Calcutta High Court (Appellete Side)
Smt. Puspa Dey & Ors vs Sukanta Dey & Ors on 24 May, 2019
Author: Bibek Chaudhuri
Bench: Bibek Chaudhuri
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
The Hon'ble JUSTICE BIBEK CHAUDHURI
F.M.A 1044 of 2016
Smt. Puspa Dey & Ors
Vs.
Sukanta Dey & Ors.
For the Appellants: Mr. Saptangsu Basu, Sr. Adv.,
Mr. Souvik Sen, Adv.,
Mr. Kaustav Chandra Das, Adv.
For the Respondents: Mr. Mayukh Maitra, Adv.,
Ms. Sayari Sen Sharma, Adv.
Heard on: March 18, 2019.
Judgment on: May 24, 2019.
BIBEK CHAUDHURI, J. : -
1. Judgement and order of remand passed on 7th October, 2015 in Title Appeal No.15 of 2015 by the learned Additional District Judge, 2nd Court at Barasat is under challenge in the instant appeal at the instance of the defendants of Title Suit No.193 of 2008.
2. Predecessor-in-interest of respondent No.1 filed a suit for declaration of title and permanent injunction against the defendants/appellants in the 1st Court of the learned Civil Judge (Junior Division), Barasat which was registered as Title Suit No.193 of 2008. 2
3. Subject matter of the suit was "a piece and parcel of land measuring 06 decimal or 3 cotta 10 chittacks 8 sq. Ft appertain to Dag No.66 of Khatian No.129 corresponding to L.R Khatian No.895, 556, 960, 934, 20 and 594 in mouja Atghara; J.L No.10, P.S Rajarhat, Dist North 24 Parganas being under Ward No.6 in Rajarhat- Gopalpur Municipality."
4. The appellants contested the suit by filing written statement and counter claim against the respondents.
5. Subject matter of the counter claim was-
"All the piece and parcel of land measuring 0.08 acre out of 0.55 acre of Sabek Dag No.67 Hal Dag No.66 Sabek Khatian No.129 L.R Khatian No.530 of Mouja Atghara J.L. No.10 P.S Baguiati (Formerly Rajarhat) district North 24 Parganas.
Butted and bounded by
On the North : HIDCO Four Lane Road
On the South : Land of Plaintiff in Mouja Teghari
On the East : R.S Dag No.68 of Mouja Atghara
On the West : R.S Dag No.65 of Mouja Atghara
(Possessed by defendant No.1)
6. Devolution of interest of the parties to the lis in respect of the subject matter of the properties involved in the suit and counterclaim is depicted below:-
Plaintiff's version
A. One Chamiruddin Biswas was the owner of land
measuring about 55 decimal in Dag No.66. Chamiruddin died intestate leaving behind three sons and two daughters. They inherited the said property and by way amicable partition, they owned and possessed specific portions of land as per their respective shares. 3 B. The original plaintiff purchased well demarcated 06 decimal of land from the heirs of Anjuman Bibi, one of the daughters of the original owner Chamiruddin Biswas by a registered deed of sale bearing No.4164 dated 27th July, 1987.
C. While possessing the said land, the defendants being the heirs of the full brothers of the original plaintiff, most illegally and wrongfully tried to trespass into the suit property and threatened the plaintiff to dispossess therefrom which compelled the plaintiff to file the suit for declaration of his title and permanent injunction. Defendants' case and Counter claim a. The plaintiff sold away the suit property two separate registered deeds of conveyance to one Sudarshan Bhattacharya and Dipali Majumdar on 29th August and 29th March, 1988 respectively. The said Dipali Majumdar transferred her right, title and interest in the suit property to one Ranjit Makal and Dipa Makal by executing a registered deed of sale on 20th February, 2006. So, the plaintiffs have no right, title and interest over the suit property.
b. After the death of Chamiruddin Biswas, the erstwhile owner, his heirs amicably partitioned the 55 decimal of 4 land in dag No.66. Mainuddin used to possess 16 decimal of land on the extreme south of the said land; Kalachand used to possess his 16 decimal share in dag No.16 on the north of Mainuddin; Haran was in possession of his share on the north of Kalachand and Anjuman Bibi used to possess 08 decimal of land on the extreme north of dag No.66.
c. Mainuddin sold out 16 decimal of land to one Abdul Motaleb Tarafder by a registered deed of sale dated 8th November, 1971.
d. The said Abdul Motaleb Tarafder transferred the said 16 ½ decimal of land to the defendant No.1, since deceased and the plaintiff by a registered deed of sale dated 23rd November, 1976. The defendant No.1 and the plaintiff used to possess southern and northern portion of the said property in equal share.
e. Abdul Motaleb again executed a deed of conveyance in favour of one Sadhana Dey in respect of the said 16 ½ decimal of land which was registered on 23rd November, 1973.
f. In order to perfect their title over the said plot, original plaintiff and defendant No.1 purchased the same by a registered deed of sale dated 13th November, 1978. 5 g. Defendant No.1, since deceased transferred his share of 08 decimal of land in favour of his grandson (defendant No.2) by a registered deed of gift.
