Sri Bhandul Shaw @ Manik Shaw vs Sri Tarak Shaw
2023 Latest Caselaw 6176 Cal

                  IN THE HIGH COURT AT CALCUTTA
                    CIVIL APPELLATE JURISDICTION
                            Appellate Side


Present:

The Hon'ble Justice Harish Tandon

            And

The Hon'ble Justice Ajay Kumar Gupta



                          FMAT 494 of 2022
                               With

                            CAN 1 of 2022
                                  and
                            CAN 2 of 2023
                    Sri Bhandul shaw @ Manik Shaw
                                  Vs.
                            Sri Tarak Shaw



For the Appellant            :      Mr. Siva Prasad Ghose, Adv.


For the Respondent           :      Mr. Arnab Roy, Adv.

Mr. Satyam Mukherjee, Adv.

Ms. Sayani Ahmed, Adv.

Heard on                     :      23.08.2023

Judgment on                  :      14.09.2023





Ajay Kumar Gupta, J:

1. The appellant/defendant has assailed judgment and decree dated

16th day of September, 2022 passed by the Learned Additional District

Judge, Fast Track, 1st Court, Barrackpore, North 24 Parganas in Title

Appeal No. 56 of 2015, thereby the learned Appellate Court set aside the

judgment and decree passed by the learned Civil Judge (Junior Division),

previously 4th Court, now re-designated as 2nd Court (Junior Division),

Barrackpore in Title Suit No. 304 of 2009, whereby the learned Trial Court

has dismissed the title suit on the ground that the plaintiff could not

properly describe the suit property in the schedule of the plaint,

apparently it appears erroneous and insufficient description of the suit

property so no effective decree for eviction can be passed against the

defendant though the plaintiff has been able to prove his ownership of the

suit property.

2. The appeal involves a short issue as would be clear from the facts

mentioned herein below:

Originally, the father of the plaintiff and defendant filed a suit for

eviction against appellant/defendant alleging him as a licensee contending

therein that the plaintiff had acquired right, title and interest of the

property being Holding No. 53/39, P.K. Biswas Road, Ward No. 15, P.O.

and P.S. Khardah, District North 24-Parganas, within Titagarh

Municipality together with structure therein by way of partition deed for

the year 1973 (hereinafter referred to as "the said property").

3. It is further averred in the plaint that due to love and affection the

plaintiff had gifted a portion of the said property measuring an area 5

Chatakhs 23 Sq. ft. of Bastu land together with one shop room in favour

of the defendant in the year 2006. Thereafter, the defendant being the son

of the original plaintiff, approached to accommodate him in another shop

room on a temporary basis, which is situated just adjacent to his shop

room i.e. western side of the defendant's gifted property as licensee

without any licence fees. The original plaintiff agreed upon such proposal

due to love and affection as well as in addition to undertaking offered by

the defendant that whenever the suit shop room is required for him, he

shall vacate the same. Original plaintiff asked to vacate the shop room for

his own purpose but in spite of several requests, defendant did not vacate

and further refuse to oblige the request of original plaintiff. Having no

alternative, the original plaintiff instituted a suit for eviction against

defendant occupied as a licensee after expiry of 15 days from the date of

receipt of the legal notice to quit and vacate the suit property.

4. Defendant duly appeared and contested the suit by filing written

statement. He denied and disputed all the material allegations as levelled

against him and also took a plea that the suit shop room was possessed

by one Sadique Ali as a tenant from the beginning. The said tenant

relinquished his tenancy right. All family members including the

defendant were running a joint family business from the said shop room.

Question of granting licence to the defendant is wholly denied by the

defendant and prayed for dismissal of the suit.

5. The suit was dismissed by the Trial Court observing that the

plaintiff has been able to prove his ownership over the suit property but

the defendant cannot be stated to be a licensee under him. Moreover, no

effective decree for eviction can be passed against the defendant in favour

of the plaintiff since the same cannot be executed on account of erroneous

and insufficient description of the suit property.

6. Respondent/plaintiff being aggrieved and dissatisfied with the

findings of the Trial Court filed Appeal before the Appellate Court below.

