Gauhati High Court
Smti Anuradha Saha & Anr vs Arati Sengupta & Ors on 19 February, 2015
Author: Hrishikesh Roy
Bench: Hrishikesh Roy
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
CRP NO. 329/2009
1. Smti. Anuradha Saha,
W/o Late Samarendra Nath Saha and
D/o Late Khetra Mohan Saha Poddar,
Residents of Senpara, P.O. Bidya Para,
Dhubri Town, District-Dhubri.
2. Smt. Sabita Choudhury,
W/o Shri Himangshu Choudhury and
D/o Late Khetra Mohan Saha Poddar,
Residents of Saudpur Road, Calcutta-82,
(Through her constituted attorney Anuradha Saha-Petitioner No.1).
... Petitioners (plaintiffs 1 & 4)
VERSUS
1. Arati Sengupta,
W/o Late Sukhendu Sengupta,
2. Abhijit Sengupta.
3. Satyajit Sengupta.
4(a) Krishna Sengupta
W/o Late Biswajit Sengupta.
4(b) Manjuri Sengupta
D/o Late Biswajit Sengupta
5. Smti. Sugata Sengupta.
6. Smti. Sweta Sengupta.
7. Sujit Sengupta.
[No.1 is the wife, Nos.2,3 and 7 are sons, No.5 & 6 are daughters, No.4(a) is
the daughter-in-law and No.4(b) is the granddaughter of Late Sukhendu
Sengupta,
All are resident of Senpara, Ward No.16, Dhubri Town,
District- Dhubri.] .... Respondents (Defendants).
8. Legal heirs of Late Mira Saha,
(a) Narayan Chandra Saha.
(b) Nabendu Saha.
(c) Mihir Saha.
No.(a), (b) & (c) are of Durganath Press, Mathabhanga Town (Main Road), P.O.- Mathabhanga, District-Coochbehar, West Bengal.
9(i) Arun Saha
9(ii) Barun Saha
9(iii) Khokon Saha
All are sons of Late Nirmala Saha
Resident of Kutubpur, Murshidabad, P.O.-Lalbag, District-Murshidabar, West Bengal.
10. Legal heirs of Late Biresh Chandra Poddar-
(a) Smritikona Poddar (wife)
(b) Bijoylakshmi Poddar (daughter) CRP No.329/2009 Page 1 of 5 2
(c) Joba Poddar (daughter)
(d) Bikash Poddar (Son)
(e) Ashok Poddar (Son) All are the residents of D/L/226 Salt Lake City Sector, Kolkata-700091. .... Proforma Respondents [Nos.8(a), 8(b), 8(c), 9(i), 9(ii), 9(iii) are the legal heirs of plaintiffs 3 & 2 and No.10(a) to 10(e) are the legal heirs proforma-defendant No.1] BEFORE THE HON'BLE MR JUSTICE HRISHIKESH ROY For the petitioners : Mr. B.R. Dey. ... Sr. Advocate Ms. T. Goswami, Ms. J. Paul, Mr. P. Sen. ... Advocates.
For the respondents : Mr. I. Hussain,
Ms. N.N. Ahmed,
Mr. I.H. Saikia,
Mr. M.H. Ahmed. ... Advocates.
Date of hearing & Judgment : 19.2.2015.
JUDGMENT AND ORDER
Heard Mr. P. Sen, the learned Counsel appearing for the petitioners who filed the Title Suit No.19/1987. The respondents (defendants) are represented by the learned Counsel Mr. M.H. Ahmed.
2. The subject matter of the suit was a house occupied by the Sukhendu Sengupta, hereinafter referred to as "the original tenant" (predecessor-in-interest of defendants) and the property was owned by Late Khetra Mohan Saha Poddar, hereinafter referred to as "the original owner", who died on 31.3.1958. The predecessor-in-interest of the defendants was inducted as a monthly tenant during the lifetime of the original owner and after his death, his sons, daughters became the joint owner of the property. In the suit the plaintiffs pleaded that the tenant had not paid monthly rent of Rs.25/- for many years. Moreover just before the suit was filed, the tenant demolished the suit property without the owner's consent and he constructed a new house at the original site. With these pleadings, the plaintiffs sought declaration that the predecessor-in-interest of defendants has no right to demolish and re-
CRP No.329/2009 Page 2 of 5 3construct the house and permanent injunction was sought to prevent further construction. Bona fide requirement for accommodation of the plaintiffs was also pleaded and consequently decree for eviction of the defendants and khas possession was prayed. It may be noted that the plaint was amended in the year 2000 to insert the prayer for eviction of the defendants.
3. After exchange of pleadings, the following 10 issues were framed by the Trial Court which are extracted hereinbelow -
"1. Whether the suit is maintainable in its present from and manner?
