Smt. Sikha M Alakar & Anr vs Sri Prasinjit Saha & Ors
2023 Latest Caselaw 7191 Cal

                                           1


                     IN THE HIGH COURT AT CALCUTTA

                        CIVIL APPELLATE JURISDICTION

                                   APPELLATE SIDE

PRESENT:

THE HON'BLE JUSTICE HARISH TANDON
            And
THE HON'BLE JUSTICE PRASENJIT BISWAS

                                   FA 172 OF 2022


                          Smt. Sikha M alakar & Anr.
                                      Vs.
                           Sri Prasinjit Saha & Ors.

For the appellants         :        Mr. Shibaji Kumar Das, Adv.
                           :        Ms. Rupsa Sreemani, Adv.
                           :        Ms. Suranja Bhattacharyya, Adv.


For the respondents            :    Mr. Tapas Kr. Bhattacharya, Adv.

                           :        Mr. Prabir Majumdar, Adv.

                           :        Mr. Bishnu Prosad Singha Roy, Adv.



Hearing concluded on       :        29.08.2023

Judgment on                :        17.10.2023



Prasenjit Biswas, J:-

1. The instant appeal has been preferred on behest of the plaintiffs/

appellants challenging the impugned judgment and decree dated 15.02.2022

passed by the learned Civil Judge (Senior Division), 2nd Court at Krishnagar, Nadia

in connection with T.S. No. 191 of 2014.

2. By passing of the impugned judgment and decree the learned Trial Court

dismissed the suit filed by the plaintiffs praying for partition in respect of the suit

properties as mentioned in the schedule of the plaint.

3. Being aggrieved by and dissatisfied with the impugned judgment and decree

passed by the learned Trial Court the instant appeal has been preferred by the

plaintiffs/appellants.

4. It is the case of the plaintiffs that the suit property originally belonged to

Sukchand Bawri, Phulchand Bawri, Kumari Bawri, Laba Bawri in equal shares

and their names have been duly recorded in R.S. Khatian No. 271. Thereafter,

these said R.S. recorded tenants transferred their shares to Prabodh Kumar

Sarkar and Prabhat Kumar Sarkar and thus, they became owners in respect of the

suit plots to the extent of 8.25 decimals of land. Prabodh Kumar Sarkar and

Prabhat Kumar Sarkar transferred their 8.25 decimal of land to Gautam Ghosh,

Purna Chandra Ghosh and Priyabrata Ghosh by dint of registered deed of sale

being No. 9968 dated 09.08.1988. Gautam Chandra Ghosh and Purna Chandra

Ghosh jointly sold the land from their shares of 2 decimals to Priyabrata Ghosh on

29.10.2010 by dint of registered deed of sale being No. 3770. After that the said

Priyabrata sold 1.77 decimals of land from his purchased portion to Gouranga

Ghosh who in turn transferred his 1.77 decimals of land to the plaintiff No. 2 by a

registered deed No. 12297 dated 10.10.2012. After that the said Priyabrata again

sold 2.66 decimals in the scheduled plot to the plaintiff No. 1 on 10.10.2012 by a

registered sale deed being No. 12999 and this plaintiff No. 1 is the mother of

plaintiff No. 2. It is stated by the appellants/plaintiffs that their names have been

duly recorded in the present record of rights and they are paying revenue to the

government.

5. It is stated by the appellants/plaintiffs that the defendants are the co-

sharers and the co-owners of the scheduled plot of land with them and those

defendants became co-sharers after gradual transfers from the original owners

Sukchand and others.

6. These appellants are in enjoyment and possession with the

defendants/respondents as the scheduled properties have not yet been partitioned

by metes and bounds and in accordance with law. As the defendants/respondents

are creating disturbance in the peaceful joint possession of the parties these

plaintiffs under compelling circumstances knocked the door of the Court with a

prayer for partition of the suit properties as per provision of law.

7. Defendants entered appearance in the suit before the Trial Court and filed

written statement by stating that Gautam Ghosh, Purna Chandra and Priyabrata

Ghosh were the owners in respect of 8.25 decimals of land in the suit property

which they got by dint of registered deed of sale being No. 9968 dated 09.08.1988

from Prabhat Kumar Sarkar and Probodh Kumar Sarkar with proper specification.

