Unknown vs Smt. Mangala Dutta
2022 Latest Caselaw 352 Tri

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                 HIGH COURT OF TRIPURA
                      AGARTALA
                  RSA NO.23 OF 2018

Sri Nagendra Dutta,
Son of Late Barindra Dutta,
Resident of Uttar Panisagar,
P.O. & P.S. Panisagar,
District-North Tripura.

As per the Hon'ble Court order dated 24.02.2022, passed in
connected I.A. No.01 of 2022, the names of the LRs of
deceased appellant No.2 are incorporated in the following
way:-

2. Smti. Smriti Dutta,
Wife of Late Babul Dutta,

3. Shri Bijan Dutta,
Son of Late Babul Dutta,

Both residents of Village P.O & P.S. Panisagar, District-
North Tripura.

4. Smti Namita Dutta (Kar)
W/o-Shri Swapan Kar,
D/o. Late Babul Dutta,
Resident of Mashauli (Kanchanbari)

5. Smti Suma Dutta,
W/o Shri Abhijit Basak,
D/o Late Babul Dutta,
Resident of Kanchanbari,
Taraninagar, P.O. Taraninagar,
District-Unakoti.

6. Smt. Jhuma Dutta,
W/o Shri Chandan Das,
D/o Late Babul Dutta,
Resident of Maheshpur,
P.O. and Sub-Division-Dharmanagar,
District North Tripura.

                              ......... Defendant Appellant (s)
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                      Vs.

   1. Smt. Mangala Dutta,
   Daughter of Nagendra Dutta & Smt. Shayama Rani Dutta of
   Vill, P.O. & P.S. - Panisagar, District-North Tripura.

                                 ........Plaintiff-respondent

2. Smt. Shayama Rani Dey(Dutta), Wife of Nagendra Dutta, resident of Village, P.O. & P.S.- Panisagar, District-North Tripura.

......Proforma Defendant-respondent

For the Petitioner(s) : Mr. S. Lodh, Advocate.

For the Respondent(s) : Mr. S. Bhattacharjee, Advocate.

Mr. D.C. Saha, Advocate.

Date of hearing             : 14.03.2022.

Date of delivery of
Judgment & Order            : 24.03.2022.

Whether fit for reporting : YES.



        HON'BLE MR. JUSTICE T. AMARNATH GOUD

                      JUDGMENT AND ORDER

This is an appeal filed under Section 100 of the Code

of Civil Procedure, 1908, against the impugned Judgment

and Decree dated 26.02.2018 passed by the learned District

Judge, North Tripura, Dharmanagar, in Title Appeal No.39 of

2016, whereby the learned District Judge, North Tripura,

Dharmanagar dismissed the appeal and substantially

affirmed the judgment and decree dated 08.07.2016 &

19.07.2016 respectively, passed by the learned Civil Judge,

Senior Division Dharmanagar, North Tripura, in Title Suit 06

of 2013.

2. The facts in brief as stated in the plaint are that

the marriage between the defendant-appellant No.1, Sri

Nagendra Dutta, and the pro forma defendant-respondent,

Smt. Shayama Rani Dey(Dutta) was solemnized on

04.03.1981 and they started to live together as husband

and wife at North Panisagar. It is further contended that out

of their wedlock, Mangala Dutta, plaintiff-respondent herein

was born on 04.06.1982. After 2/3 years of the marriage,

Nagendra Dutta, defendant-appellant No.1 herein had been

suffering from serious mental insanity and during that

period of his insanity, he filed one divorce case vide No. T.S.

(Divorce) 03 of 1988 against the pro forma defendant-

respondent herein before the learned District Judge, North

Tripura, Kailashahar, on the ground of suppressing the fact

of the birth of the plaintiff-respondent herein. After

registration, the said case was transferred to the Court of

learned Addl. District & Sessions Judge, Dharmanagar,

North Tripura for disposal. Thereafter, summon was issued,

and on receipt of the summon, the pro forma defendant-

respondent engaged a lawyer to contest her case. But

ultimately, for her ignorance, the case was decided ex-parte

beyond her knowledge, vide judgment dated 12.04.1988,

whereby divorce was allowed as pro forma defendant-

respondent did not contest the suit on the pretext of her

thought that the divorce case would be automatically

dismissed due to insanity of Nagendra Dutta, defendant-

appellant No.1 herein. She, also contended that after

getting the information about the granting of divorce, the

pro forma defendant-respondent filed a petition under

Section 151 of CPC before the learned Court of District

Judge, the then North Tripura, Kailashahar, for setting aside

the judgment and decree dated 12.04.1988 passed in T.S.

