Kenaram Pramanick vs Shital Betal & Ors
2022 Latest Caselaw 1122 Cal

              IN THE HIGH COURT AT CALCUTTA
                CIVIL REVISIONAL JURISDICTION
                            APPELLATE SIDE


Present:

The Hon'ble Justice Ajoy Kumar Mukherjee.

                            C.O. No. 220 of 2019
                             Kenaram Pramanick
                                     Vs.

                              Shital Betal & Ors.

                            (Via Video Conference)

For the petitioners:          Mr.Mahammad Mahmud
                              Mr. Sk.I. Alam
                              Mr. Pinaki Das

For the opposite parties:     Mr. Nilanjan Bhattacharjee
                              Mr. Arpan Guha



Heard on:                     03.02.2022



Judgment on:                  10.03.2022



Ajoy Kumar Mukherjee, J.

1. Being aggrieved and dissatisfied with the order dated January 4 th 2019,

passed by the Learned Civil Judge (Junior Division), 4 th Court, Howrah in Title

Suit No. 235 of 2013, present petitioner/plaintiff preferred this Revisional

Application under Article 227 of the Constitution of India. By the impugned

order learned Trial Court was pleased to reject plaintiff's prayer for recalling

plaintiffs' witness No.1.(PW1).

2. Plaintiffs' case in a nutshell is that plaintiffs instituted Title Suit No. 235

of 2013 contending inter alia that the schedule mentioned suit property to the

plaint, belonged to Shib Chandra Pramanick and Ananta Kumar Pramanick

and while they were in absolute possession of the same, they sold it to Atul

Chandra Pramanick and Anukul Chandra Pramanick by registered deed dated

28th February,1970. After purchase they got possession and while they were in

possession, they sold the said suit property to the plaintiff by executing deed

dated 01.02.1975 and delivered possession to the plaintiff and since then

plaintiff is in absolute possession of the same. During L.R. attestation, the suit

schedule property was recorded in the name of plaintiff but in the final

publication, 12 decimal of land in plot No. 414 was wrongly recorded in the

name of Atul Chandra Pramanick and taking advantage of erroneous recording,

Atul Chandra Pramanick and his agents and legal heirs of Anukul Chandra

Pramanick are trying to take forcible possession of the said schedule property

and in this connection two cases being Title Suit No. 163 of 2005 and Misc

Case No. 14 of 2010 are still pending before the learned Civil Judge (Junior

Division), 4th Court, Howrah. During pendency of the aforesaid Misc Case No.

14 of 2010 in connection with Title Suit No. 163 of 2005, Atul Chandra

Pramanick since deceased, allegedly executed a power of attorney in favour of

defendant No. 2 to 5 and on the basis of said power of attorney defendant No.2

to 5 on behalf of Atul Chandra Pramanick executed a deed of sale in favour of

defendant No.1 on 18.11.2005, but the plaintiff was not aware about the said

deed. Few months back, some persons with vested interest along with

defendants came to the suit plot and claimed that they have purchased 13.5

decimal of land in plot No. 414 and are threatening that they would dispossess

the plaintiff from the schedule mentioned suit property. Atul Chandra

Pramanick, since deceased, executed the said deed by exercising fraud,

misrepresentation, undue influence and said deed was never acted upon. So,

the plaintiff filed the said suit for declaration and permanent injunction.

3. The defendants No.1 contesting the said suit by filing written statement

and denied all material allegations and contended inter alia that the plaintiff

already sold out his property so he has no right title interest in the property

and as such defendant prayed for dismissal of the suit. In the said suit

evidence of plaintiff i.e. PW1 & 2 are completed and the evidence on behalf of

DW1 is also completed.

4. When the cross examination of defendant was going on, it was found that

some necessary fact regarding the purchase of the property by Atul Chandra

Pramanick from Shiv Shankar Pramanick and Ananta Kumar Pramanick, by

deed of sale dated 28.02.1970 are required to be proved by recalling the PW1

and without taking into cognizance about the said two deeds, the actual right

title of the parties cannot be determined and the suit cannot be properly

adjudicated.

5. It has been contended by learned counsel for the appellant that for the

purpose of incorporating the details of said two deeds in the plaint, plaintiff

filed an application for amendment under Order VI Rule 17 of Civil Procedure

Code (C.P.C.) and learned Trial Court after hearing both the parties rejected the

said amendment application on 23.11.2017. Challenging the said order,

plaintiff/petitioner filed a revisional application being C.O. No. 255 of 2018

before this court, which is heard along with this application.

