Tasiran Bibi And Others vs Shambhu Nath Samanta And Another
2021 Latest Caselaw 1503 Cal

8   22.02.2021
                                S.A.T. No. 437 of 2019
    Ct. No. 02          CAN 1 of 2020 (old no. CAN 60 of 2020)


                             Tasiran Bibi and others.
                                         Vs.
                        Shambhu Nath Samanta and another.
                                    --------------

Mr. Rwitendra Banerjee, Mr. Sandip Kundu, Mr. Devdutta Pathak.

..for the appellants.

Mr. Asit Kumar Bhattacharyya, Mr. Subir Hazra.

..for the respondent nos. 1 & 2.

The seminal point of law involved in the instant

appeal is whether both the courts below were justified

in enlarging the scope of the remand order when the

same was limited to adjudication of the issue no. 8, as

framed by the Trial Court, afresh.

In the present suit the plaintiffs/appellants

prayed for a declaration of their right, title and interest

in respect of the property described in schedule 'Ga' to

the plaint. The plaintiffs/appellants also prayed for a

mandatory injunction in respect of 'Ka' schedule

property which is a part of 'Ga' schedule property

directing the defendants/respondents to remove the

thatched house from 'Ka' schedule property. The

plaintiffs/appellants has made out a case in the plaint

that they became owner of the 'Ga' schedule property

by way of inheritance and their names have been duly

recorded in the relevant record of rights. The

defendants/respondents are the owners of the plot

being R.S. plot no. 683/1790 which is situated at the

adjoining west to the suit property. The plaintiffs

pleaded that on November 25, 2002, the plaintiffs

being approached by the defendants permitted them to

keep building materials on the 'Ka' schedule property

on good faith without charging any licence fees. The

defendants constructed a thatched house on the 'Ka'

schedule property. On the 'Ka' schedule property after

completion of the defendants' house, the plaintiffs

urged the defendants to demolish the thatched house.

The defendants denied to demolish the said thatched

house which prompted the plaintiffs to file the present

suit. The suit was preceded by a notice from the

plaintiffs upon the defendants to vacate the 'Ka'

schedule property.

The defendants in their written statement on the

other hand made out a case that they are in

possession of the 'Ka' schedule property by way of

adverse possession as well as by virtue of a sale deed

from one Nirmal Maity who inherited his one third

share from his predecessors in respect of plot no.

683/1790.

The Trial Court framed the following eight

issues:

1) Is the suit maintainable in its present

form and prayer?

2) Is the suit barred by limitation?

3) Is the suit barred under provisions of

Section 34 of the Specific Relief Act?

4) Have the plaintiffs any right, title and

interest in the 'Ga' schedule suit property or

not?

5) Have the defendants any right, title and

interest in the 'Ka' schedule property or not?

6) Are the plaintiffs entitled to get a decree

as prayed for in the suit or not?

7) To what other further reliefs/relief, if any,

are the plaintiffs entitled?

Additional Issue :-

8) Whether the plaintiffs inducted defendants

as licensee?

The suit was dismissed by Trial Court by a

judgment and decree dated April 23, 2008. The Trial

Court decided issue nos.1, 2 and 3 in favour of the

plaintiffs. With regard to the issue no. 4 the Trial

Court returned a finding that the plaintiffs have right,

title and interest in the 'Ga' schedule property. With

regard to the issue no. 5 findings were returned

against the defendants holding that the defendants

have failed to prove their right, title and interest in the

'Ka' schedule property. In deciding issue nos. 6 and 7

the Trial Court came to a findings that the schedule of

the plaint was vague and in absence of prayer for

recovery of possession the suit was hit by Section 34 of

the Specific Relief Act, 1963. The additional issue

being issue no. 8 was decided in favour of the plaintiffs

answering the same in affirmative.

An appeal, being Title Appeal no. 12 of 2008 was

preferred against the said judgment and decree and

the appellate court by an order dated April 30, 2011,

remanded back the matter before the Trial Court with

a direction to decide the issue no. 8 after producing

relevant documents and adducing evidence by the

parties and pass a fresh judgment.

Following the said order of remand, the suit was

again tried, further evidence was adduced and the

learned trial judge again dismissed the suit deciding

all the issues afresh. The Trial Court this time decided

issue no. 1 against the plaintiffs. In deciding issue no.

