Calcutta High Court (Appellete Side)
Pbr Towers Pvt. Ltd. & Anr vs Sri Narsing Das Gupta & Ors on 29 June, 2016
IN THE HIGH COURT AT CULCUTTA
(CIVIL REVISIONAL JURISDICTION)
C.O. No. 2300 of 2015
PBR Towers Pvt. Ltd. & Anr.
-Vs.-
Sri Narsing Das Gupta & Ors.
Present : The Hon'ble Mr. Justice Siddhartha Chattopadhyay
For the Petitioners : Mr. Satyajit Talukdar,
Mr. P.S. Basu.
For the Opposite Party No. 1 : Mr. Amitava Das,
Mr. Uttam Kumar Bhattacharya,
Mr. Kaustav Mitra.
Heard On : 22.04.2016, 06.05.2016,
17.05.2016, 22.06.2015.
C.A.V. On : 22.06.2016
Judgment Delivered On : 29.06.2016
Siddhartha Chattopadhyay, J.:
The petitioners called in question the Order dated 18.03.2015 passed by the Additional District Judge, 3rd Court (Special), Jalpaiguri in Title Appeal No. 02 of 2012, on the ground that the learned Court below failed to appreciate the position of law and did not consider the Order dated 19.04.2012 passed by the Civil Judge, (Junior Division) at Jalpaiguri in its letter and spirit. Learned First Appellate Court was erred in both in fact and law in observing that the reliefs claimed in earlier suits are not the same and identical with the reliefs of the present suit although the same property is involved in all those suits. It was also contended that the learned First Appellate Court failed to appreciate that the plaintiff/opposite party in the suit bearing Title Suit No. 85 of 2005 categorically admitted that the said Bijay Nagar Tea Company Limited has been possessing land measuring about 0.25 acres in plot Nos. 77/771 and 79/775 which belonged to the Siliguri Municipal Corporation and on the basis of such possession, land measuring 64 decimals has been recorded in the name of the said Bijay Nagar Tea Co. Ltd. According to him, the learned First Appellate Court ought to have considered that the plaintiff/opposite party is not the owner of the entire land recorded in plot No. 77/771 and 79/775 under Khatian No. 600/27 measuring 1.45 acres and 1.54 acres respectively because he is the owner of land measuring 1.14 acres only and the rest of the land belongs to Siliguri Municipal Corporation. If all these aspects along with the judgment of the previous suits were taken into consideration in its proper perspectives, in that case impugned order would be otherwise.
2. At the time of argument learned Counsel appearing on behalf of the opposite party contended that the factual aspect is totally different and the impugned deed executed on 28.06.2011, was the product of a fraud and the title deed so registered had no value in the eye of law and it is void ab initio. He further contended that the opposite party Nos. 3 and 4 never acquired any right, title and interest over the property mentioned in the Schedule B of the plaint. He has also submitted that if the site plan along with the boundary of the deeds be considered properly in that case it would appear that 14 kathas of land of the plaintiff had been transferred by the defendant. In such circumstances, he contended that the impugned order is quite unimpeachable and it does not require any interference.
3. After hearing the rival submission of the parties, it seems to me that the factual aspect has to be considered very meticulously. In the plaint bearing Title Suit No. 273 of 2011 the plaintiff/opposite party has filed the suit for declaration, perpetual injunction and consequential reliefs. I want to incorporate the most relevant and important paragraphs of the plaint for effective adjudication. In para-1 "that the plaintiff purchased a plot of land measuring 1.14 acres of one Sri. Prokash Chandra Chowdhury, more fully described in the schedule 'A' below, vide Title Deed No. 3018 for the year 1963 registered in the office of the District Sub-Registrar Jalpaiguri transcribed in Volume No. 39 at pages 74 to 80 being No. 3018 for the year 1963. Since the date of purchase the plaintiff is in actual, physical and khas possession of the schedule 'A' land having permanent, heritable, transferable right, title and interest therein." In para-3 "that after the said purchase the plaintiff applied for mutating his name in the Record of Rights before the appropriate authority and the authority being satisfied with the possession of the plaintiff and the documents pertaining to the schedule 'A' land mutated the name of the plaintiff with respect to the schedule 'A' land vide Mutation Case No. IX - II - 826 of 63-64 (P) and the plaintiff is paying ground rent/khazana on regular basis. Therefore, his claim is such that he has purchased a plot of land measuring 1.14 acres and since the date of purchase he is in actual physical and khas possession of the schedule 'A' land having permanent, heritable, transferable right title and interest therein. His application for mutation has been accepted by the authority concerned in respect of 'A' schedule property and he is also paying rent to the authority concerned on regular basis." In para-6 "that with respect of the landed property of the plaintiff sometime in the