Lakshi Kanta Panda Vs Sudipta Panda — Calcutta HC (2025) — LawSathi Research

Lakshi Kanta Panda Vs Sudipta Panda — Calcutta HC (2025) — LawSathi Research

What the court decided

AI extract

Outcome

FAT 125 of 2025 dismissed on contest, affirming the impugned judgment and preliminary decree dated August 30, 2023; no order as to costs; formal decree to be drawn up; CAN 2 of 2025 disposed of consequentially.

Issue for consideration

Whether the preliminary decree in the partition suit, declaring the plaintiff's right, title and interest over 7 decimals of land, is liable to be interfered with, the appellant claiming exclusive possession over the entire suit property since long. +1 more

Court's answer

The defendant's admission as DW1 binds him and corroborates the deed of gift and deed of sale (marked Exhibits) in favour of the plaintiff; accordingly, the learned Trial Judge's finding in the preliminary decree that the plaintiff is entitled to declaration of his right, title and interest over 7 decimals of land by virtue of the gift and sale in his favour is absolutely justified.

Ratio / Principle

Where a witness has any objection to the recording of his/her evidence, it is for the witness, directly or through his/her advocate, to immediately file an application objecting to such recording in the trial court itself; having not done so, the appellant cannot take the point for the first time in appeal, and the issue not having been raised before the learned Trial Judge even at the time of hearing, no credence can be lent to it.

Key takeaways

There is no scope of interference in the appeal.ratio¶23

Detailed headnote1 paragraphs

Calcutta High Court, Division Bench (Sabyasachi Bhattacharyya, J. authoring; Uday Kumar, J. concurring), dismissed FAT 125 of 2025 on contest and affirmed the preliminary decree dated August 30, 2023 passed by the Civil Judge (Senior Division), First Court, Tamluk, District – Purba Medinipur in Title Suit No. 100 of 2021, a partition suit. The defendant-appellant, examined as DW1, had admitted in cross-examination that the plaintiff was the rightful owner of 4 decimals and 3 decimals of land (total 7 decimals) in suit plot nos. 957 and 958 and had no objection to partition by metes and bounds. The Court held that this admission bound the defendant and corroborated the deed of gift and deed of sale (Exhibits) in the plaintiff's favour, rendering the trial judge's declaration of the plaintiff's right, title and interest over 7 decimals absolutely justified. The appellant's plea that, being of advanced years and hard of hearing, he was unaware of the tenor of his recorded cross-examination was rejected: a witness objecting to the recording of evidence must immediately file an objection in the trial court itself, and the point, neither raised before the trial judge nor objected to at trial, cannot be taken for the first time in appeal. No order as to costs; formal decree to be drawn up; CAN 2 of 2025 disposed of consequentially.

Form No.J(2)

IN THE HIGH COURT AT CALCUTTA Civil Appellate Jurisdiction Appellate Side

Present : The Hon’ble Mr. Justice Sabyasachi Bhattacharyya &

The Hon’ble Mr. Justice Uday Kumar

FAT 125 of 2025 With CAN 2 of 2025

Sri Lakshi Kanta Panda

-vs-

Sri Sudipta Panda

For the appellant : Mr. Yudhisthir Maity

For the respondent : Sk. Rejaul Alam Heard on : July 2, 2025. Judgment on : July 2, 2025

Sabyasachi Bhattacharyya, J.:

In view of the short conspectus of the appeal, we take up the

appeal for hearing along with the application.

The preliminary decree passed in a partition suit has been challenged by the defendant therein.

2

Learned Counsel appearing for the appellant submits that the appellant has been in exclusive possession over the entire suit property since long and as such, the decree passed in favour of the plaintiff is bad in law.

Learned Counsel appearing for the plaintiff/respondent points out the findings in the impugned judgment to the effect that the defendant/appellant, as DW1, admitted during his crossexamination that the plaintiff is the rightful owner to the extent of 4 decimals of land and 3 decimals of land, totalling an area of 7 decimals of land, in the suit plot nos. 957 and 958. He had further admitted that he had no objection if the suit property is partitioned by metes and bounds between himself and the plaintiff.

Upon a careful perusal of the materials on record, we find that such admission not only binds the defendant but also corroborates the deed of gift and deed of sale in favour of the plaintiff, which were also marked as Exhibits in the suit. Thus,

the finding of the learned Trial Judge while passing the preliminary decree, to the effect that the plaintiff is entitled to declaration of his right, title and interest over 7 decimals of

3

land by virtue of the gift and sale in his favour, is absolutely justified.

Although learned Counsel for the defendant/appellant seeks to submit before the court that the defendant/appellant is of advanced years and is hard of hearing and as such, was not exactly aware of the tenor of the recording of his crossexamination, we are of the opinion that there is no scope of such misunderstanding, since the law is very clear on the subject that in the event a witness has any objection to the recording of the evidence adduced by him/ her, it is for the said witness, directly and/or through her or his advocate, to immediately file an application objecting to such recoding in the trial court itself.

Having not done so, the appellant cannot take the said point for the first time in appeal. We also find that the said issue was not raised before the learned Trial Judge even at the time of hearing and hence, we cannot lend any credence thereto. Thus, there is no scope of interference in the appeal.

Accordingly, FAT 125 of 2025 is dismissed on contest, thereby affirming the impugned judgment and preliminary decree dated August 30, 2023 passed by the learned Civil Judge (Senior

4

Division), First Court at Tamluk, District – Purba Medinipur in Title Suit No. 100 of 2021.

There will be no order as to costs.

A formal decree be drawn up accordingly.

CAN 2 of 2025 is also disposed of consequentially.

I agree. ( Sabyasachi Bhattacharyya, J .)

(Uday Kumar, J.)