Calcutta High Court (Appellete Side)
Sankhadip Laha vs Smt. Indubala Laha & Ors on 7 February, 2023
07.02.2023
Sl.No. 150-151
Ct.No.3 ASR
Amalranjan
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
FAT 657 of 2017
With
FAT 658 of 2017
Sankhadip Laha
VS
Smt. Indubala Laha & Ors.
Mr. Shyamal chakraborty
Mr. Bhusan Jain
...for the appellant
Mr. Soumik Pramanick
...for the respondents
The subject matter of this appeal is
premises No. 23, Sankar Halder Lane,
Jorabagan, Kolkata- 700005.
A long family litigation is involved.
In 2001, the title suit no. 55 of 2001 was
filed before the learned City Civil Court, Kolkata
by Basanta Kumar Laha and his wife Padma
Rani Laha claiming, inter alia, declaration of
their share in the said property. The defendants
in the said suit were Indubala Laha, mother of
Basanta Kumar Laha, his sister Jharna Paul and
his brother Susanta Kumar Laha.
The rights of the plaintiffs in that suit were
founded on a deed of settlement on 1984 made
by Indubala Laha as settlor. It was in the nature
of a trust. Whether the deed of trust was valid
or created any interest in the said property is
disputed by the respondents in this appeal. We
do not think that this was the subject matter of
the appeal and shall not comment or deal with
it.
During the pendency of this suit on 28th
August, 2001, Basanta Kumar Laha died.
Apparently, a few days after his death, Basanta
on 20th September, 2001 Indubala Laha
purported to cancel the deed of settlement.
Challenging this act, the heirs of Basanta
Kumar Laha instituted a second suit in the said
court being T.S. No. 115 of 2008. Both the suits
were decreed by a consolidated judgment and
decree by the said court on 6th September, 2017.
After hearing learned counsel for the parties
at considerable length, we are of the view that
the impugned judgment and decree ought to be
set aside and both the suits be remanded to the
learned court below for re-trial and
determination.
This for the solitary reason that the subject
matter of enquiry before the court was the
validity of the deed of cancellation of the
settlement or trust. The issues were also framed
in that direction.
There was no challenge to the Deed of
Settlement in the written statement in either
suit. The issue in respect of its validity was
neither raised nor framed.
In the impugned judgement and decree, we
find that the court has traversed beyond those
issues and have also sought to scrutinise the
deed of settlement. On such scrutiny, the court
has found the deed of settlement to be invalid or
in-operational. If the deed of settlement was
found to be invalid there was no issue arising
out of the alleged cancellation of that deed to be
gone into. On that basis, the suit was decreed.
For this reason, in our opinion, the
judgement and decree is thoroughly flawed and
is set aside by us.
For the ends of justice, we grant an
opportunity to the respondents to make an
application, if they so desire in the learned court
below within two weeks from date to amend their
written statement and file a counterclaim in
such manner, as the law would permit them to
do.
If such prayer is allowed, the court would
also grant opportunity to the parties to discover
documents and produce evidence.
There shall be re-trial of the suit on such
issues that the court may frame.
We request the learned court below to
dispose of the suit within one year from the date
of communication of this order.
Further for the ends of justice, we direct
that till the suit is disposed of the possession of
Jharna Pal in the above subject premises shall
not be interfered with by the appellants.
( Biswaroop Chowdhury,J. ) ( I. P. Mukerji,J. )
