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HIGH COURT AT CALCUTTA, JALPAIGURI CIRCUIT BENCH

CIVIL REVISIONAL JURISDICTION

APPELLATE SIDE

RESERVED ON: 05.03.2026

DELIVERED ON: 01.04.2026

PRESENT:

THE HON’BLE MR. JUSTICE REETOBROTO KUMAR MITRA

C.O. NO. 26 OF 2026

DILIP DAS AND ANOTHER

- VERSUS –

LOKNATH DAS AND ANOTHER.

Appearance:

Mr. Bhaskar Roy Mahasaya,

Ms. Ambalika Ghosh.

….. for the Petitioners

Mr. Druti Roy,

Mr. Soumyajyoti Dutta,

Ms. Kakali Roy. ….. for the Respondents

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Reetobroto Kumar Mitra, J.:

1. This revisional application challenges the order dated January 30, 2026

passed by the Sub-Divisional Officer, Jalpaiguri as the designated

Tribunal, in Misc Case No. 284 of 2024 filed some time on May 21, 2024

constituted under the Maintenance and Welfare of Parents and Senior

Citizens Act, 2007 (hereinafter referred to as the said Act).

2. The conspectus of the disputes between the parties is very short. The

petitioners herein are the son and daughter-in-law of the opposite parties.

3. The opposite parties had approached the tribunal under Sections 22(2), 23

and 5 of the said Act.

4. The prayers made in such petition are set out hereunder:-

i. Restraining the O.P.s immediately from causing threat,

damage, injury both physical and mental to the Petitioners;

ii. Directing the O.P.s to quit and vacate the house of the

Petitioner No.-1 immediately situated at 112 Rabindra Nagar,

P.O.- Sen Para, P.S. – Kotwali, Dist – Jalpaiguri, Pin Code –

735101 fully described in the schedule below;

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iii. Directing the O.P. No.-1 to pay maintenance to the Petitioners

@ Rs. 10,000/- (Ten Thousand) only per month for their food,

clothing, treatment, medicine and other maintenance;

iv. Prohibiting the O.P.s from abusing, assaulting and otherwise

torturing the Petitioners;

v. Expenses of the Proceeding amounting to Rs. 20,000/-

(Twenty Thousand);

vi. Pass such other Order/Orders as your Honour deems fit and

proper.

5. The learned Tribunal, after considering all facts and circumstances, which

have been detailed in the order impugned dated January 30, 2026, came to

the finding that the petitioners' continued possession of the property is

inimical to the welfare and protection of the opposite parties. Thus, the

petitioners were directed to vacate the property and hand over peaceful

and vacant possession to the opposite parties within 30 days from the date

of the order.

6. The petitioner has raised two fundamental issues. The first issue pertains

to the maintainability of the application before the designated tribunal by

the opposite parties. The second issue relates to the merits of the matter.

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7. In respect of the first issue, it was submitted that the basic ingredient for

applicability of the said Act is that there has to be a transfer by way of a gift

or otherwise by the concerned senior citizen/citizens of his property

subject to the condition that the transferee shall provide basic maintenance

and basic physical needs to the transferor and when such transferee refuses

or fails to provide such amenities, the transfer of the property shall be

deemed to have been made by fraud or coercion or undue influence , and

shall, at the option of the transferor, be declared void by the tribunal. In

the instant case, according to him, no such transfer took place by the

opposite parties, being the senior citizens, in favour of the petitioner.

Thus, the applicability of the said Act does not arise and the tribunal did

not have the jurisdiction to pass such an order, especially one directing the

petitioner herein to vacate the premises and for possession to be thereby

restored to the opposite parties. He has placed reliance on a judgment of

the Hon'ble Supreme Court of India in Civil Appeal No. 3822 of 2020 in

the case of Smt. S Vanitha v. The Deputy Commissioner, Bengaluru

Urban District & Ors.

8. On the second issue, the petitioners' case is that the petitioners are not

living in the residential premises of the opposite party no. 1. Their

occupation of a part of the land is in a dwelling house which was

constructed by the petitioner no. 1 and thereafter gifted to the petitioner

no. 2. Thus, the question of eviction from one’s own residential premises

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does not arise under the said Act. Hence the order impugned passed by

the tribunal is on an erroneous assumption of jurisdiction and therefore

liable to be set aside.

