Calcutta High Court (Appellete Side)
Sri Bisnupada Kamillya vs Sri Debabrata Sen & Ors on 11 December, 2023
Author: Harish Tandon
Bench: Harish Tandon
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Harish Tandon
&
The Hon'ble Justice Prasenjit Biswas
FA 78 Of 2021
Sri Bisnupada Kamillya
-Versus-
Sri Debabrata Sen & Ors
For the Appellant : Mr. Asit Baran Raut, Advocate
Mr. Nirmalendu Patra, Advocate
Mr. Gautam Das, Advocate
Mr. Debnarayan Patra, Advocate
For the Respondents : Mr. Soumik Ganguly, Advocate
Mr. Dilip Kumar Sandhu, Advocate
Mr. Avik Kumar Das, Advocate
Hearing concluded on : 03.10.2023
Judgment on : 11.12.2023
Prasenjit Biswas, J:-
1. The instant appeal is preferred challenging the impugned judgment
and decree dated 31.03.2014 and 09.04.2014 passed by the learned Trial
Court in connection with Title Suit No. 25/2008 (previously Title Suit No.
119 of 2003) whereby and where under learned Trial Court decreed the suit
for partition in respect of the scheduled properties.
2. Being aggrieved by and dissatisfied with the impugned judgment and
decree the present appellant has preferred this appeal.
3. It is not disputed that R.S recorded tenant Narendra Nath Das was
the original owner of the suit properties. It is the case of the plaintiff that
the said Narendra Nath Das had two wives and his first wife died long back.
After the death of his first wife Narendra Nath married with Sanaka alias
Sanki for second time and out of their wedlock they were blessed with three
sons and three daughters. Narendra Nath had also one daughter out of h is
first marriage. After demise of Narendra Nath Das on 18.02.1960 his
property was devolved upon his daughter Bhabani who was born out of his
wedlock with the first wife and three sons and three daughters who were
born out of wedlock with his second wife Sanaka alias Sanki. So, all the
heirs/legal representatives of Narendra Nath Das inherited 1/18 th share
each in the suit property.
4. The second wife of Narendra Nath Das died on 10.03.1980 and her
respective share was devolved upon her three sons and three daughters and
they became the owner of 7/48 th share each. Bhabani, the daughter who
was born out of wedlock of the first marriage of Narendra Nath Das and
inherited 1/8th share in the suit property subsequently died and her share
was devolved upon her one son Parameswar and one daughter namely,
Jahnnabi and they subsequently transferred their shares to the plaintiff by
dint of two sale deeds which were marked as Exhibits 9 and 10 by the Trial
Court. Thereafter, Parbati and Gouri- two daughters of the said Narendra
Nath Das transferred their shares in respect of the suit property in favour of
their brother Adwayta Kumar Das by virtue of two registered deeds of sale
on 13.07.1984 and 19.07.1984. Subsequently, Adwayta sold his share to
one Sushanta Kamila by deed No. 2898/85 which was marked as Exhibit 6
in the case and the said Susanta sold it to the plaintiff by dint of two deeds
(Exhibit 7). Plaintiff also purchased the shares of Bandana and Anjana who
are the daughters of Basanti (one of the daughters of Narendra Nath Das). It
is the case of the plaintiff that during pendency of the suit Radhagobinda
(defendant No. 2), one of the sons of Narendra Nath Das executed two
agreements for sale in favour of the plaintiff in respect of his share in the
case property and as he failed to executed the deed of sale in terms of
agreement for sale, the plaintiff filed a suit for specific performance of
contract which was decreed by the Court and the deed of sale was executed
in favour of the plaintiff through Court in Execution Case No. 4 of 2007.
Plaintiff also purchased the share of Dulal Das who is one of the sons of
Narendra Nath Das by virtue of registered deed of sale on 22.12.2010.