It is averred by the defendants that Gautam Ghosh, Purna Ghosh and Priyabrata

Ghosh sold away 8 decimals of land of the suit plot with proper specification to the

defendant No. 1 on 29.10.2010 by deed of sale being No. 13769 and since the date

of purchase the defendant No. 1 is possessing the said quantum of land which he

has purchased in a demarcated way. It has been stated by the defendants that the

said Gautam Ghosh, Pruna Chandra Ghosh gifted away 4.25 decimals of land in

the suit plot to their brother Priyabrata Ghosh on 29.10.2010. As per contention

of the defendants that said Priyabrata Ghosh had no saleable right to transfer the

passage which was earlier given by them to the defendant No. 1 and so the

plaintiffs have no right, title and possession as per area purchased by them.

8. Learned Counsel appearing on behalf of the appellants submitted before us

that it is not the case of either of the parties that after a series of transfers by the

previous owners in favour of them the said Gautam and Purna Ghosh had a

miniscule share of about 0.17 decimals of land in the suit plot. The learned Trial

Court failed to appreciate that both the parties have not mentioned in the

pleadings that the said Gautam and Purna had 0.17 decimals of land and they

would be brought on record as necessary parties to the suit.

9. It is not disputed that both the parties derived their right title and interest

from Gautam Ghosh, Purna Ghosh and Priyabrata Ghosh who admittedly owned

8.25 decimals of land in the suit property. The said Gautam and Purna sold as per

plaint case to Priyabrata who in turn sold it to Gouranga Ghosh and thereafter,

the said Gauranga Ghosh sold 1.77 decimals of land to the plaintiff No. 2 by

registered sale of deed on 10.10.2012. Priyabrata Ghosh also sold 2.66 decimals of

land to the mother of the plaintiff No. 2 i.e. plaintiff No. 1 on 10.10.2012.

10. It is the averment of the defendants that Gautam Ghosh, Purna Ghosh and

Priyabrata Ghosh sold 4 decimals of land to the defendant No. 1 on 29.10.2010by

registered deed of sale being No. 13769. It is further averred by the defendants

that Gautam Ghosh and Priyabrata Ghosh gifted 4.25 decimals of land in favour

of their brother Priyabrata on 29.10.2010 by dint of deed of gift being No. 13770

after registration of the sale deed in favour of the defendant No. 1.

11. Learned Trial Court framed the following issues for disposal of the suit:-

i. Is the suit maintainable in law and form?

ii. Whether the plaintiffs have any cause of action to file the instant

suit?

iii. Whether the suit property is liable to be partitioned and whether

parties are co-sharers thereto?

iv. Whether the plaintiffs have any right, title, interest and

possession in respect of the suit property?

v. Whether the plaintiffs are entitled to get a decree of partition as

prayed for declaring their title in respect of 4.43 decimals of land

in the suit property?

vi. To what other relief/reliefs, if any, plaintiffs are entitled to under

the law and equity.

12. In this case, three witnesses including plaintiff No. 2 were examined in

favour of the plaintiffs. Whereas defendant cited three witnesses including

defendant No. 1 in this case. Documents were exhibited in favour of both the

parties. It appears that the defendants/appellants did not take plea that the suit

preferred by the plaintiffs/appellants is bad for non-joinder of necessary parties

and no issue was framed by the Court as to whether the suit was bad for non-

joinder of the necessary parties. It appears from the evidence of DW 1 that he

admitted that the parties to the suit are possessing the scheduled properties

jointly according to their respective shares and he also admitted that he along with

his father (deceased defendant No. 2) purchased 7 decimals of land prior to the

purchase of his 4 decimals of land from Gautam, Purna and Priyabrata Ghosh.

The learned Trial Court observed that the both the parties are the co-sharers in

the suit plot and they are possessing the same jointly without any partition by

metes and bounds. It is not the case of either of the parties that a miniscule share

remained with Gautam and Purna Ghosh after transferring their shares in suit

plot to the vendor of the plaintiffs as well as defendants.

13. Let us see whether a Court can weave out a new case not borne out from

the evidences on record. The defendants have not taken the plea that after series

of transfers Gautam and Purna had a miniscule share of about 0.17 decimals of

land in the suit plot and they had to be made parties in the suit and the said

factum of non-joinder of Gautam and Purna is fatal for the suit.

14. It is profitable to the quote the observation of the Hon'ble Apex Court in

Manma, Saraswathi Sampoorna Kalavathi and Others vs. Manager, Andhra

Pradesh State Road Transport Corporation, Tadepalligudem, Andhra Pradesh

and Another reported in (2010) 5 SSC 785, wherein Hon'ble Court observed that

the High Court was totally unjustified in weaving out a new case which is not

borne out from the evidence s on record.