3 the Trial Court came to a finding that the suit was

barred by Section 34 of Specific Relief Act, 1963. The

suit was held to be within the period of limitation and

as such issue no. 2 was decided in favour of plaintiffs.

In deciding issue no. 4 the Trial Court this time

held that the plaintiffs have failed to prove their right,

title and interest over the 'Ga' schedule property and

decided the said issue against the plaintiffs. Earlier

finding with regard to the issue no. 5 was also altered

holding that the defendants have right, title and

interest in 'Ka' schedule property. Likewise, findings

with regard to the issue no. 8 was also reversed as the

Trial Court came to a finding that the plaintiffs have

failed to prove that they gave licence in respect of 'Ka'

schedule property to the defendants. In view of the

findings returned with regard to the issue nos.4, 5 and

8, the Trial Court answered the issue nos. 6 and 7 also

against the plaintiffs and dismissed the suit by a

judgment and decree dated April 26, 2016.

Again an appeal was preferred against the said

judgment and decree and the appeal was dismissed by

a judgment and decree dated December 4, 2019.

Before us the appellants have impugned the said

judgment and decree.

The Appeal Court below, this time, observed that

the Trial Court was not justified in going beyond the

scope of remand and by not confining itself to the

adjudication of the issue no. 8 afresh. The Appeal

Court below, therefore, set aside the findings of the

Trial Court with regard to the issue nos. 4 and 5 in the

judgment dated April 26, 2016.

The Appeal Court re-adjudicated the issue no. 8

and came to a conclusion that the plaintiffs had failed

to prove that the defendants were their licensee with

regard to 'Ka' schedule property.

In deciding the issue no. 8 the Appeal Court

found that the impugned construction in the plaint

was not situated in the 'Ka' schedule property. The

Appeal Court held that if from the evidence on record

it was proved that the area alleged to have been in

possession of the defendants was within 'Ka' schedule

property then in such circumstances, the

plaintiffs/appellants would be entitled to an order of

injunction as prayed for as the defendants in absence

of a better title would be considered as the trespassers.

The Appeal Court, thereafter, sought to evaluate the

evidence on record and came to a finding that the

impugned construction being the thatched house was

not within the 'Ka' schedule property.

In our view, such fact finding exercise of the

Appeal Court below was in contradiction to the

remand order dated April 30, 2011 passed in earlier

round of appeal.

The Appeal Court below in effect re-adjudicated

the issue nos. 4 and 5 by way of such exercise and

reversed the findings of the Trial Court in the

judgment dated April 23, 2008 that the plaintiffs had

been able to prove their right, title and interest over

the 'Ka' schedule property and the defendants' claim of

ownership or interest over the said property was not

proved. The Appeal Court, in our view, should not have

decided the issue no. 8 without altering the findings of

the Trial Court with regard to the issue nos. 4 and 5

since such findings were affirmed earlier by the Appeal

Court at the time of remanding back the suit to the

Trial Court on April 30, 2011.

The Appeal Court below also re-adjudicated the

issue with regard to maintainability of the suit in view

of Section 34 of Specific Relief Act, 1963 and held that

the suit was barred by the said provision of law.

We are of the opinion that the plaintiffs

/appellants should have been given an opportunity to

amend the plaint so as to incorporate the prayer for

recovery of possession in order to maintain the suit to

avoid multiplicity of the suit.

In view of the discussions above, this appeal is

allowed. The judgment and decree dated December 04,

2019 passed by the learned Civil Judge, Senior

Division, Ghatal, Paschim Medinipur, in Title Appeal

no. 08 of 2016 is set aside giving a direction upon the

Trial Court to decide the issue no.8 afresh on the basis

of the findings on the issue nos. 4 and 5 in the

judgment and decree dated April 23, 2008. The Trial

Court will also give an opportunity to the plaintiffs to

amend the plaint for incorporation of the prayer for

recovery of possession.

Since the suit is pending for a long period of

time, all endeavour should be made by the Trial Court

to dispose of the suit within six months from date.

Accordingly, S.A.T. No. 437 of 2019 is allowed

and the application, being CAN 1 of 2020 (old no. CAN

60 of 2020), is disposed of.

(Harish Tandon, J.)

(Kausik Chanda, J.)