year 1975 a Civil suit was filed under a different cause of action but the said proceeding did not proceed due to some technical reason. The plaintiff being an old man is not in a position to manage all the affairs relating to his schedule 'A' land and he lost some documents relating to the schedule 'A' land including papers relating to the said civil suit. If those documents are found by the plaintiff in that case the documents and/or information which are relevant to schedule 'A' land shall be furnished/submitted before the ld. Court." In para-11 "that on enquiry and after searching, the plaintiff came to learn that on 28.06.2011 the defendant No. 01 unlawfully sold land measuring 64 decimal, more fully described in schedule 'B' below, to defendant No. 03 vide Title Deed No. 4223 for the year 2011 registered in the office of the ADSR - Rajganj, transcribed in CD Volume No. 13, at pages 2273 to 2285." In para-12 "that said 64 decimal land unlawfully transferred by defendant No.01 in favour of defendant No. 03 vide said alleged Title Deed No. 4223 dated 28.06.2011, includes 08 Kathas and 08 Chhataks or 14 decimal land of the plaintiff falling under R.S. Plot No. 77/771 and 79/775 recorded in Khatian No. 600/27." In para-6, he has incorporated that he has filed a title suit in the year 1975 but the said proceeding did not proceed due to some technical reason and he lost some documents relating to schedule 'A' land including papers relating to the said civil suit. He did not mention in para 6, what was the cause of action mentioned in the suit of 1975. He has only mentioned 'different cause of action.' It was the bounden duty of the plaintiff to clarify it but that has not been done. In para-11, he mentioned that he came to learn that 64 decimals of land of 'B' schedule property was sold by defendant No. 1 to defendant No. 3. So if I read the para 1, along with this para 11 of that Title Suit No. 273/2011, in that case it is seen that his claim is in respect of 'A' schedule property only but he has wanted to create a smog by mentioning that property of 'B' schedule has been transferred by defendant No. 1 to defendant No. 3. He categorically stated in para 12 that he has 14 decimals of land in 'B' schedule property. He also mentioned in para 14 that title deed executed by the defendant No. 1, is the product of fraud and has no value in the eye of law and at the time of showing so called practising of fraud at page 5 vide clause (P) of the plaint, he has mentioned "that the plaintiff has purchased 1.14 acres of land vide Title Deed No. 3018 for the year 1963 with specific boundary/demarcation of the land so purchased." If we read this paragraph along with other paragraphs mentioned in the plaint, it is clear that the plaintiff has purchased 1.14 acres of land with specific boundary and demarcation of the land. His grievance is in respect of 'B' schedule property because at para 17 of the plaint he has challenged the title deed which was executed in respect of the property of 'B' schedule land. In para 21, he has specifically mentioned that he is the true and lawful owner of the entire schedule 'A' property and has every right to hold and possess the same and the defendants have no right whatsoever to enter into any portion of the schedule 'A' land. Therefore, it is clear case of twisting of his case. His ownership in respect of 'A' schedule land is highly protected yet he is interested to get the property situate in 'B' schedule land, which does not belong to him.
4. Now I am to consider his prayer in the plaint. He has prayed for declaration and a decree vide para 28(c):- A decree for declaration that the plaintiff is the absolute owner and in possession the 'A' schedule land and is entitled to retain the possession accordingly. Be it mentioned, that his such title and ownership has already decided in his former suit, which has been accepted by the present petitioner/defendants.
5. He has also prayed for a decree for permanent injunction restraining the defendant Nos. 3 and 4 from transferring the 'B' schedule land to any other third party. But his main prayer that he is the absolute owner in respect of 'A' schedule property. This goes to show rather, that he does not have any right, title and interest in respect of 'B' schedule property. In respect of 'B' schedule property a title deed was executed and by virtue of that, the defendant No. 3 acquired the 'B' schedule property, which the plaintiff has challenged. His headache is only in respect of 'B' schedule property although he has claimed for a decree in respect of 'A' schedule property. In the plaint he has mentioned schedule 'A' property as such. In 'A' schedule "all that piece or parcel of land measuring 1.14 acres situated within Mouza Dabgram, Pargana Baikunthapur, J.L. No. 02, Sheet No. 08, recorded in Khatian No. 600/27 appertaining to and forming part of Plot No. 77/771 and 79/775, under Siliguri Municipal Corporation Ward No. 42, P.O. and P.S. Bhaktinagar, Dist. Jalpaiguri, West Bengal.
