Smt. Gitarani Paul vs Dibyendra Kundu Alias Dibyendra … on 6 December, 1990

           PETITIONER:
SMT. GITARANI PAUL

	Vs.

RESPONDENT:
DIBYENDRA KUNDU ALIAS DIBYENDRA KUMAR KUNDU

DATE OF JUDGMENT06/12/1990

BENCH:
KULDIP SINGH (J)
BENCH:
KULDIP SINGH (J)
RAMASWAMY, K.

CITATION:
 1991 AIR  395		  1990 SCR  Supl. (3) 464
 1991 SCC  (1)	 1	  JT 1990 (4)	702
 1990 SCALE  (2)1198


ACT:
    Civil  Procedure  Code, 1908:  Section  100	  Concurrent
finding	 of facts--Ignoring of in Second  appeal--Issue	 not
raised or argued before Courts below  Acceptance of--Whether
justified.
    West  Bengal Estates Acquisition Act, 1953:	 Under-Raiy-
ats--Sale    of	   their    rights--Approval	of    higher
authorities--Whether required.



HEADNOTE:
    The appellant purchased the suit land from Bauries,	 the
under  Raiyats by way of sale deeds, after the	coming	into
force  of the West 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  insti-
tuted a suit for declaration of title and possession of	 the
suit land. The trial Court decreed the suit in favour of the
appellant-plaintiff.
    On	an appeal filed by the Defendants, the First  Appel-
late Court affirmed the findings 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 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.
    The	 appellant-plaintiff has preferred the	present	 ap-
peal, by special leave, against the High Court judgment.
Allowing the appeal, this Court,
    HELD: 1. The High Court fell into error in ignoring	 the
concurrent  findings of the Courts below and  accepting	 the
appeal	on  an	issue which was neither	 raised	 nor  argued
before	the Courts below. The High Court misread the  plead-
ings and the evidence on the record. [467B-D]
465
    2.	In the face of clear pleadings and the	evidence  on
record	the High Court was wrong in reaching the  conclusion
that there was no pleadings and evidence regarding disposes-
sion.  Even  otherwise	in the face of the  finding  of	 the
Courts	below  that the appellant-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]
    3.	There is nothing on record to show that the  Baaries
could  not  sell their rights as under-Raiyats	without	 the
approval  of the higher authorities. Neither there  are	 any
pleadings on this point nor any evidence was led before	 the
trial Court. [468C]



JUDGMENT: