Dhananjoy Pramanik & Ors vs Gopal Chandra Mal & Ors
2023 Latest Caselaw 2003 Cal

27.3.2023

Ct. no. 652 sb CO 2438 of 2018 With CAN 2 of 2022

Dhananjoy Pramanik & ors.

Vs.

Gopal Chandra Mal & Ors.

                    Mr. Sandip Das                 ...for the Petitioners

                    Mr. Sounak Bhattacharya
                    Mr. Saunak Mondal
                    Mr. Abhirup Halder
                    Mr. Anirban Saha Roy    ...for the opposite parties

Being aggrieved and dissatisfied with the order no.

247 dated 2.1.2018 passed by the learned Civil Judge,

(Junior Division), First Additional Court in Title Suit no.

122 of 2010, the present application under Article 227 of

the Constitution of India has been preferred.

The opposite party nos. 1 and 2 as plaintiff

instituted aforesaid suit for declaration, injunction and

recovery of khas possession in respect of the property

mentioned in the schedule to the plaint. The petitioner

duly appeared in the said suit by filing written statement

denying thereby each and every allegation made in the

plaint. The evidence of DW 1 has been started and the

defendant produced one Patta deed and Amalnama dated

24th Chaitra 1356 B.S.

Learned court below by an order dated 2.1.2018

was pleased to mark said patta deed as Exhibit B but did

not mark the Amalnama being 1356/28 as exhibit. Being

aggrieved by the said order, the petitioner has preferred

this revisional application, contending that the learned

court below overlooked Section 49 of the Registration Act

and he should have marked the Amalnama as an exhibit.

In this context, learned counsel for the petitioner has

relied upon the judgments of Bipin Shantilal Pachal Vs.

State of Gujarat and another (2001) 3 SCC 1 and 71 CWN

page 651 (Bijoli Prova Nandy Chowdhury vs. H.C. Dutta

and others.)

Learned counsel for the opposite party relied upon

the judgments reported in Bhuban Mohan Banerjee vs.

Edan Sardar and others(1914) SCC online Cal 469,

Sheikh Elahi Vs. Sheikh Hukum (1913) SCC Online Cal

197, Syed Sufdar Reza Vs. Amzad Ali and Anr. and

Gyanti Devi Si Ors. vs. Shanti Devi (2019) 3 CalLt 404

and contended that Amalnama by which the interest in

the property has been permanently transferred in favour

of the grantee and possession has been delivered for an

indefinite period, such document requires registration

and as the document concerned, is an unregistered

document, the trial court has committed no mistake in

refusing to mark the Amalnama where Chakran interest

has been settled in favour of grantee. He further

contended that such unregistered Amalnama is not

admissible in evidence because the document in essence

is an agreement of lease and is compulsorily registrable

under Section 17 of the Registration Act. In this context,

he also referred Section 107 of the Transfer of Property

Act and contended that the permanent tenure has been

created by the Amalnama, so it requires registration. He

further contended that in view of the judgment passed in

Gyanti Devi SI Ors. (supra), it is settled that the law laid

down by the three judges bench in Bipin Shantilal

Panchal's case is not applicable and if said proposition is

to be accepted then the provision laid down in Order 18 of

the Code will become infructuous. Accordingly, he had

supported the order impugned and submitted that the

order impugned does not call for any interference.

I have considered the submissions made by both

the parties. it appears that there is a serious dispute

between the parties as to whether the Amalnama by

which, the grant was made in favour of the grantee, is a

lease deed or not. On perusal of the recital of the

Amalnama, it appears that the grantee of the said

Amalnama was stated to be worshippers who are

continuing worshipping of the deity for a considerable

period of time and the deed was executed in favour of the

grantee in order to continue the seba puja of the deities

from the usufructs and for which the Chakran interest

was granted.

In Bipin Shantilal Panchal's case, the three judges

bench of the Supreme Court was pleased to lay down for

better course which says that whenever an objection is

raised during evidence-taking stage regarding the

admissibility of any material or item of oral evidence, the

trial court can make a note of such objection and mark

the objected document tentatively as an exhibit in the

case, the objected part of the oral evidence subject to

such objections to be decided at the last stage in the final

judgment. It was further observed, if the court finds at

the final stage, that the objection so raised is sustainable

the Judge or Magistrate can keep such evidence excluded

from consideration and the court further observed that

there is no illegality in adopting such a course. However,

if the objection relates to deficiency of stamp duty of a

document the court has to decide the objection before

proceeding further. In the present case, no case has been

made out about the deficiency of stamp duty in the

concerned document.

Learned counsel for the opposite parites also

referred another judgment of this court in B.P. Nandy

Chowdhury Vs. H. C. Dutta (71 CWN 681) where it was

held where the deed is in such a form that it can neither

be called a lease or an agreement for a lease, but it gives

a right to possession, it may come within the description

of an "Amalnama". Accordingly, the judgments referred by

the petitioner passed by this court is not applicable

herein in view of specific guideline framed by Apex court

in Bipin Shantilal Panchal case.

In view of the facts and circumstances of the case

and also relying upon the workable practice as has been

laid down by the Three-Judges Bench of the Apex Court

in Bipin Shantilal Panchal's case (supra), C.O. 2438 of

2018 is disposed of with a direction upon the court below

to make a note of the objection raised by the

plaintiff/opposite party herein and to mark the said

Amalnama as exhibit tentatively in the case as an

objected document and to record the objected part of the

oral evidence, subject to such objections to be decided at

the last stage in the final judgments and if the court finds

at the final stage that the objection so raised is

sustainable, the court will be at liberty to keep such

evidence excluded from consideration.

The court below is requested to conclude the trial

and dispose of the entire proceeding of the suit preferably

within a period of three months from the date of

communication of the order.

Pending application, if any, stands disposed of.

Urgent photostat certified copy of this order, duly

applied for, be given to the parties upon compliance of all

requisite formalities.

(Ajoy Kumar Mukherjee, J.)