As per Title Deed No. 3018 of 1963 the land is butted and bounded as follows:-
North : Family Quarters of Forest Department. South : Land of Siliguri Municipality and further South Municipal Road.
East : Land of Siliguri Municipality.
West : Road and nala." In 'B' schedule "all that piece and parcel of land measuring 64 decimal (involving 14 decimal or 08 kathas 8 chhataks of land of plaintiff mentioned in schedule 'A' hereinabove) along with a dilapidated the shed structure (semi commercial cement finished) measuring 2000 sq. ft. appertaining to Plot Nos. 76, 77, 77/771 and 79/775 corresponding to L.R. Plot Nos. 710, recorded in R.S. Khatian No. 600/24 and 600/27 corresponding to P-Khatian No. 617, situated within Mouza Dabgram, J.L. No. 02, Pargana Baikunthapur, Sheet No. 08, under the jurisdiction of Police Station Bhaktinagar, within Siliguri Municipal Corporation, Addl. District Sub-Registry Office Rajganj, District Jalpaiguri.
The land is butted and bounded as under -
North : Land of Dolphin Villa Private Limited and PBR Tower Private Limited (erstwhile known as Bluesky Vanijya Private Limited).
South : Land of Siliguri Municipal Corporation. East : Land of Malhati Tea Estate.
West : 60 ft. wide pucca road." He has mentioned that 64 decimals of land which is the subject of 'B' schedule property his 14 decimals of land have been transferred. In 'A' schedule property he has specifically mentioned that it is in respect of a plot of land measuring 1.14 acres and he is in possession and there is no transfer in respect of 'A' schedule property by the defendant/petitioner No. 1 to defendant/petitioner No. 3. Suddenly he has mentioned it in 'B' schedule property.
6. At the time of argument he has referred a site plan which he has submitted before the Court below. The site plan was not exhibited in previous suits as it appears from the Xerox copy. Before filing this suit, the present plaintiff/opposite party has filed another partition suit bearing Title Suit No. 85 of 2005. The schedule 'A' and schedule 'B' of his partition suit is the same as in connection with this Title Suit No. 213 of 2011. In the suit bearing Title Suit No. 273 of 2011, he has only changed a some portion of schedule 'B' property mentioning a portion suit that 14 decimals of land have been sold from his occupation. Challenging that partition suit, Bijaynagar Tea Company Ltd., present opposite party No. 2 had filed an application under Order VII Rule 11 which was turned down by the Trial Court. Vide Order No. 17 dated 24th March, 2006 that Bijaynagar Tea Company Ltd., thereafter, filed a revisional application before a Co-ordinate Bench of this Court and after a threadbare discussion the Co- ordinate Bench of this Hon'ble Court held 'it appears from the materials available on record that the plaintiff virtually had nothing more to add than what was claimed in the earlier suit of 1975. The dispute that has been raised in regard to the suit property, does not, in fact, call for any adjudication in the backdrop of the clear, consistent and categorical stand of the present petitioner that he has no claim in regard to the said property.
7. On the basis of such finding Hon'ble Court allowed the application under Order VII Rule 11 and plaint was rejected. Plaint of Title Suit No. 85 of 2005 was almost the replicated version of his earlier suit of 1975. That order of the Hon'ble Court was challenged before the Hon'ble Apex Court and that SLP was dismissed.
8. While disposing of the said revisional application, the Co-ordinate Bench held against the present opposite party ''therefore under Order 10 of the Code of Civil Procedure is a tool in the hands of the Courts and by resorting to it and by a searching examination of the party in case the Court is prima facie persuaded of the view that the suit is an abuse of the process of the Court, in the sense that it is a bogus and irresponsible litigation, the jurisdiction under Order VII Rule 11 can be exercised.''
9. Therefore, the factual aspect speaks that initial suit of 1975 was dismissed. In the suit of bearing Title Suit No. 85 of 2005 the same suit property was mentioned. That title suit was rejected at the intervention of a Co-ordinate Bench of this Court and thereafter again the Title Suit No. 273 of 2011 has been filed relating to the same property only addition that his land has become a part of the 'B' schedule property, whereas in his same plaint he has categorically mentioned that he is the owner of 'A' schedule property.
