant no. l has mutated his name in respect of
the suit property, taking advantage of the management of the suit property.
Plaintiff’s specific case is that the predecessor in interest of the plaintiff
never surrendered his tenancy right in favour of Zamindar and the
defendant no. 1 is occupying two rooms in the suit property merely as
licensee. The plaintiffs further contended that they came to know about the
mischievous act of the defendant no. 1, when he denied to give accounts of
rents collected by him from other tenants from the property and tried to
transfer the same to some third parties.
3. The original defendant no. 1 Sk. Abdus Sattar filed written
statement, wherein he denied entire allegation made in the plaint.
Substituted defendants’ specific case is that by two registered deed of sale
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dated 27.08.1957 and 18.09.1966, their predecessor Sk. Sattar purchased
entire suit property form its erstwhile owner and landlord. Subsequently
the premises no. of the suit property has been changed to premises no.
83E/1E Belgachia road and since the date of purchase the defendants are
possessing the suit property peacefully and without disturbance form any
corner and as such plaintiffs have no right title or interest over the suit
property. During pendency of the suit original defendant no. 1 Sk Abdul
Sattar died and his legal heirs were substituted. Amongst the substituted
defendants, defendant no. 1(b) and 1(c) filed separate written statement,
wherein they have reiterated the case of original defendant as regards
ownership over the property and that the defendant no. 1 who was in
possession of the suit property till his death have also acquired title in the
suit property by way of adverse possession. Their further case is that the
deceased defendant no. 1 Sk. Sattar executed a will in favour of defendant
no. 1(b) and 1(c) and one Mumtaj Ali by virtue of which he bequeathed
entire suit property to them.
4. At first the trial court dismissed the suit on contest, against which
the plaintiffs preferred an appeal and the First Appellate court, while
disposing the appeal by a judgment dated 24.07.1990, sent back the suit
on open remand to decide the following questions:-
(i) It is required to be ascertained whether the plaintiff’s
predecessor Khalil Choudhury had any thika tenancy right in the
disputed property.
(ii) Whether the claim of ownership right of the defendants can
wipe out the thika tenancy right of the plaintiffs or their predecessor if
they actually had in respect of the self-same property. In this context it
should be mentioned that on purchase, ownership may change but
rights in thika tenancy as belonging to a particular person shall
subsist under the new landlord.
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(iii) The third question is defendants are duty bound to
establish beyond satisfaction of the court that the property purchased
by them are the self-same properties which are the subject matter of
the present suit.
(iv) The substituted defendants 1(b) and 1(c) are also duty
bound to establish that they are the only persons who can claim the
entire properties of Abdus Sattar to the exclusion of the other
defendants on record.
5. After such remand the plaintiff by way of amendment of plaint
prayed for recovery of possession of the portion of the suit property
occupied by the defendants. The Trial Court framed seven issues and
while disposing the suit after remand, held that said Sk. Khalil Choudhry
and Sk. Sattar are two full brothers and both of them used to reside in the
same premises jointly, while the plaintiffs were in occupation of 8 rooms,
the defendant was occupying two rooms in the suit property and Khalil
who was the head of the family died on 04.11.1960 and as such Trial
Judge found that although the plaintiff had contended that Khalil during
his lifetime had made payment of rent to the Zamindar but the rent
receipt issued by the Zamindar forming exhibit 2 series indicates that the
name of defendant no. 1 since deceased, was written first and after that
the name of predecessor in interest of the plaintiff is written and
accordingly trial court held that even during the life time of Sk. Kahlil the
rent receipts were issued in the name of defendant no. 1 and as such the
name of Khalil appeared in the receipts as well as other documents as
head of the family, which does not by itself means that plaintiffs
predecessor was thika tenant in respect of the suit premises.
