Calcutta High Court (Appellete Side)
Rabi Sankar Dutta & Ors vs Bijoy Krishna Seva Samity & Anr on 27 November, 2019
Author: Bibek Chaudhuri
Bench: Bibek Chaudhuri
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IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
The Hon'ble JUSTICE BIBEK CHAUDHURI
S.A 176 of 2008
Rabi Sankar Dutta & Ors.
Vs.
Bijoy Krishna Seva Samity & Anr.
For the Appellants: Mr. Tanmoy Mukherjee
For the Respondents: Mr. Bhaskar Ghosh, Sr. Adv.,
Mr. Purnasish Gupta Mr. Jayanta Mukherjee Ms. Mary Datta Heard on: October 30, 2019.
Judgment on: November 27, 2019.
BIBEK CHAUDHURI, J. :-
1. A suit for declaration and permanent injunction filed by the appellants and their predecessor-in-interest against the respondents being Title Suit No. 215 of 1995 was dismissed on contest by the learned Civil Judge (Junior Division), 2nd Court at Howrah. The plaintiffs/appellants preferred an appeal being Title Appeal No. 142 of 2005 assailing the judgment and decree passed in Title Suit No. 215 of 1995 before the learned Additional District Judge, 3rd Court at Howrah. The said appeal was also dismissed by the learned Judge in First Appellate Court and judgment and decree passed by the trial court was affirmed.2
2. The judgment of affirmation passed in Title Appeal No. 142 of 2005 is under challenge in the instant appeal.
3. It was the case of the plaintiffs/appellants that one Biswanath Dutta, since deceased was the original owner of 'A' schedule property. The said property was partitioned by a registered deed of partition dated 19th May, 1967 by and between the said Biswanath Dutta and his brother Bijay Krishna Dutta since deceased and Biswanath Dutta became exclusive owner of holding No.1/1 Kashinath Chatterjee Lane, described in schedule 'A' of the plaint. Out of the said 'A' schedule property comprising of holding No. 1/1 Kashinath Chatterjee Lane, an area of 0.0298 acre was acquired by the Howrah Improvement Trust and the remaining portion measuring about 3 Cottahs, 3 Chittaks and 20 sq. ft. of land remained under the ownership and possession of Biswanath Dutta during his lifetime. The said property is described in schedule 'B' of the plaint. It is claimed by the plaintiffs that the said Biswanth Dutta had been possessing the 'B' schedule property performing all acts of ownership over the same. Biswanath died on 17th August, 1985 leaving behind his widow and the present appellants as her legal heirs and representatives. They inherited the 'B' schedule property and used to possess the said property by performing acts of ownership. That on 31st January, 1995, taking advantage of absence of the plaintiffs/appellants, the defendant-club and their men and agents fixed some banners and festoons over the suit property with some ulterior motive to grab the same.
Subsequently on 18th August, 1995 the defendant-club and its members 3 forcibly constructed boundary wall over one side of the suit property in spite of the obstruction being raised by them. It is also alleged that though Howrah Improvement Trust had acquired 0.0298 acre of land from 'A' schedule property, actual physical possession was never taken by it. The plaintiffs on the other hand were all along in possession of 'B' schedule property. However the defendant No. 1-club with the help of its members and some local young men illegally fixed fencing on the eastern side of 'B' schedule property by affixing G.I pipes on some bricks built walls. They also fixed four numbers of hoardings for commercial purpose to display advertisement of several business organization. Therefore the plaintiffs had sort for declaration of their title in respect of 'B' schedule property, mandatory injunction directing defendant No. 1/club including its office bearers, members/men and agents to remove the fencing and hoardings fixed on the 'B' schedule property and prohibitory injunction restraining the defendant No. 1 and their men and agents from interfering with the peaceful possession of the plaintiffs/appellants over 'B' schedule property.