h. The original plaintiff sold out his share by a registered deed of sale in favour of Jyotirmoy Dey [defendant No.1(B)] on 24th July, 1991.
i. Kalachand Biswas, another son of Chamiruddin sold out his share comprising of 16 decimal of land to Jayanta Dey (defendant No.3) and Sukanta Dey (substituted plaintiff No.1) by a registered deed of conveyance dated 14th February, 1989.
j. Said Jayanta and Sukanta subsequent transferred the said land in favour of Smt. Puspa Dey [defendant No.1(a)] and Smt. Archana Basu [defendant No.1(c)] by two separate registered deed of conveyance on 24th August, 1991.
k. Archana Basu sold out 10 Chittaks of land in favour of one Dalia Mitra and Asim Mitra by a registered kobala dated 15th December, 1999, which rest of land was acquired by the Government in Megacity project.
l. Plaintiff has no right, title, interest and possession over any portion of dag No.66 as alleged.
m. Defendant No.2 had entered into an agreement with a developer for construction on the property mentioned in 6 schedule 'X' of the counter claim and such construction has been raised upto the roof level of the ground floor. But the plaintiff obstructed the defendant No.2 from raising construction over the said property. So, the defendants prayed for declaration of title and permanent injunction against the plaintiff.
Reply to the Counter Claim
7. By filing written statement against counter claim, the plaintiff asserted that the deeds in favour of Dipali (Shefali?) Majumdar and Ranjit Makal and Dipa Makal were created/manufactured only to get compensation from the Government at the time of acquisition of land for Megacity project. The defendants have no right, title and interest over the property described in the counter claim.
8. During trial of the suit, learned trial judge framed issues separately for the suit and counter claim, recorded evidence adduced by the witnesses on behalf of the plaintiff and defendants and on due appreciation of evidence on record, both oral and documentary dismissed both the suit and counter claim on contest.
9. The suit filed by the plaintiff was dismissed on the grounds that the plaintiff failed to pray for recovery of possession of the suit property and relief under Section 34 of the Specific Relief Act is barred under the proviso to the said section. Secondly, as a result of subsequent transfer 7 by the plaintiff, he had lost his right, title and interest over the suit property.
10. With regard to counter claim, the trial court held the counter claim is not maintainable because it cannot travel beyond the scope and limit of the suit. There is not even remote connection with the suit property and the property involved in counter claim. Therefore, the counter claim was also dismissed.
11. The plaintiff preferred Title Appeal No.15 of 2014 against the judgment and decree of dismissal of his suit before the 2nd Court of the learned Additional District Judge, Barasat.
12. In course of hearing of the appeal, the plaintiff/appellant filed an application under Order 6 Rule 17 of the Code of Civil Procedure praying for amendment of plaint.
13. The learned Judge, 1st Appellate Court took up the hearing of the application under Order 6 Rule 17 of the Code of Civil Procedure along with the appeal and disposed of the appeal with the following order:
"That the Title Appeal being No.15 of 2014 be and the same is allowed on contest and the impugned judgment and decree dated 21.02.2014 is hereby set aside.
The application for amendment of plaint is also allowed. Consequently let the case record be sent on remand to the learned Trial Judge with a request to rehear the case after allowing the respondents/defendants to file additional statement and then after giving an opportunity to both sides to adduce further evidence if any, be it noted that the plaintiff shall also be permitted to take steps for implement of the necessary parties. The learned trial judge is further requested to dispose of the case speedily upon for rehearing. 8 Let a copy of this order/judgment be sent back to the court of learned Civil Judge (Junior Division), 1st Court at Barasat, North 24 Parganas for information and necessary action."
14. It is pertinent to note that learned 1st Appellate Court in his judgment held the counter claim of the defendants-respondents maintainable and directed the learned trial judge to consider the counterclaim on merit, subject to the question of Limitation and cause of action.
15. In the instant appeal, the defendants/appellants mainly challenged the propriety of the order allowing plaintiffs/respondents' application under Order 6 Rule 17 of the Code of Civil Procedure and consequent order of remand.
16. By way of amendment in course of pendency of the 1st Appeal, the appellant wanted to incorporate certain facts, viz that the original plaintiff by virtue of registered deed being No.3723 dated 22nd May, 1985 purchased remaining 0.1 decimal of land from one Jaynal Abdin Saha. Thus, the original plaintiff became the owner of entire 8 decimal of land by virtue of purchase by two deeds, one in 1987 from the heirs of Anjuman Bibi another in 1985 from the said Jaynal Abdin Saha. The land measuring about 16 decimal which was purchased by the original plaintiff and defendant No.1 was entirely acquisitioned for Megacity project and the defendants have no semblance of interest over the said 16 decimal of land. After filing of the suit and before disposal of the application for temporary injunction, the defendants tired to make some illegal 9 construction over the suit property which was successfully resisted by the plaintiff/appellant. Subsequently, after disposal of the suit, the respondent again started construction work over the suit property despite vehement objection of the plaintiff. Taking advantage of disposal of Title Suit No.193 of 2008 and in the absence of any order of temporary injunction the respondents raised construction work in full swing and managed to dispossess the plaintiff forcibly from the suit property.