6. The first appellate court while dealt with the appeal held that from
the facts and circumstances of the case it appears that admittedly Khalil
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and Abdus Sattar (original defendant no.1) were two full brothers and they
were in joint mess and were residing in the same premises, where plaintiff
is in occupation of eight rooms and the defendants are in of two rooms in
the suit property, which raised a perception that Khalil Choudhury might
have handed over the management of the property to his younger brother
Abdus Sattar for his convenience and as such the younger brother’s name
appeared at the first instance in all document as relied by the plaintiff/
appellants and the name of original thika tenant Khalil Choudhury
appeared within bracket or as “care of” under the name of Abdus Sattar.
The court below further held that if Khalil had no segment of title in the
suit property the question of mentioning his name in all the documents
either within bracket or as “care of” under the name of Abdus Sattar,
would not have arisen. Moreover admittedly Khalil was in possession of
eight rooms in the suit property, which also raised presumption that
original thika tenant was in possession of greater number of rooms
compared to other. Therefore court below declared that Khalil was the
original thika tenant and thereafter his legal heirs i.e. the
plaintiff/respondents became the thika tenant since the right of thika
tenancy was neither revoked nor surrendered by Khalil in favour of
Zamindar at any point of time.
7. Being aggrieved by the said judgment, the defendants/appellants
contended that the definition of “thika tenant” under the successive
enactments has undergone a change with reference to the inclusion of the
phrase ‘pukka structure’ and he emphasized that until the advent of the
amendment in 2010 with effect from 01.11.2010, erection of pukka
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structure on the lease land did not bring the tenant within the definition
of thika tenant and in this context he relied upon the judgment of Nemai
Chandra Kumar (D) Thr. Lrs. And others Vs. Mani Square Ltd and
others reported in 2022 SCC OnLine SC 920.
8. Accordingly he argued that to establish plaintiff’s claim of right of
thika tenancy one must prove that he falls within the ambit of the
definition of “thika tenant” in terms of the applicable laws. When the
present suit was filed in 1978 the Thika Tenancy Act of 1949 was in
operation and thereafter the Act of 1949 was replaced without any savings
clause in the successive enactment. Accordingly learned counsel for the
appellant argued that since nothing had transpired under the Act of 1949
inter se the parties herein no right can be said to have accrued within the
meaning of the general saving clause under section 8 of the West Bengal
General Clauses Act 1899 and as such the Act of 1949 may not be
applicable for the purpose of determining any question, appurtenant or
central to the present lis. In this context he relied upon the judgement of
Lalji Raja and Sons Vs. Firm Hansraj Nathuram reported in (1971) 1
SCC 721.
9. Similarly when the appeal was preferred in 1997, the Act of 1981 was
in force wherein the definition of “thika tenant” had not undergone any
material change except for the removal of three exceptions contained in
the erstwhile Act of 1949. Admittedly under the then applicable laws, the
thika controller was not provided with the jurisdiction to ascertain
question of thika tenancy but the court below did not adjudicate the right
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of thika tenancy in consideration of definition of ‘thika tenant’ as it existed
on that date.
10. He further argued that from a reading of the decision of the first
appellate court, it does not seem that a finding has been reached as
regards the existence of any lease deed or any other form of legal
instrument whereby land was held by Khalil Choudhury i.e. the
predecessor in interest of the Respondents herein. Furthermore there is
no whisper that Khalil erected or acquired any kutcha structure by way of
purchase or gift. Accordingly if the structure of 21 rooms had not been
erected or purchased by Kahlil, the same cannot fall within the defination
or “any structure”. Therefore a person who did not acquire title to the
structure but only had a right of enjoyment of the structure, was not a
thika tenant and in this context reliance has been placed upon the
judgment of Ramdas Bansal Vs. Kharag Singh Baid reported in 2007
SCC OnLine Cal 398.
