Palash Banerjee vs Bebasish Pal & Ors
2023 Latest Caselaw 609 Cal

                                                SAT 348 of 2016
Item-52.                              CAN 1 of 2016 (old CAN 8735 of 2016)
           19-01-2023

  sg
             Ct. 8
                                                 Palash Banerjee
                                                       Versus
                                                Bebasish Pal & Ors.



                               The matter initially appeared in the warning list on 29 th

                         November, 2022 and thereafter transferred to the regular list on 5 th

                         December, 2022. There was a clear indication in the list that the

                         matter shall be transferred to the daily cause list on 5th December,

                         2022 and since then the appeal is appearing in the list.

                               The appeal is defective in view of the report of the Stamp

                        Reporter dated 17th August, 2016. Earlier on 9th January, 2017, a

                        coordinate Bench directed the matter to go out of list to cure the

                        defects by the appellant. However, no attempt has been made since

                        then till date to remove the defects.

                               We could have dismissed the appeal for non-removal of the

                        defects. However, we propose to have a look at the judgments of

                        both the courts in order to find out whether the second appeal

                        involves any substantial question of law.

                               We have also read the memorandum of appeal.

                               The judgment and decree of the first appellate court dated

                         14th March, 2016 affirming the judgment and decree passed by the

                         trial court on 14th May, 2015 in a suit for declaration and

                         permanent injunction is the subject matter of challenge in this

                         second appeal. The plaintiff/appellant filed a suit before the trial

                         court for declaration that the deeds described in schedule A of the

                         plaint are invalid, baseless, void and not binding upon the
                            2




plaintiff/deity or any of the sebaits.

         Briefly stated: the fact of the case in short is that the

property described in schedule B, is Debottar property and the

property is managed by Sebaits on behalf of deity Sri Sri Durga

Mata Thakurani.        The proforma defendants - Sri Susanta

Bandopadhyay and others, knowingly or unknowingly transferred

part of the Debottar property through their constituted attorney -

Debashish Pal. It is further contended that the properties other

than Debottar property, were partitioned amicably on 16.04.1970.

The defendant No.1 exceeding his limit as power of attorney

holder, transferred Debottar property by executing deeds described

in schedule A of the plaint, the deeds are void inoperative and did

not covey any right, title interest and possession to the transferees.

By filing this suit the plaintiff prayed for declaration as to the

right, title, interest and possession of the plaintiff/deity in respect

of B schedule properties and for further declaration that

defendants other than defendant No.1, do not have any right, title,

interest in respect of the property of the deity and defendant No.1

had no right to transfer, as such the deeds described in schedule A

to the plaint are invalid, baseless, void and not binding upon the

plaintiff/deity or their sebaits and for permanent injunction.

         The defendant No.1, alone contested the suit by filing

written statement denying and disputing each and every material

allegations of the plaint. According to the said defendant the

father     of   the   plaintiff/Sebaits   namely,   Parvati      Sankar

Bandopadhyay transferred 10 decimals of land each out of suit

plot No.1243 to one Lambodar Mondal and Rakhahari Mondal, on

21.05.1956

. Similarly, Durga Sankar and Tara Sankar

Bandopadhyay transferred their shares in respect of suit plot of

third parties who are possessing the properties, even plaintiff -

Palash bandopadhyay, transferred some properties to proforma

defendant Nos. 44 and 45 as attorney of other co-sharers. The

defendant prayed for dismissal of the suit.

The plaintiff has principally claimed for affirmation of title

over B schedule property by way of a declaration that the sale

deeds concerning A schedule property is void and illegal. The

other issue was whether the plaintiff ought to have prayed for

recovery of possession. The plaintiff has alleged that the sale

deeds executed in the year 2000 and 2001 are void and the

plaintiff is in constructive possession.

