Newton Sk. & Anr vs Aamir Sk. & Ors
2022 Latest Caselaw 278 Cal

              IN THE HIGH COURT AT CALCUTTA
                CIVIL REVISIONAL JURISDICTION
                              APPELLATE SIDE


Present:

The Hon'ble Justice Ajoy Kumar Mukherjee.

                               C.O. No. 238 of 2019

                                Newton Sk. & anr.
                                        Vs.
                                  Aamir Sk. & ors
                            (Through Video Conference)

For the petitioners:            Mr. Partha Pratim Roy

For the opposite parties:        Mr. Prosenjit Mukherjee
                                 Ms. Poulami Dutta


Heard on:                       28.01.2022



Judgment on:                    03.02.2022



Ajoy Kumar Mukherjee, J.

1. Feeling aggrieved and being dissatisfied with the order dated 3 rd October

2018 passed by learned Civil Judge (Sr. Division),2 nd Court Rampurhat,

Birbhum in Title Suit No. 81/2013, present revisional application has been

preferred under Article 227 of the constitution of India inter alia on the

following grounds :

i) The Learned Court below has failed to exercise its jurisdiction in not

allowing the petitioners application for vacating ex-parte order against

them.

ii) The Learned court below has exceeded its jurisdiction in suo moto

directing the petitioners to be treated as the plaintiffs

iii) The learned Court below ought to have considered that the petitioners

are entitled to file written statement, which is necessary for the

conclusive adjudication of the rights of the parties to the suit and for

such purpose the order for ex-parte proceeding against the

petitioners, are required to be vacated in view of the fact that they

have their respective shares in the suit properties.

iv) The learned Court ought not to have held that it is better to transpose

the petitioners as plaintiff in absence of any application in this regard.

2. The case has a curious background. Present petitioners namely Newton

Sk and Tomson Sk and one Safjar Sk, previously filed Title Suit No. 201/2001

before the 2nd Munsif Court, Rampurhat against present defendant No.2,

Rejjak Sk and his 3 sons namely Sahjahan Sk, Basar Sk, Barjahan Sk, who

are defendants No. 12,13 and 14 of present Title Suit No.81/2013. In the said

Suit present Petitioners Newton Sk and Tomson Sk as plaintiffs had contended

that the suit Property originally belonged to Erfan Sk, Insan Sk in eight anas

share each. Said Erfan Sk died leaving behind his son Halim Sk and daughter

Munsera Bibi who inherited eight anas share of Erfan Sk in the present suit

property, as well as suit property of that suit, jointly. Subsequently said Halim

Sk and Munsera Bibi transfered their eight anas share in favour of plaintiff of

that suit, namely Newton Sk, Tomson Sk and Sabjar Sk, by a registered deed

dated 29.09.1999 and since purchase the aforesaid plaintiffs are possessing

eight anas share in the suit property. It was revealed that the heirs of Insan Sk,

had sold 01½ satak of land in favour of defendants. It also appeared that the

defendants No.1 to 4, that means Sahajahan Sk, Basar Sk, Barjahan Sk and

Rejjak Sk have manufactured a fraudulent deed which was allegedly executed

on 20.07.1999 and was registered on 08.11.1999 in respect of suit property

and they are falsely claiming that they have become owner of eight anas share

of Halim Sk and Munsera Bibi. Accordingly present petitioners as plaintiff of

that Title Suit 201/2001 had filed the said suit for a declaration that said deed

