Sunil Kumar Bhattacharya & Ors vs Amaresh Acharya & Ors
2023 Latest Caselaw 2503 Cal

12.04.2023 SL No.7 Court No.8 (gc)

SAT 134 of 2015 CAN 1 of 2015 (Old No: CAN 3713 of 2015)

Sunil Kumar Bhattacharya & Ors.

Vs.

Amaresh Acharya & Ors.

The appellants are not represented, nor any

accommodation is prayed for on behalf of the appellants.

The appeal is of the year 2015. The matter initially

appeared in the Warning List on 6th March, 2023 and

thereafter transferred to the Regular List on 21st March,

2023. Since then the matter is appearing in the list. The

appellants have due notice about the listing of the matter.

It appears from the report of the Stamp Reporter

dated 30.03.2015 that the appeal was preferred with

defects. Till date, the defects have not been removed. We

could have dismissed this second appeal for non-removal

of defects. However, we have read the judgment of the

Trial Court as well as the First Appellate Court and the

grounds of appeal in order to find out whether the second

appeal involves any substantial question of law.

The second appeal is arising out of the judgment

and decree dated 20th November, 2014 passed by the First

Appellate Court affirming the judgment and decree of the

Trial Court dated 30th May, 2007 in a suit for declaration

of title and permanent injunction. The learned Trial Judge

dismissed the suit as the plaintiffs were unable to prove

its right, title or possession in respect of the suit property.

In arriving at the said decision, the learned Trial Court

has taken into consideration that certified copy of the

order of T.S. No.165/83 is marked as Exhibit-A, certified

copy of the decree of T.S. No.165/83 is marked as

Exhibit-A/1. The certified copy of warrant to the bailiff to

the delivery of possession of the land in Title Execution

Case No.6/92 marked as Exhibit-A/2 and the written

statement in T.S. No.165/83 marked as Exhibit-A/3

conclusively proved that the title over the suit plot No.621

is in favour of the defendants. The plaintiff deity has

prayed for declaration of title over the plot Nos.621 and

622. However, from the documents disclosed in the said

proceeding it was clearly established by reason of the

aforesaid documents and evidence that the title in respect

of the suit plot No.621 was directly and substantially in

issue in T.S. No.165/83 and having regard to the decision

in the earlier suit followed by delivery of possession in the

execution proceeding. The plaintiff cannot have any claim

in respect of the said plot. It is barred by res judicata.

The learned Appellate Court has also relied upon Order 21

Rule 99 to 101 in rejecting the submission made on behalf

of the appellant deity that the said provisions would not

be applicable as the deity was not a party in the T.S.

No.165/83 or in Title Execution Case No.6/92. The

instant title suit was filed in the year 2002 when the

bailiff delivered possession of the land in favour of the

defendants in Title Execution Case No.6/92 marked as

Exhibit-A/2. It was opposed or objected to by the

appellants. If they were in possession and had any right

over the suit property, they would have available the

provisions referred to by the learned Appellate Court or

filed a suit for declaration that the said decree is not

binding or obtained by fraud. Had there been any

proceeding initiated under Order 21 Rule 97 and 99, the

Executing Court could have decided the title of the

plaintiffs in the said proceeding.

Although the principle of res judicata may not apply

in the instant case having regard to the fact that the deity

was not a party in the earlier suit but the deity had

adequate knowledge when the possession was delivered

by the bailiff in favour of the defendants in the year 1992

and the suit was filed only in the year 2002 for a

declaration of title and permanent injunction. The

plaintiffs did not resist the execution of the said decree.

The question of title ought to have been raised by filing an

application under Order 21 Rule 97 to 99 and moreover it

is clear from Section 101 of the Code of Civil Procedure

that all questions including the questions relating to right,

title and interest in the property arising between the

parties to a proceeding of an application made under Rule

97 or Rule 99 or the relevance to the adjudication of the

application shall be decided by the Court dealing with the

application and not by a separate suit.

Under such circumstances, we do not find any

reason to interfere with the order passed by the learned

Trial Judge and since affirmed by the First Appellate

Court.

Accordingly, the second appeal stands dismissed at

the admission stage.

In view of dismissal of the second appeal at the

admission state, the connected application also stands

dismissed.

However, there shall be no order as to costs.

(Uday Kumar, J.)                       (Soumen Sen, J.)