Calcutta High Court (Appellete Side)
Rep. By Sri Chittranjan Singh & Ors vs Sudhir Kumar Mondal Since Deceased on 24 September, 2024
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
PRESENT:
THE HON'BLE JUSTICE AJOY KUMAR MUKHERJEE
S.A. 178 of 1969
Manmatha Nath Singha, Since deceased,
rep. By Sri Chittranjan Singh & ors.
Vs.
Sudhir Kumar Mondal since deceased,
rep. by Alak Kumar Mondal & Ors.
For the Appellants : Mr. Prasanta Kumar Giri
Mr. Biswaranjan Bhakat
For the Respondent : Mr Pabitra Bhowmik
Heard on : 10.09.2024
Judgment on : 24.09.2024
Ajoy Kumar Mukherjee , J.:
1. Being aggrieved and dissatisfied with the judgment and decree dated
9thSeptember, 1968 passed by subordinate Jude 1st Court, Midnapore, in
TA no.639 of 1967, present second appeal has been preferred by the
defendant/appellants . By the impugned judgment learned court below has
set aside the decree passed by learned trial court in TS no. 348 of 1963.
2. Plaintiffs filed the aforesaid suit with a prayer for declaration
confirmation of possession and alternatively for recovery of possession and
permanent injunction. According to plaintiffs, they have 14 annas 5 gonda
share in the 'ka' and 'kha' schedule land, 12 annas 10 gondas share in the
'ga' schedule land 16 annas share in the 'gha' schedule land. One
Nilambar Singha appears to be the common ancestor of the plaintiff who
died in 1340 BS and his wife predeceased him. Nilambar was survived by
his two sons Sarada and Barada. Bityamoyee is the wife of Sarada and
Bindubasini in the wife of Baroada.plaintiff no. 1 and 2 are the sons of
Barada and Gajendra and Nagendra are the sons of Sarada. Giribala is the
wife of Ganjendra and defendant no. 12 to 17 are the children of Gajendra.
3. Plaintiffs further case is that on the death of Lakhu Mondal his four
sons amicably partitioned the property left by Lakhu before the district
settlement operation. Plot no. 656/687 and 656/660 appertaining to
khatian no.8 were allotted to Kailash one of the sons of Lakhu. The rest of
the land described in the 'ka' schedule were allotted to Akshoy, Krishna
and Haramoni, the sons and the sons wife of Lakhu. Akshoy and Haramoni
sold their 2/3rd share in the 'ka' and 'gha schedule land to Krishna by a
deed dated 22nd Magh, 1312 BS. The 'ga' schedule land was sold by Akshoy
Kailash and Krishna and Haramoni to plaintiffs predecessor Nilambar by a
deed dated 25thJaistha 1311 BS and in such land Gopal and Akshoy had
interest by virtue of partition. The 'kha' schedule land was allotted to
Krishna alone though it was wrongly recorded in the name of Krishna,
Akshoy and Hiramani. Krishna sold 'ka' and 'kha' schedule properties in
equal share to the plaintiff No.1 and 2 and Gejendra. By a deed dated
26.01.1940, the share of Gajendra devolved upon plaintiff no. 4 and
defendant no. 11 to 17. Plaintiff 1 and 2 have 12 annas share in the 'ka'
and khas schedule land and plaintiff no. 3 and 4 have 2 annas 5 gondas
share therein. Their total share is 14 annas 5 gondas. Nilamabar
possessed the 'ga' schedule property by purchase which devolved after his
death upon Manmatho, Pramotho, Nagendra, Gajendra and Nityamoyee.
Krishna died leaving behind his son Rashbihari, who sold the 'gha'
schedule property to plaintiffs no. 1 and 2 by a deed dated 7th chaitra 1351
BS. In the RS record, the lands have not been correctly recorded in the
name of the plaintiffs in accordance with their respective share. The
defendants have allegedly trespassed some of the lands and their
possession have been noted and as such plaintiffs filed the aforesaid suit
4. Defendant 1 to 4 contested the suit by filing written statement
contending that the suit property belonged to Kailash and his brothers.
They used to possess different portions of the suit land by amicable
arrangement without regular partition by meters and bounds. Kailash did
not sell his interest by the alleged deed dated 25thJaistha 1311BS. Kailash
had 1/4th share in khatian no. 41 and he had possession in plot no. 57-59
and 71. Plot no. 57 and 58 have been duly recorded in his name but the
record in respect of plot no. 59 is erroneous. The contesting defendants are
possessing the plot nos. 57 to 59 adversely to the interest of the real
owners for more than 12 years. The defendant had a pan baraj on plot no.
