Monorama Roy & Ors vs Nilotpal Roy & Ors
2023 Latest Caselaw 2899 Cal

                     IN THE HIGH COURT AT CALCUTTA
                      CIVIL APPELLATE JURISDICTION
                             APPELLATE SIDE


Present:
Hon'ble Justice Soumen Sen
Hon'ble Justice Uday Kumar


                            FA 134 of 2007
                           CAN 8099 of 2010
                                 with
                CAN 5 of 2010(Old CAN No. 10725 of 2010)

                          Monorama Roy & Ors.
                                   Vs.
                           Nilotpal Roy & Ors.

For the Appellants            : Mr. Saptanshu Basu, Sr. Adv.,
                                Ms. Manali Biswas, Adv.,
                                Mr. Pritam Banerjee, Adv.

For the respondents           : Ms. Bhaskar Ghosh, Adv.

Mrs. Priyanka Jannas, Adv.

Hearing Concluded on          : 19th April, 2023


Judgment on                   : 25th April, 2023

Soumen Sen, J. : The appeal was heard along with the application

for amendment of the written statement. The appeal and the said

application are disposed of by this common judgment.

Briefly stated, the appellants are the legal heirs of one Sambhu Nath

Roy. The respondents are the legal heirs and representatives of one

Kamalakshya Roy, since deceased. The relationship between the parties

would appear from the following genealogical table:

Genealogical Table

Ishan Chandra Roy

Prasanna Chandra Roy

Ramchand Roy Kalachand Roy

Kashinath Roy Shambhu Nath Roy

Manorama Roy Shantanu Roy Nibedita Roy Dipankar Roy

Tarini Chandra Roy

Jogesh Chandra Roy Nibaran Roy

Kamalakshya Roy Jyotindra Mohini Roy

Nilotpal Roy Jagannath Roy Shibani Roy

Prasanna, Jogesh and Nibaran took settlement (Banda (Bandabosto) of the

suit property on 8th January, 1907 from the Government of India. The

Pattas were disclosed and marked as Exhibit 5. Prasanna Prasanna was having 8

Annas share whereas Jogesh and Nibaran both sons of Tarini have 4 annas

share each.

On the death of Prasanna his two sons Ramchand Roy and

Kalachand Roy inherited 8 annas share of their father each having 4 annas

share and recorded their names in C.S.R.O.R. The C.S.R.O.R published

during 1928-1930 would show their names.

Jogesh also died in the mean time and his 4 Annas share was

inherited by his only son Kamalakshya and he recorded his name in

C.S.R.O.R. The name of Nibaran was also recorded in C.S.R.O.R.

During 1931 and 1940 Ramchand Roy died as bachelor and his 4

annas share devolved upon his brother Kalachand who became 8 annas

owners of the suit property.

Nibaran Roy died by this time and his 4 annas share was inherited

by his widow Jyotindra Mohini Roy. Nibaran was issueless. In or about 1941

due to non-payment of Khajna (rent) a certificate case was initiated by the

government being no.73 of 1941-42 against Kalachand Roy representing 8

Annas share and Kamalakshya Roy representing 4 annas share. The said

property was put to auction. The State purchased the property in the said

auction sale. The sale was confirmed in favour of the State in 1941. The

State subsequently on 20th April, 1942 took symbolic possession of the

whole property through court including the share of Jyotindra Mohini.

Kalachand died thereafter leaving his two sons Kashinath Roy and

Shambhu Nath Roy. In 1952 Jyotndra Mohini Roy and Shambhu instituted

a Title Suit Being T.S. no.60 of 1954 against the State of West Bengal and

Kamalakshya Roy, praying inter alia, for cancellation of certificate of sale

and taking over possession by the State of the property as the sale was

allegedly vitiated by fraud. The State only contested the said suit. The said

suit was decreed on 10th July, 1957. Only the share of Jytindra Mohini to

the extent of 1/4th share of the suit property was declared not affected by

the sale as she was not served with the notice of the certificate case.

However, the claim of the plaintiffs no.2 and 3 being Kashinath and

Shambhu Nath was dismissed. Kashinath and Sambu Nath thereafter

preferred a Title Appeal being Title Appeal No.131 of 1957.

The appellate court by a judgment dated 7th May, 1960 dismissed the

Title Appeal and thereafter no second appeal was preferred and the

judgment and decree in the title suit being TS No.6 of 1954 attained finality.

In 1962 Jyotindra Mohini died issueless. On the basis of the

aforesaid declaration that she became the owner of 4 Annas share of the

property, the said share devolved upon Kamalakshya Roy the only son of

Jogesh Chandra Roy as Nibaran and Jyotindra Mohini died issueless.

Jogesh was the brother of Nibaran. In view thereof Kamalakshya became in

the owner of 4 Annas share of the suit property while the State remained the

owner of 12 Annas share in terms of the certificate sale.