17. In view of subsequent dispossession, the plaintiff made a prayer by way of amendment of plaint for a decree of recovery of possession in respect of the suit property.
18. The plaintiff also wanted to amend the schedule of the suit property by mentioning the boundary of the same.
19. I have already mentioned that the learned Judge in 1st Appellate Court allowed the application for amendment of plaint and allowed the appeal remanding the suit back to the trial court with liberty to the parties to adduce evidence and directing the learned judge to disposed of the suit on the basis of the amended pleadings and evidence that may be adduced by the parties. The defendants were also given liberty to fill additional written statement against the amended plaint.
20. Mr. Saptangsu Basu, learned for the appellants at the outset submits before me that the provision of Order 6 Rule 17 of the Code of Civil Procedure has undergone a significant change by Code of Civil Procedure (Amendment) Act, 2002 by adding a proviso to Rule 17 of Order
6. The said proviso runs thus:-
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"Provided that no application for amendment shall be allowed after the trial has commenced, unless the court comes to the conclusion that in spite of diligence, party could not have raised the matter before the commencement of trial."
21. According to Mr. Basu generally after commencement of trial, court should not allow an application for amendment, the exception being a diligence clause appended to the said proviso. Thus, after commencement of trial amendment of pleading can only be allowed if the court comes to the conclusion that in spite of due diligence, the applicant failed to introduce certain facts which he wants to incorporate by way of amendment, before the commencement of trial.
22. Mr. Basu draws my attention to paragraph 14 of the application under Order 6 Rule 17 of the Code of Civil Procedure wherein the appellant stated that the delay in incorporating the facts is not on account of any mala fide intention since the original plaintiff despite due diligence could not find out the same which resulted in the non disclosure of the same. According to Mr. Basu except paragraph 14 the appellant did not state any other ground for which the original plaintiff was prevented from bringing the said fact on record. The statement made by the appellant in paragraph 14 of the said application does not show anything as to his due diligence in support of the alleged statement that the original plaintiff could not find out the same which resulted in nondisclosure of the facts and circumstances as to how the original plaintiff became the owner of the suit property measuring about 8 decimal of land.
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23. Mr. Basu next refers to paragraph 9 of the original plaint where the plaintiff/appellant clearly stated that during temporary absence of the plaintiff, the defendant in collusion with some designed person having vested right forcibly entered into the suit property in order to raise brick built structure upon the suit property. In paragraph 10 and 11 of the plaint the plaintiff/appellant reiterated that the suit property was under
his possession and the defendants had been trying to dispossess him. However, in the counterclaim, the respondents/respondents clearly stated that the plaintiff transferred 6 decimal of land to Dipali Majumdar by executing a registered deed baring No.2317 of 1988 on 29th March, 1988 and rest of the property comprising the entire suit property to one Sudarshan Bhattacharya on the 29th August, 2018 by executing a registered deed bearing No.2316 of 1988. The certified copies of the said two deeds were marked as Exhibit-O and Exhibit-P during the trial of the suit. The learned trial court placing reliance on Exhibit-O and Exhibit-P held that the appellant has no right, title and interest over the suit property.
24. It is pointed by the learned Senior Counsel on behalf of the appellants that the appellants in their counterclaim specifically stated that the original plaintiff was ceased off his right, title and interest over the suit property by way of transfer in favour of some third parties. With his usual force, Mr. Basu submits that in the written statement filed by the original plaintiff, execution and registration of the said two deeds in favour of Sudarshan Bhattacharya and Dipali Majumdar were not denied 12 by the original plaintiff. On the other hand, he specifically pleaded that those deeds were created/procured in the names of the above named purchasers by the original plaintiff by practicing fraud upon registration office only to receive more compensation from the State Government at the time of acquisition for Megacity project. Mr. Basu submits that the suit was filed by the plaintiff/respondent on 30th April, 2008. The written statement with counterclaim was filed by the defendants/appellants on 23rd December, 2009. In the said written statement, the defendants clearly stated the fact of execution and registration of sale deeds by the original plaintiff in favour of one Sudarshan Bhattacharya and Dipali Majumdar way back in 1988. The original plaintiff did not deny execution and registration of the said two deeds, but claimed that the said deeds were procured by practicing fraud upon the registration department only to receive more compensation from the State Government if the said lands were acquisitioned for Megacity Project. It is further urged by Mr. Basu that the certified copies of the deeds executed by the original plaintiff in favour of the said Sudarshan Bhattacharya and Dipali Majumdar were marked as Exhibit-O and Exhibit-P respectively on 25th May, 2011 in course of evidence of the witness No.1 on behalf of the defendant. Thus, at least from 25th May, 2011, it was within the knowledge of appellants that the suit property was transferred by the original plaintiff but they did not take any step for recovery of possession of the suit property. The plaintiff ought to have filed a suit for cancellation or setting aside of the said two deeds of sale, marked Exhibit-O and Exhibit-P. The period of 13 limitation under Article 59 of the Limitation Act is three years from the date of knowledge of the plaintiff in respect of execution of certain deeds in favour of one Sudarshan Bhattacharya and Dipali Majumdar by the original plaintiff by practicing fraud upon the Registration Department to earn compensation from the State Government. Having not done so, the plaintiffs/respondents cannot claim title.