57 and they had a tank on plot no. 58, which was subsequently converted
into a baraj. The tank in plot no. 59 is converted subsequently into paddy
land. In 'gha' schedule land, Kailah had 1/4th share and he was in
possession of plot no. 74 and 48. The other co-sharers left the place.
Mahesh and his legal heirs including defendant no. 1 to 4 possessed the
property. The defendants have a baraj in plot no. 48. In the 'kha' schedule
property kailash had 1/4thshare. On the death of Hirmaoni, Kailash got
share and the rest remained with Akshoy and Krishna. Mahesh and
thereafter his sons who are defendant no. 1 to 4 are possessing the plot no.
75 and 92 exclusively. In khatian no. 80 all the co-sharers had equal
interest but by an amicable arrangement since before the District
settlement, the co-sharers were in possession of separate lands. On the
death of Hiramoni, her interest devolved upon Kailash, Krishna being the
heir of Akshoy. On or about 1343 BS, Mahesh came in possession of the
land which was in possession of Krishan, Akshoy and Hiramony. Mahesh
was in exclusive possession of plot no. 656/685 and 656/686. After his
death the contested defendants came into possession
5. Learned trial court framed eight issues and he scanned the
documentary as well as oral evidence filed by the parties in details. He
disbelieved the defendants case of acquisition of title by adverse
possession. However, the trial court held that the defendants are in
possession of plot no. 656/685, 656/686, 75,92,57,58 and 48. Accordingly
trial court held that the plaintiffs being the sole owner of plot no. 48 is
entitled to recover khas possession thereof. It was further held that in
respect of other plots the plaintiffs are not the sole owner but the proforma
defendants no. 11 to 17 are co sharers along with them and as such
plaintiffs are not entitled to evict the defendants from the said plots.
However, plaintiffs are entitled to the decree of joint possession to the
extent of their share in the said property. By its judgment the trial court
specifically held that Krishan and his brothers had many lands and said
lands have been recorded in the name of different brothers, which goes to
show there was some sort of partition between the co sharers and as a
result of which lands were separately allotted to different persons in the
record of rights and as such the trial court was of the view, on the basis of
materials on record that the original co sharers partitioned the properties
before the preparation of the R.S record of the rights.
6. However, when the matter came up before the first appellate court
the court below did not accept trial courts observation that there were
some sort of partition among the co-sharers and the court below held that
though some of the suit plots have been exclusively recorded but this fact
by itself cannot prove the factum of partition, as direct evidence of partition
is not available and the trial court committed wrong in inferring partition
from the facts and circumstances of the case.
7. The court below accordingly by the impugned judgment remanded
the matter before the trial court giving opportunity to the parties to adduce
evidence to decide whether there was any partition by metes and bounds
between Kailash and his three brothers and further to decide whether the
defendants possession in the suit plots were adverse to the interest of the
real owners and whether such possession ripened into title and thereafter
to make calculation about the shares of the plaintiff in the suit land and he
further directed the trial court to determine whether the plaintiffs are
entitled to get a decree for joint possession in respect of the suit property.
8. Mr. Giri, learned counsel appearing on behalf of the appellants
submits that the order of open remand passed by the court below is
erroneous and the facts and circumstances of the case do not satisfy the
test for open remand. In support of his arguments he submits that further
adducing evidence in the present case is not possible because the dispute
is pending since 1963 and the witnesses are not available. According to Mr.
Giri whether there was any partition or not can very well be decided from
the documentary evidence as well as from the oral evidence already
brought on record and for that reason the court below was not at all
justified in passing the impugned order of open remand.
9. Mr.Bhowmik, learned counsel appearing for respondent submits that
some points involved in the suit requires further clarification and for
which, court below rightly remanded the matter for open remand which
does not call for interference.
10. This court by an order dated 08.08.2024 framed the following
substantial questions of law for adjudication:
