Calcutta High Court (Appellete Side)
Sri. Biswanath Pramanick & Anr vs Smt. Mitali Mondal & Ors on 13 September, 2019
Author: Bibek Chaudhuri
Bench: Bibek Chaudhuri
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
The Hon'ble JUSTICE BIBEK CHAUDHURI
FMA 824 of 2004
Sri. Biswanath Pramanick & Anr.
Vs.
Smt. Mitali Mondal & Ors.
For the Appellants: Mr. Supratick Syamal,
Mr. Gourab Ghosh.
For the Respondents: Ms. Shohini Chakraborty,
Mr. Hafizur Rahaman, Ms. Priyarthi Roy.
Heard on: August 09, 2019.
Judgment on: September 13, 2019.
BIBEK CHAUDHURI, J. : -
1. The defendants of Title Suit No.8 of 1992 have assailed the judgment and order of remand of the suit for fresh trial passed by the learned Additional District Judge, 11th Court at Alipore in Title Appeal No.159 of 1997.
2. Salient facts leading to the filing of the instant appeal are stated below:-
3. One Tulshi Charan Mondal, predecessor-in-interest of the plaintiffs/respondents filed a suit for declaration of title, permanent injunction and partition of their share which was registered as Title Suit No.8 of 1992 in the 10th Court of the learned Assistant District Judge, Alipore. Subsequently, however, by filing an application for amendment of plaint the respondents/plaintiffs deleted the prayer for partition. The case of the plaintiffs/respondents is that one Khetromohan Mondal was the original owner in respect of 26 cents of land in plot No.4291 appertaining to khatian no.291 and 38 cents of land in plot No.4291/4408 of khatian No.289 of mouza Chandi within P.S Bishnupur, 24 Parganas (South).
4. After the death of the said Khetromohan Mondal, his sons namely Aghar and Bipin Mondal inherited the suit property. Subsequently the said Aghar and Bipin settled 16 cents of land out of 26 cents of land in plot No.4291 in favour of one Harimati Dashi and Rabiram Pramanick. The appellants are the legal heirs and successors of the said Harimati and Rabiram. Aghar died leaving behind the original plaintiff as his sole heir in the year 1962. Subsequently in 1965, Bipin expired unmarried. So original plaintiff became the absolute owner of the suit property. It is the further case of the plaintiffs/respondents that Aghar and Bipin took loan of Rs.400/- from Harimati and Rabiram jointly. Subsequently, Bipin also took loan of Rs.500/- from the predecessor of the defendants. At the time of disbursement of loan the predecessors of the defendants obtained thumb impression of Aghar and Bipin on some blank papers. Though entire loan amount was repaid by the said Aghar and Bipin, the defendants illegally converted the said documents into sale deeds. Sometimes in January, 1992, the defendants/appellants tried to construct a room over the land under possession of the plaintiffs/respondents. However, they were resisted by the respondents.
The respondents requested them for amicable partition in respect of 16 cents of land in plot No.4291, but the appellants refused to accept such proposal. Therefore, the predecessor-in-interest of the present respondents filed Title Suit No.8 of 1992 for declaration of title and permanent injunction.
5. The defendants/appellants contested the suit by filing written statement. Specific defence case is that the defendants are the owners of 16 cents of land in plot No.4291 and entire 38 decimals of land in plot No.4291/4403 by virtue of purchase and settlement. In other words, the appellants are the owners of 57 cents of land out of entire 64 cents of land in two plots. Therefore, the appellants filed a counterclaim praying for partition in respect of their share in the suit property against plaintiffs/respondents.
6. On the basis of the pleadings the learned trial judge framed as many as six issues. Parties led evidence in support of their respective cases, both oral and documentary. The learned trial judge on due consideration of evidence on record dismissed the suit filed by the respondents and decreed the counterclaim filed by the appellants.
7. It was held by the learned trial court that the suit filed by the predecessor of the respondents is not maintainable on the ground that the description of the property for which the respondents claimed declaration was vague; the property cannot be identifiable for want of proper description. However, the learned trial judge held that the suit was maintainable in respect of the claim for declaration of title of respondent's ownership in respect of plot No.4291/4403.
8. The learned trial judge further held that the predecessors of the defendants/appellants, namely Harimati and Rabiram purchased 42½ cents of land out of 64 cents of land in two plots by virtue of registered deed of sale, marked Exhibit-A and A/1 respectively. Thus, the learned trial judge came to the finding that the appellants are the owners of 42 ½ cents of land by purchase and 16 cents of land by settlement. Thus the trial court decided the counterclaim in favour of the appellants holding, inter alia, that they are owners of 57 cents of land in two plots out of total 64 cents of the suit property. Accordingly, prayer for partition made by the appellants were allowed.