(Divorce) 03 of 1988, which was registered as Civil Misc.

No.04 of 1995. In that Misc. Case Nagendra Ch. Dutta was

represented by his elder cousin brother Amarendra Dutta as

guardian. After hearing the parties, vide order dated

22.11.1995, the petition filed under Section 151 CPC was

rejected. The plaintiff-respondent, in her plaint also

contended that her mother i.e. the pro forma defendant-

respondent, by filing an appeal before the Hon'ble Gauhati

High Court, challenged the judgment and decree dated

12.04.1988 passed in T.S.(Div) 03 of 1988. The Hon'ble

High Court vide judgment and decree dated 25.03.2001

dismissed the appeal.

3. The story of the plaintiff-respondent herein is

that her mother, Pro-forma defendant-respondent did not

take proper steps, and hence, she lost the case. She further

pleaded that she stayed at Panisagar, Dharmanagar for

some time in the rental house with her mother, and

sometimes they were in the house of the maternal uncle.

Since her childhood, the plaintiff-respondent could not see

her father as he was moving here and there due to his

insanity. Her mother consoled her narrating this or that

about her father and in this way, long days passed and the

plaintiff-respondent has grown up. In the year 2010, the

plaintiff-respondent came to learn that divorce was granted

against her mother while the defendant-appellant No.2 Sri

Babul Rajan Dutta @ Babul Dutta(since deceased

represented by his legal heir), the brother of the appellant

No.1, was trying to grab the landed property of her father,

depriving her declaring that the plaintiff-respondent herein

is not the daughter of Nagendra Dutta. The plaintiff-

respondent also pleaded that defendant-appellant No.1 was

missing for long and none can say his whereabouts. On

getting the information about the divorce case of her

mother, wherein the plaintiff-respondent was treated as an

illegitimate child and after hearing the unbearable sorrow of

her mother, pro forma defendant-respondent No.2 herein,

began to search those cases and collected the certified

copies and has filed the suit. The said suit was registered

and marked as Title Suit No.06 of 2013 before the learned

Civil Judge, Senior Division, Dharmanagar, North Tripura.

4. On receipt of the summons, the defendant-

appellant No.2 appeared and contested the suit by filing a

detailed written statement. In the written statement, he

categorically denied all the assertions of plaintiff-respondent

No.1, particularly that respondent No.1 was born on

04.06.1982 out of the wedlock of the defendant-appellant

No.1 and the pro-respondent No.2 or that she is the

legitimate daughter of defendant-appellant No.1. He also

admitted that learned Addl. District and Sessions Judge,

Dharmangar vide Judgment dated 12.04.1988 granted

divorce in favour of defendant-appellant No.1 while their

marriage was solemnized on 04.03.1981 in accordance with

Hindu rites after which they lived together in the

matrimonial home at Uttar Panisagar. He also contended

that the divorce was granted on the reason of cruelty made

by the proforma defendant-respondent No.2 on the

disclosure of the fact of illegitimate issue that prompted

defendant-appellant No.1 to sink in grief and put to shame.

In the written statement, it is also denied that at the time of

the judgment of the divorce case, the defendant-appellant

No.1 was of unsound mind and that he was suffering from

chronic schizophrenia in the year 1984. He also denied that

defendant-appellant No.1 was unable to give a proper

deposition in the Court or assuming automatic dismissal of

his divorce case due to his insanity pro-respondent No.2 did

not contest the case. In the written statement, it is also

admitted that subsequently one Misc Case was filed by pro

forma defendant-respondent under Section 151 of CPC,

which was also rejected. Subsequently, pro forma

defendant-respondent No.2 preferred a first appeal before

the Hon'ble High Court that was also dismissed by judgment

and decree dated 28.03.2001. He further contended that

the instant suit is barred by the principle of res-judicata in

view of the judgment and decrees of T.S. (Divorce) No.03 of

1988 and First Appeal No.17 of 1996. It was further

submitted that the suit was filed to grab the suit property.

