Calcutta High Court (Appellete Side)
Sri Kenaram Dutta & Ors vs Amal Kumar Basu & Ors on 21 December, 2017
1
In The High Court At Calcutta
Civil Appellate Jurisdiction
21 .12.17
SA 254 of 2016
Sri Kenaram Dutta & Ors.
-Vs-
Amal Kumar Basu & Ors.
Mr. Rajnarayan Datta
Ms. Aritri Daw
... for the Appellants.
Mr. M.P.Gupta
Mr. A. Banerjee
Mr. Animesh Paul
... for the respondents.
This appeal is directed against the judgement and decree in Title Appeal No. 9 of 2009 passed by the Additional District Judge, Basirhat, North- 24 Parganas affirming the judgement and decree in Partition Suit being Title Suit No. 40 of 2002, inter alia, on the ground that the learned Appellate Court below failed to consider the circumstances upon which the appeal was preferred against the final decree of the Trial Court and that the Trial Court's failure to appoint legal guardian as well as Court guardian against the minor Appellants No. 3 and 4 at the time of delivery of preliminary and final decree in the said partition suit who were minors at the relevant point of time.
It is submitted on behalf of the appellants that the learned Appellate Court below should have considered that the respondent nos. 1 to 4 acted fraud upon the Trial Court by adding appellant nos. 3 and 4 as major though they were minors at the time of addition and thus the judgement and decree of the Trial 2 Court has been vitiated with act of fraud and not sustainable in law and accordingly, the appellants have prayed for setting aside the judgement and decree impugned. The learned counsel for the appellants has also contended that the learned Appellate Court below has only considered the question of maintainability of the appeal in the light of Section 97 of the Civil Procedure Code without adhering to the exceptional circumstances where the judiciary can act beyond Section 97 of the Civil Procedure Code as in the present case only for the purpose of equity and for doing justice and accordingly, the appellants have prayed for setting aside of the judgement and decree appealed against before this Court.
The learned counsel for the appellants has also taken a ground that the learned Appellate Court has failed to consider the illegalities of the Trial Court in passing the judgement and decree in the preliminary form and non-granting of an adjournment for bringing final order of revisional case in C.O.No. 3094 of 2008 pending in the Hon'ble High Court moved against Order No. 50 dated June 10, 2008 in Title Suit No. 40 of 2002.
This appeal being preferred a Division Bench of this Hon'ble Court framed a substantial question of law and this Court is confined to consideration of the appeal only on the substantial question of law as to " Whether the learned Judge in the lower appellate Court, substantially, erred in law in dismissing the appeal preferred against the final decree as 'not maintainable' merely on the ground that no appeal was filed by the appellants challenging the preliminary decree inasmuch as the learned 3 Judge applied wrong legal test in considering Section 97 of the Code of Civil Procedure?"
The background leading to the instant appeal is that the respondents as plaintiffs instituted a suit for partition and injunction against the defendants.
The suit land described in the Schedule 'Ka' to the plaint belonged to Brojendra Nath Basu, Atul Krishna Basu, Santosh Kumar Basu, having two anna each and Bibhuti Bhusan Basu, Mani Mohan Basu, Pankaj Kumar Basu having 13 gondas, one kara one kranti and two annas share. In the C.S. Khatian No. 52 of 21 decimals of land, the share of Brojendra Nath Basu and Atul Krishna Basu have 4 annas each, Santosh Kumar Basu has also 4 annas share and the share of Bibhuti Bhusan Basu, Moni Bhusan Basu and Pankaj Kumar Basu have one anna, six gonda, two kara and two kranti each share. The suit property originally belonged to Brojendra Nath Basu and after the demise of said Brojendra Nath Basu, Sudhir Kumar Basu and Jamini Basu inherited the property of their father. The plaintiffs' predecessor is Sudhir Kumar Basu and the defendant nos. 1 to 4's predecessor is Jamini Basu. The plaintiffs inherited their shares and they proposed for partition of the suit amicably but of no effect. So the plaintiffs filed the suit for partition. According to the case of the plaintiffs the respondents herein, and all the defendants refused summons issued by the Court so the suit was fixed for ex parte hearing and after going through the evidence of the plaintiffs the learned Trial Court was pleased to decree the suit in the preliminary form against the defendants by declaring the share of the plaintiffs being entitled to get 6-9/16 decimals of land and the parties were given 4 three months' time to effect of mutual partition of the suit property failing which the plaintiffs were given liberty to put the decree into execution for final decree by appointing a Pleader Commissioner for partition.