5. Parbati Shaoo and Gouri Rani Patra, two daughters of Narendra Nath
Das sold their shares in favour of this appellant by virtue of Exibit A. This
appellant as defendant No. 1 entered appearance before the Trial Court and
filed written statement by taking specific plea that the said Narendra Nath
Das never married for the first time and as such Bhabani was/is not of his
daughter and consequently, Parameswar and Jahnabi son and daughter by
Bhabani and the vendors of the plaintiffs are not the heirs or legal
representative of R.S recorded tenant Narendra Nath Das. It is also denied
about the possession taken by the plaintiff through Court in connection
with title execution case being No. 4 of 2007. It is the specific case of this
appellant that the suit property has already been partitioned by metes and
bounds and he is possessing his respective share in the North -West portion
of the suit plot.
6. After appreciating the evidences both oral and documentary and on
hearing the parties the Trial Court decreed the plaintiff's suit for partition.
Aggrieved by the judgment and decree defendant No. 1 as appellant
preferred this appeal on diverse grounds. It is stated by the appellant that
the learned Trial Court acted illegally and committed an error apparent on
the face of the record that the oral evidences tendered on behalf of the
respondent had no personal knowledge of the date of alleged first marriage
of the R.S recorded tenant Narendra Nath Das. It is also assailed by the
appellant that the plaintiff/respondent failed to prove that when Bhabani
was born out of the said first marriage of Narendra Nath Das. As per
submission of the learned Counsel appearing on behalf of the appellant is
that when there is a controversy about the two marriages of Narendra Nath
Das then it is the bounden duty of the plaintiff to prove that Bhabani was
born out first marriage of Narendra Nath. The ground of appeal is that the
Trial Court did not appreciate the evidences correctly and the decision
arrived at is perverse.
7. The learned Trial Court casted five issues viz.
1. Is the suit maintainable?
2. Is the suit bad for defect of parties?
3. Is the suit bad of partition
4. Has the plaintiff any right, title and interest in respect of the suit
property and
5. Is the plaintiff entitled to any relief?
8. What attracts our attention almost immediately is that there is no
issue as regard whether the plaintiff is able to prove that Bhabani was the
daughter of Narendra Nath by first wife and inherited the case property as
per genealogy as mentioned in the plaint. The defendant No. 1/appellant
had specifically denied the first marriage of Narendra Nath Das and about
inheritance of Bhabani Nayak or her heirs in respect of the suit properties
left by the original owner Narendra Nath Das. So, the existence of first
marriage of Narendra Nath Das was the moot question and remains vital for
adjudication of the present dispute.
9. Order 41 of the Code of Civil Procedure provides for appeals from
original decrees, it empowers the Appellate Court to order remand in three
situations and these situations are covered by Order 41 Rule 23, Order 41
Rule 23-A and Order 41 Rule 25.
10. Retrial of the suit is necessary as required under Rule 23-A of Order
41 of CPC, which reads as under:-
"23A. Remand in other cases.- Where the court from whose decree an appeal
is preferred has disposed of the case otherwise than on a preliminary point, and the
decree is reversed in appeal and a retrial is considered necessary, the Appellate
Court shall have the same powers as it has under rule 23"
Perusal of the aforesaid provision would show that its applicability
would come into play only when the trial court has disposed of the entire
suit otherwise than on a preliminary point and that a decree is reversed in
appeal and that a retrial is considered necessary. In that case appellate
court will have all the powers mentioned in Rule 23 of Order 41 CPC. When
the material issue has not been framed by the trial court in its judgement
impugned, then in such an eventuality, the appellate court should have
restored Rule 25 of Order 41 CPC.
11. Rule 25 of Order 41 CPC is relevant for the purpose which reads as
under-
Where Appellate Court may frame issues and refer them or trial to
Court whose decree appealed from:- Where the Court from whose decree the
appeal is preferred has omitted to frame or try any issue, or to determine
any question of fact, which appears to the Appellate Court essential to the
right decision of the suit upon the merits, the Appellate Court may, if
necessary, frame issues and refer the same for trial of the Court from whose
decree the appeal is preferred, and in such case shall direct such Court to
take the additional evidence required; and such Court shall proceed to try
such issues, and shall return the evidence to the Appellate Court together
with its findings thereon and the reasons therefor within such time as may
be fixed by the Appellate Court or extended by it from time to time.