2. Is there any cause of action for the suit ?
3. Whether the suit is barred under the Specific Relief Act ?
4. Whether suit is barred by limitation ?
5. Whether the plaintiffs have right, title, interest and possession over the suit land ?
6. Whether the suit is bad for non-joinder of necessary parties ?
7. Whether the plaintiffs are entitle to get decree as prayed for ?
8. To what relief, if any, the parties are entitled to get ?
9. Whether the defendant has any authority to demolish and construct the house over suit land ?
10. Whether the defendants have right to obtain the relief as prayed in the counter claim?"
4. To prove their case, the plaintiffs examined 3 P.Ws where 2 witnesses were presented from the defendants side.
5. The suit was decreed on 26.5.2006 (Annexure-5) and the learned Munsiff No.2, Dhubri declared that after the death of original owner, the plaintiffs and Biresh Poddar (proforma-defendant No.1) became the joint owner of the property through inheritance. As the tenants while denying the ownership of plaintiffs admitted that the rent wasn't' paid since 1995, the tenants were declared to be defaulters. On the basis of this finding, the Court held that the original tenant has no right to demolish and re- construct the house as mentioned in Schedule-B of the plaint. Thus permanent injunction was issued against the defendants restraining them from making further construction. Eviction of the defendants from the suit property and recovery of possession was also ordered by the Court.
CRP No.329/2009 Page 3 of 5 46. The aggrieved defendants challenged the Trial Court's verdict through the Title Appeal No.33/2006 and the learned Appellate Court in the impugned judgment dated 11.8.2009 (Annexure-6), inter-alia, observed the following :-
"..................
I have gone through the record. The plaintiff side alleged that the defendants are the tenants under them and further alleged that the defendants are defaulters in payment of rent. The further case of the plaintiff is that the suit property is their inherited property on the death of their father Khetra Mohan Saha and the proforma defednat is also a co-sharer to the suit property. But the defendants denied that the plaintiffs are the land lords, however, admitted that the suit house is owned by the proforma defendant and they are tenants under the proforma defendant by paying rent regularly. This reveals that the defendants did not recognize the plaintiffs as their land lord, but the learned trial court has failed to frame the pertinent issue in this respect.
That apart, the defendants in their counter claim alleged that the plaintiffs obtained a fraudulent decree in a title suit declaring their share in the suit property to which the plaintiffs raised their objection in the written statement filed them against the counter claim asserting that the learned trial court did not pay any heed to that aspect and no issue on that point has been framed for which one of the real dispute has been left out. Therefore, the impugned judgment suffers from serious infirmity, since failure to frame proper issues is fatal and the matter is required to be remitted back to trial court for disposal afresh in accordance with law. It is pertinent to say that where proper and specific issues are not framed, the judgment must be set aside and the suit is required to be remanded for the trial.
.............................."
7. With the above observation and after noting that specific issues pertaining to the real dispute was not framed, the Appellate Court quashed the Trial Court's order and remanded the suit for fresh adjudication. Aggrieved by this order of the learned Civil Judge, Dhubri, the present revision petition is filed.
8. In the Title Suit No.19/1987, although multiple issues were framed, the pertinent issue on whether the tenancy is under proforma-defendant No.1 or under the plaintiffs, was not framed by the Court. Moreover the non-recognition of the plaintiffs as landlord by the contesting defendant was not formulated as a specific issue, whereas this vital aspect should have been adjudicated by framing a specific issue on the point. That apart the defendants contention that the plaintiffs obtained a fraudulent decree in another Title Suit i.e. T.S. No.103/1969 was not appropriately considered and no issue on this contention was formulated. The judgment dated 31.3.1973 in the Title Suit No.103/1969 rendered by the learned Munsiff No.1, Dhubri CRP No.329/2009 Page 4 of 5 5 is marked as Annexure-3. This shows that the suit filed by Radha Rani Saha and others as legal heirs of Khetra Mohan Saha Poddar against their brother Biresh Poddar was partially allowed, by declaring that the suit land and house is the property of Late Khetra Mohan Saha Poddar but the property was purchased in the name of Biresh Poddar (the minor son of the purchaser Khetra Mohan Saha Poddar). It was further declared that the defendant is entitled to a share in the property along with his sisters (plaintiffs). Thus Biresh Poddar was given the right to deal with his share of the family property. As the Trial Court failed to take into account these vital contention, the Appellate Court remanded the matter for fresh adjudication, through the impugned order dated 11.8.2009 (Annexure-6).
9. When I examine the basis of the remand order and the facts and circumstances of the instant case, I find that the Appellate Court's decision for a fresh adjudication with appropriate issues was a logical order and the same doesn't suffer from any jurisdictional error. Consequently this Revision petition is held to be without merit and the same is dismissed without cost.
10. The Registry is directed to return the L.C.R. with a copy of this order to the concerned court.
JUDGE Datta.
CRP No.329/2009 Page 5 of 5