Suit; Sanatan Saha Vs. Dilip Kumar Dutta [Kolkata High Court, 13-05-2016]

Civil Procedure Code, 1908 – O. 41 R. 23A – Remand in other cases – Before an appellate Court can make an order of remand it should set aside the decision of the trial Court without examining the case on merit. However, in the case at hand the first appellate Court has remanded the entire suit to the learned trial Court without deciding the judgment and decree passed by the learned trial Court on merit. This is not permissible in law.

Specific Relief Act, 1963 – S. 34 – Proviso to – Already in possession of the suit property – the suit as was originally framed without any relief for recovery of possession of the suit property was barred.

Limitation Act, 1963 – Art. 113 or 58 – Under Article 58 of the Limitation Act, the period of limitation for filing a suit for declaration challenging the validity of a document of title in respect of an immovable property has to be filed within three years from the date when the right to sue first accrues.

Suit


IN THE HIGH COURT AT CALCUTTA

Civil Revisional Jurisdiction Appellate Side

The Hon’ble Mr. Justice Ashis Kumar Chakraborty

Judgement on : May 13, 2016.

F.M.A. No. 558 OF 2012

Sri Sanatan Saha & Anr. Vs. Sri Dilip Kumar Dutta & Anr.

For the appellants : Mr. Pradip Kumar Roy, Ms. Shrabony Sarkar, Mr. Debasish Karmakar Mr. Joydeep Roy

For the respondents : Mr. Gopal Chandra Ghosh, Mr. Sanjib Kumar Mukhopadhyay, Mr. Sunirmal Khanra. Ms. Kalpita Paul

Ashis Kumar Chakraborty, J.

This is an appeal, at the instance of the defendants in the suit, is directed against an order of remand passed by the learned Civil Judge (Senior Division), Ghatal in Title Appeal No. 3 of 2009. The learned appellate Court allowed the plaintiffs appellants to amend their plaint filed in Title Suit No. 133 of 2000, set aside the judgment and decree passed by the learned Civil Judge (Junior Division), Ghatal thereby dismissing the suit filed by the plaintiffs and sent back the suit back to the learned trial Judge. The relevant facts giving rise to the present appeal are briefly as follows.

For the purpose of convenience, the parties to the present appeal are referred to by their array in the trial Court. The plaintiffs filed Title Suit No. 133 of 2000 before the learned Civil Judge (Junior Division), Ghatal, against the defendants claiming, a declaration that they are the owners and in possession of the ‘A’ schedule property of the plaint, (hereinafter referred to as “the suit property”) and a decree for permanent injunction restraining the defendants from interfering with their possession of the suit property and from constructing any building at the suit property. The plaint case was that the suit property described in the schedule ‘A’ to the plaint comprises land of Plot No. 1085/2069 of R.S. Khatian No. 365 which along with the non-suit land of Plot No.1090 originally belonged to two brothers namely, Panchkari Pal and Satkari Pal, whose names were duly recorded in the record of rights. The non-suit Plot No. 1090 is in the shape of “L” stretching on the southern and western side of the suit property. By a registered deed of partition dated March 09, 1960 the said Panchkari Pal and Satkari Pal partitioned the suit property, along with non-suit Plot No. 1090 between themselves and the suit property, that is, Plot No. 1085/2069 and some portion of non-suit Plot No. 1090 elongating from north to south, with a house standing thereon were allotted to Satkari Pal, who became the exclusive owner and remained in exclusive possession of the suit property. The plaintiffs alleged that due to some mistake on the part of the deed writer, in the said deed of partition dated March 09, 1960 the suit property and some portion of non-suit property, being Plot No. 1090 was not mentioned. By a registered conveyance dated May 30, 1969 the said Satkari Pal sold the entire suit property along with some portion of the non-suit Plot No. 1090 to Sandip Dutta and Dilip Dutta, two minors who were represented by their respective fathers. But, due to mistake on the part of the deed writer, in the said registered conveyance dated May 30, 1969 there was no mention of the suit property as ‘A’ schedule property and the said deed mentioned only transfer of 0.025 satamik of land by Satkari Pal to the said Dutta Brothers. Subsequently, by a registered deed of partition executed on July 21, 1975 the suit property together with non- suit property of Plot No. 1090 was partitioned between the plaintiff no. 1 and the said Dilip Dutta, by virtue whereof the plaintiffs were allotted the suit property of Plot No. 1085/2069 and a portion of the non-suit property of Plot No. 1090. Thus, according to the plaintiffs they became the exclusive owners of the suit property and a portion of the non- suit property of Plot No. 1090 and they remained in possession of the entire suit schedule property by recording their name in respect of the said property, in the revenue records. The plaintiffs, however, alleged that the mistake committed by the deed writer in the deed of conveyance dated May 30, 1969 executed by the said Satkari Pal continued in the said deed of partition dated July 21, 1975 and consequently, the fact of the plaintiffs being allotted the suit property was not mentioned in the in the said deed of partition dated July 21, 1975, but the fact remains that the plaintiffs became the owners and obtained possession of the suit property of Plot No. 1085/2069 and some portion of Plot No. 1090 with the house standing thereon. They claimed that the suit property and the non-suit plot No. 1090 owned by them has been subsequently renumbered as plot nos. 1623 and 1624, respectively and their names have been duly recorded in records of Kharar Municipality and they are also paying tax in respect of the suit property and the non-suit Plot No. 1090 to the Municipality. The plaintiffs further claimed that as per the said deed of partition dated May 30, 1969 between Panchkari Pal and Satkari Pal, Panchkari Pal was allotted a portion of the non-suit Plot No. 1090 which he sold to one Renukarani Chowdhury (hereinafter referred to as “Renukarani”) who, in turn, sold the same to the defendants. In paragraph 12 of the plaint, the plaintiffs also claimed ownership of the suit property by way of adverse possession. According to the plaintiffs, their cause of action to file the suit arose on September 12, 2000 when the defendants caused digging of land of the suit property of Plot No. 1085/2069 for constructing a building.