11. He further argued that mere deposit of rent before the thika
controller did not ifso facto create any right of thika tenancy. Therefore it
cannot be said that the respondent herein are eligible to be granted the
right of thika tenancy and in this context he relied upon the judgment of
Mrs. Amala Palit and another Vs. Smt. Ratna Bose and others
reported in 2014 SCC OnLine Cal 8106. The Trial court closely
considered the fact that the defendants purchased the suit property
through sale deeds marked exhibit C and D, which has not been denied
by the plaintiffs and infact one of the plaintiff’s witness i.e. P.W-1 has
admitted on oath that Sk Sattar had purchased the land of the suit
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premises in 1957. Moreover the plaintiffs failed to examine the Zamindar
who could have been the best witnesses to state the name of original thika
tenant and for withholding of such best witness defendants are entitled to
get the benefit of adverse presumptions under section 114(g) of the Indian
Evidence Act and for which the Trial Court rightly concluded that the
plaintiffs have failed to prove that they are thika tenant in respect of the
suit property. In this context the appellate’s further argument is that
question of ownership as raised by plaintiff /respondent even if decided in
their favour, it would lead to an anomaly in as much as the original suit
was filed for declaration of their right as thika tenant. The right of thika
tenancy and that of ownership in respect of same premises cannot vest in
a person simultaneously. The claim of the plaintiff regarding acquisition of
title by way of adverse possession or that adverse possession has
perfected the plaintiffs right of thika tenancy has got no substance and in
this context the appellant relied upon the judgment of Ram Ashis Roy Vs.
Rabi Bhaduri and another reported in 2001 SCC OnLine Cal 151.
12. Mr. Chakraborty learned counsel appearing on behalf of the
respondent contended that the trial judge while dealing with the purchase
deed marked exhibit C and D have failed to consider that both the said
two deeds described the subject property as thika property. Existence of
thika tenancy over the suit property was thus not denied by the Zamindar
as well as defendant no. 1 in such registered deeds. The trial court though
observed that Khalil was head of the family and as such name featured in
the receipts and other documents, have surprisingly found no relevance of
the name of Sk. Kahlil, featuring the rent receipt. The court below rightly
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held that Khalil might handed over management of the property to his
younger brother Abdus Sattar for his convenience and as such the
younger brother’s name appeared at the first instance in all documents as
relied by the plaintiff/appellants and the name of the original thika tenant
Kahlil Choudhury appeared within bracket or as “care of” under the name
of Abdus Sattar and the court below further observed rightly that if Kahlil
had no segment of right, the question of mentioning his name in all the
documents would not have arisen. He further contended that the
observation of the court below is more logical and reasonable on the
backdrop of concurrent finding that Khalil and Sattar resided jointly in
the property and that Khalil was the head of the family. A specific
argument was also made before the trial court that plaintiffs have become
the owner of the suit property by way of inheritance on the death of the
original defendant during the year 1978, in view of the admitted fact that
Abdus Sattar at the time of his death had only his grandchildren apart
from the residuaries who are the plaintiffs of the suit as Abdus Sattar only
daughter predeceased him. Regarding the said issue the court below held
that if the question of thika tenancy right to be settled in favour of Khalil,
the predecessor in interest of the plaintiff, the court is not required to
involve into the question of co-ownership of the plaintiff/respondent as
residuary legal heirs of Abdus Sattar.
13. The respondent also argued that even if the plaintiff are not declared
to be thika tenant under the state they are still the owner of the suit
property by way of inheritance under the provisions of Mohammedan Law.
It is submitted that the suit was filed in 1978 and original defendant
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Abdus Sattar died on 26.10.1978 i.e. prior to the coming effect of 1981
Act. It is also concurrent finding that Khalil and Abdus Sattar used to
reside in a jointness and they were full brothers and Khalil during his
lifetime was head of the family and his name has been featured in the rent
receipt and other receipts as head of the family. Needless to state that
under the Mohammedan Law there is no concept of joint family but if it is
found that during the continuance of joint stay, the family properties are
acquired in the name of the managing member of the family and if it is
proved that they being possessed by all the members jointly, the
presumption would be that they are the properties of the family and not
the separate properties of the members in whose name they stand.
14. In the instant case there were four original plaintiff and one
original/ defendant who were members of one family and therefore the
property is to be divided among the five members equally, each being
entitled 1/5th share and Sk. Sattar therefore entitled to 1/5th share of the
joint property. Moreover as per Sunni Law, expectant right of an heir
apparent cannot pass by succession to his heir, nor it pass by bequest to
a legatee under his will. In the instant case the appellants are the son and
daughter of the predeceased daughter and they are grandchildren of Sk.
