Sri Jayanta Kumar Halder vs Asutosh Bhattacharyya & Ors
2023 Latest Caselaw 7207 Cal

                      IN THE HIGH COURT AT CALCUTTA
                        CIVIL REVISIONAL JURISDICTION
                                APPELLATE SIDE


Present:
Hon'ble Justice Shampa Sarkar


                                   CO 1317 of 2022
                                        With
                                    CAN 3 of 2023

                          Sri Jayanta Kumar Halder
                                     Vs.
                        Asutosh Bhattacharyya & Ors.

For the petitioner                      : Mr. Amitabha Roy
                                          Mr. Tamal Banerjee

For the opposite party Nos. 14 to 16 : Mr. Lakshminath Bhattacharya

Hearing concluded on: 19.06.2023
Judgment on: 17.10.2023


Shampa Sarkar, J.:-

1.

This revisional application had been filed challenging the order dated

April 18, 2022 passed by the learned Civil Judge (Jr. Division), 2rd Additional

Court at Diamond Harbour, in Title Suit No.153 of 2004. The petitioner was the

plaintiff No.1 in the said suit.

2. By the order impugned, the learned Court, rejected an application filed

by the petitioner dated April 4, 2022 with a prayer to send the LTI book of the

deed No 2615 dated August 19, 1931 and the LTI book of the admitted deed No

528 dated November 4, 1929 to the D.I.G., C.I.D, Fingerprint Bureau, Bhabani

Bhaban, Alipore, for a report upon comparison of the left thumb impression of

Dhanapati Halder and Manmotha Chandra Halder in two documents. The

learned Court rejected the application filed by the petitioner with cost, on the

ground that the petitioner was trying to procrastinate the proceeding by

repeatedly filing such applications. The petitioner denied the LTI and signature

of Dhanapati and Manmotha in the deed dated August 19, 1931. The

defendants claim title on the basis of such deed.

3. The learned Court, further held that ample opportunity had been given to

the petitioner to bring the LTI books. According to the learned court, by an

order dated December 5, 2009, the petitioner had already been debarred from

taking steps for production of the LTI books. Moreover, the certified copy of the

deed of 1931 which was produced by the petitioner, could not be sent for

comparison of the signatures.

4. The main contention of the petitioner was that the learned Court

overlooked order No. 100 dated January 29, 2010, which was passed after the

order dated December 5, 2009. By the order dated January 29, 2010, the

learned Court itself allowed the plaintiff to call for the LTI book, for the ends of

justice. Thus, the order dated December 5, 2009 stood recalled. The petitioner

contended that the learned Court below while rejecting the application,

erroneously held that the said application had been filed to procrastinate the

proceedings. The facts in issue in the suit, would depend upon the scientific

report of an expert, upon comparison of the two LTIs. Whether the LTI of

Dhanapati Halder and Manmotha Chandra Halder in the LTI book/ volume in

which the deed No. 2615 was entered, matched with the LTI in the volume in

which the admitted deed dated November 4, 1929 was entered, would be

relevant evidence to prove the plaint case.

5. The petitioner further submitted that Book no. 1 Volume no. 26 for the

year 1931 was available. In 2019, the petitioner applied for the certified copy of

the deed dated August 19, 1931 which was supplied to the petitioner. The

same was also filed in the proceeding.

6. Mr. Bhattacharya, learned advocate appearing on behalf of the opposite

parties Nos. 14-16, who are the heirs of the contesting defendant No 4 in the

suit, opposed the prayer of the petitioner. Learned Advocate submitted that the

learned Court had given ample opportunity to the petitioner and issued orders

summoning the LTI book in respect of the registered deed dated August 19,

1931. The same was not produced by the Sub-Registrar, Alipore, and

ultimately the records revealed that a complaint with regard to the missing

volume had also been filed by the concerned authority before the local police

station.

7. Mr. Bhattacharya further submitted that the petitioner's suit was

dismissed some time in 2010 for non-compliance of the orders of the learned

trial Court. The petitioner was not a diligent litigant. The petitioner was

continuously trying to delay the suit by filing frivolous applications. The

existence of the deed of 1931 was recorded in a subsequent suit, in which the

petitioner was not a party. At such an advanced stage of the suit, allowing the

application filed by the petitioner would only amount to delay in disposal of a

frivolous suit and such delay would cause irreparable loss and injury to the

said defendants. The defendants were trying to protect their property,

legitimately acquired down the line, on the basis of the deed of 1931.