which was allegedly executed on 20.07.1999 and was registered on

08.11.1999, as fraudulent deed and also prayed for preliminary decree for

partition in respect of eight anas share in the suit property along with

injunction and other reliefs. In the said suit said defendant No 1 to 4 namely

Sahajahan Sk, Basar Sk and Barjahan Sk and Rejjak Sk filed written

statement contending that admittedly suit property originally belong to Insan

Sk and Erfan Sk, in eight anas share each and their names were duly recorded

in R.S. Record of Rights (RSROR). Subsequently Insan Sk died leaving behind

his wife Noseran Bibi and 5 daughters who inherited the same. After that by

way of family settlement Noseran Bibi got entire eight anas share left by Insan

Sk. Noseran Bibi while was in absolute possession in the same, executed and

registered a Hebanama deed on 22.05.1990 in favour of her eldest daughter

Jahannegar Bibi who became the owner of said entire eight anas share in the

suit property. On the other hand Erfan Sk died leaving behind Halim Sk and

Munsera Bibi, who jointly inherited eight anas share, left by Erfan Sk. While

said Munsera Bibi, Halim Sk and Jahannegar Bibi were in possession of the

suit property, they transferred 04 satak of land in favour of the said defendant

No. 1 to 4 namely Sahjahan Sk, Basar Sk, Barjahan Sk and Rejjak Sk.

Defendants subsequently raised construction therein and are possessing the

same. Said deed in favour of said defendants was executed on 23.07.1999 and

was registered on 08.11.1999. Said defendants believe that the plaintiffs of that

suit i.e. the petitioners, herein by way of false personification, have

manufactured the deed dated 29.09.1999 and had filed aforesaid Title Suit No.

201/2001 before the 2nd Munsif court at Rampurhat. Infact Munsera Bibi and

Halim Sk had never executed any deed in favour of plaintiffs on 29.09.1999.

Subsequently said suit was dismissed for default vide order No. 33, dated

06.09.2006.

3. Suppressing the said fact, father of present petitioners namely Jelahas

Sk filed present Title Suit No 81/2013, with an inconsistent pleading before

the Learned Civil Judge (Sr.Division), 2 nd Court, Rampurhat. Interestingly

Jelahus Sk primarily filed this suit against one Amir Sk and aforesaid Rejjak

Sk but subsequently on the basis of answer to the interrogatories, he has

impleaded his 3 sons that is present petitioners namely Newton Sk and

Tomson Sk and Mafjar Sk as defendants No. 3, 4 and 5 and three sons of

Rejjak Sk namely Sahjahan Sk, Barjahan Sk and Basar Sk as defendant No

13,14 and 15 along with other defendants. In the present Title Suit No.

81/2013 said Jelahus Sk that is the father of the present petitioners contended

that suit property originally belong to Insan Sk and Erfan Sk in eight anas

share each. Erfan Sk subsequently died leaving behind Abdul Halim and

Munsera Bibi, who inherited Erfan's eight anas share each. Munsera Bibi

subsequently transferred her share in favour of her brother Abdul Halim who

became the absolute owner of the property, left by Erfan Sk and his name was

duly recorded in the L.R. Record of Rights (LRROR). Subsequently Abdul Halim

transferred said 02 ½ Satak of land in favour of plaintiff that is Jelahus Sk by

registered deed dated 07.04.1999. Accordingly plaintiff's name also published

in the LRROR. He admitted that defendant No. 2 Rejjak Sk has constructed a

mud built house along with 'chala' in a portion of the joint property. In fact suit

property jointly possessed by plaintiff Jelahus Sk in respect of his 02 ½ satak

along with the defendants. Defendants are trying to encroach plaintiffs land by

making construction and for which plaintiff raised objection and requested for

making amicable partition of the suit property but the defendants have refused

to do the same and hence the suit for passing preliminary decree in respect of

plaintiff's 02 ½ satak share in the suit property. Though in the plaint it had

been stated by the plaintiff that the execution of deed in favour of the

defendants dated 20.07.1999 which was allegedly registered on 08.11.1999, is

a manufactured story but in the prayer portion of the present suit he has not

prayed for cancellation of said deed. Defendant 1 and 2 i.e. Amir Sk and Rejjak

Sk filed written statement in the present suit and it appears from the written

statement, that they have taken almost the same defence in the present suit,

that they had taken in the earlier suit i.e. Title Suit No 201/2001.