15. In the above-referred case of Manam Saraswathi Sampoorna Kalavathi

(supra)it is held by the Hon'ble Apex Court in paragraphs 15, 16 and 17 inter alia

that-

"15.The High Court further observed in the impugned judgment that

the possibility of the deceased, while driving the scooter at a high

speed, falling down, and sustaining head injury cannot be ruled out.

This finding is totally contrary to the record of this case. PW 2 has

categorically stated in his evidence that the deceased was driving

slowly and cautiously on the left side of the road and the driver of the

bus was driving the bus in a rash and negligent manner without

blowing horn.

16. The High Court further observed that significantly the driving

licence of the deceased was not produced. So the possibility of the

deceased not possessing a driving licence, and his failing down due to

lack of experience and sustaining the head injury cannot be ruled out.

There is no basis, logic and rationality in arriving at this conclusion.

17. The High Court was totally unjustified in weaving out a new case

which is not borne out from the evidence on record. Similarly, the High

Court erroneously observed that the possibility of Respondents. 1 to 5

(appellants herein) influencing the police and getting an FIR registered

with time and date of their choice cannot be ruled out and the

possibility of PW 2 not being with the deceased at the time of accident

and his implicating a bus belonging to the appellant (Respondent 1

herein)as having caused the accident also cannot be ruled out,

because if really PW 2 was thrown away into the bushes due to the

impact, as stated by him, he would have sustained at least some

scratches and would have been referred to government hospital. The

entire analysis of evidence by the High Court is erroneous and faulty.

There was no basis for the High Court to come to the conclusion that

the possibility of the respondents (appellants herein), influencing the

police and getting the FIR registered with time and date of their choice

cannot be ruled out."

16. We find that the learned Trial Court held to have ignored the principles

relating to the object and necessity of pleadings. It is not the case of the

defendants that the suit is bad for non-joinder of necessary parties and no plea

has been taken by the defendants in their written statement to that extent.

17. A case not specifically pleaded can be considered by the Court only where

the pleading in substance, though not in specific terms, contains the necessary

averments to make out a particular case and the issues framed also generally

cover the question involved and the parties proceed on the basis that such case

was at issue and had led evidence thereon. As the very requirements indicate, this

should be only in exceptional cases where the Court is fully satisfied that the

pleadings and issues generally cover the case subsequently put forward and the

parties being conscious of the issue had led evidence on such issue. But where the

Court is not satisfied that such case was at issue, he cannot weave out a new case

for the parties to the suit.

18. We are of the opinion, that without pleading, issues and evidences, the

Court cannot make out a new case which is not pleaded and more so, the Court

cannot consider such a case which is not specifically pleaded and cannot consider

when it is raised by one of the parties at the stage of argument. Where neither the

party put forth such a contention the Court cannot obviously make out such a

case in the parties not pleaded suomotu.

19. If the written statements filed by the defendants/respondents are

scrutinized, it appears that the defendants never pleaded that Gautam and Purna

had a miniscule share of 0.17 decimals of land in the suit plot and they should be

made parties in the suit.

20. The Hon'ble apex Court in case of Bachhaj Nahar vs. Nilima Mondal and

Others reported in (2008) 17 SSC 491, has discussed in detailed on whether

Court can consider a case specifically not pleaded by the parties. In that case the

Apex Court held that the object and purpose of pleadings and issues is to ensure

that the litigants come to trial with all issues clearly defined and to prevent cases

being expanded or grounds being shifted during trial. Its object is also to ensure

that each side is fully alive to the questions that are likely to be raised or

considered so that they may have an opportunity of placing the relevant evidence

appropriate to the issues before the Court for its consideration. This Court has

repeatedly held that pleadings are meant to give to each side intimation of the case

of the other, so that, it may be made to enable the Courts to determine what is

really an issue between the parties, and to prevent any deviation from the Courts

which litigation on particular causes must take .

21. In case of Ram Sarup Gupta (dead) by LRs Vs Bishun Narain Inter

College and Others reported in (1997) 2 SCC 555 it has been categorically stated

by the Apex Court that it is well settled that in the absence of pleading, evidence, if

any, produced by the parties cannot be considered and it is also equally settled

that no party should be permitted to travel beyond its pleadings and that all

necessary and material facts should be pleaded by the party in support of the case

set up by it. It has further been held in that case by the Apex Court that object

and purpose of the pleading is to enable the adversary party to note the case it has

to meet and in order to have a fair trial of its merit that party should say the

essential material facts so that other party may not been taken by surprise.