8. The facts of the case were that the petitioner along with the opposite

parties No 35 to 61 (pro forma opposite parties) filed a suit for declaration of

the right, title, interest and permanent injunction in respect of 30 decimals, in

plot no. 818 and 16 decimals in plot no. 820, totalling to 46 decimals of Mouza;

Maheshnagar, Police Station; Magrahat (earlier) Mandirbazar (at present); Post

Office- Bangaberia; District- 24 Parganas-South. The plaintiffs contended that

Dhanapati Halder and Manmotha Chandra Halder had mortgaged the suit

property along with some other property in favour of Jyotindra Nath

Bhattacharjee, sometime in November 1929. Thereafter, the properties were

released from the mortgage in 1931. After release of the mortgage Dhanapati

and Manmotha and their family members continued to be in possession of the

suit property. Manmotha, Dhanapati and their family members entered into an

amicable partition in respect of all their common properties which included the

suit property. Plot No 839 was sold out to Surendra Nath Haldar and the name

of Surendra Nath Haldar has been recorded in the revisional settlement. The

share of Dhanapati in Plot Nos. 820 and 818 devolved upon his son Satish

Chandra Haldar. Thus Satish Chandra Haldar and Manmotha continued to be

the recorded owner of the said plot, but the names of Jyotindra Nath

Bhattacharjee, Satish Chandra Bhattacharjee, Hiranmayee Bhattacharjee

Bhudeb Bhattacharjee, and Anadi Bhattacharjee, were wrongly entered in the

record of rights. Satish Chanda Haldar died leaving behind the plaintiff No

3(Kamal Kanta Haldar). The plaintiff No 3 acquired right, title and interest in

the share of Satish Chandra Haldar which was originally owned by the

Dhanapati Haldar in plot Nos. 820 and 818. Manmotha Haldar died leaving

behind plaintiffs No 1, 2 and 6 daughters who were plaintiff Nos. 4-9. These

daughters, namely plaintiff Nos. 4-9 had surrendered their share in favour of

their brothers. The plaintiffs were in possession. As the defendants were trying

to raise a claim in respect of the property in question and were disturbing the

possession of the plaintiffs, the suit was filed for declaration of right, title,

interest and permanent injunction. Further allegation was that the defendants

had erroneously and by practicing fraud got their names recorded in the

revisional settlement.

9. Only the defendant No 4, contested the suit by filing a written statement.

The specific case of the defendant was that the suit property had been

mortgaged along with some other property to Jyotindranath Bhattacharjee by

Dhanapati and Manmotha. Thereafter, the properties were released from the

mortgage and Dhanapati and Manmotha got back their right title and

possession in respect of the said property. Subsequently, Dhanapati and

Manmotha being in need of money, sold the suit property to Haripada

Bhattacharjee by a deed of conveyance dated August 19, 1931. Haripada

Bhattacharjee acquired right title and interest in the property in question.

Haripada Bhattacharjee died leaving behind four sons, Upen, Amar, Bhupen,

Binoy. Upon the death of Bhupen, his property devolved upon his children

namely, Sudhir, Tarani and Taron. After the death of Tarani, the share of

Tarani devolved upon Smt. Drugabala. Upon death of Binoy, his share devolved

upon Smt Kalidasi and son, Fani Bhusan. Accordingly, the heirs of Haripada

Bhattacharjee acquired the right, title ownership in respect of the suit

premises. The heirs of Haripada sold the property to Jyotindra, Satish, Srish

and Mohon Bhattacharjeee. The heirs of Dhanapati did not have any right title

interest in respect of the suit property and the property devolved upon the

heirs of Jyotindra, Satish, Srish, and Mohon by subsequent deed of gift dated

January 6, 1981 and deeds of sale dated May 12, 1988 and July 21, 1993. The

defendants acquired right, title and interest in respect of the property in

question. The right title and interest of the predecessor in interest of the

defendants has also been upheld in Title Suit No. 818 of 1947. Title Suit No.

210 of 1998 which was originally filed by the plaintiffs was transferred to the

court of the learned Civil Judge Jr. Division, 3rd Court at Diamond Harbour

and thereafter to the Court of the learned Civil Judge Jr. Division, 2nd

Additional Court at Diamond Harbour. The said Title Suit was renumbered as

Title Suit No 153 of 2004. The defendants were in occupation of the said suit

property and their names had been entered in the record of rights.