Abdul Sattar and therefore they are not heirs of late Sk Sattar under the
Mohammedan law. Moreover under the principles of Mohammedan Law, a
Mohammedan cannot by will dispose of more than 1/3rd of the surplus of
his estate after payment of funeral expenses and debts and therefore
bequeath in excess of the legal third cannot take effect unless other heirs
consent thereto after the death of the testator. Here the substituted
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defendants being the grand children are claiming right under a will, are
not entitled to more than 1/3rd share of the property of Sk. Sattar (i.e.
1/5th of the joint property) through the said will. Accordingly the
respondent contended that the defendant/appellant though claiming the
ownership of the suit property on the basis of a will but under the
provision of Mohammedan Law they are entitled to 1/3rd share out of
1/5th share of Sk. Sattar in the joint property and the remaining vest with
the residuaries. Therefore the respondent has prayed for dismissal of the
second appeal.
15. While admitting the 2nd appeal a Division Bench of this court by an
order dated 21.03.2008 held that the appeal will be heard on the following
substantial question of law:-
(i) For that since the rent receipts produced by the
plaintiffs/respondents do not relate to the suit properties, the
learned court below ought not to have relied upon the said rent
receipts or coming to the conclusion that Khalil Chowdhury is
a Thika Tenant in respect of the suit premises.
(ii) For that since the plaintiff could not prove the grant of thika
tenancy in favour of their predecessor by producing any
documentary evidence nor could they prove construction of
temporary structure in the said premises, the learned court
below ought to have disbelieved the plaintiff’s claim of thika
tenancy in respect of the suit property.
(iii) For that non examination of the alleged grantor/landlord, the
learned court below ought to have drawn adverse inference
against the plaintiff/ respondent as was done by the learned
trial court.
This court invoking its jurisdiction under section 100 (5) of the code of
civil procedure framed three additional substantial questions of law which
are as follows:
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(i) Whether the 1st Appellate Court erred in declaring the
plaintiff as Thika Tenant when the claim of the plaintiff is
based on acquiring ownership in the suit property
(ii) Whether the Civil Court has jurisdiction to decide as to
whether the plaintiff is a Thika Tenant or not in respect of the
suit property; and
(iii) Whether the plaintiff has become the owner of the suit
property by way of inheritance.
Decision
16. Trial court while dealt with the matter found that Sk. Khalil
Chowdhury’s name appeared in the rent receipts as well as other
documents, but he found that the rent receipt issued by the Zamindars
forming exhibit 2 series indicates that the name of defendant no.1 was
written first and after that the name of predecessor of plaintiff is written
within bracket. Though the name of defendant’s predecessor was found in
the rent receipt during the lifetime of plaintiffs predecessor Khalil
Chowdhury, but learned trial court concluded that plaintiffs predecessors
name appears within bracket in the tax receipt does not imply that the
plaintiffs predecessor Khalil was a thika tenant in respect of the suit
premises.
17. The trial court in this context made a speculative observation that
the name of Khalil Chowdhury featured in the receipt as head of the family
but such finding does not hold water in view of the fact that firstly DW-1
has specifically denied in evidence that their predecessor Sattar ever
resided jointly with the family of Khalil and that under the Mohammedan
law concept of joint family or head of the family (karta) is unknown.
Accordingly it is quite clear that if plaintiffs/predecessor Khalil Chowdhury
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was not a thika tenant, there was no reason as to why his name featured in
the rent receipt. In this context the first Appellate court’s observation that
Khalil Chowdhury might have handed over the management of the property
to his admitted younger brother Abdul Sattar, the original defendant for his
convenience and as such Abdul Sattar’s name appeared at the first
instance in all the documents and the name of original thika tenant Khalil
Chowdhury appeared within bracket or as care of under the name of Abdul
Sattar is more reasonable and acceptable. This is also because said defence
witness stated in evidence that Khalil was a thika tenant in respect of
premises no. 83/3/H Belgachia Road and the name of Sk. Sattar was
registered in the sheristha of Zamindar as a thika tenant in respect of the
suit property, which is contrary to the defence contention as per written
statement that Sk. Sattar became owner of suit property by purchase. It is
not in dispute in the present context that Khalil Chowdhury and Sk Sattar
are two brothers and used to reside in the thika tenanted property.
