Calcutta High Court (Appellete Side)
Khudiram Tentulia & Ors vs Ar Narayan Chandra Roy & Ors on 26 July, 2022
12 26.7.2022 SA 84 of 2022
Ct-08
with
I.A No. CAN 1 of 2017(Old No. CAN 9434 of 2017)
Khudiram Tentulia & Ors.
Vs.
ar Narayan Chandra Roy & Ors.
Mr. Pinaki Ranjan Mitra
Mr. Asoke Nandy
.... For the Appellants
Re: CAN 1 of 2017(Old No. CAN 9434 of 2017)
(Substitution)
This is an application for substitution filed
consequent upon the death of the appellant no.
1, namely, Khudiram Tentulia, who died
intestate on 11th July, 2017 during the pendency
of the appeal, leaving behind him the heirs and
legal representatives, as described in the cause
title of the said application.
After hearing the learned counsel appearing
for the appellants and considering the fact that
the heirs and legal representatives of the
deceased appellant no. 1 are major and sui juris
and the right to sue and be sued survives in
favour of such heirs mentioned in this
application, we allow the application for
substitution and direct substitution of heirs and
legal representatives of deceased appellant no. 1,
as described in the cause title of the said
application in stead of and in place of the
deceased appellant no. 1 in the appeal.
The application being CAN 1 of 2017(Old No.
CAN 9434 of 2017) is thus allowed without any
order as to costs.
Office shall carry out the necessary
amendments in the cause title of the
Memorandum of appeal, as indicated
hereinbefore within one week from date.
Now we take up the appeal for admission.
The appeal has arisen out of the judgment
and decree dated 31st May, 2016 passed in Title
Appeal No. 40 of 2015 by the learned Additional
District Judge, Fast Track, First Court,
Burdwan, affirming the judgment and decree
of 2008 by the learned Civil Judge (Junior
Division), Third Court, Howrah.
The plaintiffs filed a suit praying for a decree
of declaration of title and cancellation of
registered sale deed being no. 2077 dated 26th
March, 1969 in respect of the property
mentioned in the schedule of the plaint of Title
Suit No. 85 of 2008.
The Trial Court dismissed the suit on the
ground of limitation and non-joinder of
necessary parties. The Trial Court noticed
various discrepancies in affidavit-in-chief of
Khudiram on material facts. The plaintiffs relied
upon certified copy of CS record of rights of
Khaitan No. 904 (Exhibit-1). From which it
appeared that the name of Kitti Bas Tentule was
recorded as raiyat stititban in respect of plot no.
623, measuring area of 20 decimals of bastu
land and plot no. 625 measuring 39 decimals are
of pond and one rent receipt dated 12th
February, 2009 (Exhibit-2) showing deposit of
rent by Khudiram Tentule in the name of
Nibaran Tentule as raiyat in respect of 11
decimals of land of khaitan no. 432. Besides suit
plot nos. 623 and 625, the plaintiffs did not file
any paper showing their title in respect of other
plots.
The documentary evidence produced by the
defendants, namely Exhibits A to G would show
the devolution of title and description of land
amongst the various defendants.
The plaintiffs alleged that the said deed was
fraudulently obtained and is required to be
declared null and void. Gyanedra was taken to
Registry office under misrepresentation that a
power of attorney would be registered and then
the sale deed was executed without payment of
consideration. It is very important that in a suit
for cancellation of a document, the plaintiff has
to establish the date of knowledge of such
document. This is vital that in the instant case
the document was executed in the year 1969 and
the suit was filed in 2008. The plaintiffs were
unable to show as to when they came to know
about the existence of document and/or its
contents. Even if, the document is within the
knowledge of the plaintiffs and the plaintiffs have
reason to believe that the existence of such
document might interfere with their right, it is
for them to make an enquiry as to the existence
of the document and its contents. The
registration of a document itself is a public
notice. The plaintiffs cannot sleep over their
right. Moreover, third party interest would
accrue in between.
The concurrent findings on facts not being
perverse and both the courts below dismissed
the Title Suit and Title Appeal, we do not find
any reason to admit the second appeal.
The second appeal is, therefore, summarily
dismissed under Order XLI Rule 11 of the Code
of Civil Procedure.
(Siddhartha Roy Chowdhury,J.) (Soumen Sen, J.)