10. Thus, the pleadings would reveal that the plaintiffs and the defendants

both claim right title and interest in respect of the suit property. While the

plaint case was that the heirs of Dhanapati and Manmotha had acquired right,

title and interest in respect of the property in question after the said property

was released from the mortgage created by Dhanapati and Manmotha, the

defendants claim right, title and interest through their predecessor in interest

Haripada Bhattacharjee and on the basis of a deed of sale dated August 19,

1931 and subsequent sale and gifts. When the plaintiffs, for the first time,

came to know of the alleged transfers from the written statement, an

application was filed for amendment of the plaint to incorporate a challenge to

the deeds, namely, deed of gift dated January 6, 1981 and deed of sale dated

May 12, 1988 and July 21, 1993.

11. The said application for amendment was allowed by an order dated

August 31, 2005 and the plaintiffs filed the amended plaint. The contesting

defendant filed additional written statement. Although the defendant No. 4

relied on the alleged deed of sale, dated August 19, 1931, the original deed was

not produced before the learned Court below. The defendant filed a

handwritten certified copy of the deed. The plaintiffs contended that it was not

possible for the plaintiffs to verify the signature of Dhanapati Halder and

Manmotha Halder appearing in the said deed and the signature should be

compared with the admitted deed dated November 4, 1929.

12. The plaintiffs filed an application on October 25, 2005 for appointment of

an expert to compare the thumb impression of Dhanapati Halder and

Manmotha Halder available in the volume containing the entry of the deed

dated November 4, 1929 with those appearing in the volume containing entry

of the deed dated August 19, 1931. It was prayed that the two thumb

impression books of the aforementioned two deeds be produced before the

learned court. By an order dated March 15, 2006, the said application was

allowed. The learned court, by the order dated March 15, 2006, recorded that

for determination of the real question in controversy, appointment of a

fingerprint expert was necessary. The plaintiffs were directed to produce the

LTI book within April 5, 2006, in default of which, the order would be set aside

in order to avoid inordinate delay. Thereafter, by an order date April 20, 2006,

the plaintiffs were directed to issue notice upon the Alipore registry office so

that the LTI books from the Alipore registry office could be produced. Again,

dates were fixed for production of the LTI books.

13. A defendant expired. Substitution was allowed and a direction was

passed for adding the heirs and legal representatives of the deceased

defendant. It appears that the suit could not proceed on the account of transfer

of the presiding officer, and also on account of the death of a defendant. On

July10, 2009, the application filed by the plaintiff for a direction upon the DSR

to send the document by currier was allowed. By an order dated October 30,

2009, the court recorded that on several occasions the District Registry had

been directed to produce the LTI books, but no such book was presented and

the learned advocate for the defendant No 4 prayed for issuance of warrant. On

November 17, 2009, the plaintiffs filed an acknowledgement indicating further

receipt of summons by the office of the District Registrar.

14. By an order dated, December 5, 2009 the learned court recorded that

since March 15, 2006 the plaintiffs were unable to cause production of the LTI

books for examination by an expert. That the suit had reached a stagnant

condition. The plaintiffs had been given ample opportunity to bring the LTI

books, but failed to avail of the said opportunity. Hence, the court found that

the suit could not be kept in a state of limbo awaiting production of the LTI

books. The plaintiffs were barred from taking any step with regard to the said

prayer. Thereafter, the plaintiffs filed an application for recalling of the said

order. By an order dated, January 29, 2010, the application of the plaintiff to

call for the LTI book was considered and allowed for the ends of justice. The

order dated December 5, 2009 stood recalled.

15. The plaintiffs filed another application for amendment. Thereafter, the

plaintiffs prayed for several adjournments on several occasions and the learned

court rejected the application for adjournment as the court was of the opinion

that the plaintiffs were delaying the suit and asked the plaintiffs to show-

cause. The suit was dismissed on April 29, 2010 for non-compliance of the

court's order as no show-cause had been filed. The suit was restored to its

original file and number being Title Suit No.153 of 2004.