Accordingly from the available documents there is nothing to show that
plaintiffs predecessors’ right of thika tenancy over the suit premises was
ever revoked or surrendered in favour of Zamindar or superior landlord at
any point of time. Plaintiffs suit is suit for declaration and injunction in
respect of suit property being old no. 83E, which subsequently known as
83E/1E Belgachia Road having 21 rooms with thika tenancy right.
Accordingly plaintiff’s declaratory right is based on his thika tenancy right
over the structure comprising of 21 rooms.
18. Plaintiff’s witness PW-1 stated that original defendant no.1 Sk. Sattar
purchased the land over which suit structure situates in the year 1957
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during Khalil’s life time but Khalil never surrendered his tenancy right. PW-
2 & 3 said they are the tenants under Khalil.
19. Now defendant no.1’s purchase deed marked Ex-C relates to
83E/1B, hut no. 34 which he purchased in 1957 from Surendra Nath
Mazumder. Defendant also purchased 1/4 & 1/5 J.K. Ghosh Road by dint
of Ex-D from Ratindra Nath Dev.
20. Now Dw-1 (defendant’s witness) said in cross-examination (page-10)
Sk. Sattar had two thika tenanted properties in his own name under
Zamindar Ratindra Nath Dev. Sattar had no tenancy under Surendra Nath
Mazumder. Satttar purchased certain properties from Surendra Nath
Mazumder. The suit property is not related to that property. Sattar
purchased subsequently that portion of the property which he held as
thika tenant under Ratindra Nath Dev. The measurement of that land is 2
cottah, 15 chittak, 37sq.ft. (measurement of suit property is 4 cottah, 1
chittak and Sattar’s purchased from Surendra Nath Mazumder by dint of
Ex-C is 1 cottah 2 chittak 11sq.ft.). Said Dw-1 further stated that the
property that was purchased by Sk. Sattar from Ratindra Nath Dev situates
north-eastern side of suit property and the deed executed by Ratindra Nath
in favour of Sk. Sattar does not relate to suit property.
21. Learned Trial court though found that in the Zamindary khajna
receipt names of both Sk. Sattar and Khalil Chowdhury are appearing in
Ex-2 series but he swayed away with the admission made by PW-1 that
suit property was purchased by original defendant No.1. The perversity of
such finding is that admission of plaintiffs witness neither creates
someone’s tittle nor extinguish the same.
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22. This is also because the right of ownership through purchase deed
and right of thika tenancy as claimed by DW-1 and as also appearing in
Sattar’s purchase dead in respect of same property, cannot vest
simultaneously upon Sk. Sattar. Moreover even if for the sake of argument
if it is taken for the time being that defendant’s predecessor Sattar acquired
title over the suit property by purchase, but right of thika tenancy of khalil
in the absence of surrender shall subsist under new landlord.
23. When the court below on the basis of defendant’s evidence and after
scanning deeds and rent receipts and other documents came to a finding
that the plaintiff’s predecessor was a thika tenant in respect of suit
property, it cannot be said that the court below grossly misappreciated the
evidence or thereby caused injustice.
24. Although plaintiffs/respondents have made an argument in support
of acquisition of ownership by way of inheritance, since Khalil Chowdhury
and Abdul Sattar were full blooded brothers and Sk. Abdul Sattar’s only
daughter had predeceased him and therefore, on the death of the original
defendant Sk Abdul Sattar in the year 1978, they have also acquired title
by way of Mohammedan law of inheritance. But I am not required to go into
the merit of such contention as the original suit was filed for declaration of
plaintiffs thika tenancy right.