(i) Whether the learned court below acted illegally in remanding the case for
fresh decision when the materials on record are not found to be insufficient
for decision by the first appellate court
(ii) Whether the court below has acted illegally in not holding that in view of
exhibit-12 and 12 (a), the question as to whether there was an amicable
partition in between the four sons of Lokhu Mondal is barred by res-
judicata
(iii) Whether ld court below has committed mistake in holding that as there
was no sub-division of rent, the case of previous partition could not be
taken as true and that the same proves the defence case of amicable
arrangement for separate possession only
(iv) Whether the court below has acted illegally in holding that in considering
the question of adverse possession, the learned Munsiff did not consider
the Dakhilas (Exhibit A series) and also oral testimony of defence witness
no. 1,2,3 in it's true prospective
11. I have considered submissions made by both the parties.
12. On perusal of the judgment impugned it appears that court below
had remanded the case for fresh trial on the ground that the learned
Munsiff's conclusion from the fact that some of the properties were
mortgage by Kailash alone and name of Kailash's son are appearing in the
sale certificate are sufficient proof about previous partition because unless
kailash exclusively owned the properties, he could not have dealt with the
property exclusively, is erroneous because this does not prove the factum
of partition. He further observed that the trial court relied upon certified
copy of judgment of the appellate court (Exhibit 12/a) where it has been
observed that separate possession by each co-sharer and separate record
in the name of each co-sharer go to suggest that there was some sort of
partition between them is not fully correct since there was no sub division
of rent and the story of previous partition without sub division of rent is
not a normal feature and on the contrary it proves the defendants case of
separate possession by each co-sharer through amicable arrangement
13. The second ground of remand is that the court below did not properly
consider whether the defendants possession was adverse to the real owners
and whether by such adverse possession defendants acquired any title to
the suit lands and therefore, his finding regarding adverse possession is
not sustainable.
14. The third ground for remand is that Nityamoyee (plaintiff no.4) died
during the pendency of the suit and some of her heirs are defendants in the
present suit and as such the plaintiffs share cannot remain same after the
death of plaintiff no.4 as has been given in the plaint. Accordingly all the
legal heirs of Nityamoyee are to be impleaded and it must affect the share
of the plaintiffs.
15. Finding above the court below observed that he does not like to enter
deep into the matter as he is of the opinion that the trial court did not
rightly decide the suit and accordingly he jumped to a conclusion that this
is a fit case for remand.
16. While making such observation the court below was obliviated about
the fundamental principle of remanding a case for fresh trial. The power to
remand under rule 23 A of order XLI, is not to be exercised without any
sufficient cause. He ought to have kept in mind that the order of re trial
after setting aside the judgment of the trial court, is bound to add to
miseries of the parties due to exercise of such power in a rash and
negligent manner and also for his disliking in not entering deep into the
matter. In fact it has been decided in various judgments that the power
under order XLI rule 23A is only to be invoked in rarest of rare or most
exceptional cases when the appellate court is very much convinced on
cogent reason that a re-trial is necessary, failing which substantial
miscarriage of justice would result.
17. In the present context as I must point out that the court below was
very much in a position to adjudicate the issues raised by him in his
judgement from the available documents and evidence and ought to have
come to a conclusion from documentary and oral evidence as to whether
there was any previous partition between the parties or not and whether
defendants have succeeded in proving their case of adverse possession or
not and also whether plaintiffs share needs to have re allocated in view of
death of plaintiff no.4, Nitayamoyee, during pendency of the suit.
18. From the judgment impugned I do not find any cogent reasoning
that the evidence on record are not sufficient to dispose of the aforesaid
issues and without recording such reasoning, the order of retrial must not
have been passed. It is wholly improper, if a remand order is passed
merely because appellate court considered reasoning of trial court in some
respect wrong or inconsistent or insufficient. Remand order must not be
taken as an empty formality merely on the ground that there might be
illegality while deciding the controversial issues. Under order XLI rule 24
appellate court can always finally dispose of the case after re settling
issues when the evidences are available on record regarding the points in
dispute and even in such cases he is not required to frame any additional
issue under order XLI rule 25 and to refer it for trial.
19. In such view of the matter I have no hesitation to conclude that
where the evidence upon the records do not appear to be insufficient, to
enable the court below to pronounce judgment on merit, there is no reason
why the same would not have been decided on merit by the said court.
Even if any issue or point like adverse possession is not decided by the trial
court, by giving proper reasoning, the first appellate court has the power to
decide such issue without remitting suit to the trial court for retrial. In
short order of retrial in any case unless it is absolute necessary is to be
avoided by the appellate court.
20. In view of above the judgment and decree passed in T.A. no. 639 of
1967 dated 9th September 1968 is hereby set aside.
21. S.A. 178 of 1969 is thus allowed.
22. The jurisdictional court below/first appellate court is hereby directed
to decide the appeal afresh on the disputed issues considering the
documentary and oral evidences available in record. The court below will
dispose of the appeal as above after giving opportunity to both the parties
to contest preferably within a period of 12 weeks from the date of the
communication of this order, since the dispute between the parties is
pending for more than 60 years.
Urgent Xerox certified photocopies of this Judgment, if applied for, be given
to the parties upon compliance of the requisite formalities.
(AJOY KUMAR MUKHERJEE, J.)