25. Therefore, according to Mr. Basu, learned Counsel for the appellant the amendment of plaint which was allowed by the learned Judge in 1st Appellate Court was hopelessly barred by Limitation. The said amendment application was liable to be rejected because the respondents failed to specify the conditions prescribed in proviso to Order 6 Rule 17 of the Code of Civil Procedure. On principle, all trial amendment should have been allowed liberally when the opposite party would not be prejudiced because he will have an opportunity of meeting the amendment sought to be made. However, in case of amendments after the commencement of the trial, particularly after completion of evidence, delivery of judgment and during the pendency of the 1st Appeal, the question of prejudice to the opposite party will of course arise and in such event it is incumbent on the part of the court to satisfy the conditions prescribed in the proviso to Order 6 Rule 17 of the Code of Civil Procedure. If the parties to the proceedings are able to satisfy the court that in spite of due diligence, they could not raise the issue before the commencement of trial and the court is satisfied with such explanation, amendment can be allowed even after the commencement of the trial and 14 not otherwise. In support of his contention, he relies upon a decision of the Hon'ble Supreme Court in the case of Rajkumar Gurawara (dead) through Lrs vs. S.K Sarwagi and Company Pvt. Ltd and Another reported in AIR 2008 SC 2303 On the same point, he also refers to a decision of this Court in the case of Aktar Hossain vs. Susama Rani Sahoo reported in 2001 (3) CHN Cal 228.
26. Mr. Mayukh Maitra, learned Counsel on behalf of the plaintiff/respondent, on the other hand, submits that from the written statement as well as counterclaim it is very well ascertained that defendants/appellants have no claim over the suit property. From the averment made by the defendants/appellants in the counterclaim it is found that the defendants are claiming title over the property or part thereof which was inherited by Moinuddin Biswas from the original owner Chamiruddin Biswas. The suit property relates to 8 decimal of land which was purchased by the plaintiff/respondent from the heirs of Anjuman Bibi and Jaynal Abedin Saha.
27. Mr. Maitra next draws my attention to the order passed by the learned Judge in 1st Appellate Court. The learned Judge allowed the application under Order 6 Rule 17 of the Code of Civil Procedure which was filed by the plaintiffs/respondents in the learned court of appeal on 15th May, 2015. Secondly, the learned Judge Passed an order directing the plaintiff/respondent to take step for adding the said Sudarshan Bhattacharya and Dipali Majumdar as parties to the suit and remanded the suit for fresh trial. According to Mr. Maitra, learned Counsel for the 15 respondents, the plaintiffs/respondents came to know about the purported deeds dated 29th March, 1988 and 29th August, 1088 allegedly executed by the original plaintiff in favour of one Sudarshan Bhattacharya and Dipali Majumdar only during trial when the defendants produced the certified copies of the said two deeds in course of evidence. Thereafter, the plaintiffs/respondents came up with an application for amendment of plaint.
28. With regard to the prayer for amendment of plaint, it is submitted by the learned Counsel for the respondent that Order 6 Rule 17 of the Code of Civil Procedure confers jurisdiction on the court to allow either party to amend his pleadings at any stage of the proceedings and on such terms as may be just for conclusive determination of the real question in controversy between the parties. The question of delay in moving an application for amendment should be decided not by calculating the period from the date of institution of the suit alone but by reference to the stage to which the hearing in the suit has proceeded.
29. Learned Counsel for the respondent submits that the original plaintiff instituted the suit for declaration of title and subsequently by way of amendment the substituted plaintiffs/respondents incorporated the prayer for recovery of possession pleading, inter alia, that after disposal of the suit and taking advantage of absence of any order of temporary injunction, the defendants/appellants raised construction and the respondents were dispossessed from the suit property. After amendment, plaintiffs'/respondents' suit was based on entry 64 of the 16 schedule of the Limitation Act. This was, therefore, essentially a suit for declaration and recovery of possession based on title and period of limitation to institute the suit is 12 years from the date of dispossession. Therefore, the order passed by the learned Judge, 1st Appellate Court cannot be said to be bad in Law. In support of his contention, learned Advocate for the respondents relies on a decision of the Hon'ble Supreme Court in the case of Pankaja and Another vs. Yellappa (Dead) by Lrs and Others reported in (2004) 6 SCC 415. In the aforesaid decision, the Hon'ble Supreme Court relied on the ratio laid down in Ragu Thilak D. John vs S.Rayappan & Others reported in 2001 2 SCC 472. The following paragraph of Ragu Thilak D. John (supra) was quoted in Pankaja (supra):-
"The amendment sought could not be declined. The dominant purpose of allowing the amendment is to minimise the litigation. The plea that the relief sought by way of amendment was barred by time is arguable in the circumstances of the case. The plea of limitation being disputed could be made a subject matter of the issue after allowing the amendment prayed for."