25. So far as the issue of courts jurisdiction, it appears that West Bengal
Thika Tenancy (Acquisition and regulation) Act, 2001 was amended during
the year 2010 and it has been settled by the judicial pronouncements that
prior to such amendment, the civil court had jurisdiction to decide any
question as to whether a person is a thika tenant or not. Since the instant
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proceeding was initiated during the year 1978 and since thereafter in the
year 1982, with the introduction of Calcutta thika Tenancy (Acquisition
and Regulation) Act, 1981, the earlier act was repealed and by the
introduction of act of 2001 the said 1981 Act was also repealed so the
amendment of 2010 does not have any retrospective effect in the present
case.
26. In this context learned counsel appearing on behalf of the defendant/
appellant argued that there is no whisper anywhere that Khalil Chowdhury
erected any ‘kancha structure’ and as such it does not fall within the
definition of “any structure” and that the rent receipt or mere deposit of
rent before the thika controller does not ifso facto create any right of thika
tenancy, but it appears that the defendants in his own documents and
evidence has admitted that the property is a thika tenanted property and
as such even if plaintiff has not brought the superior landlord/Zamindar
on dock, it would not damage plaintiffs case in view of aforesaid admission
made by the original defendant. From the evidence available in the record
and after scanning the documents submitted and evidence adduced by the
parties, the court below formed a definite opinion that Khalil Chowdhury is
the original thika tenant and thereafter his legal heirs i.e. the plaintiffs/
respondents herein became the thika tenant, since the right of thika
tenancy was neither revoked nor surrender by Khalil Chowdhury in favour
the Zamindar at any point of time.
27. In Gurnam singh Vs. Lehna Singh reported in (2019) 7 SCC 641
the Apex Court held that in a second appeal under section 100 of the Code
of Civil procedure, the High court cannot substitute its own opinion for that
17
of the first appellate court, unless it finds that the conclusions drawn by
the court bellow are erroneous being:-
(i) Contrary to the mandatory provisions of the applicable law or,
(ii) Contrary to the law as pronounced by this court or
(iii) Based on inadmissible evidence or no evidence.
28. In fact High Court’s interference in second appeal with finding of fact
of first appellate court, in absence of any perversity is not warranted. In the
present case the Appellate Court after considering the evidence and
documents, came to a finding that the plaintiff/predecessor was the thika
tenant in respect of the suit property and I do not find any perversity in the
said finding nor it can be said that said finding has been made on the basis
of inadmissible evidence or no evidence. Accordingly such finding of fact
based on appreciation of evidence, is not required to be interfered with by
the High Court within the jurisdiction of section 100 of CPC. When the
Court below on the basis of defendants’ admission in evidence and also
admission made in their purchase deed that the property is a thika tenancy
property and after scanning the rent receipts and other documents when
he came to a finding that the plaintiff’s predecessor is thika tenant in
respect of the suit property, it cannot be said that the court below grossly
misappreciated the evidence or thereby caused injustice. It is not within
the domain of the High Court to investigate the ground on which the
findings are arrived by the last court of fact being the first appellate court.
Even in a case where from a given set of circumstances two inferences of
fact are possible, the one drawn by the first appellate court will not be
interfered by the High Court in second Appeal. It may be that the
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plaintiffs/appellate before the court below made some contradictory prayer
of acquiring ownership by way of inheritance or by way of adverse
possession, but the court below rightly came to a finding that since the
original suit is for suit for declaration of thika tenancy right the court is
required to confine itself to settle the said controversy only and in the
instant case the court below decided said controversy in favour of plaintiff.
It is fundamental that in a civil suit, relief to be granted can be only with
reference to the prayers made in the plaint.
29. In view of the aforesaid discussion the Second appeal fails.
30. SA 350 of 2005 thus stands dismissed. Return trial court record at
once wherefrom it was called for.
Urgent Xerox certified photocopies of this Judgment, if applied for, be given
to the parties upon compliance of the requisite formalities.
(DR. AJOY KUMAR MUKHERJEE, J.)
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