4. The defendant No.1-club contested the suit by filing a written statement denying all material allegations made out in the plaint. The defendant-club specifically pleaded that neither the plaintiffs, nor their predecessor-in-interest had possession over the suit property at any point of time. The defendant-club has been possessing the suit property since 1924 by performing Durga Puja festival under the banner "Shibpur Sadharan Durgotsav (Mandirtala)". The club members also perform yearly Laxmi Puja without any interruption and organize different cultural programs, like 4 Yatra, physical and bodybuilding show and other programs since 1924. All such functions and performances were organized by the defendant No.1- club without any interruption from any corner including the plaintiffs or their predecessor-in-interest. Thus the defendant No. 1 pleaded that the said club had been possessing the suit property openly, peaceably, uninterruptedly for more than 76 years well within the knowledge of the plaintiffs and their predecessor-in-interest. The defendant No. 1 admitted construction of fencing on one side of the suit property. It is also stated by the defendant No.1 that the club had three wings, viz. Shibpur Tarun Samity, Dwijendra Health Home (also known as Shibpur Dwijendra Vayamghar) and Gopal Smriti Sangha. Subsequently the club was named after the freedom fighter and social worker and academician of the locality Bijay Krishna Bhattacharya. The club had already constructed a two storied building adjacent to 'B' schedule property for running the social and cultural works including health home etc. The club also maintain an ambulance van for carrying ailing patient of the locality and the said car is parked regularly on the suit property. It is further pleaded by the defendant that the suit property is triangular in shape and it is the only open space in the locality. The Howrah Improvement Trust had ear marked the said 'B' schedule property for construction of a proposed park for the benefit of the residents of the locality.
5. In short the defendant No.1/ club claimed title over the suit property by adverse possession.
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6. On the basis of the pleadings the Learned trail Judge framed as many as four issues which are quoted herein above:-
i. Is the suit maintainable in its present form?
ii. Have the plaintiffs any cause of action to file the suit? iii. Are the plaintiffs entitled to get the decree as prayed for? iv. To what other relief, if any are plaintiffs entitled?
7. Both the parties led evidence to prove their respective case. On the basis of evidence on record both oral and documentary, the learned Trial Judge dismissed the suit on contest without cost.
8. The plaintiffs, being aggrieved by and dissatisfied with the judgment and decree passed in Title Suit No. 215 of 1995 preferred an appeal before the learned District Judge at Howrah which was registered as Title Appeal No. 142 of 2005. The said appeal was finally heard by the learned Additional District Judge, 3rd Court at Howrah. The learned Judge in First Appellate Court dismissed the appeal on contest affirming the judgment and decree of dismissal dated 30th September, 2005 and 28th October, 2005 respectively passed in Title Suit No. 215 of 1995.
9. Concurrent findings of fact by both the courts below are under challenge in the instant appeal.
10. This appeal came up for hearing on the point of admission under order 41 Rule 11 of the Code of Civil Procedure before the Hon'ble Division 6 Bench on 21st July, 2008, when the Hon'ble Division Bench admitted the appeal for hearing on the following substantial question of law:-
(a) Whether the learned courts below committed substantial error of law in dismissing the suit merely on the ground that the plaintiffs were out of possession and that they did not pray for recovery of possession by overlooking the fact that by way of amendment the plaintiffs prayed for mandatory injunction directing the defendants to remove all fencing and hoardings put up on the property;
(b) In the absence of any finding that the alleged possession of the defendants; club had become adverse and such adverse possession has ripened into title, whether the learned courts below committed substantial error of law in dismissing the suit in its entirety;
(c) Whether the learned courts below committed substantial error of law by overlooking the well settled principle of law that even if a person, whose title has not extinguished by the act of adverse possession, does not pray for recovery of possession, such relief can be granted at the time of final hearing of the suit with a direction upon plaintiffs to put ad valorem court fees on the valuation of the land.
11. On the careful perusal of the pleadings of the parties it is found that ownership of one Biswanath Dutta, since deceased, predecessor-in-interest of the present appellants in respect of the suit property was not disputed by the defendants/respondents. It is also not disputed and furthermore, is supported by the report of the Advocate Commissioner during local 7 inspection that the suit property is vacant land. The defendants/respondents have claimed adverse possession over the suit property on the specific plea that for last 76 years or more the defendant/club has been performing Durga Puja and Laxmi Puja on the suit property. Secondly, suit property is commonly known as Mandirtala Math or Maidan. Thirdly, the defendant/club organised different cultural functions including three days' Yatra Pala by engaging professional opera parties. Fourthly, they have organised physical and body building show and other cultural programmes on the vacant suit property. It is the further case of the defendant/respondent/club that they are maintaining one Ambulance for carrying patient of the locality and the said Ambulance is parked on the said vacant suit property.