On 3rd January, 1980 Kamalakhya died leaving behind Nilotpal Roy,

Jagannasth and Shibani. The original plaintiffs of the present partition suit

being Partition Suit No.296 of 1998 (renumbered as partition suit no.141 of

2002) claimed to have inherited 4 annas share jointly in the suit property

with Kamalakhya. The suit was originally filed against the State of West

Bengal only inter alia, claiming their 1/4th share in the suit property.

During the pendency of the suit on 23rd July, 2002 Shambhu Nath

Roy predecessor in interest in the present appellants was impleaded as the

defendant no.2 by the learned Trial Court pursuant to an application filed

on his behalf. On 29th October, 2003 on the death of Shambhu the present

appellants were substituted as defendants in place of Shambhu by the Trial

Court. The partition suit was decreed on contest in preliminary form on 17th

November, 2006. The learned Trial Court declared plaintiffs' 4 Annas share

in the suit property and 12 Annas share in favour of the Government.

The appellants did not get any share.

This has resulted in the present appeal.

During the pendency of the appeal the appellants filed an application

for amendment of written statement and a supplementary affidavit

disclosing the documents on which the appellants want to rely. In the

application for amendment of the written statement the appellants prayed

for insertion of paragraph 9A and 9B, after paragraph 9. The proposed

amendments are:

"9A. That Prasannas Chandra Ray, Nibaran Chandra Ray and Kamalakshyay Ray took loan of Rs. Five hundred from Harilal Sen son of Late Paresh Nath Sen and Brojendra Nath Sen, son of Late Sri Khanda Sen, both of Police Station-Berhampore, Berhampore Sub-registry, District- Murshidabad. by putting their landed properties which includes the suit properties in mortgage. The said Prassannas Chandra Ray and Kamalakshyay Ray could not repay the said loan as such the said Harilal

Sen and Brojendra Nath Sen filed a Mortgage Suit for realization of Rupees one thousand three hundred forty nine only and two annass six pai. The said Suit was decreed in preliminary form on July 8, 1918. However, in the final decree proceeding of the said Mortgage Suit when Kamalakshyay Ray raised objection against the sale of his four annass share in the properties in the said suit, a decree of sale was passed on the said Mortgage Suit on July 12, 1920 whereby the said Harilal Sen and Brojendra Nath Sen purchased the tweleve annass share of said Nibaran Chandra Roy in the properties involved in the said Mortgage Suit which includes the present Suit properties. Thus, the said Harilal Sen and Brojendra Nath Sen became the absolute owner of said twelve annass share of suit property.

9B. Thus, the said Harilal Sen and Brojendra Nath Sen in turn sold their said twelve annass share to Sailabala Chaoudhurani vide registered deed dated 21ST Magh, 1328 B.S. The said Sailabal Choudhurani while in possession and enjoyment in the said landed properties as the absolute owner thereof bequeathed the same in favour of Kalachand Ray, the predecessor-in-interest of the Defendant Nos. 2(Ka) to 2(Uma) by a registered deed of gift dated May 20, 1929. Thus, the said Kalachanda Ray became the absolute owner of twelve annass share of the suit properties."

The delay in filing the application for amendment of the written

statement and disclosure of documents to be treated as additional evidence

was explained in paragraph 8 of the supplementary affidavit. It reads:

"8.That after the death of said Shambhunath Roy, the Defendant No. 2, and during course of trial, we were in great financial crisis as such we had to take help from our relatives financially. During that time one uncle of our distant relation through our father who used to help ourselves financially, had a talk in the month of February, 2005 in connection with the partition suit in respect of our residential house between ourselves and the Respondents/Opposite Parties. The said uncle expressed his surprise contending, inter-alia, why the partition suit amongst yourselves' when the property has already been transferred by the sister of her grandfather, namely, Sailabala Choudhurani by executing a deed of gift in favour of said deceased Kalachand Roy. The said uncle also intimated us the approximate

year of the execution of the said deed. The said uncle at that point of time for the first time intimated us that the sister of our grandfather, namely, Sailabala Choudhurani had transferred the suit property by a registered deed of gift in favour of said deceased Kalachnda Roy and also intimated us the approximate year of the said gift deed. We thereafter on the basis of his verbal statement contacted the concerned Department of the office of the Berhampore Registry in the month of May, 2005, the said Department advised us to supply the particulars of the said deed as no particulars of the deed as stated by our uncle we are unable to supply the proper particulars of the said deed of gift and accordingly we are unable to lay our hand to the said deed of gift. We, accordingly time to time, contacted the said department. We ultimately, at the end of the year 2006 were intimated by the said department that similar type of deed in the name of said Sailabala Choudhurani of the year 1929 was detected. We accordingly contacted the said department and applied for certified copy of the said deed. We, however, in the month of May, 2007 collected the certified copy of the said deed dated May 20, 1929. We thereafter contacted the Learned Advocate before the Learned Trial Court and handed over the said certified copy of the deed dated May 20, 1929 who, in turn, advised us to collect the previous deed executed by Sri Harilal Sen and Brajendra Sen in favour of Sailabala Choudhurani and we ultimately obtained the certified copy of the said purchased deed in the month of May, 2008." (emphasis supplied)