During pendency of the appeal, original plaintiff died and in his place,

another son namely, Tarak Shaw stepped into the suit as a plaintiff by

way of substitution with a plea that the remaining portion of property

including suit shop room was gifted to him by his father during his life

time. He became a sole owner of the subject matter of suit i.e. shop room

and prayed for decree of eviction against the defendant, who occupied suit

property as licensee. The facts of execution and registration of the gift

deed came to the knowledge of the Appellate Court below that the original

plaintiff/father had gifted remaining portion of land including shop room

in favour of present Plaintiff while disposing application filed under Order

22 rule 10, Order 10 Rule 1 read with Section 151 of the C.P.C. and

thereby substituted Tarak Shaw as appellant/plaintiff in appeal after

hearing the parties.

7. It is admitted facts that the present plaintiff as well as defendant

are the biological sons of the original plaintiff. It is the case of the

appellant herein that after the death of the original plaintiff, both sons

became legal heirs of the original plaintiff accordingly the suit property

automatically devolved upon them as co-sharer after demise of the original

plaintiff. During pendency of the appeal, it came to the knowledge that the

original plaintiff had already executed and registered a gift deed in favour

of the present plaintiff. Plaintiff prayed for substitution in place of his

father as he derived a bonafide right over the suit property as right to sue

survives. So, the matter twisted differently as suit shop room is now in the

ownership of present respondent/plaintiff and the original suit was filed

for eviction against the defendant as licensee under the original plaintiff.

In such a situation, it is imperative upon the Court to examine the gift

deed in which property in question was gifted in favour of the plaintiff by

the original plaintiff for final and effective adjudication of instant suit. It is

not disputed that the trial Court finally dismissed the suit only on the

ground that the plaintiff could not properly describe the suit property in

the schedule of the plaint. So, no effective decree for eviction can be

passed against the defendant. The said dismissal was challenged before

the First Appellate Court by the appellant/plaintiff.

8. After hearing the parties and coming to know about the new facts

that during pendency of appeal original plaintiff had gifted his remaining

property including suit shop room in favour of another son, namely, Tarak

Shaw, respondent herein, the Appellate Court has finally set aside the

judgment and order passed by the Trial Court and further remanded it

back as open remand for fresh adjudication directing to re-admit the suit

in its original file and framed and recast the issues in terms of

observations made in the body of judgment and given opportunity to the

parties to amend their respective pleadings in respect of the gift deed

executed and registered by original plaintiff and further permitted the

parties to adduce additional evidence on the point of their amended

pleadings and proceed to decide the said suit in accordance with law.

9. The present appellant/defendant has challenged the said

impugned order of remand in the instant Appeal feeling dissatisfied.

10. Learned counsel appearing on behalf of the appellant/defendant

strenuously submitted that the learned Appellate Court below erred in law

by setting aside the judgment and decree of the trial Court even knowing

the facts that original plaintiff had filed an eviction suit against the

defendant, by suppressing the fact that he was not an owner of the suit

property on the date of institution of suit.

11. Learned counsel further raised another question of law that the

learned Appellate Court committed an error in sending the case record on

open remand though both parties had already adduced their evidence.

Learned Appellant Court could have re-assessed the evidence of the

parties and adjudicated the case on the basis of the materials available on

the record but without doing such exercise remanded the entire case on

open remand, which is not at all permissible in law.

12. Learned Appellate Court below also failed to appreciate that upon

death of the original plaintiff, the appellant and the respondent got equally

right over the said shop room in terms of class-I of Hindu Succession Act

being his own sons.

13. The Learned appellate Court below erred in remanding the suit on

open remand in spite of recording a finding that original plaintiff remained

completely silent before the Trial Court and not a single whisper made

regarding such gift deed and continued as an owner of the said property

filed a suit against his own son as such order of remand cannot be

sustainable in the eye of law.

14. The Appellate Court also committed an error by allowing the

parties to amend their pleadings at the appellate stage despite of specific

finding that when the factum of gift deed is beyond the pleadings such

facts cannot be allowed at later stage in the eye of law.

15. The learned Appellate Court further fails to apply his judicial mind

that the partition deed being Exhibit 5 answered that he got 1 Katha and

6 Chitakhs of property along with building consisting of five residential

rooms and out of total five rooms, the original plaintiff along with his

family occupied two rooms and other three rooms were under the

occupation of tenant. So, the decision of the Appellate Court for

remanding the case is totally on the basis of surmises and conjectures.