6. Defendant/respondent filed a written objection against plaintiff's said

application for recalling PW1 and denied all material allegations and contended

that the plaintiff illegally trying to produce the said documents, in order to

exhibit the same and this application has been filed only to delay the

proceeding and therefore, prayed for rejection of said application. Learned Trial

Court after hearing both the parties, was pleased to reject the plaintiff's prayer

for recalling PW1 by passing the impugned order dated 04.01.2019, with the

observation that at the time of adducing evidence as DW1, defendant No.1 had

failed to produce the deed for the order 1978 and the defendant No1 is

supposed to face the outcome of non-production of the said deed and for this

purpose, PW1 is not required to be recalled to prove said deed No. 792 for the

year 1978 and in respect of the deed no. 737 for the year 1972, learned Trial

Court held that said deed no. 737 has not been relied upon by either of the

parties in their respective pleadings and though reference has been made in

respect of the deed No. 739 for the year 1970, but no reference has been made

about deed No. 737 for the year 1970 in the plaint.

7. Being aggrieved by the said order dated 04.01.2019 plaintiff /appellant

preferred this revisional application on the ground that both the deeds being

No. 737 and 792 relate to the suit property and court is required to take

cognizance upon the said two deeds for determining the real issue in

controversy and for proper adjudication of the suit. Deed number has been

wrongly typed in the said recalling application as "739" instead of "737".

8. At the time of hearing learned counsel for appellant submits that plaintiff

all along pleaded that Shiv Chandra Pramanick and Atul Chandra Pramanick

were the original owners of the suit property and they sold the same in favour

of Atul Chandra Pramanick and Anukul Chandra Pramanick by registered deed

dated 28.02.1970 and said Atul Chandra Pramanick sold the suit property in

favour of the plaintiff by deed dated 01.02.1975. On perusal of the copy of the

deed dated 01.02.1975 it appears that there is reference about the deed dated

28.02.1970 but the plaintiff could not collect certified copy of said deed, though

said deed is very much relevant for adjudication of the case. Now the plaintiff

has collected the certified copy of the said deed No. 737 dated 28.02.1970

which is necessary to be produced for marking it exhibit, reference of which

has been made in the plaint. Similarly in order to show that defendant did not

acquire title by dint of deed No. 792 for the year 1978, said deed is also

required to be proved.

9. Respondents' points for objection is that defendant No. 1 filed his

written statement on 31.03.2014 and since then till 10.12.2018, the plaintiff

did not intend to produce the said documents. Their further case is that

plaintiff previously on 11.07.2017 filed one application under Order VI Rule 17

read with section 151 of the Code of Civil Procedure for amendment of plaint

wherein plaintiff alleged that the defendants fraudulently procured a sale deed

from Atul Chandra Pramanick and said alleged sale deed for the year 1978 is

void, due to the reason that no permission was obtained from the learned

District Judge , Howrah. Upon contested hearing the said application for

amendment was rejected and thereby the plaintiff being estopped from

production of such document because the same is beyond pleading of the

plaintiff. Further contention of the respondent is that either in the plaint or in

the written statement there is no whisper in connection with any sale deed

bearing no. 737 for the year 1970 and accordingly without any pleading to that

extent, court has no jurisdiction to exhibit the said document by recalling the

PW1 and he has filed the present application only to drag the proceeding.

10. Both the parties claim that they have derived their title from Atul

Chandra Pramanick and in view of the fact as discussed in C.O. No. 255 of

2018 prayer for amendment has been allowed in connection with deed dated

28.02.1970 in the name of Atul Chandra Pramanick and Anukul Chandra

Pramanick, and as such plaintiff's prayer for recalling PW1 is required to be

allowed only to prove that deed dated 28.02.1970. However, plaintiff prayer for

recalling PW1 to prove defendant's deed No. 792 for the year 1978 is rejected,

in view of the fact that said portion of amendment was disallowed by a

competent the court earlier and as such it is barred. In this context I am

agreeable with the observation made by the trial court that deed No. 792 for

the year 1978 was relied upon by the defendant in support of his case but at

the time of adducing evidence defendant did not produce the same and as

such, outcome of non production of the sale deed by defendant No.1 shall be

adjudged at the time of final of hearing of the suit and for that purpose PW1 is

not required to be recalled.

11. In view of above C.O. 220 of 2019 is allowed in part. Plaintiff will be at

liberty to recall the PW1 to prove deed dated 28.02.1970 but plaintiff is not

allowed to recall PW1 to prove defendant's deed number 792 for the year 1978.

If the PW1 is recalled as above, learned Trial Court will give opportunity to the

defendant to cross examine plaintiffs witnesses and defence witness will also

get the opportunity to adduce evidence in connection with aforesaid admission

of deed No. 737 dated 28.02.1970 in evidence , if any.

12. C.O. No. 220/2019 is allowed in part.

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.

Let the copy of the order be send to the Learned Civil Judge (Junior Division),

4th Court, Howrah.

(AJOY KUMAR MUKHERJEE, J.)