22. In the above referred case of Bachhaj Nahar (supra), Hon'ble Apex Court

came to the conclusion that it is, thus, clear that a case not specifically pleaded

can be considered by the Court only when the pleading in substance, though not

any specific terms, contains the necessary averments to make out a particular

case and the issues framed also generally covered the question involved and the

parties proceed on the basis that such case was at issue and led evidence thereon.

23. The above discussions clearly earmarked the situation where a case is not

pleaded can still be considered provided that the parties had general idea about

such issues being involved and evidence was led by both sides covering those

ends.

24. In the instant case, plaintiffs/appellants filed the instant suit with a prayer

for partition in respect of the scheduled properties before the Trial Court tracing

their titles from Sukchand Bawri and others, R.S. recorded tenants the said

Sukchand Bawri and others transferred their entire share to the Prabodh and

Pravat who in turn sold to Gautam, Purna and Priyabrata. The said Gautam and

Purna transferred 2 decimals of land to Priyabrata who in turn sold it to plaintiff

No. 1. Priyabrata also sold from his share in respect of the suit plot to Gouranga

Ghosh who in turn sold that share to the plaintiff No. 2. Whereas, defendant No. 1

claimed that he became owner in respect of the suit plot after purchasing shares

from Gautam, Purna and Priyabrata. So, it is clear that somehow both the parties

became owner either direct purchase from Gautam, Purna and Priyabrata or

either from subsequent purchasers of Priyabrata. It is also admitted fact that both

the parties are possessing the suit property jointly and the suit property is yet to

be partitioned.

25. No issue has been framed by the Trial Court that whether the suit is bad for

defect of non-joinder of parties and this plea is not taken by the defendant by filing

their written statement but the Court without giving opportunity to either of the

parties went on calculation and found that the Gautam and Purna had a

miniscule share in respect of the suit plot and they have not been made parties to

the suit and as such the suit is defect for non-joinder of those two persons or their

heirs which we find is totally unjustified and Trial Court cannot weave out a new

case not borne out from evidences on record.

26. Law is well-settled that a suit for partition cannot be dismissed on the

ground of non-joinder of necessary parties unless the plaintiff had failed to

implead such parties despite a specific direction is passed by the court to such

effect. In the present case there was no direction issued by the court asking the

plaintiff to implead Goutam Ghosh and Purno Ghosh. We are of considered

opinion that disposing the appeal by deciding the issue of non-joinder in

affirmative without giving an opportunity to the parties or impeding them or their

legal representatives will certainly cause prejudice to both the parties.

27. Without pleadings and issues, evidence cannot be considered to make out a

new case which is not pleaded. The court can consider such a case not specifically

pleaded, only when one of the parties raises the same at the stage of arguments by

contending that the pleadings and issues are sufficient to make out a particular

case and that the parties proceeded on that basis and had led evidence on that

case. Where neither party puts forth such a contention, the court cannot obviously

make out such a case not pleaded, suomoto.

28. Thus, in view of the above discussions we are of the considered opinion that

the impugned judgment and decree passed by the learned Trial Court on

15.02.2022 in T.S. No 191 of 2014 cannot be sustained and, accordingly, the

same is liable to be set aside.

29. In the heels of surrounding facts and circumstances, we are of the mindful

opinion that the matter consequently warrants remand to the learned Trial Court

for further hearing. When we revisited the evidence on record we hold that the

most essential issue is as follows:-

"Whether the suit is bad for defect of parties?"

30. We, therefore, frame that issue. Without answering this, there cannot be a

proper decision in the instant case and in view of the matter rehearing is

necessary. Since, new issue has been casted, opportunity need to be provided to

the rival parties to lead evidence on that issue again.

31. Opportunity must be given to either of the parties to adduce further

evidence if they wish keeping the evidences already brought on record.

32. Thus, the instant appeal is allowed to that extent and the judgment and

decree passed by the learned Trial Court dated 15.02.2022 is hereby set aside.

33. However, there is no order as to costs.

34. Consequently, other applications pending in connection with this appeal

are hereby disposed of.

I agree.

(Harish Tandon, J.)

(Prasenjit Biswas, J.)