4. The interesting fact to be noted herein is that in Title Suit No.

201/2001 son of Jelahus Sk namely Newton Sk and Tomson Sk, Safjar Sk

claimed that Abdul Halim and Munsera Bibi transferred their eight anas share

in the suit property in their favour (and not in favour of their father Jelahus

Sk) by a registered deed which was executed and registered on 29.09.1999 but

conversely the father of aforesaid plaintiffs of Title Suit No. 201/2001, claimed

in present Title Suit No. 81/2013, that by a deed dated 07.04.1999 Abdul

Halim, who became absolute owner of 02 ½ satak of land, transferred his said

share in the suit property in favour of plaintiff Jelahus Sk and by that deed

dated 07.04.1999, plaintiff that is Jelahus Sk became the owner of 02 ½

satak of land and he clearly asserted that defendants have falsely claimed

that they have acquired title in respect of suit property by dint of any deed

which was allegedly executed on 20.07.1999 and was registered on

08.11.1999.

5. In the said suit one Ajim Ali deposed as PW1 and he has stated that

Abdul Halim has transferred his .02½ decimal share in favour of plaintiff

through the deed which was executed on 07.04.1999. Badal Sk son of Jelahus

Sk deposed as PW2 and contended that Abdul Halim, being the owner

transferred .02 ½ decimal of land in favour of Jelahus Sk which was

executed on 07.04.1999 and he further contended that original plaintiff

Jelahus Sk died leaving behind plaintiffs and defendant No. 3 to 5 and they

became owner and possessor of the suit property to the extent of 02 ½ satak.

He further stated that except defendant No 3 to 5 that means petitioners herein

and Mafjar Sk, no other person have any right, title, interest in the suit

property.

6. In the present suit defendant No 1 and 2 have brought aforesaid

Jahannegar Bibi, wife of late Halim Sk, as defence witness, and she has

stated that she along with her husband late Halim Sk and his sister

Munsera Bibi transferred .04 decimal of the suit property by dint of a deed

executed on 20.07.1999 and was registered on 08.11.1999 in favour of

defendant No. 2, 12, 13 and 14. Son of Rejjak Sk namely Basar Sk, who is

defendant herein also deposed and contended that Halim Sk and Munsera

Bibi and Jahannegar Bibi transferred their .04 decimal of land to defendant

No. 2 and his three sons, who are defendant No. 12,13 and 14.

7. From the aforesaid evidence it is clear that the defence of the principle

defendant i.e. Rejjak Sk, remains the same, but the version of the other side

changed in view of the fact that according to earlier Title Suit No. 201/2001

present petitioners became the owner of the suit property by registered deed

dated 29.09.1999 but in the present suit their father Jelahus Sk claimed that

he became the owner of the suit property by a registered deed dated

07.04.1999. Now according to the defendants both the deeds dated

29.09.1999 in favour of the petitioners herein and deed dated 07.04.1999 in

favour of the petitioner's father Jelahus Sk are forged deeds and on the

contrary plaintiffs contention is that the defendants' deed which was allegedly

executed on 23.07.1999 and was registered on 08.11.1999 is a forged one.

8. Be it also mentioned that after closure of evidence by both the parties the

present petitioners namely Newton Sk, Tomson Sk, have come up with two

petitions one for taken off the suit from the peremptory board and the other

for vacating the order of ex-parte hearing against said Newton Sk and

Tomson Sk, who are the sons of original plaintiffs Jelahus Sk and are

impleaded as defendant No 3 and 4 in the present case. It is also interesting to

note that their father Jelahus Sk has placed the present petitioners in the

category of defendants and it is again interesting to note that after the death

of Jelahus Sk, his son Newton Sk and Tomson Sk and Mafjar Sk remained in

the category of defendant and they were not substituted in place of original

plaintiff Jelahus Sk who was their father. As the said defendants No. 3 and 4

Newton Sk and Tomson Sk did not file written statement, the said suit was

posted for ex-parte hearing against them. By filing the aforesaid petitions the

petitioners herein had prayed for vacating the order of ex-parte hearing against

them and also for giving them an opportunity to contest by filing their written

statement .