30. Mr. Maitra next refers to another decision of the Hon'ble Supreme Court in the case of M/S. South Konkan Distilleries vs Prabhakar Gajanan Naik & Ors reported in 2008 14 SCC 632. In the aforesaid report, it is held by the Supreme Court that the court must be extremely liberal in granting the prayer of amendment, if the court is of the view 17 that if such amendment is not allowed, a party who has prayed for such an amendment, shall suffer irreparable loss and injury. There is no absolute rule that in every case where a relief is barred because of limitation, amendment should not be allowed. The power of the court to allow either party to amend the pleadings is absolutely discretionary and in the exercise of such discretion, prime consideration would be as to whether an order allowing an amendment of pleading will really subserve the ultimate cause of justice and minimise further litigation. If the proposed amendment limits multiplicity of proceeding and is found to be necessary to decide the dispute conclusively between the parties, amendment should be allowed. Mr. Maitra counters the argument advanced by the learned Senior Counsel on behalf of the appellant on applicability of the proviso to Order 6 Rule 17 of the Code of Civil Procedure, urging, inter alia, that all amendments which are necessary for the purpose of determining the real questions in controversy between the parties should be allowed, if it does not change the basic nature of the suit. A change in the nature of relief claimed shall not be considered as a change in the nature of suit and the power of amendment should be exercised in the larger interests of doing full and complete justice between the parties. It is repeatedly submitted by Mr. Maitra that the respondents were dispossessed from the suit property during the pendency of the suit. It is also stated by the respondents in their application under Order 6 rule 17 of the Code of Civil Procedure that after the suit was dismissed and before granting an order of temporary injunction by the learned Court of 18 Appeal, the defendants/appellants raised construction over the suit property and dispossessed them. Therefore, the respondents got the opportunity for seeking relief for recovery of possession of the suit property only at the stage of appeal. When the appellants were raising construction, the plaintiffs/respondents came to realize that they have been grabbing the suit property showing different schedule in the counterclaim. Therefore, the respondent's prayer for amendment of plaint cannot be thrown away for want of due diligence.
31. Mr. Maitra next submits before me that the learned Judge in 1st Appellate Court while remanding the suit for fresh trial gave liberty to the respondent to implead one Sudarshan Bhattacharya and Dipali Majumdar in the suit for proper adjudication of the dispute between the parties and to prove the title of the respondents over the suit property. At the risk of repetition, he submits that the appellants in their counterclaim pleaded that the original plaintiff transferred the suit property to the said Sudarshan Bhattacharya and Dipali Majumdar by executing registered kobalas dated 29th August, 1988 and 23rd March, 1988 respectively. In the written statement the plaintiffs/respondents specifically pleaded that the said deeds were manufactured by the original plaintiff No.1 for the purpose of claiming more compensation at the time of acquisition of land by the State Government. The leaned Judge in 1st Appellate Court was of the view that presence of the said Sudarshan Bhattacharya and Dipali Majumdar was absolutely necessary for proper adjudication of the issue as to whether the plaintiffs/respondents had right, title and interest over 19 the suit property and directed impleadment of the said two persons as defendants in the suit. It is pointed out by Mr. Maitra that Order 1 Rule 10(2) of the Code of Civil Procedure authorizes the court even suo motu to pass an order for addition of parties in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the suit. In support of his contention, Mr. Maitra refers to a decision of the Hon'ble Supreme Court in the case of Amit Kr. Shaw vs. Farida Khatoon reported in (2005) 11 SCC 403 in paragraph 10 of the said report it is held:-
"10. The power of a Court to add a party to a proceeding cannot depend solely on the question whether he has interest in the suit property. The question is whether the right of a person may be affected if he is not added as a party. Such right, however, will include necessarily an enforceable legal right."
32. Coming to the instant case, it is submitted by Mr. Maitra that the appellants have raised dispute on the pleading of the original plaintiff regarding the circumstances as to how the deeds in the names of the said Sudarshan Bhattacharya and Dipali Majumdar was created in the year 1988. The plaintiffs in their written statement against the counterclaim specifically pleaded that the said two deeds by virtue of which the suit property was allegedly transferred to the said Sudarshan Bhattacharya and Dipali Majumdar were fake transactions. No title was passed by virtue of the said two deeds upon the alleged transferees. Possession of the suit property was also not transferred to them. Therefore, the learned Appellate Court found that presence of the said two persons to settle the 20 dispute conclusively is absolutely necessary and suo motu directed the respondents to add them as parties to the suit. The question that requires to be adjudicated is as to whether the plaintiffs/respondents have any right, title and interest over the property. In view of the denial of title of the plaintiffs in respect of the suit property by defendants and setting up of a plea of title thereof in favour of by some persons other than the plaintiffs/respondents, the said persons having semblance of title, ought to be considered to be added as proper parties. In support of his contention, he refers to a decision of the Hon'ble Supreme Court in the case of Mumbai International Airport (P) Ltd. vs. Regency Convention Centre & Hotels (p) Ltd. reported in (2010) 7 SCC 417.
