Nilambu Sen vs Jai Haldar
2023 Latest Caselaw 446 Jhar

                                        1                Second Appeal No. 79 of 2012


      IN THE HIGH COURT OF JHARKHAND AT RANCHI
               Second Appeal No. 79 of 2012
1.  Nilambu Sen, son of Late Niladri Sen, by faith Hindu and by occupation
    service and land holder, resident of 30(B), Garia Hat Road, P.O. & P.S.
    Lake, Calcutta-22
2(a). Arati Sen, W/o Late Nilendu Sen, aged about 56 years, resident of
    P-42N, Unique Park, Behala, P.O. & P.S. Behala, Kolkata-700034
2(b). Nilanjana Sen, D/o Late Nilendu Sen, aged about 33 years, resident
    of P-42N, Unique Park, Behala, P.O. & P.S. Behala, Kolkata-700034
                                                      ... Appellants
                           -Versus-
1.  Jai Haldar, S/o Late Biresh Haldar
2.  Miss M. Haldar, W/o Late Pranav Haldar
3.  Bijay Haldar, S/o Late Pranav Haldar
4.  Satyadas Haldar, S/o Lat Pepin Haldar, resident of Samlong, P.S. & P.O.
    Namkum, District- Ranchi
5. Haricharan Mallic, S/o Late Kalicharan Mullick by faith Hindu by
    occupation service, resident of Hajipur, P.S. Sadar, P.O. Hazipur,
    District- Vaisali, at present posted as District Cooperative Officer, P.O.,
    P.S. & District- Ranchi
6. Srimati Shila Konar, wife of Sri Jitendra Nath Konar, posted at Usha
    Martin Black Factory Tatisilai, P.O. & P.S. Namkum, District- Ranchi
7. Ram Bilas Prasad, S/o Kapishewar Prasad by faith Hindu, resident of
    village Maksudpur, P.O. & P.S. Kishanpur, District- Samastipur, at
    present resident of Behind Post and Telegraph Colony, P.O. & P.S.
    Lalpur, District- Ranchi
8. Srimati Rukmini Devi, W/o Sri Baikunth Narayan Singh, by faith Hindu,
    resident of village Nadma, P.S. & P.S. Guruwa, District Gaya, at
    present resident of Burdwan Compound, P.S. & P.O. Lalpur, District-
    Ranchi
9. Bishwanath Mukherjee, son of late Shishir Kumar Mukherjee, by faith
    Hindu, resident of village Samlong, P.S. & P.O. Namkum, District-
    Ranchi
10. Srimati Shikha Banarjee, daughter of Late Shishir Kumar Mukherjee,
    by faith Hindu, resident of Village Samlong, P.S. & P.O. Namkum,
    District- Ranchi
11. Sri Manoj Kumar Mistri, S/o Dayanand Mistri, by faith Hindu, resident
    of Village Samlong, P.S. & P.O. Namkum, District- Ranchi
12. Kumari Nilakshi Sen, D/o Late Niladri Sen as faith Hindu by occupation
    service and land holder, resident of 30(B), Garia Hat Road, P.O. & P.S.
    Lake, Calcutta-22                                   ... Respondents
                                -----

CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Appellants : Mr. Sanjeev Kumar Sahay, Advocate For Respondent No.9 : Mr. Rahul Kumar Gupta, Advocate Mr. Chandrajit Mukherjee, Advocate For Respondent No.3 : Mr. Sanjay Kumar, Advocate

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12/25.01.2023 Heard Mr. Sanjeev Kumar Sahay, learned counsel for the appellants,

Mr. Rahul Kumar Gupta assisted by Mr. Chandrajit Mukherjee, learned

counsel for respondent no.9 and Mr. Sanjay Kumar, learned counsel for

respondent no.3.

2. This second appeal has been filed being aggrieved and dissatisfied

with the judgment dated 20.04.2012 and decree dated 03.05.2012 passed

by the learned District Judge-XXII, Ranchi in Title Appeal No.125 of 2003 by

which he has been pleased to decide the issue no. 3 in favour of the

appellants and has been pleased to allow the Cross Appeal filed by the

defendants/respondents after setting aside the findings on issues no.-4, 5

and 8, contained in the judgment dated 31.07.2003 and decree dated

11.08.2003 passed by the learned Sub-Judge-VI, Ranchi in Title Suit No.70

of 1984.

3. Title Suit No.70 of 1984 was instituted by the appellants/plaintiffs for

decree of declaration and recovery of possession by way of ejecting the

defendant from the construction made at the suit land and also by way of

demolishing the buildings there along with a decree of permanent

injunction. The suit property as detailed in the schedule of the plaint is

piece and parcel of the land and building within R.S. Khata no. 132, Plot

no.42 with Chapparbandi rights area 0.61 acres situated at village Samlong,

P.S. Namkum which corresponds to Municipal holding no.1590, Ward No.6B

of the Ranchi Municipal Corporation within the jurisdiction of this Court.

