Calcutta High Court (Appellete Side)
Ar Sher Ali & Ors vs Bishmadeb Chattopadhyay & Ors on 27 January, 2021
16 27.01.2021 FMAT 137 of 2020
Ct-12
with
I.A No. CAN 1 of 2020 (Old No. 2313 of 2020)
CAN 2 of 2020(Old No. CAN 2317 of 2020)
CAN 3 of 2020
ar Sher Ali & Ors.
Vs.
Bishmadeb Chattopadhyay & Ors.
Mr. Lal Ratan Mondal
Mr. Probal Sarkar
... For the Appellants
Mr. Rwitendra Banerjee
Mr. Devdutta Pathak
Mr. Sandip Kundu
Mr. Shibasis Chatterjee
... For the Respondents
Re:I.A No. CAN No. 1 of 2020
(Old No. 2313 of 2020)
(Condonation of delay)
There is a delay of 161 days in presenting the
memorandum of appeal.
We have perused the grounds for delay in
preferring the appeal and we are satisfied with
the explanation offered by the appellants for not
being able to prefer the appeal within the period
of limitation.
On such consideration the delay in preferring
the appeal is condoned.
Let the appeal be registered if it is, otherwise,
in form.
The application for condonation of delay is
thus allowed without any order as to costs.
CAN 1 of 2020 is accordingly disposed of.
Re: FMAT 137 of 2020
This appeal has arisen out of an order of
open remand. Initially, on 8th November, 2019 a
coordinate bench permitted the appellants to
withdraw the appeal as the order impugned is an
order of open remand and first miscellaneous
appeal is maintainable against the said order.
By consent of parties the appeal and
applications are taken up together.
The appellants are aggrieved by the order of
open remand on the ground that the said order
proceeds on the basis that the plaintiffs were in
possession of the property in question when the
suit was instituted and was dispossessed during
the pendency of the appeal.
It is submitted that the
respondents/plaintiffs having failed to establish,
before the trial court, semblance of any right in
their favour, which is sine qua non for any
further reliefs in the suit, the appellate court has
exceeded its jurisdiction in passing the order of
open remand by permitting the application for
amendment of the plaint to include the prayer for
restoration of possession without deciding as to
whether the finding of the trial court as to no
possessory right of the plaintiffs is established.
Mr. Rwitendra Banerjee, learned counsel
appearing on behalf of the respondents, has very
candidly submitted that the order of open
remand is on the basis of submission made
before the appellate court that the plaintiffs were
dispossessed from the suit property and it is now
necessary to consider the prayer for restoration
of possession as an additional issue to be
included and be heard along with other issues.
We have gone through the order under
challenge. We find that the trial court has
meticulously dealt with the issues as to the
possessory right of the plaintiffs vis-à-vis the
property in question. It appears that the claim
in the suit, essentially for perpetual injunction,
is based on title in the property to the extent
indicated in the plaint. Whether the prayer for
perpetual injunction would be sufficient without
claiming possessory right, which would depend
upon the facts of each case. It is a trite law that
if a party is not on possession in the property in
question, a suit under Section 34 of the Specific
Relief Act may not be maintainable without a
prayer for recovery of possession. It apparently
appears from the order of the trial court that the
plaintiffs were found not to be in possession and
there was a finding that mere C.S records of the
plaintiffs are not sufficient to hold the title and
the doctrine of lost grant applies. However, from
the order of the appellate court we would not find
that the appellate court has arrived at a finding
as to the possessory right of the plaintiffs in the
property in question when it appears that such
issue came up for consideration before the trial
court and was answered against the plaintiffs.
On such consideration, we feel that the
appeal has to be heard de novo. It was only on a
finding arrived at by the appellate court that the
plaintiffs have a possessory right and would,
therefore, be entitled to get injunction and other
consequential reliefs the prayer for restoration
may be considered. However, if it appears that
on the date of institution of the suit the plaintiffs
were not in possession of the suit property and
only prayer for declaration is made that the suit
may not be maintainable under Section 34 of the
Specific Relief Act, 1963. The plaintiffs have also
not prayed for partition.
On such consideration, the appeal succeeds.
The judgment and order dated 29th March, 2019
is accordingly set aside.
Learned District Judge, Murshidabad, is
directed to assign this appeal to the appropriate
bench within one week from the date of
communication of this order by either of the
parties and the said bench shall dispose of the
matter preferably within six months after the
appeal is assigned by the District Judge.
The said bench shall decide the matter
without being influenced by any observation
made by us, however, must take into account the
brief discussion we have made with regard to the
legal position.
We make it clear that if during the disposal of
the appeal none of the parties shall deal with the
property in any manner whatsoever or change
the nature and character of the property without
the express leave of the appellate court. It is also
made clear that the parties shall not seek any
unnecessary adjournment before the appellate
court and shall assist the court in disposing of
the appeal within the stipulated time.
The trial court shall consider the application
for amendment of the plaint afresh upon a
finding being arrived at by the appellate court
that the plaintiffs were in possession of the suit
property at the time of institution of the suit and
has proprietory interest in the suit property.
The appeal is accordingly disposed of along
with all connected applications.
There will be no order as to costs.
(Aniruddha Roy,J.) (Soumen Sen, J.)