33. It is also urged by Mr. Maitra that the trial court was wrong in admitting the certified copies of two deeds in evidence allegedly executed by the original plaintiff in favour of the said Sudarshan Bhattacharya and Dipali Majumdar and marking them as Exhibit-O and Exhibit-P respectively. There is no dispute that certified copies of the deeds are secondary evidence in view of the provision of Section 63(1) of the Evidence Act. Section 65 of the Evidence Act states the cases in which secondary evidence relating to documents may be given. It's says-
"Secondary evidence may be given of the existence, condition, or contents of a document in the following cases:--
(a) When the original is shown or appears to be in the possession or power- of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce 21 it, and when, after the notice mentioned in section 66, such person does not produce it;
34. Thus secondary evidence may be given in the absence of primary evidence which law requires to be given first, when a proper explanation of its absence is given. The definition in Section 63 is exhaustive as the section declares that secondary evidence 'means and includes' and then follows the five kinds of secondary evidence. In order to enable a party to produce secondary evidence, it is necessary for the party to prove existence and execution of the original document. Under Section 64 of the Evidence Act, documents are to be proved by primary evidence. Section 65 states that Secondary evidence may be given of the existence, condition, or contents of a document under circumstances which must be fulfilled before the secondary evidence can be admitted. In support of his contention he refers to a report of the Hon'ble Supreme Court titled Smt. J. Yashoda vs. Smt. K. Shobha Rani reported in 2007 5 SCC 730.
35. In the instant case, it is submitted by the learned Counsel for the respondents that certified copies of two deeds (Exhibit-O and Exhibit-P) were brought into evidence and admitted by the learned trial judge without complying with the specific provisions of Section 65 of the Evidence Act. Thus Exhibit-O and Exhibit-P are inadmissible in evidence. On the basis of the said two documents, the respondents cannot be held of having no right, title and interest over the suit property. The learned Court of Appeal on due consideration of the entire evidence on record was of the opinion that the said two documents should be brought on record 22 following the provisions of the Evidence Act and the respondents should be given an opportunity to challenge the authenticity of the said two documents.
36. To sum up, it is contended by the learned Counsel for the respondents that amendment of plaint at the stage of appeal was neither barred by Limitation, nor bad for want of due diligence. Secondly, presence of the said Sudarshan Bhattacharya and Dipali Majumdar is absolutely necessary for proper adjudication of the dispute as proper parties. Thirdly, the learned Judge in 1st Appellate Court did not commit any error either in law or in fact in remanding the suit for fresh trial giving opportunity to both the parties to prove Exhibit-O and Exhibit-P in accordance with law and at the same time also to challenge them on the ground that the said deeds are nothing but fake documents.
37. I have heard learned Advocates for the appellants and the respondents at length.
38. The learned Judge in 1st Appellate Court while allowing the appeal passed an order of remand and sent the suit back for trial after allowing the application for amendment of plaint filed by the respondents herein with a direction to the learned trial judge to rehear the case after giving an opportunity to both sides to adduce further evidence, if any. The respondent was also permitted to take step for impleadment of the necessary parties to the suit.
39. It is needless to say that Order 41 Rule 23 and Rule 23A deal with the power of the Appellate Court to remand a case. A discretion must be 23 borne in mind between diverse powers of the Appellate Court to pass an order of remand. The scope of remand in terms of Order 41 Rule 23 is extremely limited. Where the suit is not decided on a preliminary issue, the Appellate Court's power to remand the case under Rule 23 is not available.
40. Order 41 Rule 23A of the Code of Civil Procedure provides that where the Court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point, and the decree is reversed in appeal and a retrial is considered necessary, the Appellate Court shall have the power to remand the case for retrial after reversing the order passed by the trial court.
41. In the instant appeal, it is clear from the judgment passed by the learned trial judge that he delivered the judgment on all issues framed in the suit and counterclaim. The learned 1st Appellate Court passed the order of remand when he found that the application for amendment which was filed by the respondent herein was required to be allowed and the respondents should be permitted to adduce further evidence in support of the amended plaint. Therefore, the impugned order of remand was passed essentially under Order 41 Rule 23 of the Code of Civil Procedure.
42. It has already been pointed out that the original plaintiff claimed title over the suit property by purchase from the heirs of one Anjuman Bibi and Jaynal Abdin Saha by two registered deeds of sale. It is also not disputed that the properties which form the subject matters of suit and counterclaim are different. Initially the plaintiff instituted the suit for 24 declaration of title in respect of the suit property and subsequently by way of amendment of plaint, the plaintiff had sought for recovery of possession stating, inter alia, during the pendency of the suit and appeal he was forcibly and illegally dispossessed from the suit property.