4. In the plaint, it was alleged that the suit property was a Chapparbandi

holding and Sukumar Haldhar granted a perpetual lease in favour of Smt.

Veerapani Devi with respect to the suit properties by a registered deed

dated 15.10.1947 and possession thereof was given to the plaintiff. It was

further alleged that said Veenapani Devi was grandmother of the plaintiff,

who remained in possession of the property till 08.04.1968 and she died

leaving behind her only daughter Smt. Kamla Sen as her sole legal

representative, Kamla Sen died on 16.02.1982 leaving behind her legal heirs

the plaintiff nos. 1 and 2 as her sons and plaintiff no 3 as her daughter. It

was also alleged that though the property is in possession of the plaintiffs, it

was not recorded as such despite the request made by the plaintiff no 2 to

the Municipal Authorities. It was further alleged that plaintiffs' mother and

the plaintiffs who were residing at Calcutta intended to sale the suit

property and accordingly an advertisement was published in the local news

paper. In July 1982, when the plaintiff no 2 visited Ranchi he found that two

buildings have been erected at the suit property. An enquiry was made

and he came to know that defendant nos. 1 to 3 posing themselves to

be the real owners have sold out the suit lands to defendant nos. 4 to 10

out of whom the defendant nos. 4 to 6 have constructed buildings

thereupon. The suit has been valued at Rs. 25,000/- and advolerum court

fee has been paid.

5. Defendant nos. 1 to 3 have contested the suit and they filed a

joint written statement. The main attack of all the contesting defendants

hinges upon the deed of perpetual lease dated 15.10.1947 executed by

Sukumar Haldhar in favour of Binapani Devi and others. It was alleged

that the said deed of perpetual lease is against the terms of the

registered deed of endowment dated 28.8.1939. It was stated that even if

some deed has been executed it remained a paper transaction it was never

acted upon and the suit property never came in possession of

Binapani Devi. It was further stated that Sukumar Haldhar being a raiyat of

the suit property was not having right, title and interest to transfer the suit.

6. There was specific assertion of the defendants that they are the

legal heirs of Sukumar Haldhar and they remained in possession of the

same within the knowledge of all the concerned. It was stated that the

suit property was developed by the defendants and it has been rightly

sold out to the other defendants. It was further stated that the suit is hit by

non-joinder of necessary parties as all the vendees of the defendants have

not been brought on the record.

7. Defendant no. 4, a purchaser of the suit land by sale deed 06.08.1980

had filed a separate written statement. It was stated that after a valid

purchase he has constructed a residential house in portion of the suit

property. It was further stated that the deed of perpetual lease was in

contravention of the endowment deed and the pleading raised by defendant

nos. 1 to 3 has been almost adopted by this defendant.

8. Defendant nos. 5, 9 and 10 are also purchaser of the suit land and

they claimed to have constructed building upon the portion of the suit land.

9. In view of the above pleading, the learned trial court has framed

following issues:

(i) Whether the plaintiff has valid cause of action for the suit ?

(ii) Whether the suit is hit by Law of Limitation and wrongful

possession and dispossession?

(iii) Whether the suit is hit by non-joinder of the necessary

parties?

(iv) Whether the ancestors of the plaintiffs were raiyates of the

land and the plaintiffs have got valid title upon it?

(v) Whether the defendants have any interest over the suit

property?

(vi) Whether the suit as framed is maintainable ?

(vii) To what relief or reliefs plaintiffs are entitled to?

(viii) Whether the registered lease deed dated 15.10.1947 is in

consonance with deed of endowment dated 28.08.1939,

whether the deed dated 15.10.1947 is a valid and genuine

document ?

(ix) Whether the suit has been properly valued?

10. The learned trial court after framing the issues, has decided the suit

vide judgment dated 31.07.2003 and dismissed the suit without cost. Being

aggrieved with that judgment, the appellants herein have filed Title Appeal

No. 125 of 2003, which was decided by the learned District Judge-XXII,

Ranchi vide judgment dated 20.04.2012 and the cross appeal was allowed

on contest and the suit of the plaintiffs was dismissed on contest with cost

throughout. Being aggrieved with that judgment, the present second appeal

has been filed by the appellants on 18.07.2012.