16. Having heard the submission made elaborately by the learned

counsel appearing on behalf of the appellant/defendant and on perusal of

the materials available in the record, we find the original suit was filed by

the father of the present plaintiff and defendant for eviction of the

defendant from the suit shop room on the ground that he had allowed his

son to run a business on condition that he shall vacate the same as and

when it would be required for himself without charging any licence fees. It

was the case of the original plaintiff that he had gifted a bastu land

measuring an area of 5 Chittaks 23 Sq. ft. including one shop room in the

year 2006 in favour of defendant. The suit shop room is situated to the

adjacent and on the western side of the defendant's gifted property. He

allowed defendant as a licensee due to love and affection as well as

undertaking given by him to vacate the same but he failed in spite of

repeated requests. Written notice was also issued by the original plaintiff

to the defendant to vacate the same but he refused. Ultimately, plaintiff

instituted an eviction suit against appellant/defendant.

17. The present plaintiff being a son did not object to his father despite

of the fact that his father had gifted the remaining portion of land

including the suit shop room, which is subject matter of the present

appeal. It might be due to mutual understanding between the original and

present plaintiff or suppression of fact or ignorance of law is to be decided.

During pendency of the said appeal, the father expired. The present

plaintiff has informed the Appellate Court that his father had gifted the

suit property by way of gift deed prior to his death at the time of hearing

applications filed under Order 22 Rule 10, Order 1 rule 10 read with

Section 151 of the Code of Civil Procedure for substitution. Original

plaintiff neither adduced nor brought on record the said gift deed in the

evidence though the said gift deed was ultimate importance and squarely

affect the status of the appellant in the property. Accordingly, the

Appellant Court below rightly opined it is required to be brought on record

by way of amendment for proper and effective adjudication of the suit. It is

also necessary for the benefit of respondent/plaintiff as well as

appellant/defendant as the plea raised by the appellant/defendant is that

the appellant and the respondent got equally right over the said suit shop

room in terms of class-I of Hindu Succession Act being his own sons.

18. We have also considered the submission made by learned advocate

for the appellant that the trial Court has dismissed the suit as the suit

property has not been properly described in the schedule of the plaint, so

no effective decree for eviction can be passed against the defendant as it

could not be executed as such the judgment and decree of the Trial Court

does not call for any interference. However, the Appellate Court has

interfered and set aside the judgment and decree passed by the trial Court

and finally remanded it back on open remand for fresh adjudication

directing to re-admit the suit in its original file and framed and recast the

issues in terms of observations made in the body of judgment and give

opportunity to the parties to amend their respective pleadings in respect of

the gift deed executed and registered by original plaintiff and further

permitted the parties to adduce additional evidence on the point of their

amended pleadings and proceed to decide the said suit in accordance with

law.

19. It is relevant to mention here the description of the suit property as

described in the Schedule of the plaint by the plaintiff is as follows:

SCHEDULE OF THE SUIT PROPERTY

ALL THAT piece and parcel of one pucca shop room with

R.C.C. Roof measuring about 12' X 10' feet situated on the

ground floor at H/O Sri Jiut Sha, being Holding No. 53/39,

P.K. Biswas Road, Ward No. 15 within Titagarh Municipality,

P.O. & P.S. Khardah, District: North 24-Parganas, Kolkata:

       700 117, Butted and bounded





      ON THE NORTH        :      Another tenanted room.


      ON THE SOUTH        :      P.K. Biswas Road.


      ON THE EAST         :      J.Kite shop room of the defendant.


      ON THE WEST         :      Main Entrance.

20. From the above, it would be evident that the respondent/plaintiff

has clearly indicated the suit property particularly the shop room which

involves in the instant appeal. It is apparent from the record that the

learned Trial Court has committed a mistake that no effective decree can

be passed due to erroneous and insufficient description of the suit

property.

"A bare reading of Order 7, Rule 3 (as amended by our High Court),

it is clear that where the subject-matter of the suit is immovable property,

it is provided that the plaint shall contain a description of the property.

The basic requirement of the rule is that the plaint shall contain the

description of the suit property, which is sufficient to identify it by giving

the description but it may not be necessary in all cases for providing a

boundary or numbers in a record of settlement or survey, it is left to the

option of the party because the amendment of our High Court provides

that in case any area is mentioned, such description shall further state

the area according to the notation used in the record of settlement or

survey with or without, at the option of the party, the same area in terms

of the local measures."

