Calcutta High Court (Appellete Side)
Sg Ct. 8 Amar Mondal & Ors vs Sushanta Mondal & Ors on 10 May, 2022
SAT 161 of 2019
Item-1 10-05-2022 CAN 1 of 2019 (old CAN 6728 of 2019)
sg Ct. 8 Amar Mondal & Ors.
Versus
Sushanta Mondal & Ors.
Mr. Buddhadev Ghosal, Adv.
Mr. Souvik Nandy, Adv.
...for the appellants
Mr. Pankaj Halder, Adv.
Mr. Sanaan Panja, Adv.
Mr. Tapas Manna, Adv.
...for the respondents
By consent of the parties, the appeal and the application
are taken up together and disposed of by this common order.
The dispute is between the three sons of Ghanashyam
Mondal. The learned Trial Court, on appreciation of fact and law
and on consideration of the evidence on record, declared the
share of the plaintiffs to the extent of 22.66 decimals of land in
'ka' schedule property and 16.66 decimals of land in the first
part of 'kha' schedule property and the rest land is hereby
declared in favour of the defendants as per their share.
The present appellants are the aggrieved sons of
Ghanashyam Mondal, who claimed ownership and/or share in
respect of property situated in Fulsara Mouza. It appears from
the impugned order that the appellants had made a categorical
assertion that they have acquired the property situated at Fulsara
Mouza from Gourmohan Sarkar by way of "Bandobasta" and the
said property should be excluded from the hotchpotch to claim
exclusive ownership over the suit property. However, the learned
Advocate appearing on behalf of the plaintiffs before the
Appellate Court by producing two documents being Exhibit-2
and 2A demonstrated that the name of Mahendranath Mondal in
CS plot nos. 3210 and 3211 was recorded as raiyat and since the
name of Mahendranath Mondal has been recorded in that CS
record and the names of his other two sons namely, Satish Ch.
Mondal and Nagendranath Mondal have been recorded in the
three successive record of rights, the right of the plaintiffs in
respect of the suit property is not excluded. It was also the
contention of the learned Advocate for the respondents/plaintiffs
that mere non-recording of the name of Ghanashyam Mondal in
those record of rights being the son of Mahendranath Mondal
does not disentitle the plaintiff to claim share over the suit
property.
The learned First Appellate Court on consideration of the
respective submissions arrived at a finding that there is a tacit
admission by the appellant that Ghanashyam is the son of
Mahendranath Mondal and in the record of Shimulipara Mouza
it was also revealed that Satish is one of the sons of
Mahendranath. However, in view of the objections raised by the
appellants before the learned First Appellate Court asserting the
fact of acquiring property by other two sons of Mahendranath
Mondal i.e. Nagendranath and Satish and keeping in view that it
is within the knowledge of the appellant how they acquired the
said property by Bandobastha from Ghanashyam. The matter
needs deeper consideration.
We feel that on the basis of the records available before
the learned First Appellate Court, the issues on which the matter
was remanded to the learned Trial Court could have been
decided by the learned First Appellate Court itself. On the basis
of the oral and documentary evidence, there is no fresh evidence
that are required to be taken by the learned Trial Court for
deciding either of the issues on which the remand order was
ultimately passed. Even the order of the learned First Appellate
Court does not clearly specify the extent to which the appeal was
partly allowed. It may be at the end of the day a pyrrhic victory
of the decree-holder/plaintiff as it would be difficult even for the
Court to draw up a decree on the basis of the order of the learned
First Appellate Court.
In a recent judgment, the Hon'ble Supreme Court in
Nadakerappa Since Deceased by LRS. & Ors. Vs. Pillamma
Since Deceased by LRS. & Ors. decided on 31 st March, 2022
(Civil Appeal Nos.7657-7658 of 2017) has clearly stated that an
order of remand cannot be passed as a matter of course. An
order of remand cannot also be passed for the mere purpose of
remanding a proceeding to the lower court. An endeavour has to
be made by the Appellate Court to dispose of the case on merits
and more so, when both the sides have led oral and documentary
evidence, the Appellate Court has to decide the appeal on merits
instead of remanding the case to the lower court. The relevant
observations are in Paragraph 25, which state:-
"25.The Division Bench, without assigning any cogent
reasons, has set aside the order of the learned Single Judge
and has remanded the matter to the Land Tribunal. It is
settled law that the order of remand cannot be passed as a
matter of course. An order of remand cannot also be
passed for the mere purpose of remanding a proceeding to
the lower court or the Tribunal. An endeavour has to be
made by the Appellate Court to dispose of the case on
merits. Where both the sides have led oral and
documentary evidence, the Appellate Court has to decide
the appeal on merits instead of remanding the case to the
lower court or the Tribunal. We are of the view that, in the
instant case, the Division Bench has remanded the matter
without any justification."
On such consideration, we do not find any reason to
interfere with the order of the learned First Appellate Court for
remand the matter to the learned Trial Court for writing a fresh
judgment. On such evidence as observed earlier, it was open for
the learned First Appellate Court to form its own opinion and
write a judgment.
On such consideration we allow the appeal. The order of
remand is set aside.
The learned First Appellate Court is directed to re-hear
the appeal and write a fresh judgment on the basis of the
evidence and materials already on record.
We request the learned First Appellate Court to dispose
of the appeal as early as possible, preferably within a period of
six months from the date of communication of this order by
either of parties without granting any adjournment to either of
the parties unless it is unavoidable and subject to the
convenience of the learned First Appellate Court.
The Appeal being SAT 161 of 2019 and the application
being CAN 1 of 2019 (CAN 6728 of 2019) are accordingly,
disposed of.
Urgent photostat certified copy of this order, if applied
for, be supplied to the parties upon compliance of all requisite
formalities.
(Sugato Majumdar, J.) (Soumen Sen, J.)