11. Mr. Sanjeev Kumar Sahay, learned counsel for the appellants submits

that the learned appellate court as well as the trial court has not considered

the evidences in right perspective and in invalidating the perpetual lease

deed dated 15.10.1947, the learned appellate court in its judgment has

failed to take into consideration that the said lease deed is 35 years old

unchallenged document, so it is presumed to be duly executed by Sukumar

Haldar and has achieved its presumption under the law. He further submits

that Sukumar Haldar though executed the perpetual lease deed dated

15.10.1947 as Shewait and had a transferable right to the property under

the Deed of Endowment (Ext.-A) and she he was not required to take

permission of the competent court, the learned appellate court was

unjustified in holding that the plaintiffs did not acquire any right, title and

interest under the lease (Ext.-2) which was also duly acted upon vide Exts.3

and 3/A. He also submits that the learned courts negated the possession of

the disputed land by Binapani Devi on the basis of lease and payment of

rent by her through Exts.- 3 and 4 series and on the basis of evidence of

D.W.3- Ratna Halder and D.W.6- Bishwajeet Mukherjee, who are wholly

incompetent witnesses. On these grounds, he submits that there are

substantial questions of law involved in the present appeal and, therefore,

this second appeal may kindly be admitted.

12. On 24.01.2023, learned counsel for the respondents pointed out that

respondent nos. 1,4, 6 and 11 have left for heavenly abode, during

pendency of this second appeal and as such, following order was passed on

24.01.2023:

"Order XXII Rule 11 of the Code of Civil Procedure read with Order XXII Rule 4 makes it obligatory to seek substitution/array of the heirs and legal representatives of deceased respondent if the right to sue survives. Such substitution/array has to be sought within the time prescribed by law of limitation. If no such substitution/array is sought, the appeal will abate. Sub-rule (2) of Rule 9 of Order XXII enables the party who is under an obligation to seek substitution/array to apply for an order to set aside the abatement and if it is proved that he was prevented by any sufficient cause from continuing the suit which would include an appeal, the Court shall set aside the abatement. Now where an application for setting aside an abatement is made, but the court having not been satisfied that the party seeking setting aside of abatement was prevented by sufficient cause from continuing the appeal, the Court may decline to set aside the abatement. Then the net result would be that the appeal would stand disposed of as having abated. It is crystal clear that no specific order for abatement of a proceeding under one or the other provision of Order XXII is envisaged, the abatement takes place on its own force by passage of time.

2. Mr. Rahul Kumar Gupta, learned counsel appearing for

the respondents submits that respondent nos.1, 4, 6 and 11 have left for their heavenly abode much prior to the year 2017 and information to that effect was received pursuant to the service report of those respondents and in spite of that the learned counsel for the appellants has not filed any application within time for substitution.

3. In that view of the matter, this second appeal has already been abated against respondent nos. 1,4, 6 and 11.

4. In view of the above, learned counsel for the appellants as well as the respondents will address the Court on the next day on the point when the jointness is there whether the second appeal will proceed against surviving respondents or not.

5. Let it appear tomorrow (25.01.2023)."

13. On 24.01.2023, the said order was passed and the matter was

directed to be listed for today to address the Court by the learned counsel

for the appellants as well as the respondents on the point when the

jointness is there whether the second appeal will proceed against surviving

respondents or not.

14. Mr. Sanjeev Kumar Sahay, learned counsel for the appellants submits

that this second appeal will abate only against respondent nos.1, 4, 6 and

11 and so far as other respondents are concerned, this second appeal can

be admitted.

15. Mr. Rahul Kumar Gupta, learned counsel for respondent no.9

submits that endowment deed was considered by the learned trial court as

well as the appellate court and on that issue, the divergent view has been

taken by the learned trial court and the appellate court. He further submits

that the learned trial court has framed issue no.(v)- whether the defendants

have any interest over the suit property and the learned appellate court has

held that the issue was unwarranted as the defendant has not paid

any court fee regarding declaring of any interest over the suit property.

He further submits that the learned appellate court has also discussed the

right, title and interest of the plaintiffs and has considered that

the genealogy of Deepitimay Haldhar was not brought on record and in

that view of the matter, the learned appellate court has come to the

conclusion that opinion cannot be given as to who have succeeded in

the male line as Shebiats. He also submits that after discussing the exhibits

as well as whole evidences, the learned trial court as well as the

appellate court has held that the plaintiffs were not having any right, title

and interest over the suit property. He further submits that on 24.01.2023,

it has already been recorded that the second appeal against respondent

nos.1, 4, 6 and 11 has already been abated and in the facts and

circumstances of the present case if the second appeal is admitted against

surviving respondents, it will amount to decree in two parts where the suit

property is one and jointness is another. To buttress this argument, he relied

upon the judgment passed by the Hon'ble Supreme Court in Sunkara

Lakshminarasamma (Dead) by legal representatives v. Sagi Subba

Raju and others; [(2019) 11 SCC 787].