12. It is also found from the pleadings of the parties which are not disputed that after the institution of the suit the defendant/club constructed a boundary wall fixing iron rods surrounding one side of the suit property. According to the defendant/club all these acts were performed or done with the knowledge of the plaintiffs/appellants and these are the acts of adverse possession by virtue of which the defendant-club has claimed title over the suit property.
13. It is needless to say that uninterrupted and continuous possession for a specific period, hostile to the rights and interest of true owner, is considered to be one of the legally recognised moods of acquisition of ownership. As observed by the Supreme Court in the case of Karnataka 8 Board of wakf vs. Government of India reported in (2004) 10 SCC 779, in the eye of law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non-use of the property by the owner even for a long time won't affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it and the person having title omits or include to take legal action against such person for years together. The process of acquisition of title by adverse possession springs into action essentially by overt acts of otherwise unlawful occupiers or in-action of the owners. The essential requisites to establish adverse possession are that the possession of the adverse possessor must be neither by force nor by stealth nor under the licence of the owner it must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. The decision of the Hon'ble Supreme Court in Amrendra Pratap Singh vs. Tej Bahadur Prajapati & Ors reported in (2004) 10 SCC 65 may also be relied on in support of the established principles of law of adverse possession.
14. Thus in order to claim title by adverse possession must be adequate in continuity. In other words defendant must prove that he was continuously in possession without any break for 12 years or more claiming hostile title of the real owner.
15. In the instant case, the defendant-club has claimed possession over the suit property on the plea of performing Durga Puja and Laxmi Puja and some cultural functions for 3/4 days in a year. Performance of some 9 religious or cultural programme on a vacant land cannot be said to be a continuous possession by the defendant adversely to the interest of the real owner.
16. Mr. Ghosh, learned Senior Counsel on behalf of the respondent in course of his argument also has not pressed the case of adverse possession on behalf of the respondents. Mr. Ghosh mainly confines his argument on the maintainability of the suit being barred by the proviso to Section 34 of the Specific Relief Act. Section 34 of the Specific Relief Act runs thus:-
"34. Discretion of court as to declaration of status or right.-- Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief: Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so. Explanation.-- A trustee of property is a "person interested to deny" a title adverse to the title of some one who is not in existence, and whom, if in existence, he would be a trustee."
17. It is submitted by Mr. Ghosh, learned Counsel for the respondent that the appellants were never in possession of the suit property. It appears from the plaint that trouble between the parties arose on 31st January, 1995 10 when the respondent-club fixed some banners and festoons over the suit property. It is also alleged in the plaint that on 18th August, 1995 the respondent-club encircled one side of the suit property by a pucca boundary wall with iron rod fixed thereon. The suit was filed on 25th August, 1995. So, from the very beginning of institution of the suit the plaintiff was not in possession over the suit property. In order to substantiate his contention, he refers to the cross-examination of PW1 Smt. Kalpana Dutta where she admitted fixation of banners and festoons and construction of fencing around the suit property by the defendant-club. Thus she submits that when the appellants are not in possession of the suit property, a suit for declaration simpliciter without recovery of possession is not maintainable.
18. It is also submitted by Mr. Ghosh that the appellants by amendment of plaint prayed for mandatory injunction directing defendant-club and their men and agents to remove the fencing constructed by the club on one side of the suit property. It is submitted by Mr. Ghosh that a relief in the form of mandatory injunction can only be granted to prevent breach of an obligation. The plaintiffs/respondents did not make out any case of breach of an obligation against the defendant-club. Therefore, prayer for mandatory injunction cannot be held to be an alternative for recovery of possession. Section 34 speaks of "further relief" than a mere declaration of title. A prayer for mandatory injunction cannot be construed to be a "further relief", but a relief consequential to the main relief. Therefore, without prayer for recovery of possession under the facts and circumstances of the present case, the 11 suit for declaration of title filed by the respondents is not maintainable and both the courts below correctly held that the suit was not maintainable.
