Sri Nitai Barman vs Sri Gobinda Jana & Ors
2023 Latest Caselaw 2207 Cal

31.3.2023
    54
Ct. no. 652
    sb
                              C.O. 2383 of 2019


                             Sri Nitai Barman
                                    Vs.
                          Sri Gobinda Jana & Ors.


              Mr. Subrata Santra              ...for the Petitioner

              Mr. Partha Pratim Roy
              Ms. Sohini Chakraborty
              Miss. Prajaani Das     ...for the O.P. nos. 1 to 4



                      This is an application under Article 227 of the

              Constitution of India against order no. 23 dated

              27.5.2019 passed by learned Civil Judge, Senior

              Division, 2nd Court, Tamluk in Title Appeal no. 09 of

              2017.

                      The plaint case is that the property originally

              belonged to Adhar Chandra Jana and Taru Jana and

              subsequently, Adhav Chandra Jana died leaving

              behind his wife Champaki Das and two daughters

              but after marriage of daughters champaki under the

              law prevailing at that time dedicated the said

              property to Sri Sri Hari Thakur, deity by executing a

              Nirupan Patra thereby appointing herself as the

              shebait. After demise of Champaki Jana, the legal

              heirs of the plaintiff/petitioner inherited the property

              as reverssioner. The legal heirs of Champaki Jana

              sold the share of suit property in favour of the
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plaintiff/petitioner.   After   demise   of   Shebait,

Champaki Jana, the plaintiff/petitioner being the

grandson and legal heirs became shebait of the

property of the deity as the deed is silent as to the

appointment of the next shebait. The defendants

denied the title of the plaintiff/petitioner, as such

the suit was instituted. The Defendant's case is that

said Champaki Jana executed registered Nirupan

Deed in the year 1948 in favour of the deity by

appointing shebait herself and after her death, the

predecessor of defendants were the shebaits of the

said deity according to the terms of the said deed

but in the said Nirupan Deed, no line of succession

was mentioned so the plaintiff as grandson got no

right title and interest over the suit property as

shebait through reverssioner.

       After the hearing of both the parties. Learned

Civil Judge, Junior Division, 1st Court, Tamluk

dismissed the Title Suit no. 52 of 2012 on contest on

19.12.2016. Being aggrieved and dissatisfied with

the judgment and decree, the petitioner preferred

appeal before the learned District Judge, Purba

Medinipore being Title Appeal no. 4 of 2017 which

was subsequently transferred before the learned

Civil Judge, Senior Division, 2nd Court, Tamluk and

renumbered as Title Appeal no. 9 of 2017. During

pendency of the appeal, it has been informed by the
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contesting respondents on 31st July, 2017 that

respondent no. 6 died on 10.6.2017 and respondent

no. 7 died three years back. Thereafter, the

plaintiff/petitioner filed a petition for expunging the

name of respondent nos. 6 and 7. The opposite

parties filed their written objection.

In support of prayer for expunging names of

respondent no 6 & 7, learned counsel for the

petitioner contended that since respondent nos. 6

and 7 have no heritable shebaitship, so after their

death, their name are required to be expunged and

the name of legal heirs is not required to be brought

in the record as according to the plaintiff, they are

self declared shebait of the deity.

Learned court below, after hearing both the

parties, rejected the appellant's prayer for expunging

the name of respondent nos. 6 and 7 and was

pleased to held that the appeal has been abated as a

whole.

Learned counsel for the petitioner submits

that unless and until the appeal is heard on merit, it

would cause failure of justice and irreparable loss to

the petitioner. He further submits that the order

impugned was passed without following the

provision as contained in Order 22 Rule 4 of the

Code of Civil Procedure and as such prayed for

setting aside the order impugned.

I have perused the order impugned. It appears

that learned court below while adjudicating the said

issue was pleased to observe that admittedly in this

case, steps were not taken by the appellant against

the legal rights of the deceased respondent nos. 6

and 7 in spite of repeated orders and direction of the

court. He further observed that in such type of

litigation, the appointment qua party is not limited

to the deceased party alone but it affects all the

other parties and the litigation itself and as such

according to the court below, the suit has been

abated as a whole.

However, during course of hearing, learned

counsel for both the parties submits that let a

direction be given that the appellant/defendant may

file an application for impleading legal heirs of

respondent nos. 6 and 7 in the said appeal so that

the appeal can be disposed of on merit.

Having considered the submissions made by

both the parties and the proposal placed on behalf of

both the parties, the order impugned dated

27.5.2019 is hereby set aside. The

appellant/petitioner will be at liberty to prefer

appropriate application before the court below for

adding/substituting the legal heirs in place of

deceased respondent nos. 6 and 7 within a period of

four weeks from the date of communication of this

order and in the event of filing such application by

the appellant/petitioner, the court below will dispose

of such application within a period of six weeks

thereafter. If the petitioner/appellant does not prefer

any such application as above, the order impugned

shall stands affirmed.

Accordingly, C.O. 2383 of 2019 is 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.)