Mr. Saptangshu Basu the leaned Senior Advocate appearing on behalf

of the appellants submits that it would appear from the recital of the sale

deed that the Sen brothers purchased the property in a mortgage suit

against Prasannas, Nibaran and Kamalakshya who apparently mortgaged

their shares but could not repay the mortgage loan and accordingly the

mortgage suit was filed in the year 1918 being Mortgaged Suit no.173 of

1918 and the said suit was decreed on 12th July, 1920.

Mr. Basu submits that Kamalakhsya raised objection against sale of

his 4 annas share and such objection was sustained. Accordingly,

Kamalakshya continued to become the owner of 4 annas share.

By virtue of such sale the Sen brothers became the owner of 12 annas

share, thereafter the Sen brothers sold their shares in favour of Sailobala by

a registered deed on 21st March, 1328 B.S. and thereafter Sailobala by

another deed of gift dated 20th May, 1929 transferred her share in favour of

Kalachand Roy.

Mr. Basu submits that these facts for the reasons stated above could

not be brought on record and an opportunity should be given to the

appellants to bring on record such materials and lead evidence to establish

their rights.

Mr. Basu submits that in the event the appellants are able to

establish the existence of the deed of sale by the Sen brothers in favour of

Sailobala and the deed of gift by Sailobala in favour of her brother Kalacand

then the present plaintiffs are not entitled to any declaration of share from

Jyotindra Mohini. It is submitted that once the mortgage suit was decreed

and the property was sold in execution of the mortgage decree Nibaran's

interest in the property stands extinguished. If Nibaran had not interest in

the property then Jyotindra cannot claim any interest in the property.

It is submitted that both the documents are registered documents and

it carries a high presumptive value. They are of more than 30 years old.

It is submitted that at the stage by considering application for

amendment of their written statement and for additional evidence the court

cannot decide on the evidentiary value of the said documents and if the

court is of the opinion that such amendment is necessary and the additional

evidence is required to be brought on record the matter should be left to the

discretion of the trial court with regard to the relevancy and evidentiary

value of the said documents on which the appellants are now seeking to

rely.

It is submitted that the appellants have made a definite statement in

the unamended written statement that Jyotindra had no interest in the suit

property, although not based on the aforesaid two documents. Now that the

documents are available which would show that Nibaran lost his share in

the property by virtue of mortgage sale the appellants may be allowed to rely

on the said two documents.

It is submitted that the amendment is required to be allowed as it goes

to the very root of the matter and it is not a defence which is unconnected

with the claim of the defendants in this written statement. The said

amendment is material and relevant and are required for fair and proper

adjudication of the disputes. Mr. Basu, in this regard, has relied upon the

following decisions:

i) Mr. Jacob Cherian v. Himanshu Kumr Mukherjee & Anr.

reported in 1993(1) CHN 21:

ii) Usha Balashaheb Swami & Ors. v. Kiran Appaso Swami &

Ors., reported in 2007(5) SCC 602:

iii) North Eastern Railway Administration, Gorakhpur v.

Bhagwan Das (Dead) By Lrs., reported in 2008(8) SCC 511.

Mr. Bhaskar Ghosh Senior Advocate appearing on behalf of the decree

holder has submitted that the application for amendment of the written

statement accompanied by a supplementary affidavit disclosing additional

evidence are misconceived and not in accordance with provisions of Order

41 Rule 23 of the Code of Civil Procedure. It is submitted that the appellant

has to establish that in spite of due diligence such evidence was not within

his knowledge or could not after the exercise of due diligence the said

documents could be produced. It is submitted that the appellants have

failed to comply with the pre-requisites for accepting additional evidence.

Mr. Ghosh relying upon the explanation offered in the application for

additional evidence has submitted that it was alleged by the appellants that

they came to know of the existence of the said two documents from an uncle

whose name was never disclosed and if such statement is even accepted

they could have taken out an appropriate application before the trial court

bringing such facts on record. The suit was decreed much after such alleged

date of knowledge with regard to the existence of the said two documents.

Moreover, in 1941 the predecessors of the appellants along with Jyotindra

Mohini filed a suit being Title Suit No.60 of 1954 against the State of West

Bengal for cancellation of the certificate sale and in the said proceeding

while Jyotindra Mohini succeeded in restoring her 1/4th share in the suit

property the predecessors of the appellants have lost the suit and the decree

was not disturbed in the appeal.