9. On the factual aspect, certain new points have been raised by the

petitioners. Such new points, which were not before the learned Tribunal,

are as under:-

a. Petitioner is not residing in the opposite parties' house.

b. Petitioners have a residence in the adjacent land, which has

been constructed by the petitioner no. 1.

c. This property constructed by the petitioner no. 1 has been

gifted by him to his wife, the petitioner no. 2 herein.

d. The opposite party no. 1 had not transferred or gifted any

property to the petitioners.

10. Mr. Druti Roy, learned advocate, appearing for the opposite party has

submitted that the petitioner has relied upon merely a part of Section 23

and has not placed reliance on the entirety of subsection 2 and Section 23

of the said Act. He has also placed reliance on a decision of the Hon'ble

Supreme Court of India in Civil Appeal No(s). of 2025 (Arising from SLP

(Civil) No(s). 7675 of 2024) in Rajeswar Prasad Roy v. The State of Bihar

and Ors.

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11. I have heard learned counsel for both parties at length and considered the

records and the decisions relied upon by them.

12. The facts of the case are fairly simple.

13. In a nutshell, the facts are enumerated hereinafter.

14. The opposite parties, who are the father and mother respectively of the

petitioner no. 1 and in-laws of the petitioner no. 2, had instituted a case

before the tribunal seeking the relief set forth hereinbefore under Section

22(2), 23 and 25 read with Section 4(2)(f) of the Maintenance and Welfare

of Parents and Senior Citizens Act, 2007.

15. The opposite parties complained of the acts of the petitioners herein that

they have physically assaulted and manhandled the opposite parties, on

account whereof the petitioners ought to be directed to pay certain

maintenance and also be evicted from the residential premises of the

opposite parties.

16. These simple facts as aforestated have been somewhat convoluted by

certain new and contrary pleadings presented by the petitioner. The

opposite parties claimed to be the owner of the 8 decimals (0.089 acres) of

land, 0.04 acres being the result of the patta received by the opposite party

no. 1 from the state government and .043 acres received by way of

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devolution, being the property of Haranath, the deceased brother of the

opposite party no.1, who expired without any heir.

17. The opposite parties have four children, Dilip, Tapan, Sanjib, and Sampa.

Dilip is the petitioner herein, residing in the same premises as that of the

opposite parties. Sanjib resides with the opposite parties and tends to their

requirement and needs. Tapan resides elsewhere in his separate

establishment and also renders services to his parents. Sampa is married

and stays at her matrimonial home. The opposite party no. 1 was granted a

patta in respect of land measuring 0.04 acres or 4 decimals in L.O.P. No.

219. In this land he had constructed a dwelling house consisting of rooms,

kitchens, and privy. The elder brother of opposite party no. 1, Haranath

Das, was granted a similar patta in respect of 0.043 acres or 4 decimals in

the same plot being L.O.P. No. 219. Haranath died and his entire

property devolved upon the opposite party no. 1. Thus, opposite party no.

1 herein became the owner of 0.083 acres or 8 decimals (0.04 of his own

plus 0.043 of Haranath). In fact, opposite party no. 1 is recorded as owner

in LR records and the concerned BL & LRO has issued a khatian being

LR Khata no. 761.

18. Opposite party no. 1 had thereafter transferred about 5 decimals of land to

his son Sanjib.

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19. It is contended by the opposite parties that the petitioners are occupying

one room in the house of the opposite party no. 1 and due to family

differences, the opposite parties had asked the petitioners to vacate the

room, whereupon the petitioners manhandled and assaulted the opposite

parties. In fact, the assault was quite severe and resulted in a police

complaint being filed as opposite party no. 1 had to be admitted to the

hospital due to the intensity of the assault.

20. The petitioners, on the other hand, have sought to establish that the land

belonging to Haranath does not and could not have devolved on the

opposite party no. 1 as there are four sisters of opposite party no. 1 who

have an equal share in the land of Haranath. Thus, the land of Haranath

was liable to be divided into five equal shares amongst his legal heirs

(sisters and brothers). Further, the petitioner state that Haranath in his

lifetime had given the petitioner the right to possess and enjoy his land and

that the petitioner indeed has a right to such land.