10. Learned Counsel appearing on behalf of the petitioner contended that the present opposite party in their plaint did not disclose the real cause of action and never stated about their clear right to sue. He contended that the plaint in essence speaks of his right, title and interest over 'B' schedule property, although admittedly he is the owner of 'A' schedule property and nobody is disputing that. In support of his such contention he has relied on a decision reported in 2008 (1) CHN 98 in connection with (Bijoynagar Tea Company -Vs.- Nursing Dasgupta). This judgment relates to the judgment which was passed in connection with Title Suit No. 85 of 2005 in regard to the schedule property mentioned in this suit. Here also that Bijoynagar Tea Company and Nursing Dasgupta are contesting with each other. He has also relied on the decision reported in AIR 1998 Supreme Court page 634 (ITC -Vs.- Debt Recovery Tribunal). On a close scrutiny of the said decisions, along with the decisions relied on by the Hon'ble Apex Court while dealing with that case, I find that the plaint should not be read formally but a meaningful reading is the urgent desideratum. The Hon'ble Apex Court held further in the said decision that the moot question is if a real cause of action has been set out in the plaint or something illusory has been stated to avoid the mischief of Order 7 Rule 11 of the Civil Procedure Code has been set out in the plaint or something purely clever drafting creating illusions of cause of action are not permitted in law and a clear right to sue should be shown in the plaint.
11. On perusal of the plaint it appears to me that it is a clever drafting and is an instance of an artful advocacy. Only to create a smog, this time he has incorporated in the 'B' schedule property that his 14 decimals of land has been transferred.
12. In terms of the ratio of the decisions as referred above it seems to me that following considerations are essential for disposal of an application under Order VII Rule 11 of the Civil Procedure Code viz. (1) whether the meaningful reading discloses a specific cause of action or not; (2) whether by way of a clever drafting an important part of cause of action has been concealed under an artful advocacy; (3) whether the said cause of action attracts any legal bar or not.
13. I cannot help quoting a decision reported in T. Arivandandam -Vs.- T.V. Satyapal & Anr, reported in AIR 1977 Supreme Court 2421. Paragraph 5 of the said judgment and order may be reproduced as follows:-
"We have not the slightest hesitation in condemning the petitioner for the gross abuse of the process of the Court repeatedly and unrepentantly resulted to. From the statement of the facts found in the judgment of the High Court, it is perfectly plain that the suit now pending before the First Munsif's Court, Bangalore is a flagrant misuse of the mercies of the law in receiving plaints. The learned Munsif must remember that if on a meaningful - not formal reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under Order VII Rule 11, C.P.C. taking care to see that the ground mentioned therein is fulfilled. And, if clever drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under Order X, C.P.C. An activist Judge is the answer to irresponsible law suits. The Trial Courts would insist imperatively on examining the party at the first hearing so that bogus litigation can be shot down at the earliest stage. The Penal Code is also resourceful enough to meet such men, (Ch. XI) and must be triggered against them. In this case, the learned Judge to his cost realized what George Bernard Shaw remarked on the assassination of Mahatma Gandhi.
It is dangerous to be too good."
14. The Court should not encourage to allow a luxury litigation, on the contrary it's statutory obligation is to search screen and then eliminate mala fide litigation. It cannot afford itself to be a passive on looker when there is clear manifestation of a harassment to the opponent. Otherwise Court will certainly miss the wood for the trees.
15. Before coming to the conclusion in regard to the application under Order VII Rule 11 of the Civil Procedure Code, the first question to be answered is :- (1) Do these disputes involve any question (whether legal or factual) on which the existence or extent of a legal right of the plaintiffs depends? If it does, then the next question is (2) whether the raising of such disputes is barred by any law. If the aforesaid questions' answers are affirmative, then the plaint must be rejected as a whole. Where truth is covered under a thin layer of mystery and falsehood, the duty of the Court is to unveil the mystery and to explore the truth.
16. Therefore, in my considered view there is merit in the application under Order VII Rule 11 of the Code of Civil Procedure and accordingly the impugned order dated 18.03.2015 passed by the learned Additional District Judge, 3rd Court (Special), Jalpaiguri in Title Appeal No. 2 of 2012 is hereby set aside. The plaint of Title Suit No. 273 of 2011 is hereby rejected.
17. The instant civil revisional application stands allowed with a cost of Rs.10,000/-.
18. Let a copy of this order be sent to the learned Court below for his information and taking necessary action in accordance with law.
19. Urgent certified photocopy of this Judgment and order, if applied for, be supplied to the parties upon compliance with all requisite formalities.
(SIDDHARTHA CHATTOPADHYAY, J.) A.F.R/N.A.F.R.