9. The predecessor of the present respondents filed an appeal before the learned Additional District Judge, 11th Court at Alipore assailing the judgment and decree passed by the learned trial court in Title Suit No.8 of 1992. The learned judge in First Appellate Court held, inter alia, that the predecessor of the defendants namely Rabiram and Harimati took settlement of 16 cents of land from Khetromohan Mondal by Kabuliyat dated 3rd September, 1952 (Exhibit-1) in plot No.4291. The learned trial judge refused to place any reliance on the said settlement on the ground that it was taken by an unregistered document. According to the learned First Appellate Court unregistered Kabuliyat can very well be used for collateral purposes under the provision of Section 49 of the Registration Act. The learned Judge in First Appellate Court also held that the trial court failed to consider the fact that plot No.4291/4403 was recorded in the name of both Aghar and Bipin, predecessors of the original plaintiff in RS Records of Rights. RS Records of Rights holds a presumption of possession in favour of the predecessor of the respondents in respect of suit plot No.4291/4408.
10. According to the learned Judge in First Appellate Court, the trial judge was wrong in holding that the suit filed by the predecessor of the respondents was not maintainable on the ground of improper identification of the suit property. According to the First Appellate Court the plaintiffs/respondents ought to have given an opportunity to amend the plaint identifying the suit property in plot No.4291 for proper adjudication of the dispute between the parties.
11. Secondly, the learned Judge in First Appellate Court held that the plaintiffs/respondents was not given opportunity to file written statement against the counterclaim filed by the respondents. Without affording reasonable opportunity to the plaintiffs/respondents to file written statement against the counterclaim, the suit ought not to have been decided in favour of the defendants/appellants. Therefore, the learned First Appellate Court remanded the suit back for trial giving opportunity to the respondents to file written statement against the counterclaim and also to amend the plaint to identify the suit property properly by specifying its boundaries. The parties were also given opportunity to adduce further evidence in support of the schedule of the suit property in plot No.4291 as well as in respect of the issues that would be framed on counterclaim.
12. It is found from the order book that the instant civil miscellaneous appeal was admitted for hearing by the Division Bench of this Court on 11th December, 2003. However, at the time of admission of the appeal, no substantial question of law was formulated by the Division Bench.
13. Therefore, following the provision contained in Sub-section (5) of Section 100 this Court has formulated the following substantial question of law for adjudication in the instant appeal:-
"Whether the lower appellate Court substantially erred in law by allowing the appeal and passing an order of remand with a direction to decide the suit afresh when the learned trial court held that the suit was not maintainable in view of vagueness in describing the suit property in the schedule of the plaint and the suit property could not be identifiable?"
14. Mr. Supratick Syamal, learned Advocate for the appellants submits that the learned First Court of Appeal was factually wrong in holding that the respondents were not given adequate opportunity to file written statement against the counterclaim filed by the defendants. In order to substantiate his contention, the learned counsel for the appellants draws my attention to order No.73 dated 4th February, 1972 and subsequent orders passed by the learned trial judge in the suit.
15. Relevant portion of order No.73 dated 4th February, 1972 is quoted below:-
"....
Accordingly, let the counter claim filed on behalf of the defendants on 27.01.1997 which stands amended by defence petition dated 30.01.1997 be accepted.
Plaintiffs is given liberty to file WS if necessary to the counterclaim of the defendant by 14.02.1997.
To 14.02.1997 for framing of issues if any and for further hearing and for argument too."
Order No.74 dated 14th February, 1997 runs thus:-
"Both parties filed hazira. Plaintiffs file additional WS. PO is on leave. PO in charge is (sic). Let the case be adjourned till 17.02.1997....."
16. Vide Order No.75 dated 17.02.1997, the trial court framed additional issue No.6 on the basis of the counterclaim filed by the defendants.
17. This court personally searched out the lower court record thoroughly. Surprisingly enough, though in the order dated 14th February, 1997 it is recorded by the learned trial judge that the original plaintiff filed WS against the counterclaim filed by the defendants, no WS is found in record. It is also important to note that question of framing of issues arises only when a fact is asserted by one party and denied by the other in their pleadings. When it is found from the lower court record that no written statement was actually filed against the counterclaim, question of framing of issue No.6 did not arise at all.
18. Mr. Syamal, learned Advocate for the appellants has repeatedly urged that the learned Judge in First Appellate Court was factually wrong to hold that the respondents did not file any written statement. But on physical verification of record it is ascertained that the respondents actually did not file any written statement against the counterclaim though the learned trial court proceeded to dispose of the suit and counterclaim holding, inter alia, that the respondents filed written statement against the counterclaim.
19. Ms. Shohini Chakraborty, learned Advocate for the respondents, on the other hand refers to a relevant portion of the judgment passed by the learned Judge in First Appellate Court. The said portion runs thus:-
"The Ld. Trial Judge held, inter-alia, that the property in possession of the plaintiff in plot No.4291 was not sufficient for identification. According to the Ld. Judge the suit of the plaintiff is suffering from vagueness so far as the description of the property is concerned. In that case, the plaintiff ought to have given an opportunity to amend the schedule of the plaint in respect of the land in possession of the plaintiff in plot No.4291 by giving boundaries of all sides."