Thus, as per Order 7 Rule 3, option is left with the party whether

such description is to be provided or not. The rule also does not provide

the consequence of such omission and in terms of the decision in

Pratibha Singh and Anr. vs. Shanti Devi and Anr.1 the decree, even if it

lacks description of the decreetal property, the said defect can be cured at

the executing stage by filing necessary application. Thus, it is abundantly

clear that even for failure on the part of omission to give a description of

the suit property by giving Holding No 53/39 and lying and situated at

P.K. Biswas Road, Ward No. 15 within Titagarh Municipality, P.O. & P.S.

Khardah, District: North 24-Parganas, Kolkata 700 117 along with four

sides boundaries in the plaint would not fatal the suit and that can be

cured at a later stage. Thus, providing those descriptions are only optional

to the plaintiff and not obligatory one on the basis of provisions laid down

in the Code of Civil Procedure. Moreover, the description of the suit

property indicated in the schedule of the plaint appears sufficient to

identify it.

1 AIR 2003 SC 643, (2003) 2 SCC 330

21. The Apex Court in the case of Pratibha Singh (supra) has held as

follows:

"17. When the suit as to immovable property has been

decreed and the property is not definitely identified, the

defect, in the court record caused by overlooking of provisions

contained in Order 7, Rule 3 and Order 20, Rule 3 of the CPC

is capable of being cured. After all, a successful plaintiff

should not be deprived of the fruits of decree. Resort can be

had to Section 152 or Section 47 of the CPC depending on the

facts and circumstances of each case which of the two

provisions would be more appropriate, just and convenient to

invoke. Being an inadvertent error, not affecting the merit of

the case, it may be corrected under Section 152 of the CPC

by the court, which passed the decree by supplying the

omission. Alternatively, the exact description of decreetal

property may be ascertained by the Executing Court in a

question relating to execution, discharge or satisfaction of

decree within the meaning of Section 47 CPC. A decree of a

competent court should not, as far as practicable be allowed

to be defeated on account of an accidental slip or omission. In

the facts and circumstances of the present case we think it

would be more appropriate to invoke Section 47 of the C.P.C."

22. The Order specifically provided that the plaintiff is required to

describe the suit property with sufficient particulars necessary for

identification of the same. If the particulars of immovable property have

been sufficiently described in the plaint, it can be easily identified but the

same would depend on the facts and circumstances of each case. Even if

no one can be identified the suit property that can be cured at later stage

but the trial Court overlooked the provisions contained in Order 7 Rule 3

and Order 20 Rule 3 CPC, which is capable of being cured only on the

basis of non-description of the suit property in the Schedule of the plaint.

23. Apart from the above findings, we are also of the view that gift deed

executed and registered by the original plaintiff in favour of the present

plaintiff during pendency or prior to institution of suit is ultimate

importance and squarely affect the status of the appellant in the suit

property. Furthermore, point raised by the defendant is also important

and relevant to decide in the suit that upon death of the original plaintiff,

the appellant and the respondent got equally right over the said suit shop

room in terms of class-I of Hindu Succession Act being his own sons.

Consequently, it is required to be brought on record the relevant facts as

raised by the appellant that he became owner of the suit shop room by

way of gift deed as well as respondent regarding his ownership by way of

inheritance for proper and effective disposal of the suit. So, Judgment and

Order passed by Appellate Court has no infirmity or illegality. Hence, it

does not deserve interference by this Court.

24. In the light of above discussions and findings, the appellant fails to

raise the substantial question of law for setting aside the judgment and

decree passed by the Appellate Court. Accordingly, Judgment and Decree

dated 16th day of September, 2022 passed by learned Additional District

Judge, Fast Track, 1st Court, Barrackpore, North 24 Parganas in T.A. No.

56 of 2015 is hereby affirmed.

25. Accordingly, the instant Appeal is dismissed with no order as to

costs. We express our view that expression whatever made herein above

would not in any way influence, while deciding the suit on open remand

by the trial Court.

26. Consequentially, CAN no.1 of 2022 and CAN no.2 of 2023 are

also thus disposed of

27. Department is directed to send down a copy of this judgment at

once to the learned First Appellate Court for information and necessary

steps.

28. Photostat certified copy of this judgment and award, if applied for,

be given to the parties on priority basis on compliance of all formalities.

I Agree.

(Harish Tandon, J.)                                         (Ajay Kumar Gupta, J.)




P. Adak (P.A.)