19. In support of his contention, Mr. Ghosh first refers to a decision of the Hon'ble Supreme Court in the case of Vinay Krishna vs. Keshav Chandra & Anr. reported in AIR 1993 SC 957. This decision is on Section 42 of the Specific Relief Act which is in pari materia of present Section 34 of the Specific Relief Act, 1963. In the said decision, it is held by the Hon'ble Supreme Court that declaratory relief being in the nature of discretionary relief, the court will not grant mere relief of title without specific plea for possession. On the self same issue, he also refers to another decision of the Hon'ble Supreme Court in the case of Mehar Chand Das vs. Lal Babu Siddique & Ors. reported in 2007 AIR SCW 2024. In Union of India vs. Ibrahim Uddin & Anr reported in (2012) 4 WBLR (SC) 318, cited by the learned Senior Counsel for the respondent, it is held by the Hon'ble Supreme Court that the courts have discretion as to declaration of status or right. However, there is an exception that a court shall not make any such declaration of status or right where the complainant-plaintiff being able to seek further relief than a mere declaration of title, omits to do so. In this decision, the plaintiff was admittedly not in possession of the suit property, but omitted to seek relief for recovery of possession. The Hon'ble Supreme Court held that the suit for declaration not maintainable.
20. Mr. Ghosh also submits that both the courts below concurrently found that the plaintiff was out of possession in respect of the suit property. 12 Under such facts and circumstances, it was incumbent upon the plaintiffs/appellants to pray for recovery of possession which is to be construed as "further relief" within the meaning the Section 34 of the Specific Relief Act, 1963. In support of his contention, he refers to a decision of this Court in the case of Kumud Ranjan Banerjee vs. Manabendra Banerjee reported in AIR 1974 CAL 342. On this point Mr. Ghosh also refers to another decision of this Court in the case of Anila Bala Devi vs. Madhbendu Narain Roy reported in AIR 1942 CAL 245.
21. To sum up, it is urged by Mr. Ghosh that the plaintiffs/appellants, though were out of possession of the suit property, omitted to seek relief for recovery of possession. The appellants already exhausted an opportunity to amend the plaint praying for recovery of possession. Practically the appellants amended the plaint and included the prayer for mandatory injunction but omitted to pray for recovery of possession of the suit property. Therefore, both the courts below held that the suit was not maintainable. In view of such circumstances no substantial questions of law are involved in the instant appeal and it should be dismissed on contest.
22. Mr. Tanmoy Mukherjee, learned Advocate for the appellants, on the other hand, submits drawing my attention to the amended plaint that the appellants instituted the suit for declaration of title and mandatory injunction against the respondents. The respondents took the defence of adverse possession. Therefore, the respondents admitted ownership and title 13 of the appellants, because plea of adverse possession can only be taken against a rightful owner of the property.
23. It is further submitted by Mr. Mukherjee that the respondents hopelessly failed to prove their case of adverse possession. The respondents tried to establish their case of adverse possession stating, inter alia, that Durga Puja is being performed every year on the suit property organised by the club. Secondly, they organised some cultural programmes in the form of Yatra Pala and body building show. Performance of some religious and cultural functions on a piece of vacant land belonging to the appellants does not prove continuity of possession by the defendant-club. Possession of a particular person in order to be adverse, must be open, continuous and hostile to the interest of the real owner. In the instant case the appellants proved their title over the property. The defendants/respondents, on the contrary, could not produce any evidence except performance of Durga Puja and Laxmi Puja on the suit property and some cultural programmes over it for few days in a year. Such activity of the defendant-club cannot establish hostile title over the suit property in favour of them to the detriment of the appellants.
24. It is also contended by the learned Advocate for the appellants that the appellants as plaintiffs have alleged that the defendant-club fixed some banners and festoons on the suit property in 1995. Then they constructed fencing around one side of the suit property in the month of August, 1995. The plaintiffs instituted the suit in 1995 itself. Therefore, the plaintiffs were 14 not sleeping over their title. Mr. Mukherjee has urged that an owner would be deemed to be in possession of a property so long there is no intrusion. Till 1995, there was no intrusion or invasion over the possession or title of the appellants in respect of the suit property. Therefore, the plaintiffs had no occasion to pray for recovery of possession in respect of the suit property and incorporation of the prayer for mandatory injunction by amendment of plaint ought to have been considered sufficient under the facts and circumstances of the case to grant relief in favour of the plaintiff.
