Calcutta High Court (Appellete Side)
Dulla Mallick vs Abdul Mallick on 27 June, 2018
Author: Arijit Banerjee
Bench: Jyotirmay Bhattacharya, Arijit Banerjee
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
Present:
The Hon'ble Chief Justice Jyotirmay Bhattacharya
AND
The Hon'ble Justice Arijit Banerjee
S.A.T. 19 of 2018
Dulla Mallick
versus
Abdul Mallick
For the Plaintiff/Appellant : Mr. Rabindra Nath Datta,
Mr. Sanatan Manna.
Heard On : 27-06-2018.
Judgement On : 27-06-2018.
Jyotirmay Bhattacharya, C.J. : This second appeal is directed against the
judgement and decree dated 16th September, 2017 passed by the learned Civil
Judge (Senior Division), 1st Court, Contai, Purba Medinipur in Title Appeal No. 42
of 2015 affirming the judgement and decree dated 11th September, 2015 passed
by the learned Civil Judge (Junior Division), 2nd Court, Contai, Purba Medinipur
in Title Suit No. 101 of 2012 at the instance of the plaintiff/appellant.
Let us now consider the merit of the appeal to find out as to whether any
substantial question of law is involved in this second appeal for which the appeal
is required to be admitted for hearing under the provision of Order XLI Rule 11 of
the Code of Civil Procedure or not.
The plaintiff/appellant claims that by virtue of a Patta executed by the
State in favour of him along with another gentleman, they became the owners of
the suit property. The plaintiff/appellant further claims that he took a loan of
Rs.20,000/- from the defendant/respondent and on request of the defendant, he
went to the office of the Sub-Registrar for execution of a confirmatory deed acknowledging acceptance of the loan from the defendant. It is alleged by the plaintiff that the defendant, instead of getting such a confirmatory deed executed, made the plaintiff execute a deed which subsequently appeared to him as a deed of lease which he never intended to execute. Since such execution was caused to have been made by the plaintiff on misrepresentation about the nature of the deed by the defendant, the plaintiff claims that the said deed is the product of fraud and as such, by execution and registration of the said deed, no interest was created in favour of the defendant in respect of the land in question.
The defendant appeared in the said suit and contested the same by filing written statement denying the material allegations made out by the plaintiff in the plaint. The defendant claims that he took a lease of the said land in question from the plaintiff who executed the said deed of lease consciously after understanding the purport of the said transaction. The defendant further claims that he is in possession of the suit property and his possession, which he received from the plaintiff by virtue of the said lease deed, cannot be disturbed by the plaintiff. He, thus, prayed for dismissal of the said suit.
The parties led evidence in support of their respective claims. Learned Trial Judge, after considering the pleadings of the parties and after considering the evidence of the parties, including the contradictions which are apparent from the evidence of the P.Ws regarding disputed execution of the deed in question, came to the conclusion that the plaintiff was unsuccessful in proving that the deed of lease executed by him was a product of fraud and/or misrepresentation. Learned Trial Judge also found that the defendant was in possession of the suit property even prior to filing of the suit. With these findings, the learned Trial Judge dismissed the plaintiff's suit.
Being aggrieved by and dissatisfied with the said judgement and decree of the learned Trial Judge, the plaintiff preferred an appeal before the learned first Appellate Court. Learned first Appellate Court affirmed such findings of the learned Trial Judge and dismissed the said appeal. While dismissing the said appeal, learned first Appellate Court also affirmed the findings of the learned Trial Judge that the suit is not bad for misjoinder of necessary party, as both the courts below held even in the absence of one of the co-owners, the plaintiff can maintain such suit for declaration and for injunction and/or recovery of possession as the relief which he claims in the said suit, if granted by the court, will enure to the benefit of all the co-owners.
We cannot agree with such findings of the learned courts below. This is a suit where the plaintiff did not seek recovery of possession from a trespasser. Had it been a suit for recovery of possession from a trespasser, we could have agreed with the findings of the learned courts below that one of the co-owners can maintain a suit for recovery of possession from the trespasser even without joining the other co-owners as the other co-owners will ultimately be benefited by the decree which may ultimately be passed in favour of the plaintiff/co-owner.
Here is the case where the plaintiff filed a suit for declaration of his absolute title in respect of the suit property. Since the plaintiff has admitted in his pleading that he along with another co-patta holder became the owners of the land in question by virtue of the Patta executed by the State of West Bengal in their favour, in our view, the other patta-holder should have been joined as a party in the suit either as a plaintiff or as a co-defendant; as the plaintiff, instead of seeking his undivided half share in the suit property, is seeking his absolute title in the suit property. As such, we hold that the suit is bad for non-joinder of necessary party.
Since both the learned courts below concurrently held that the execution and registration of the deed of lease by the plaintiff in favour of the defendant is not vitiated by fraud and/or misrepresentation and/or undue influence and further, since such findings of the learned courts below are findings of fact, we, sitting in this jurisdiction, do not want to disturb such findings of fact which are arrived at concurrently by the learned courts below.
Mr. Datta, learned advocate appearing for the plaintiff/appellant submits before us that since execution of the lease deed was not made for any purpose which is recognised under Section 49(1A) of the West Bengal Land Reforms Act, 1955, the same is void ab initio. Mr. Datta, thus, submits that the learned courts below ought to have declared the execution of such lease as void, as execution of such lease contravenes the provision of Section 49(1A) of the said Act.
Learned first Appellate Court held that such plea was not raised in the pleading before the learned Trial Judge. It was also mentioned by the learned first Appellate Court that such plea was also not taken in the memorandum of appeal before the learned first Appellate Court. Learned first Appellate Court, however, mentioned in the judgement that in view of the provision contained in Order XLI Rule 2 of the Civil Procedure Code, the appeal court can consider if such a question of law is raised by any of the parties before the first Appellate Court. Holding as such, the learned first Appellate Court ultimately considered such plea regarding voidness of the said deed on the ground as aforesaid and ultimately held that in view of the provision contained in Section 61 of the West Bengal Land Reforms Act, the civil court's jurisdiction being barred, learned first Appellate Court is unable to consider the correctness and/or justifiability of such plea. Holding as such, the learned first Appellate Court ultimately dismissed the said appeal by concurring with the findings of the learned Trial Judge.
Considering the judgements of the learned courts below, we are of the view that the learned courts below did not commit any illegality in coming to the aforesaid conclusion. We do not find any apparent illegality in the findings of the learned courts below, except the findings which were arrived at by the learned courts below on the issue regarding maintainability of the suit due to non-joinder of necessary party. We, thus, do not find involvement of any substantial question of law in this second appeal for which the appeal is required to be admitted for hearing under the provision of Order XLI Rule 11 of the Code of Civil Procedure. We decline to admit this appeal. The appeal, thus, stands dismissed.
(JYOTIRMAY BHATTACHARYA, Chief Justice) ( ARIJIT BANERJEE, J. ) dc.