21. Thus, according to the petitioners, opposite party no. 1 could not be the

sole beneficiary of the land of Haranath, the petitioners could not be

evicted from the said land either by the prayer of opposite party no. 1 or

by the order of the tribunal, especially since such order is without

jurisdiction.

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22. The issues as to whether the sisters would have a right to the land of

Haranath or not are a matter which can only be raised by the sisters and

not by the petitioner as a son of Loknath (opposite party no. 1).

23. 4 decimals of the land had been gifted to their son Sanjib on November

11, 2022 and the balance land had been gifted through a further deed of

gift by the opposite party no.1 to his son Sanjib on January 8, 2024. Thus

the entirety of the 8 decimals of land had been gifted by opposite party no.

1.

24. The petitioner also stated that the petitioner was in possession of the land

of Haranath and had constructed a building over the said land and that the

land measuring 4 decimals had been recorded in the names of the

petitioner. It is on this land that the petitioner had constructed his dwelling

house, which he had subsequently on May 12, 2023 gifted to his wife, the

petitioner no. 2. The name of the petitioner no. 2 is allegedly mutated

over the land that she had acquired by way of the aforesaid gift.

25. The genesis of the occupation by the petitioner and construction of the

dwelling house and the subsequent gift of the same to his wife, the

petitioner no. 2, is a family settlement consisting of the sisters of opposite

party no. 1 and the opposite party no. 1 himself upon such settlement the

property has been duly demarcated and partitioned and it is only after

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such settlement that the petitioner no. 1 has constructed his dwelling house

thereon.

26. Before adverting to the substantive issue raised by the petitioner herein, it

is imperative to deal with the issue of maintainability of the application

before the learned Tribunal, as raised by the petitioner.

27. Section 23 of the said Act falls under Chapter 5 of the Act which relates to

protection of life and property of senior citizens.

28. The sine qua non for applicability of Section 23 of the Act thereof, is that a

Senior Citizen after the commencement of the Act has transferred by way

of gift or otherwise any property to the person against whom such

application has been filed. The petitioners’ contention that the opposite

parties had not gifted or otherwise transferred any of their property to any

of the petitioners, on account whereof the application before the learned

Tribunal ought not to be entertained, is belied by the fact that they have, in

no uncertain terms, admitted in the Revisional Application (in paragraph

5) that the land belonging to Haranath, the uncle of the petitioner no. 1,

was transferred to him by way of an amicable family settlement to which

the opposite party no. 1 herein was also a party.

29. Thus, even if it be construed that the opposite party no. 1 had 1/5th share

in 0.43 decimals of land of Haranath, he has, on the petitioners' own

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admission, transferred the same to the petitioner no. 1. On the petitioners'

own admission, the sine qua non, if it is so construed for invocation of

Section 23 of the Act, stands duly satisfied. Thus, the impugned order

passed by the Tribunal cannot, under any circumstances, be said to have

been passed without jurisdiction.

30. In the circumstances, on the merits, two issues have to be considered while

dealing with a case of this nature. First, whether the property of the senior

citizens is well and sufficiently protected , and second, the need to protect

the lives of senior citizens.

31. In so far as the petitioners' case on merit is concerned, the factual aspects

raised in this revisional application are not just new but are indeed contrary

to the case made out by the petitioners before the learned Tribunal in as

much as :-

a. The petitioners have categorically stated before the learned

Tribunal that they resided in a room of the house of the

opposite parties.

b. There was no question of a new dwelling house constructed by

the petitioner no. 1 where the petitioners were residing.

c. There is not a whisper before the learned Tribunal that the

petitioner no. 1 had gifted this dwelling house to his wife.

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32. The new points which are contrary to the stand taken by the petitioners

before the learned Tribunal are as follows:-

a. The gift deed relied upon by the petitioner no. 1 pertains to

land and not to any dwelling house.

b. There is no document to support that there is a structure

constructed by the petitioner on the adjacent land as argued.

33. The stand of the petitioners before the Tribunal, in their written statement,

was that the petitioners were occupying one room which the petitioner no.

1 had constructed. In fact, it is this one room which he had gifted to his

wife, the petitioner no. 2 herein. Thus, the stand taken by the petitioners

in their pleadings before the Tribunal and in this revisional petition are

contrary to each other. There is no evidence produced by the petitioners

to show that the petitioner no. 1 has constructed a house or that they are in

possession of such house or that the pleadings in the written statement

were made inadvertently or that they were incorrect.

