Dismissed¶27

Abhoy Maji v. Nirbhoy Maji

Calcutta HC18 Feb 2026SAT/179/2025

Case brief

AI extract

What is this about?

Second appeal dismissed under Order XLI Rule 11 CPC; no substantial question of law. Counter claim for eviction by respondent upheld concurrently by the courts below. Limitation point (Article 65; Section 27 of the Limitation Act) treated as tentative, not conclusive. Adverse possession neither pleaded nor proved; pleas of tenancy and adverse possession mutually exclusive/destructive; no evidence beyond pleadings. DW2 deposition immaterial to adverse possession. Main suit for declaration of tenancy dismissed, unappealed, final — appellant not a tenant. CAN 1 of 2025 consequentially dismissed; no costs. Parties: Abhoy Maji (appellant) v. Nirbhoy Maji (respondent). Coram: Sabyasachi Bhattacharyya and Supratim Bhattacharya, JJ. Decision dated 18 February 2026.

What did the court decide?

At the stage of second appeal, the Court declined to reappraise evidence.

Abhoy Maji Vs Nirbhoy Maji — Calcutta HC (2026) — LawSathi Research

What the court decided

AI extract

Outcome

Dismissed

¶27

Issue for consideration

Whether the counter claim of the respondent was barred by limitation, as contended by the appellant, notwithstanding the decree allowing it. +3 more

¶8

Court's answer

The First Appellate Court's observation that the counter claim “may be” barred by limitation was a tentative consideration of different alternatives; no conclusive finding that the counter claim was time-barred was arrived at.

¶14

Ratio / Principle

At the stage of second appeal, the Court declined to reappraise evidence.

¶10

Key takeaways

The decree dismissing the appellant's main suit for declaration of tenancy attained finality as no appeal was preferred against it, establishing that the appellant is not a tenant in respect of the suit property.ratio¶20
Having categorically pleaded tenancy throughout the proceedings, the appellant cannot take the mutually exclusive stand of having been in adverse possession of the suit property.ratio¶21
Mutually destructive stances cannot be adopted, although otherwise alternative defences may be taken in the pleadings.

Detailed headnote1 paragraphs

Second appeal (SAT 179 of 2025, with IA No: CAN 1 of 2025) by Abhoy Maji against the concurrent judgment of the courts below allowing the counter claim of respondent Nirbhoy Maji seeking eviction. The appeal was dismissed at the threshold under Order XLI Rule 11 of the Code of Civil Procedure for want of a substantial question of law. The Court held: (i) the First Appellate Court's remark that the counter claim “may be” barred by limitation under Article 65 and that the defendant's right “may be” extinguished under Section 27 of the Limitation Act was a tentative weighing of alternatives, not a conclusive finding of time-bar; (ii) the appellant, having pleaded tenancy throughout, could not take the mutually exclusive stand of adverse possession — mutually destructive stances being impermissible even though alternative defences are otherwise allowable; (iii) adverse possession was neither pleaded nor proved by cogent evidence, and no proof beyond the pleadings could be looked into; (iv) the issue did not hinge on the deposition of DW2; and (v) the decree dismissing the appellant's main suit for declaration of tenancy had attained finality for want of any appeal, establishing that he was not a tenant. CAN 1 of 2025 was consequentially dismissed; no order as to costs.

¶1

18^th February, 2026 (AK) 08

¶2

SAT 179 of 2025 IA No: CAN 1 of 2025

¶3

Abhoy Maji Vs. Nirbhoy Maji

¶4

Mr. Debajyoti Basu Mr. Aditya Chakraborty Mr. Dibyendu Ghosh

¶5

….For the appellant.

¶6

The present appeal arises out of a concurrent judgment of both the courts below whereby the counter claim of the respondent, seeking eviction of the appellant, was allowed.

¶7

Learned counsel for the appellant contends that the

¶8

First Appellate Court itself came to a finding that the counter claim is barred by limitation but, yet, proceeded to affirm the decree of the trial court whereby the counter claim was allowed against the appellant.

¶9

Learned counsel seeks to take us through the evidence.

¶10

However, at this stage, in the second appeal, we are not inclined to reappraise evidence.

¶11

Insofar as the argument of the appellant is concerned, we find in paragraph no.33 of the First Appellate Court’s judgment that the learned First

¶12

¶13

Appellate Judge observed that at the outset it is to be mentioned that the counter claim “may be” barred by limitation in view of Article 65 and the right of the defendant “may be” extinguished in view of Section 27 of the Limitation Act, “if the plaintiff able to prove himself as adverse possessor”.

¶14

Thus, while making the said observation, different alternatives were only being considered tentatively by the First Appellate Court and no conclusive finding as to the counter claim being time-barred was arrived at. Thereafter, upon consideration of the evidence led by the parties, the learned First Appellate Judge came to the conclusion that there was no proof of adverse possession.

¶15

Learned counsel for the appellant further argues that the learned Appellate Judge fail to consider in proper perspective the evidence of DW2, the fullblooded sister of the respondent.

¶16

However, we find from the excerpt of such deposition, as quoted in paragraph no.34 of the First Appellate Court’s judgment, that the issue of adverse possession did not hinge on the said statements of the witness.

¶17

That apart, it may be noted that although the main suit filed by the present appellant for declaration of

¶18

¶19

the plaintiff/appellant’s tenancy was dismissed, no appeal was preferred against the same.

¶20

As such, the said decree has attained finality, thereby establishing that the appellant is not a tenant in respect of the suit property.

¶21

Moreover, in view of having categorically pleaded tenancy throughout the proceedings, the appellant cannot take the mutually exclusive stand of having been in adverse possession of the suit property.

¶22

It is well-settled that mutually destructive stances cannot be adopted, although otherwise alternative defences may be taken in the pleadings.

¶23

In any event, the case of adverse possession was never established by the appellant by cogent evidence, nor pleaded. Furthermore, insofar as the argument on adverse possession is concerned, it is well-settled that no proof can be looked into by a court of law beyond the pleadings.

¶24

The case of adverse possession having never been pleaded by the plaintiff/appellant, the courts were justified in not relying on the part of the evidence which related to such purported adverse possession of the plaintiff.

¶25