Allowed¶18

Bole Miya @ MD Bole Mia @ Boley Miya and Ors. v. Mafiz Mia and Ors.

Calcutta HC21 Jul 2025CO/189/2024

Case brief

AI extract

What is this about?

Article 227 revision; Section 6 Specific Relief Act 1963 restoration of possession; suit dismissed on limitation; adverse inference from cross-examination timing — admissions recorded in 2018 relate back to period within 6 months of filing; patent perversity; judgment and decree dated 29.02.2020 set aside; remand for trial on merits; limitation left open; ex parte hearing despite prior service; Title Suit No. 54 of 2012; Mathabhanga, Coochbehar; CO 189 of 2024; Calcutta High Court Jalpaiguri Circuit Bench.

What did the court decide?

Revisional application allowed; impugned judgment and decree dated February 29, 2020 set aside; matter remanded to the trial court for fresh adjudication of Title Suit No. 54 of 2012 on merits, with the question of limitation open to fresh consideration; no order as to costs. ¶18

Bole Miya @ MD Bole Mia @ Boley Miya and Ors. Vs Mafiz… — Specific Performance | Calcutta HC (2025)

What the court decided

AI extract

Outcome

¶18

Issue for consideration

Whether the plaintiffs' suit for restoration of possession was rightly dismissed as barred by limitation solely on the basis of the cross-examination statements of PW 1 and PW 2 as to the period of the defendants' possession/dispossession.

¶16

Court's answer

Since the suit was instituted within 6 months of the alleged dispossession and the cross-examination of PW 1 and PW 2 occurred only in 2018, their so-called admission regarding the time of dispossession pertained to a period within 6 months prior to the filing of the suit.

¶15

Ratio / Principle

The learned Trial Judge committed a patent perversity in relying on the cross-examination evidence of PW 1 and PW 2 to hold that the suit was barred by limitation.

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Key takeaways

On remand, it will be open to the learned Trial Judge to consider afresh the question of limitation, along with other issues, on the basis of the evidence on record, in the light of the observations made by this Court.ratio¶21

Detailed headnote1 paragraphs

Calcutta High Court, Circuit Bench at Jalpaiguri (Appellate Side) (Sabyasachi Bhattacharyya, J.) in CO 189 of 2024 (decided 21.07.2025): Revision under Article 227 of the Constitution of India against judgment and decree dated February 29, 2020 of the Civil Judge (Junior Division), Mathabhanga, District: Coochbehar, dismissing Title Suit No. 54 of 2012 — a suit for restoration of possession under Section 6 of the Specific Relief Act, 1963 — solely on the ground of limitation. The Trial Judge relied exclusively on the cross-examination statements of PW 1 and PW 2 (recorded in 2018, about six years after institution) that the defendants had possessed the suit property for six-and-a-half years and had taken possession 6/7 years ago. Holding that the suit was instituted contemporaneously, within 6 months of the alleged dispossession on May 20, 2012, the Court found those admissions necessarily pertained to a period within 6 months before filing, and that reliance on them to bar the suit was a patent perversity. The judgment and decree were set aside and the matter remanded for fresh adjudication on merits, with liberty to consider the question of limitation afresh on the evidence, in light of the Court's observations. Heard ex parte as the opposite parties did not appear despite prior service at the same address. No order as to costs.

¶1

JPD-18 Ct No.01 21.07.2025 TN

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Calcutta High Court In The Circuit Bench at Jalpaiguri Appellate Side

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CO 189 of 2024

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Bole Miya @ Md Bole Mia @ Boley Miya and others Vs. Mafiz Mia and others

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Mr. Saumyajyoti Dutta, Ms. Nikita Agarwal

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…. for the petitioners

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Affidavit-of-service filed today be kept on record.

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Although it transpires that the address given is insufficient, the Court finds from a previous affidavit-of-service that the opposite parties were served at the same address on the previous occasion.

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Accordingly, the revisional application is taken up for hearing ex parte , since the opposite parties choose not to appear despite prior service.

¶10

The present revisional application under Article 227 of the Constitution of India arises out of a judgment whereby the plaintiffs’ suit for restoration of possession under Section 6 of the Specific Relief Act, 1963 (as amended) was dismissed only on the ground of limitation.

¶11

Although the plaintiffs pleaded in their plaint that they were dispossessed from the suit property on

¶12

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May 20, 2012 and led evidence to that effect, the learned Trial Judge proceeded on the sole premise of the statements of the two plaintiffs’ witnesses, PW 1 and PW 2, in their cross-examination to the effect that the defendants had been possessing the suit property since last six-and-half years and that the defendants took possession of the suit land 6/7 years ago.

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¶15

Learned counsel for the petitioners points out, quite correctly in the view of this Court, that the suit was instituted contemporaneously, within a period of 6 months from the alleged date of dispossession. However, the cross-examination of PW 1 and PW 2 took place in the year 2018, that is, after lapse of about 6 years from the date of filing of the suit. Thus, even on the face of it, the so-called admission of PW 1 and PW 2 regarding the time of dispossession pertained to a period within the range of 6 months prior to the filing of the suit.

¶16

Thus, the learned Trial Judge committed a patent perversity in relying on such evidence to hold that the suit was barred by limitation.

¶17

¶18

Accordingly, CO 189 of 2024 is allowed, thereby setting aside the impugned judgment and decree dated February 29, 2020 passed by the learned Civil Judge (Junior Division) at Mathabhanga,

¶19

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District: Coochbehar in Title Suit No. 54 of 2012 and remanding the matter to the trial court for a fresh adjudication of the suit on merits.

¶21

It is made clear that it will be open to the learned Trial Judge to consider afresh the question of limitation, along with other issues, on the basis of the evidence on record, however, in the light of the observations made above.

¶22

There will be no order as to costs.

¶23

Urgent photostat certified copies of this order, if applied for, be given to the parties upon compliance of all formalities.

¶24

(Sabyasachi Bhattacharyya, J.)

Bole Miya @ MD Bole Mia @ Boley Miya and Ors. v. Mafiz Mia and Ors.

Case brief

What is this about?

What did the court decide?

Bole Miya @ MD Bole Mia @ Boley Miya and Ors. v. Mafiz Mia and Ors.

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Statutes considered

Procedural history

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