25. On substantial question of law formulated by the Division Bench of this Court vide order dated 21st July, 2008, Mr. Mukherjee submits that both the courts below failed to consider and overlooked that by way of amendment, the plaintiffs/appellants prayed for mandatory injunction directing the defendants to remove all fencing and hoardings put up on the property. The prayer for mandatory injunction ought to have been considered as "further relief" in relation to a suit under Section 34 of the Specific Relief Act. He further submits that since the defendants-club failed to prove their title over adverse possession, the court has no other alternative but to hold that the defendant-club is not in a position to deliver possession to the plaintiffs/appellants and in such case, injunction would be the "further relief".
26. In Anila Bala Devi (supra) the Division Bench of this Court held as hereunder:-
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"Even if the plaintiff had established his case that he had an estate which he was entitled to enjoy on attaining majority, we have grave doubts about the maintainability of his prayer for injunction. Anilabala was in possession of the properties in the assertion of her own right. That was quite apparent to the plaintiff. Before the suit the plaintiff wanted to take forcible possession but was unsuccessful. After filing the suit he applied for the appointment of a receiver. In his order on the said application, the Subordinate Judge found that Anilabala was in possession not only as an executrix but also in her own right as legatee. In spite of that finding, the second prayer in the plaint was not amended and possession prayed for. The reason why such a course was not adopted by the plaintiff is obvious. If he had amended his prayer in that manner he would have had to pay ad valorem court-fees on the market value of the properties in suit. It could not have proceeded on the basis of the comparatively small court-fee that had been affixed by him on the plaint. The suit as framed is a suit for declaration with a prayer for injunction. The first question is whether in this case where the plaintiff is out of possession injunction could be regarded as "further relief" mentioned in the proviso to Section 42, Specific Relief Act. And second question is, assuming that a prayer for injunction would be "further relief" within the meaning of that section in such a case, whether the Court in its discretion would grant it to a plaintiff out of possession and against the defendant who is in possession. The cases establish the proposition that "further relief" mentioned in the proviso to Section 42, Specific Relief Act, must be "relief in relation to the legal character or right as to property to which the plaintiff is entitled to and whose title to such character or right the defendant denies or is interested to deny and that relief must also be appropriate to and necessarily consequent on the right or title asserted".16
"On this principle where the plaintiff whose title is denied by the defendant is out of possession and the defendant is in possession, the "further relief" would be recovery of possession and a suit for declaration of title will not be maintainable unless the plaintiff prayed for possession also. If, however, the plaintiff is out of possession but the defendant is not in possession or is not in a position to deliver possession to the successful plaintiff injunction would be the further relief. This proposition has been laid down by the Judicial Committee of the Privy Council in 65 I.A. 160. On the observations made by Lord Thankerton in that case it may be urged that where the plaintiff is out of possession and the defendant is in possession or is able to deliver possession to the plaintiff "further relief" would be recovery of possession and if such relief is not claimed the suit would be a bad suit. In this case, however, we prefer to rest our decision on the second point we have indicated above. Even if injunction could be considered to be further relief within the meaning of the proviso to Section 42, Specific Relief Act, we would not have granted it to plaintiff in the exercise of our discretion even if he had established his right to present enjoyment of the estate, as he could have prayed for recovery of possession, on the principle formulated in 33 Mad. 452".