Mr. Ghosh submits that if there were any genuine attempt to establish

their rights the appellants could have disclosed in the plaint in the mortgage

suit and the decree passed therein as the deed of sale or the deed of gift by

themselves cannot prove that Nibaran had lost his interest in the suit

property in view of the decree passed on 10th July, 1957 declaring 1/4th

share in favour of Jyotindra Mohini.

It is submitted that in the event this amendment is allowed at this

stage, it would completely unsettle the judgments passed earlier and the

shares of the parties and would cause serious prejudice to the

plaintiffs/decree holders.

The issue we are now required to decide is whether we should allow

this application for amendment of the written statement by allowing

additional evidence. There cannot be any doubt that in the event this

application for amendment is not allowed with the additional evidence the

judgment passed by the trial court is perfect and conclusive.

The material and evidence on record show that the appellants were

aware of the existence of the suit filed by Kashinath, Shambhu Nath and

Jyotindra Mohini against the State of West Bengal and Kamakhya if not

earlier by the time when the decree passed in T.S No. 60 of 1954 was

disclosed and marked as Exbt.1. The decree was passed on 10th July, 1957

declaring 1/4th share of Jyotindra Mohini which would remain unaffected by

the certificate sale. The decree of the appellate court dated 7th May, 1960

dismissing the appeal filed by the State was disclosed. The appellate decree

dated 7th May, 1960 was marked as Exbt. 6. On such disclosures being

made the appellants were immediately put to notice.

It is unbelievable that the predecessors of the present appellants were

unaware of the existence of the said documents, if they were at all material,

by virtue whereof Kalachand the father of Kashinath and Shambhu claimed

to become the owner. Jyotindra continued to remain owner of 4 annas share

and after her death the plaintiffs are now entitled to claim her share.

Mr. Basu has submitted that Kamalakshya had 4 annass share as he

had objected to the mortgage sale. We presume that it is a certificate sale

but there is nothing on record to show Kamalakshya had 4 annass share in

the property as according to Mr. Bose the mortgage suit was filed against

Prasanna, Nibaran and Kamalakshya in which a decree was passed on 12th

July, 2020. If we assume that the share of Prasannas and Nibaran were sold

then Kamalakshya had 4 annass share. He may still continue to have 4

annas share. In view of the decree passed in title suit no.60 of 1954 the

present plaintiffs as legal heirs of Nibaran are entitled exclusively to the

share of Jyotindra Mohini who died issueless.

Mr. Basu wants us to believe and accept that the suit filed by the

predecessors of the appellants along with Jyotindra Mohini was a collusive

suit.

There was no evidence on record to show that the suit filed by their

predecessors with Jyotindra Mohini was collusive. In fact, by reason of

declaration of share in favour of Jyotindra Mohini on 10th July, 1957 the two

documents on which reliance are now intended to be placed by way of

additional evidence lost its efficacy. The declaration of share in favour of

Jyotindra Mohini was never challenged in any subsequent proceeding. She

continued to remain the owner of 1/4th share in the suit property. The Court

cannot allow mechanically an application for additional evidence when the

court does not find such documents to be necessary or relevant in deciding

the dispute between the parties.

The acts and conduct of the predecessors of the appellants are binding

on the appellants and they cannot turn around and contend at this stage

that the said suit of 1954 was collusive in which their predecessors lost,

however, Jyotinda Mohini's right was declared. Since the appellants have

filed an application for additional evidence the court would have expected

them to disclose the plaint in the mortgage suit or the mortgage decree as

the court cannot mechanically allow the application for additional evidence

without forming at least a prima facie view that the said documents are

necessary for proper adjudication of the disputes between the parties.

The power under Order 41 Rule 23 is discretionary and is required to

be exercised judicially and with circumspection and only on satisfaction that

the pre-requisite conditions provided under Rule 27 are fulfilled. The

applicants have themselves admitted that they came to know of the

existence of documents in February, 2005 whereas the suit was ultimately

decreed on 7th November, 2006. With due diligence the appellants could

have produced the said documents, if they were sure that such documents,

are necessary and relevant in deciding the suit in their favour. The

explanation for delayed disclosure as stated in paragraph 8 of the petition is

difficult to believe and accept. The name of the uncle has been conveniently

kept undisclosed. On the contrary, it gives an impression that they want to

delay the final decree proceeding.

On such considerations we do not find any reason to interfare with the

order passed of the learned Trial Court. The preliminary decree is affirmed.

The application for amendment of the written statement is dismissed.

However, there shall be no order as to costs.

      I agree                                    (Soumen Sen, J.)


      (Uday Kumar, J.)