16. Paragraphs 11, 12, 13 and 14 of the said judgment are quoted herein

below:

"11. In any event, Shri Thomas P. Joseph, learned Senior Advocate appearing on behalf of the respondents is justified in contending that these appeals are not maintainable since a number of defendants against whom the relief is sought/claimed have either been deleted from the array of parties, or are dead. The legal representatives of such deceased defendants have not been brought on record. Even before this Court, Respondent No. 7 (D-8), Respondent 8 (D-9), Respondent 9 (D-10) and Respondent 11 (D-13) in Civil Appeal No. 4382 of 2016 arising out of SLP (C) No. 20376 of 2004 have died. Their legal representatives have also not been brought on record. It is relevant to note here itself that Defendants 4, 6, 36, 50, 54, 58, 67, 69, 73, 77, 82, 92, 93, 113, 120 and 127 expired during the pendency of the matter before the trial court in OS No. 97 of 1984. So also, Defendants 20, 53, 64 and 118 have also died and their legal representatives have also not been brought on record.

12. Order 22 Rule 4 CPC lays down that where within the time limited by law, no application is made to implead the legal representatives of a deceased defendant, the suit shall abate as against a deceased defendant. This rule does not provide that by the omission to implead the legal representative of a defendant, the suit will abate as a whole. If the interests of the co-defendants are separate, as in the case of co-owners, the suit will abate only as regards the particular interest of the deceased party. In such a situation, the question of the abatement of the appeal in its entirety that has arisen in this case depends upon general principles. If the case is of such a nature that the absence of the legal representatives of the deceased respondent prevents the court from hearing the appeal as against the other respondents, then the appeal abates in toto. Otherwise, the abatement takes place only in respect of the interest of the respondent who has died. The test often adopted in such cases is whether in the event of the appeal being allowed as against the remaining respondents there would or would not be two contradictory decrees in the same suit with respect to the same subject-matter. The court cannot be called upon to make two inconsistent decrees about the same property, and in order to avoid conflicting decrees the court has no alternative but to dismiss the appeal as a whole. If on the other hand, the success of the appeal would not lead to conflicting decrees, then there is no valid reason why the court should not hear the appeal and adjudicate upon the dispute between the parties.

13. In the matter on hand, the absence of certain defendants who have been deleted from the array of parties along with the absence of legal representatives of a number of deceased defendants will prevent the court from hearing the appeals as against the other defendants. We say so because in the event of these appeals being allowed as against the remaining defendants, there would be two contradictory decrees in the same suit in respect of the same subject-matter. One decree would be in favour of the defendants who are deleted or dead and whose legal representatives have not been brought on record; while the other decree would be against the defendants who are still on record in respect of the same subject-matter. The subject- matter in the suit is the validity of the two wills. The courts including the Division Bench of the High Court have consistently held that the two wills are proved, and thus Veeraswamy being the beneficiary under the two wills had become the absolute owner of the suit properties in question. Such decree has attained finality in favour of the defendants who are either deleted or dead and whose legal representatives have not been brought on record. In case these appeals are allowed in respect of the other defendants, the decree to be passed by this Court in these appeals would definitely conflict with the decree already passed in favour of the other defendants.

14. As mentioned supra, the court cannot be called upon to make two inconsistent decrees about the same

subject-matter. In order to avoid conflicting decrees, the court has no alternative but to dismiss the appeals in their entirety."

17. By way of relying on the said judgment, Mr. Gupta, learned counsel

for respondent no.9 submits that considering the nature of dispute in the

property in question, two decrees cannot be passed and entire second

appeal is required to be abated.

18. In view of the above submissions of the learned counsel appearing for

the parties, the Court has gone through the judgments of the learned trial

court as well as the appellate court and finds that there are concurrent

findings of the learned courts on the point of right, title and interest over

the suit land. Admittedly, respondent nos. 1, 4, 6 and 11 have left for their

heavenly abode much prior to the year 2017 and in spite of that, till date,

no substitution petition has been brought on record by the appellants and

this second appeal was filed on 18.07.2012. Notice was issued upon the

respondents vide order dated 16.12.2016 and service report suggested that

respondent nos. 1,, 4, 6 and 11 have died much prior to the year 2017. On

the point of abatement, the order dated 24.01.2023 quoted herein above

speaks for itself. Admittedly, there is dispute of right, title and interest and

there are jointness of the entire property and in the case of such nature in

absence of legal representatives of deceased respondents, it will not be

proper to hear the appeal as against other respondents, then the appeal

requires to be abated in totality, as held by the Hon'ble Supreme Court in

Sunkara Lakshminarasamma (supra). Accordingly, the Court is not required

to call upon to make two inconsistent decrees about the same subject-

matter. In order to avoid conflicting decrees, the Court has no alternative

but to dismiss the appeal in its entirety.

19. In view of the above, this second appeal fails not only on the ground

of non-maintainability but also on merits and considering that there are

concurrent finds of two courts on the point of right, title and interest of the

plaintiffs, which cannot be disturbed in this second appeal.

20. Accordingly, this second appeal stands dismissed.

(Sanjay Kumar Dwivedi, J.) Ajay/