20. She also submits that the learned trial judge threw away the entire case of the respondents only on the ground of vagueness with regard to identification of suit property. The learned Court of Appeal permitted the respondents to make necessary amendment to identify the suit property with boundaries and also gave liberty to the respondents to file written Statement against the counterclaim. When the learned First Court of Appeal held for proper adjudication of the dispute between the parties amendment of plaint is necessary and the respondents should get an opportunity to file written statement against the counterclaim, obvious conclusion of the first appeal was to remand the suit under the provision of Order XLI Rule 23A of the Code of Civil Procedure.
21. It is further submitted by Ms. Chakraborty that the scope of the instant appeal is very limited. This court is obliged to consider if the order of remand of the suit passed by the learned First Court of Appeal can be sustained or not. If the order of remand cannot stand, the First Court of Appeal will be directed to dispose of the appeal on merit. If in other word, the order of the First Appellate Court is affirmed, the obvious result will be to send the suit to the trial court on remand for adjudication of the dispute after applying with the directions passed by the learned First Court of Appeal.
22. The learned First Court of Appeal held that reasonable opportunity was not given to the respondents to file written statement against the counterclaim. On the contrary, the counterclaim was decreed by the learned trial court on contest. The decree passed in counterclaim by the learned trial court is ex facie erroneous and there is no reason to interfere with the judgment and order of remand passed by the learned Additional District Judge, 11th Court at Alipore in Title Appeal No.159 of 1997.
23. Order XLI of the CPC deals with "Appeals from Original Decree". The appellate Court is empowered to order of remand of a suit in three circumstances clearly enumerated in Rules 23, 23A and 25 of Order XLI. Order XLI Rule 23 would be applicable only when a decree has been passed on a preliminary issue. The appellate court must disagree with the findings of the trial court on the said issue, only when a decree is to be reversed in appeal. The appellate court considers it necessary to remand the case in the interest of justice for decision on all issues. Rule 23A of Order XLI of the CPC, on the other hand, extend ambit of powers of remand of appellate court on reversal of a decree passed by the trial court when the court of appeal considers that retrial is necessary. Under order 41 Rule 25 of the CPC, appellate court may frame issues and refer them for trial to the court against whose decree appeal is preferred.
24. In view of the provision contained in Order XLIII Rule 1(u) of the CPC, an appeal shall lie from an order of remand only in those cases in which an appeal would lie against the decree, if the appellate court instead of making an order of remand had passed a decree on the strength of the adjudication of which the order of remand was passed. The test is whether in the circumstances an appeal would lie against the order of remand where it is to be treated as a decree and not merely an order. In these circumstances, it is quite safe to adopt that appeal under Order XLIII Rule 1 (u) should be heard only on the ground enumerated in Section 100 of the CPC. Therefore, the appellant in an appeal under Order 43 Rule 1(U) of the CPC is not entitled to agitate questions of facts. Accordingly, in an appeal against an order of remand under Order 43 Rule 1(u) of the CPC, the High Court must confine itself to such facts and circumstances which have a bearing on the order of remand and cannot canvas all the findings of fact arrived at by the lower appellate court.
25. Bearing the aforesaid principles in mind and on due assessment of the judgment passed by the learned trial court as well as the lower court of appeal, it is found that the suit filed by the respondents was dismissed on the ground of maintainability for failure on the part of the plaintiffs/respondents to identify the suit property. Thus, the suit was not dismissed on merit after proper adjudication of the issues. It is needless to say that the suit filed by the predecessor of the present respondents is for declaration of title and for permanent injunction. The defendants never pleaded that the suit is barred under any statutory provision or that the trial court was lacking inherent jurisdiction to try the suit. Therefore, I am in agreement with the learned Counsel for the respondents that the suit cannot be dismissed on the ground of maintainability for vagueness of the schedule of the plaint. If the suit property was found to be not properly described, the plaintiffs/respondents ought to have given an opportunity to state the identity of the suit property by stating the boundaries of the same.
26. Secondly, vide an order No.75 dated 14th February, 1997, the learned trial judge recorded that the respondents filed written statement against the counterclaim. On the contrary, in the judgment, the learned trial judge clearly recorded that the respondents failed to file written statement against the counterclaim of the defendants in spite of opportunity being given to them. The order dated 14th February, 1997 is completely at variance with the finding made by the learned trial judge in his judgment regarding filing of the written statement by the respondents against the counterclaim of the appellants.
27. This court is in a dilemma as to whether the order dated 14th February, 1997 was recorded correctly or the plaintiffs did not get opportunity to file written statement against the counterclaim filed by the defendants.
28. For the reasons stated above, I do not find any ground whatsoever to interfere with the judgment and order of remand passed by the learned lower appellate court in Title Appeal No.159 of 1997.
29. Accordingly, the instant first miscellaneous appeal be and the same is dismissed on contest, however without cost.
30. The lower court records be transmitted to the learned trial court forthwith for fresh disposal of the suit as per the direction made by the learned lower appellate court in the judgment and order of remand in Title Appeal No.159 of 1997.
Urgent certified website copies of this judgment, if applied for, be supplied to the parties subject to compliance with all requisite formalities.
(Bibek Chaudhuri, J.)