9. Learned Trial Court after hearing, was pleased to observe by the

impugned order, that after the demise of Jelahus Sk, his one son namely

Badal Sk, one daughter Rashida Bibi and wife Hazira Bibi were substituted

as plaintiffs, but the other three sons of Jelahus Sk namely present petitioners

and Mafjar Sk remains in the defendant category out of which defendants No.

3 and 4 that is present petitioners wanted to contest the suit by filing written

statement. He further observed that their case is almost similar with that of

the present plaintiffs and further more they are legal heirs of Jelahus Sk

and as such he rejected the prayer for vacating order of ex-parte hearing

and instead transposed said defendants No 3 and 4, i.e. petitioners herein, as

plaintiffs in the suit.

10. In view of the aforesaid pleading in present suit and also evidence

adduced in the present suit, it is clear that the real dispute raised for

determination by the Trial Court is, whether principle defendants namely

defendant No. 2,12,13, and 14 have acquired title in the suit property by dint

of deed allegedly executed on 20.07.1999 and was registered on 08.11.1999 or

the original plaintiff Jelahus Sk acquired title by way of deed which was

allegedly executed on 07.04.1999 and was registered on 02.12.1999.

Accordingly, as per the present case if the deed dated 07.04.1999 which was

allegedly executed on 02.12.1999 stands, then all the legal heirs including the

present petitioners have stepped into the shoes of deceased Jelahus Sk and

their cannot have any conflicting interest in between present petitioners who

are defendant No. 3 and 4 with that of present substituted plaintiffs as both

are heirs of deceased Jelahus Sk. On the contrary if the said deed in favour of

Jelahus Sk is proved to be, not genuine before the Trial Court, then neither

the substituted plaintiffs, nor the present petitioners who are heirs of

Jelahus Sk, will have any case in this suit.

11. Needles to say that order 1 Rule 10(2) which deals with the transposition

of the parties from one category to other, clearly begins with the words " The

Court may at any stage of the proceedings, either upon or without the

application of either party.......", which implies that the court can also on its

own initiative, transpose a party from the category of defendants to the

category of plaintiffs for the purpose of complete adjudication of the questions

involved. The argument advanced by the Learned Counsel for the petitioners

that the court cannot suo moto transpose the defendants as plaintiff, in the

absence of any prayer, does not find any leg to stand. Only in cases where

plaintiff and defendants having conflicting case, such transposition cannot be

made unless plaintiff withdraws from suit. A person can very well be added as

co-plaintiff when he adopts plaintiffs case. Here, existing plaintiffs have also

not objected the transposition order passed by the Learned Trial Court.

Moreover, existing plaintiffs have no adverse interest with that of the

defendants No. 3 and 4 i.e. petitioners herein and the said petitioners have also

not filed any written statement with a specific pleading that the suit is liable to

be dismissed and as such I find nothing to interfere with the impugned order

passed by the Learned Trial Court, for reasons stated above.

12. The petitioners herein i.e. defendant No. 2 and 3 argued that if the

opportunity of filing written statement and to contest the suit, be not given to

them, their interest will be prejudiced. I find no substance in the aforesaid

contention. Firstly because in view of the aforesaid discussion it is apparent

that the petitioners have no conflicting interest with the others heirs of Late

Jelahus Sk, who are the present plaintiffs and secondly the present petitioners

as plaintiffs in Title Suit No. 201/2001 have already disclosed their case

against the self-same defendants in respect of the self same property.

Though the said Title Suit 201/2001 was dismissed but the averments made

by the petitioners therein shall remain and accordingly they cannot have any

new inconsistent defence for which they can get the opportunity to file written

statement or to contest against other legal heirs of Late Jelahus Sk.

13. C.O. No. 238/2019 is dismissed.

There will be no order as to costs .

Urgent photostat certified copy of this judgment, if applied for, be supplied to

the parties upon compliance with all requisite formalities.

(AJOY KUMAR MUKHERJEE, J.)