The defendants contested the suit on various grounds. In their written statement, the defendants claimed to be in possession of the suit property and that the suit is hit by the Proviso to Section 34 of the Specific Relief Act. They further alleged that the suit property was allotted to Panchkari Pal and not to Satkari Pal and while he was in possession of the suit property, by a registered deed of conveyance dated May 31, 1961 the said Panchkari Pal sold the same to one Renukarani who, by a registered conveyance dated October 20, 1999 sold the suit property to them. It was the further case of the defendants that subsequently, it transpired that there was a mistake in the said sale deed executed by Renukarani in their favour, when Renukarani refused to rectify the said defect by executing a deed of rectification, they were constrained to file a suit against Renukarani and thereafter, she executed the deed of rectification in respect of the suit property in their favour. In the written statement, the defendants further alleged that the name of Renukarani was recorded in the revenue records in respect of the suit property and presently they also have obtained their names duly recorded in the revenue records in respect of the suit property. They further alleged that they obtained sanctioned plan from the Kharar Municipality and thereafter sought to commence construction of their building at the suit property owned by them.

During the pendency of the suit before the learned trial Judge the plaintiffs amended their plaint by incorporating paragraph 12(a) alleging that after the execution the said deed of partition dated May 30, 1969, Panchkari Pal did not have any right or title in respect of the suit property and he did not sell the suit property to Renukarani, Renukarani was never in possession of the suit property and the deed of rectification dated June 18, 2001 executed by Renukarani in favour of the defendants is fraudulent and void and the defendants cannot claim any benefit of the said deed of rectification. The plaintiffs, however, did not incorporate any relief in the plaint challenging validity of the said deed of rectification dated June 18, 2001 or the deed of conveyance dated October 29, 1999 executed by Renukarani. The defendants filed their additional written statement and denied the allegations made by the plaintiffs in the amended plaint.

After considering the respective pleadings of the plaintiffs and the defendants in their plaint and their written statement, the learned trial Judge framed various issues with regard to the maintainability of the suit, and whether the plaintiffs have the right, title, interest and possession of in respect of the suit property and whether the suit property was allotted to Panchkari Pal or Satkari Pal.

At the trial of the suit, both the plaintiffs and the defendants disclosed various documents, they adduced evidence through their respective witnesses and also proved their respective documents.

The plaintiffs disclosed various documents in the suit including the said deed of partition between Satkari Pal and Panchkari Pal (Exbt.-1), the deed of conveyance dated May 30, 1969 by Satkari Pal in favour of Sandip Dutta and Dilip Dutta (Exbt. 2), the deed of partition between the plaintiffs and Dilip Dutta executed on July 29, 1975 (Exbt. 3), and the land revenue records recording their names in respect of the suit property (Exbt.-4) and the municipal tax receipts (Exbt.-5). The defendants also disclosed the deed of partition dated May 12, 1960 between Satkari Pal and Panchkari Pal (Exbt-“M”), the deed of conveyance executed by Panchkari Pal in favour of Renukarani dated May 13, 1961 (Exbt.-B), the two deeds of conveyance both dated October 29, 1999 executed by Renukarani in favour of the defendants (Exbts.- D and E), the deed of rectification dated June 18, 2001 executed by Renukarani (Exbt.-H), the tax receipts issued by Kharar Municipality in favour of Renukarani and themselves (Exbt.-F series) and the land revenue records recording their names in respect of the suit property (Exbt.- J series).

On an elaborate appreciation of the oral and documentary evidence adduced on behalf of the plaintiffs and the defendants respectively, the learned trial Judge in his judgment dated February 26, 2009 found that as per the said deed of partition dated May 30, 1969 the suit property described as the ‘A’ schedule property, was exclusively allotted to Panchkari Pal and held that the plaintiffs could not establish their right, title, interest in respect of the ‘A’ schedule suit property or that they are in possession of the ‘A’ schedule suit property. Thus, the learned trial Judge dismissed the suit of the plaintiffs.

Against the said judgment and decree passed by the learned trial Judge, the plaintiffs filed the appeal, being Title Appeal No. 03 of 2009, before the Court of the learned Civil Judge (Senior Division), Ghatal. In the said appeal, on November 11, 2009 the plaintiffs filed an application under