27. Relying on the above observation it is contended by My Mukherjee that the plaintiffs' framing of suit cannot be held to be bad and not maintainable because of the fact that the defendant-club is not in possession of the suit property. Even if the suit was couched with the prayer for recovery of possession and decree was passed in favour of the plaintiffs, the defendant/club being not in possession could not deliver possession of 17 the suit property in execution of the decree. In support of his contention Mr. Mukherjee refers to a decision of the Hon'ble Supreme Court in the case of Sant Lal Jail vs. Avtar Singh reported in AIR 1985 SC 857. In this reported decision, the appellant being a lessee instituted a suit against the defendant claiming him to be a licensee in respect of suit shed for mandatory injunction directing him to vacate the premises. The Hon'ble Supreme Court was pleased to hold that though the appellant prayed for mandatory injunction directing the licensee to vacate the suit shed, the suit was in effect one for possession and the court in its discretion would grant relief directing the defendant/respondent to vacate the suit premises. On the self same point Mr. Mukherjee also refers to the decision in the case of Joseph Severance & Ors. vs. Benny Mathew & Ors. reported in 2005 (6) Supreme 516. It is also held in this decision that a licensor can pray for eviction of licensee by filing a suit for mandatory injunction. It is further urged by Mr. Mukherjee that both the courts below held that Biswanath Dutta, predecessor-in-interest of the appellants was the original owner in respect of the suit property situated at Holding No.1/1 Kashinath Chatterjee Lane. After the death of Biswanath Dutta, the appellants inherited the suit property. There is no dispute on the question of title of the appellants over the suit property. I have already held hereinbefore that performance of Durga Puja and Laxmi Puja by defendant/club on the vacant suit property for quit long years or performance of cultural programmes on it does not create title over the suit property by adverse possession in favour of the defendant-club. There must be continuity in possession and assertion of hostile title by the defendant against the interest of the plaintiffs. The 18 defendant-club has not taken any step to assert their hostile title over the suit property. Hoisting of some banners and festoons or parking ambulance on the vacant suit property do not create title of the defendant/club adverse to the interest of the plaintiffs. Moreover, construction of fencing around one side of the suit property in the year 1995 also does not create hostile title in favour of the defendant/club. In order to claim title by way of adverse possession, continuous physical possession over the suit property along with animus possendi must be proved. The evidence on record does not establish hostile title of the defendant/club over the suit property.
28. In the absence of such finding that the alleged possession of the defendant-club over the suit property had become adverse and such possession has ripened into title, both the courts below substantially erred in law in dismissing the suit without giving opportunity to the appellants for claiming recovery of possession on payment of ad valorem court fees on the valuation of the land.
29. Substantial questions of law mentioned in points No.(b) and (c) are therefore decided in favour of the appellants.
30. Now, the question that arises for consideration is as to whether the appellants can claim recovery of possession by way of mandatory injunction.
31. This court has already arrived at a decision that the suit property is a vacant land. This Court has already come to this conclusion that the 19 appellants will have to pay ad valorem court fees for recovery of possession. Learned Senior Advocate for the defendant/respondent vehemently argued that the appellants cannot be permitted to amend the plaint for incorporating prayer for recovery of possession because they had already exhausted such opportunity by amending the plaint during trial of the suit.
32. I am not in a possession to accept such submission made by the learned Senior Counsel on behalf of the respondents. This Court has already arrived at a decision that the appellants are the lawful owners of the suit property. Secondly, the defendants failed to prove their title over the suit property by adverse possession. The evidence on record suggests that they illegally and wrongfully constructed fencing around one side of the suit property. They also hoist some banners and festoons for commercial purpose. Under such circumstances, when the plaintiffs are is not in possession of the suit property and the defendant-club is in illegal possession of the suit property, the plaintiff/appellants are entitled to amend the plaint for recovery of possession.
33. In view of the above discussion this Court is of the opinion that in all fairness the suit should be remanded back to the trial court for limited purpose enabling the appellants to pray for recovery of possession of the suit property.
34. For the reasons stated above the instant second appeal is allowed on contest. The judgments and decrees passed by the learned trial court in Title 20 Suit No.215 of 1995 and affirmed by the First Court of Appeal in Title Appeal No.142 of 2005 are set aside.
35. The suit be and the same is remanded back to the trial court giving opportunity to the plaintiffs/appellants to make necessary prayer for recovery of possession and payment of ad valorem court fees on the market value of the suit property by way of amendment of plaint within one month from the date of receipt of the lower courts record by the trial court.
36. The defendant-club is at liberty to file additional written statement within 15 days from the date of receipt of the amended plaint.
37. The trial court shall take all endeavours to dispose of the suit giving opportunity to the parties to adduce evidence, if any only for limited purpose regarding recovery of possession of the suit property expeditiously preferably within three months from the date of receipt of the lower court record.
(Bibek Chaudhuri, J.)