The respondents/appellants herein filed an application for appointment of a Pleader Commissioner and it was so allowed and were pointed out that on August 28, 2008 an order of status quo was passed as would appear from the order dated June 10, 2008 which order according to the appellants were to be revised against before this Hon'ble Court in C.O. No. 3094 of 2008 but it appears that this revisional application was not prosecuted and it stood dismissed for default as it would appear from order dated March 10, 2017 passed in C.O. No. 3094 of 2008. A miscellaneous case being Misc. Case No. 20 of 2008 under Order 9 Rule 13 of the Code of Civil Procedure togeher with an application under Section 5 of the Limitation Act was filed on behalf of the appellants on August 16, 2008 and in the suit the appellants herein had prayed for filing of the written statement but that was rejected by the said Order No. 50 dated June 10, 2008.
Since the Pleader Commissioner for partition was appointed, he proceeded with the commission work and a final report was submitted on December 23, 2008 and it was fixed for acceptance on January 19, 2009 when the defendant nos. 1(a) to 1(e) filed an application praying for opportunity to file written objection against the report and it was granted, but no objection was filed against the report when it was accepted on January 20, 2009 and the date for filing the requisite stamp fee by the plaintiffs was fixed on March 2, 2009. 5
The learned counsel for the respondents submits that the decree has reached its finality with the written up decree on the requisite stamp duty and it is well understood from the lower Courts' records that it has been so filed. It would appear that no step has been taken in connection with the miscellaneous case under Order No. 9 Rule 13 of the Code of Civil Procedure Code filed on behalf of the appellants and an application under Section 5 of the Limitation Act was filed but the appellants did not move that application for condonation of delay in preferring the miscellaneous case under Order 9 Rule 13 of the Code of Civil Procedure for setting aside the decree passed against them.
The appellants preferred an appeal against the judgement and decree passed by the learned Trial Court in Title Appeal No. 9 of 2009 wherein the appellants have challenged the final decree in partition on the score that the preliminary decree obtained by the respondents herein is collusive one and there are some exceptions to the provisions under Section 97 of the Code of Civil Procedure.
The appellate Court below heard the learned counsel for the both the parties and the submissions as made by the respondents herein on the point that the appeal is barred under Section 97 of the Code of Civil Procedure since no appeal has been preferred as against the preliminary decree but preferred the appeal against the final decree.
The learned counsel for the respondents has invited attention of this Court to the provision of Section 97 of the Code of Civil Procedure which provides for appeal from final decree that whether any party aggrieved by a preliminary 6 decree passed after the commencement of the Court does not appeal from such decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree and accordingly, was of the view that the appeal is not tenable and was dismissed on contest as not maintainable. It would appear from the proceedings conducted by the Pleader Commissioner for partition that he issued the notices to the parties to the suit as would be seen from page 35 of the paper book.
Learned counsel for the appellants joins his issue that the notices given to Ranjit Kumar Dutta and Prasanta Basu cannot be considered that the notices given to them but the fact remains that the appellants Kenaram Dutta and others were served with a notice at the time of commission work being conducted by the Pleader Commissioner for partition which is stated in his proceedings that none was present on behalf of the defendants, although, they have contested the suit in the learned Trial Court at the time of hearing of the decree. The commission report in its finality was submitted on the basis of which a final decree has been passed and the appellants appear to have filed the appeal against the final decree as would appear from the judgement of the learned Appellate Court below itself.
In support of the case the learned advocate for the respondents has referred to a decision in the case of Venkatrao Anantdeo Joshi & Ors. v. Sau. Malatibai & Ors., reported in AIR 2003 SC 267 which reads as follows :-
" Further, in a suit for partition where preliminary decree is passed, at the time of passing of the final decree it was not open to the respondent to raise the contention that he was tenant of the suit premises. Section 97 7 of the CPC specifically provides that where any party aggrieved by the preliminary decree does not appeal from the said decree, he is precluded from disputing its correctness in any appeal, which may be preferred from the final decree. [ Ref. Mool Chand & Ors. v. Dy. Director, Consolidation & Ors., (1995) 5 SCC 631]".
Reliance has also been made in the case of Moothedath Govindan Jaipalan & M.G. Jaipalan & Anr. v. Sanjit Kumar Roy & Ors., reported in 1997(1) CLJ 5 which reads as follows:-
" A formidable point has been raised against the appellants by Mr. Dasgupta is that since the appellant did not question against the preliminary decree and allowed it to be final, subsequently, it was open to them to raise any dispute regarding the validity of the preliminary decree. In support of his submission, he placed reliance on Section of the C.P.Code.
Section 97:- Where any party aggrieved by a preliminary decree passed after the commence of this code does not appeal from such decree, he shall be precluded from disputing its correctness in an appeal which may be preferred from the final decree."
Taking the cue through the observation made by the pronouncement of this Court and the Hon'ble Apex Court and the Section 97 of the Code of Civil Procedure, this Court finds that the learned Appellate Court substantially recorded his finding in its right perspective. Therefore, this appeal is liable to be dismissed.
Hence, I dismiss the appeal. However, there shall be no order as to costs. 8 Certified website copy of the order, if applied for, be urgently made available to the parties, subject to compliance with all requisite formalities.
sh ( Shivakant Prasad, J)