34. In the instant case it is not in dispute that the house on 5 decimals of land

was constructed by opposite party no. 1. The property is self-acquired and

not ancestral or joint property. The living condition of the opposite parties

are rather inadequate and insufficient, cramped in nature and not befitting

the opposite parties in view of their age and health (86 and 76

respectively). It has also been established from the finding of the learned

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Tribunal that the petitioner no. 1, on several occasions, quite on a daily

basis, returns home in an inebriated state, creating a hostile and unsafe

environment for the opposite parties. It may however be true that the

opposite party no. 1 has made certain painful remarks regarding the

fertility of the petitioner no. 2, which cannot justify any physical assault or

manhandling by the petitioner no. 1, a son of his parents, the opposite

party herein.

35. The continued and repeated assault, abuse, and harassment, which is

established by the police report and duly corroborated by the consistent

complaints made by the opposite parties, is a matter of concern and falls

squarely within the purview of the said Act.

36. The petitioner no. 1, as a son, is obliged to take care of his parents, being

senior citizens, let alone physically abusing and assaulting them to the

extent that the opposite parties had to be admitted to a hospital with severe

injuries.

37. It is evident that the petitioners' continued occupation of the property

leaves them in the vicinity of the opposite parties, which could severely

prejudice the opposite parties and be detrimental to their health and

physical safety.

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38. The decision of the Hon'ble Supreme Court in Rajeswar Prasad Roy

(supra) is unequivocal that the tribunal is bestowed with the power to direct

eviction of the errant children and in order to prevent any sort of misuse,

harassment, and assault, it is indeed essential that an order of eviction be

made against such errant children. It is true that the said Act does not

expressly provide for powers of eviction, however, such a power is implicit

in the Act itself which has been made with the salutary public purposes of

upholding the safety of senior citizens.

39. It is clear that the tribunal's power to order eviction is an instance of the

enforcement of senior citizens' right to protection. This Act, being a

welfare legislation, needs to be construed in a manner which would be

beneficial for the well-being of the senior citizen and the Act has to be

construed in a manner which would further such purpose and not limit the

same.

40. In view of the aforesaid discussion, I am of the opinion that the order

passed by the learned Tribunal, which has been assailed in this revisional

application, has been rightly passed and warrants no interference in view of

the following:-

a. The said Act has been rightly applied by the learned Tribunal.

This being a welfare legislation, needs to be construed in a

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liberal manner as has been reiterated by the Hon'ble Supreme

Court of India in the various cases referred to hereinbefore.

b. This being a beneficial legislation for the senior citizen, the

safety and protection of the property of the senior citizen is as

important under the Act as the safety and protection of the

senior citizens themselves from any untoward or aggravated

situation, such as the assertions made by the petitioner no. 1

herein.

c. The finding of the learned Tribunal on the basis of the report

of the B.L. & L.R.O., Sadar that the opposite parties herein,

the applicants before the Tribunal, are in exclusive possession

of 0.089 decimals of land with two concrete rooms and one

tin-roofed room, clearly reveals that there is no separate

dwelling house constructed in the said area. This indicates that

the petitioners were occupying a part of the house built by the

opposite party no. 1.

d. Since the petitioners were occupying a part and portion of the

premises built by the opposite party no. 1, as held by the

Supreme Court in Rajeswar Prasad Roy (supra), the Tribunal

is bestowed with the power to direct errant children in order to

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prevent misuse, harassment and assault against senior citizen,

in the instant case, the opposite parties.

e. The Tribunal has also sufficiently addressed the rights of the

petitioner no. 2 , being the daughter - in - law , by issuing

directions to the petitioner no. 1 herein to provide her

monthly maintenance of Rs. 5000/- and protecting the rights of

the petitioner no. 2 in the manner as stipulated in the order.

41. In view of the aforestated findings and observations, C.O. 26 of 2026 is

dismissed.

42. There shall, however, be no order as to costs.

43. An urgent photostat certified copy of this order, if applied for, be made

available to the parties upon compliance with the requisite formalities.

(Reetobroto Kumar Mitra, J.)