16. The Additional Sub-registrar (record), Alipore 24 parganas, (South),

informed the learned court below that volume No 26 being the copy of the

alleged deed, dated August 19, 1931 and the LTI books of SR Mograhat vide LTI

Nos. 3991 and 3992 were missing from the record room since long and a

general diary, to that effect, had been lodged before the inspector-in-charge,

Alipore police station. Finding no other alternative, the plaintiffs filed an

application for bringing Index-I and Index-II of the deed of 1931 from the office

of the District Registrar, Alipore to prove their case. Upon hearing the

respective parties, the learned court held that as the execution of the deed of

1931 was not under challenge by the plaintiffs, there was no necessity for

bringing Index-I and Index-II of the deed.

17. Strangely, the plaintiffs applied for a certified copy of the deed of 1931 on

November 15, 2019 and on November 22, 2019 a certified copy of the alleged

deed was supplied to the plaintiff. A copy of the certified copy of the alleged

deed No 2615 of the year 1931 has been annexed to the revisional application

as "P-9". As the learned court below had observed by order dated September

13, 2019 that the plaintiff had not challenged the execution of the alleged deed

of 1931, the plaintiffs filed an application for amendment in order to

incorporate a prayer in the plaint challenging the deed dated August 19, 1931.

18. Once again an amendment was sought for, in order to incorporate

prayers with regard to deed of August 19, 1931 and all subsequent deeds as

also the decree passed in Title Suit No 818 of 1947. The said application was

allowed on contest. The amended plaint was filed and the defendants filed the

additional written statement. Once again, the plaintiffs filed an application on

April 4, 2022 for a direction upon the District Registry to send the LTI book the

deed dated August 19, 1931 and the LTI book of the admitted deed dated,

November 4, 1929, so that the same might be sent to the D.I.G., C.I.D,

Fingerprint Bureau, Bhabani Bhaban, Alipore for scientific opinion. According

to the plaintiffs, the report would be necessary for adjudication of the issues

involved in the suit. By the order impugned, the learned court below rejected

the application.

19. This court finds that the order impugned suffers from the following

irregularities:-

a) By the order dated, January 29, 2010, the learned court below once

again allowed the prayer of the plaintiffs for a direction upon the District

Registrar, Alipore to produce the LTI books relating to the two deeds.

Thus, the earlier order rejecting such prayer of the plaintiffs passed on

December 5, 2009 stood recalled by the subsequent order dated January

29, 2010.

b) That the question of procrastination did not arise, as the plaintiffs were

praying for scientific examination of the LTIs.

c) It was not incumbent upon the plaintiffs to produce the LTI books, but

the District Registry was bound to produce the same upon summons

being issued by the learned court.

d) That the report of the additional sub-registrar (record) of Alipore alleging

that the volume of that Volume No.26, LTI book of the deed of 1931 was

missing, creates a doubt, as the plaintiffs had subsequently been

supplied with a certified copy of the same deed on November 22, 2019.

e) As the trial court had granted a chance to the plaintiffs to seek

production of the LTI books of the two deeds, being deed No 2615 dated

August, 19, 1931 and deed No 528, dated November 4, 1929, the

application should have been allowed for the ends of justice. The District

Registry, Alipore should have been directed to produce the LTI books of

the deed 2615 dated August 19, 1931 and deed No. 528 dated November

4, 1929. When the plaintiffs produced the certified copy of the deed dated

August 19, 1931 which was supplied to the plaintiffs on November 22,

2019, the availability of the volumes cannot be doubted. Certified copy of

the deed was issued in November 2019. This court has reason to believe

that the LTI books are available.

22. Accordingly, the revisional application is allowed and the order impugned

is set aside. The learned court below is directed to issue summons upon the

Additional District Sub- Registrar, Alipore to produce the aforementioned

volumes/LTI books of deed No. 2615 dated, August 19, 1931 and deed No 528

dated November 4, 1929. On failure, stringent orders may be issued as the

court deems fit and proper. On production of the same, the LTI books shall be

sent to the appropriate department of the government for comparison of the

fingerprints (LTI) as prayed for by the plaintiffs. The necessary report shall be

filed before the learned court within the time fixed by the court.

23. Upon production of such report, the learned court will proceed in accordance with law and dispose of the suit on its own merits.

24. The observations hereinabove are all tentative and shall not influence the trial.

25. Under such circumstances, the revisional application is disposed of.

26. There will be no order as to costs.

27. Parties are directed to act on the server copy of this judgment.

(Shampa Sarkar, J.)