Calcutta High Court (Appellete Side)
Smt. Hira Bose & Others vs Smt. Krishna Bose & Another on 2 August, 2022
02.08.2022
Court No.32
rpan/21
FAT 182 of 2021
+
IA No.: CAN 1 of 2022
and
CAN 2 of 2022
and
CAN 3 of 2022
Smt. Hira Bose & Others
- Versus -
Smt. Krishna Bose & Another
Mr. Ayan Banerjee,
Mr. Sunanda Mohan Ghosh
... for the Appellants.
Mr. Suman Sankar Chatterjee
... for the Respondents.
CAN No. 2 of 2022.
The instant appeal has been preferred by the
plaintiffs/appellants challenging the judgment and decree
dated 9th September, 2020 and 14th January 2021
respectively passed by the learned Civil Judge (Senior
Division), Burdwan in a partition suit, being Title Suit
No.234 of 2014.
In connection with the aforesaid appeal an
application being CAN No. 2 of 2022 has been filed by the
applicant No. 1(a), 1(b) and 1(c), praying for leave to prefer
the instant appeal, who claim to be the legal heirs and
representatives of plaintiff no. 1.
It would appear from the records that subsequent
to passing of the judgment and decree, as aforesaid,
Susanta Bose, the plaintiff no.1, died on 11th May, 2021.
Unfortunately, at the time of preferring the appeal,
no application for leave to prefer an appeal was filed by
the applicants. The aforesaid defect would corroborate
from the report of the Stamp Reporter dated 30 th
September, 2021. Since then in order to cure the above
defect the instant application has been filed by the
applicants seeking leave to prefer the instant appeal.
Mr. Chatterjee, learned advocate, enters
appearance on behalf of the respondents/defendants.
We find that the applicants as legal heirs of the
plaintiff No. 1, are aggrieved by the judgment and decree
which is impugned in the instant appeal.
In such circumstances, we grant leave to the
appellants/plaintiffs, being Nos.1(a), 1(b) and 1(c) to file
the instant appeal.
The application, being CAN 2 of 2022, accordingly,
stands disposed of.
CAN No. 3 of 2022
Mr. Banerjee, learned Advocate representing the
appellants submits that during pendency of the suit, the
plaintiff no.5, Jagannath Ghosh died on 14 th February,
2016. According to Mr. Banerjee, since the legal heirs of
Jagannath Ghosh, namely, his two daughters, Smt.
Nupur Pal, wife of Dr. Arun Pal and Smt. Indrani Nandi,
wife of Sri Indranil Nandi were already on record as
parties in the partition suit, due to inadvertence, the
factum of death of the plaintiff no.5 had not been
recorded. He submits that failure to record the factum of
death of the plaintiff No.5 was entirely an unintentional
mistake. He prays that the death of plaintiff no.5,
Jagannath Ghosh be recorded and necessary corrections
be effected in the judgment and decree as aforesaid.
We have heard the parties and have considered
their submissions. We find that the legal heirs of the
plaintiff no.5, namely, Smt. Nupur Pal and Smt. Indrani
Nandi are already on record and are arrayed as plaintiff
Nos. 3 and 4 in the suit. As such, the factum of death of
the plaintiff no.5, Jagannath Ghosh is recorded.
Department is directed to send down the papers to
the learned trial court immediately for effecting necessary
corrections in the records including the judgment and
decree as aforesaid.
The application, being 3 of 2022, accordingly
stands disposed of.
CAN No. 1 of 2022
This is an application for injunction filed in
connection with the present appeal.
Mr. Banerjee, learned Advocate representing the
appellants, submits that the defendant respondent No.
1(a) by taking advantage of the dismissal of the suit for
partition is trying to dispose of and transfer the suit
property to a third party. He submits that the appellant is
occupying a portion of the suit property. He further
submits that unless an order of injunction is passed third
party rights may be created which shall lead to
multiplicity of proceedings.
Mr. Chatterjee submits, that his clients are also
occupying a portion of the suit property.
We have heard the parties. This is a suit for
partition. The parties are in possession of their respective
portions. The partition suit had been dismissed by a
judgment and decree dated 9th September, 2020 and 14th
January 2021 respectively.
Since the parties are in possession of their
respective portions and since the judgment and decree
dated 9th September, 2020 and 14th January 2021
respectively is under challenge in the instant appeal,
unless the parties are protected by an order of injunction
there is likelihood of multiplicity of judicial proceedings.
We, thus, find a Prima facie case has been made out, as
such there shall be an interim order restraining the
parties from changing the nature and character of the
suit property. The party shall not create any third party
interest in the suit property and/or shall not transfer the
same without obtaining prior leave of this Court.
The aforesaid interim order shall continue till
disposal of the instant appeal.
The application, being CAN 1 of 2022, accordingly,
stands disposed of.
Since we have already disposed of all the connected
applications, the hearing of the appeal is expedited.
As Mr. Chatterjee, learned advocate has entered
appearance on behalf of the respondents, service of notice
of appeal upon the said respondents is dispensed with.
Lower court records be called for through Special
Messenger at the cost of the appellants. Such cost shall
be deposited within two weeks from date.
Immediately, after arrival of lower court records, the
office shall examine the same and, if found complete,
shall issue notice of arrival of lower court records to the
learned advocates appearing for the appellants and the
respondents.
Appellants are directed to prepare requisite
number of informal paper books - printed, typewritten or
cyclostyled, as the case may be, out of Court, within four
weeks from the date of service of notice of arrival of lower
court records and shall file the same after serving copies
thereof upon the learned advocate appearing for the
respondents.
All formalities regarding preparation of paper books
are dispensed with but the learned advocate for the
appellants is directed to incorporate all the relevant
documents in the informal paper books.
Liberty to mention.
Urgent photostat certified copy of this order, if
applied for, be supplied to the parties, upon compliance of
all requisite formalities.
(Raja Basu Chowdhury, J.) (Tapabrata Chakraborty, J.)