The learned trial judge has rightly held that even if the sale

deeds are declared to be void and any other person apart from the

sebaits are found to be in possession of the suit plot, there would

be a requirement to pray for recovery of possession against the

illegal possessor. In the trial, the plaintiff could not establish any

title over the suit plot no. 1243. The total area of the suit plot 1243

is 14.44 acres as it appears from CSROR (exhibit-6). It admits of

only 1.88 acres of land. However, in the LRROR (exhibit-2), the

total area of the suit plot is 9.04 acres, which is recorded as

debutoor property. The plaintiff could not offer any explanation of

ownership in respect of the rest portion of the property out of the

suit plot no. 1243. The transferee has, however, produced

documents to show that they are the rightful owners of the said

plots. The B schedule properties are accordingly held to be in the

possession of the transferees and the plaintiff/deity was found to

be out of possession. The sebaits did not claim to be any

possession of the rest portion of the property. In any event, having

regard to the fact that the deity could not produce any registered

deed showing ownership of 14.44 acres, save and except 9.04

acres, the suit cannot be decreed in favour of the plaintiff/deity for

the balance portion.

The learned trial judge held that A schedule sale deeds are

void, illegal and inoperative. This is the affirmation of the first

appellate court and there is no cross appeal. However, on perusal

of the CSROR (exhibit 6) and LRROR (exhibit 2), it appears that

the suit property stands in the name of Tarama and not in the name

of Durgamata Thakurani. The plaintiff has failed to establish that

Tarama and Durgamata Thakurani are one and the same person. In

deciding whether the suit is bad for non-misjoinder or non-joinder

of parties, the first appellate court held as follows:

This suit was sent back to the trial court on remand by the

learned appellate court vide an order passed Title Appeal no.43 of

2007 in which learned appellate court was pleased to hold that

Himadrishankar, Dibyashankar, Kishorshankar, Amalshankar,

Jayanti, Ashok Bandopadhyay, Goutam bandopadhyay, Kumkum,

Basudeb, Kumardeb, Krishna, Bimala Debi and Deepali

Bandopadhyay are the necessary parties of this suit as they

appears to be co-sebayits of the suit properties as per the

deposition of PW2. In this issue learned Appellate Court had

upheld the view taken by the first trial court and sent back to suit

for remand. From the order passed by the learned appellant court

it appears that plaintiff sebayit preferred one petition u/o 6 rule 17

CPC to implead those persons into this suit. Learned trial court

provided an opportunity to the plaintiff to implead those persons

into this suit. Learned trial court provided an opportunity to the

plaintiff to implead those persons into this suit and sent the same

to the trial court on remand. But the plaintiff representative has

not taken any step to implead those persons into this suit. It

reflects from the record that one petition was filed by the plaintiff

which was taken for hearing by this court on 06.05.2014 in which

plaintiff submitted that there is no necessity to amend the plaint by

impleading necessary parties into this suit. This shows the

intention of plaintiff to proceed with the suit without impleading

the necessary parties. The trial court after getting back the suit on

remand provided opportunity to the plaintiff to implead all the

necessary parties into this suit. But such opportunity was not

availed of by the plaintiff. Hence, the defect of parties of this suit

remained as it is. Though one of several sebayits may bring a suit

for the protection of the interest of the deity, but the other sebayits

should be impleaded as proforma defendants. Without the other

sebayits the suit suffers from defect of parties.

Being aggrieved by the said decision of the trail court, an

appeal was preferred by the plaintiff. The first appellate court in

concurring of the findings has taken into consideration that the

PWs 1 and 2 had admitted that the defendants have constructed

houses in the propitious and the suit property is not in exclusive

possession of the deity or sebait of the deity. The first appellate

court has also taken into consideration that on remand by the first

appellate court in TA 43 of 2007, the first appellate court directed

impleading certain parties, which however, was carried out with

the plea that the first appellate court is illegal. The plaintiff did not

challenge the order passed by the first appellate court directing

impleading other parties who are found to be necessary parties in

the suit. In this regard, the first appellate court has rightly relied

upon the decision of the Hon'ble Supreme Court in Prakash

Narain Sharma v. Burmah Shell Cooperative Housing Society

Ltd., reported in (2002) 7 SCC 46 in which it is clearly stated:

"7....... A judicial order, not invalid on its face, must be given effect entailing all consequences, till it is declared void in a duly constituted judicial proceedings."

On consideration of the aforesaid materials and the findings

arrived at by the trail court as well as by the first appellate court

on the aforesaid issues which do not appear to be perverse, the

second appeal stands dismissed at the admission state.

However, there shall be no order as to costs.

In view of the dismissal of the second appeal, the connected

applications also stand dismissed.

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