12. It is profitable to quote the observation of the Hon'ble Apex Court in
case of Shanti Devi vs Daropti Devi and Others reported in (2006) 13
SCC 775
"The power of remand vests in the Appellate Court either in terms of Order XLI
Rules 23 & 23A or XLI Rule 25 of the Code of Civil Procedure. Issue No. 4 was held to
have been wrongly framed. Onus of proof was also wrongly placed and only in that
view of the matter the High Court thought it fit to remit it to the learned Trial Judge
permitting the parties to adduce fresh evidence. It, therefore, required the learned
Trial Judge to determine a question of fact, which according to it was essential, upon
reframing the issue.
Only, thus, additional evidences were required to be adduced upon reframing
the issue and having regard to the fact that onus of proof was wrongly placed on the
plaintiff.
In the aforementioned situation, in our opinion, it would have been proper for
the High Court not to remit the matter in its entirety, which could have been done by
the court in exercise of its jurisdiction under Order XLI Rule 23 or Order XLI Rule 23A
of the Code of Civil Procedure. The impugned judgment must in the aforementioned
situation be held to have been passed in terms of Order XLI Rule 25 of the Code of
Civil Procedure."
13. In view of the foregoing discussions, vis-a-vis, it would be appropriate
the appellate court frame the point (issue) on which additional evidence
could be adduced by the parties by providing opportunities of hearing to
them and come to a logical conclusion. Insofar as the present case is
concerned the Trial Court had disposed of the suit on merits and not on a
preliminary issue. In the above backdrop when we revisit the evidences on
record, we hold the most essential issue is as follow:
Whether the plaintiff is able to prove that Bhabani was the daughter of
Narendra Nath Das by first wife and inherited shares in the scheduled
property as per genealogy mentioned in the plaint.
14. We, therefore, frame the above issue. Without answering it there
cannot be a proper decision in the instant case and in that view of the
matter, re-trial is necessary. Since new issue has been casted, opportunity
needs to be provided to the rival parties to lead evidence afresh.
15. We have already stated that the impugned judgment and decree
passed by the learned Trial Court lacks sufficient reasons and does not at
all analyze and appreciate the evidence on record. The issues have also not
been properly casted. Hence, the impugned judgment and decree passed
by the learned Trial Court in connection with Title Suit No. 25 of 2008 is
liable to be set aside.
16. In the result, the impugned judgment and decree dated 31.03.2014
and 09.04.2014 passed by the Civil Judge (Senior Division), 2 nd Court,
Contai, District - Purba Mindnapur passed in connection with Title Suit No.
25/2008 is set aside. Exercising power under Rule 25-A of Order 41 of the
Code of Civil Procedure, the case is remanded back to the court below for
further hearing. The learned Trial Court would recast the issues. He would
add the issue which we have framed in this Appeal to the five issues which
are already on record and then proceed with the suit as per procedure
established. Opportunity should be given to the parties by the Trial Court
to lead further evidence on the issue framed by the Court if they so desire by
keeping the evidence already adduced by the parties in the record and
deliver a fresh judgment. The parties to the proceeding are directed to
appear before the Trial Court and no further notice is required to be sent to
the either of the party.
17. The instant appeal be and the same is hereby allowed to the aforesaid
extent. In the facts and circumstances of the case there shall be no order as
to costs.
18. Consequently, the applications, if any, in connection with the appeal
are hereby disposed of.
19. Urgent Photostat certified copy of this order, if applied for, be given to
the parties on payment of requisite fees.
I agree.
(Harish Tandon, J.)
(Prasenjit Biswas, J.)