43. The defendants/appellants, on the other hand claimed ownership over another portion of plot No.66 which was originally inherited by one Moinuddin Biswas by virtue of successive transfers. The defendants further made out a case that the plaintiffs/respondents have been trying to disturb their peaceful possession over the property mentioned in schedule 'X' of the counterclaim claiming to be part and parcel of the suit property. It was also pleaded by the defendants/appellants that the plaintiffs/respondents have no right, title and interest over the suit property which the original plaintiff transferred by registered kobalas dated 29th August 1988 and 29th March, 1988 respectively.
44. In the written statement, filed by the original plaintiff against counterclaim he specifically pleaded that the said deeds were falsely manufactured by practicing fraud upon Registration Department to claim and receive more compensation from the State Government because the original plaintiff came to know that the said property would be acquisitioned for Megacity project.
45. It is important to note that the original plaintiff did not deny execution of the said two deeds. His specific case was that the said two deeds were fake and obtained by practicing fraud and those were not acted upon.
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46. I am in conformity with the leaned Counsel for the respondents that by way of amendment in a suit for declaration of title, the plaintiff can claim recovery of possession under Section 34 of the Specific Relief Act if he is dispossessed during the pendency of the suit and in respect of a suit for recovery of possession based on title, entry No.64 of the schedule of the Limitation Act is applicable and a period of limitation is 12 years from the ate of dispossession. I also hold that even after amendment of plaint, nature and character of the suit have not been changed to a suit for cancellation or setting aside of an instrument or deed. On this score, I am not in a position to accept the argument advanced by Mr. Basu, learned Senior Counsel on behalf of the appellants.
47. In view of the above discussion, I hold that the learned Judge in 1st Appellate Court did not commit any error in allowing the amendment of plaint on the basis of an application filed by the present respondents under Order 6 Rule 17 of the Code of Civil Procedure on 23rd May, 2015.
48. At this stage, if we see the conspectus of the dispute between the parties, it is found that on one hand the respondents claimed declaration of their title and recovery of possession of the suit property which the original plaintiff purchased from the heirs of Anjuman Bibi and one Jaynal Abdin Saha and on the other hand, the defendants/appellants have prayed for declaration of title and permanent injunction against plaintiff in respect of the property which they own on the strength of successive transfers from one Moinuddin Biswas. Admittedly Moinuddin Biswas inherited land measuring about 16 decimal in dag No.66 and 26 Anjuman Bibi inherited 8 decimal of land in the same dag after the death of their predecessor and original owner Chamiruddin Biswas.
49. It is very pertinent to state that neither in the written statement against the counterclaim, nor in the application for amendment of plaint, the respondents have raised any dispute regarding execution of deed by the original plaintiff in favour of one Sudarshan Bhattacharya and Dipali Majumdar. On the other hand, specific case of the respondents is that the said two deeds were manufactured by the original plaintiff for the purpose of claiming more compensation from the State Government and no title was passed to the vendees in respect of the suit property. In view of the such specific pleading made by the original plaintiff in the plaint as well as the written statement against the counterclaim, I am of the considered view that there is no necessity to implead one Sudarshan Bhattacharya and Dipali Majumdar in the suit because on careful scrutiny of the plaint, it is ascertained that the plaintiff never claimed any semblance of title of the said two persons over the suit property. Therefore, the ratio laid down in Mumbai International Airport (P) Ltd. (supra) is not applicable in the instant appeal.
50. Thus, I hold that the part of the impugned order permitting the respondents for impleading the aforesaid two persons as parties to the suit cannot be sustained and liable to be set aside.
51. In course of hearing of the instant appeal, none of the learned Counsels has referred to the finding of the learned Judge in 1st Appellate 27 Court holding the counterclaim maintainable under the facts and law. Therefore, the said order stands.
52. Referring to Sub-section (5) of Section 57 of the Registration Act, learned Senior Counsel for the appellants submits that certified copies of the deeds by virtue of which the original plaintiff transferred the suit property to one Sudarshan Bhattacharya and Dipali Majumdar were properly marked as exhibits by the trial court and the 1st Appellate Court ought to have dismissed the suit filed by the respondents relying upon the said two exhibits, being Exhibit-O and Exhibit-P. Section 57(5) of the Registration Act runs thus-
"5. All copies given under this section shall be signed and sealed by the registering officer and shall be admissible for the purpose of proving the contents of the original documents."
53. As per Section 61 of the Indian Evidence Act, contents of a document may be proved either by primary or by secondary evidence. I have already recorded the instances where secondary evidence of a document is permitted herein above. Section 65 of the Evidence Act lays down certain circumstances where secondary evidence can be given which reads as under:-
"65. Cases in which secondary evidence relating to documents may be given.--Secondary evidence may be given of the existence, condition, or contents of a document in the following cases:--
(a) When the original is shown or appears to be in the possession or power-- of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or of any 28 person legally bound to produce it, and when, after the notice mentioned in section 66, such person does not produce it;
(b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;
(c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;
(d) when the original is of such a nature as not to be easily movable;
(e) when the original is a public document within the meaning of section 74;
(f) when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in [India], to be given in evidence;
(g) when the originals consists of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection.
In cases (a), (c) and (d), any secondary evidence of the contents of the document is admissible.
In case (b), the written admission is admissible.
In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible.
In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents.
54. Certified copies of the deeds in question allegedly executed by the original plaintiff in favour of the said Sudarshan Bhattacharya and Dipali Majumdar were marked exhibits during trial of the suit without taking into the recourse of clause (a) of Section 65 of the Evidence Act. No notice was served upon the purchasers by the appellants requiring them to produce the said deeds. Learned Senior Counsel for the appellants tired to impress upon this Court that certified copy of a registered sale deed is 29 admissible in evidence under Section 65(f) of the Evidence Act read with Section 57(5) of the Registration Act.
55. In Nani Bai vs. Vila Bai Kom Ramagunge reported in AIR 1958 SC 706, it was held by the Hon'ble Supreme Court that in the absence of a registered sale deed for any reason, certified copy could be filed as secondary evidence. In Kalyan Singh vs. Smt. Chotti and others reported in AIR 1990 SC 306, the Hon'ble Supreme Court held that certified copy of the registered sale deed can be produced as secondary evidence in the absence of the original sale deed. It was also held that correctness of the certified copy referred to in Clause (1) of Section 63 of the Evidence Act is presumed under Section 79 of the Evidence Act. In all the aforesaid decisions, it was held that in the absence of the original sale deed, a certified copy thereof may be proved as secondary evidence. Thus, it is the bounden duty to a party seeking for tendering a secondary evidence in court to prove at the first instance that the original is in the possession or power of the person against whom the document is sought to be proved or of any person out of reach of, or not subject to, the process of the court or of any person legally bound to produce it, and when after the notice mentioned in Section 66, such person does not produce it. Only upon proof of any of such circumstances, a certified copy of a deed is admissible in evidence. Section 57(5) of the Registration Act does not authorize a Court to mark certified copy of a deed as exhibit without compliance of the mandatory provision of the Evidence Act. 30
56. The appellants before tendering certified copies of the said deeds in evidence did not issue any notice upon the vendees/purchasers asking them to produce the original sale deeds. For non compliance of mandatory provision of Section 65(a) of the Evidence Act, I have no other alternative but to hold that Exhibit-O and Exhibit-P were not properly marked exhibits following the procedure contained in the Evidence Act.
57. From the pleadings of the parties as well as the evidence on record, both oral and documentary I am also of the view that for proper adjudication of the dispute relayment of the suit property as well as the property involved in the counterclaim with the deeds of ownership of the parties is absolutely necessary by appointing an Advocate Commissioner or Engineer Commissioner for local investigation following the provision of Order 26 Rule 9 of the Code of Civil Procedure. It can only be ascertained on the basis of report of local investigation as to whether the suit property and the property involved in counterclaim are distinct and separate properties; secondly, whether defendants/appellants have raised illegal construction over the suit property and thirdly, whether the plaintiffs/respondents have been trying to encroach upon the property mentioned in schedule 'X' of the counterclaim.
58. In my considered opinion, the suit and the counterclaim can only be effectively and conclusively decided upon such report of local investigation.
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59. The order allowing the application for amendment of plaint passed by the learned Judge, 1st Appellate Court is affirmed. The plaintiffs/respondents are permitted to file amended plaint within two weeks from the date of receiving notice from the learned Trial Court of commencement of hearing.
60. The defendants/appellants shall be at liberty to file additional written statement against the amendment plaint within two weeks from the date of receipt of the copy thereof.
61. The order passed by the learned Judge, 1st Appellate Court permitting the plaintiffs/respondents to take step for impleadment of two transferees in respect of the suit property is set aside.
62. The parties are permitted to adduce further evidence only on the pleadings relating to alleged dispossession and prayer for recovery of possession claimed by the respondents.
63. The learned trial court shall appoint a survey passed Advocate Commissioner or an Engineer Commissioner for relayment of suit property and the property mentioned in schedule 'X' of the counterclaim with the deeds of ownership of the parties for a report on the following points:-
i) If the suit property and the property involved in counterclaim are distinct and separate having distinct boundary.
ii) If there is any construction over the suit property;
iii) If the plaintiffs have possession over the suit property;32
vi) If the defendants have encroached upon any portion of the suit property;
v) Any other local features pointed out by the both parties.
64. Both the appellants and respondents shall bear the cost of local investigation in equal share.
65. The investigation Commissioner shall submit his report within three months from the date of receipt of the writ of commission.
66. The learned trial judge shall dispose of the suit on the basis of evidence and local investigation report within six months from the date of receipt of lower court record.
67. Lower Court Record be transmitted to the learned trial court forthwith.
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.)