It is also submitted that Amarendra Dutta was never a

guardian of Nagendra Dutta and as such, the filing of a

petition under Section 151 of CPC vide Civil Misc. Case

No.04 of 1995 in the Court of the District Judge, North

Tripura, Kailashahar with reference to T.S. (Divorce)03 of

1988 was made to frustrate the decree of T.S. (Divorce) 03

of 1988. It is also stated that the suit for declaration of the

legitimacy of respondent No.1 as the daughter of Nagendra

Dutta cannot be granted in absence of him. The record of

right is standing jointly in the name of the defendant-

appellant No.2 and Nagendra Dutta and presently as per

law defendant-appellant No. 2 becomes the owner in

possession of the whole land mentioned in the khatians. It

is also asserted that Nagendra Dutta executed a power of

attorney deed in 1974 in favour of defendant-appellant No.2

authorizing him to take care and to do all acts and deeds on

his behalf in respect to his landed properties. It is also

stated that if the plaintiff-respondent No.1 all along has

been residing with her mother pro-respondent No.2, then

why she was not joined as co-plaintiff in the suit. He also

contended that the suit is barred by the provision of Order

32 of CPC. Thus the appellants prayed for dismissal of the

suit. Appellant No.1 neither appeared before the learned

Trial Court nor was he represented by anybody, and the

pro-respondent No.2 even though appeared, did not file any

written statement.

5. To prove the case, respondent No.1 as plaintiff

adduced 5(five) witnesses, and on the other hand, the

appellants as defendants adduced 3(three) witnesses. After

hearing parties, learned Civil Judge, Senior Division,

Dharmanagar, North Tripura, vide Judgment and decree

dated 08.07.2016 & 19.07.2016 respectively decreed the

suit.

6. Being aggrieved and dissatisfied by the judgment

and decree dated 08.07.2016 and 19.07.2016, respectively,

passed by the learned Civil Judge, Senior Division,

Dharmanagar, North Tripura in T.S. 06 of 2013, the

appellants preferred an appeal before the learned District

Judge, North Tripura, Dharmanagar, and the said appeal

was registered and marked as Title Appeal No.39 of 2016.

After hearing the parties, the learned District Judge, North

Tripura, Dharmanagar vide impugned judgment and decree

dated 26.02.2018 dismissed the appeal, and upheld the

judgment and decree dated 08.07.2016 and 19.07.2016

respectively passed by the learned Civil Judge, Senior

Division, Dharmanagar, North Tripura in T.S. 06. of 2013.

7. Being aggrieved by the impugned judgment and

decree dated 26.02.2018, passed by the learned District

Judge, North Tripura, Dharmanagar in Title Appeal No.39 of

2016, the appellants preferred this appeal and prayed for

the following reliefs:-

" i. Admit the appeal;

ii. Call for records;

iii. Issue notices upon the respondents; and iv. After hearing the parties be pleased to allow the appeal by setting aside the impugned judgment & decree dated 26.02.2018 passed by the learned District Judge, North Tripura, Dharmanagar(Sri U.H. Das), in Title Appeal No.39 of 2016, whereby learned District Judge, North Tripura (Sri U.H. Das), in Title Suit 06 of 2013; and thereafter, dismissed the suit ;

v. Pass any other Order(s) as may be deemed fit and proper for fair ends of justice;"

8. While admitting the appeal, this Court framed

the following substantial question of law:-

"(1) Whether from the evidence as adduced it can be legally be deduced that the plaintiff- respondents have established the paternity of the plaintiff-respondent No.1 qua the defendant-appellant No.1 and proforma-respondent No.2 or the finding is perverse?"

9. Heard Mr. S. Lodh, learned counsel appearing for

the appellants as well as Mr. Sankar Bhattacharjee, learned

counsel, and Mr. D.C. Saha, learned counsel appearing for

the respondents.

10. Nagendra Dutta, defendant-appellant No.1 has

gone missing for more than 7(seven) years and this fact is

not disputed by both parties. Here it is pertinent to quote

Section 108 of the Indian Evidence Act:-

" 108. Burden of proving that person is alive who has not been heard of for seven years.- [Provided that when] the question is whether a man is alive or dead, and it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is [shifted to] the person who affirms it.

11. In light of Section 108 of the Indian Evidence

Act, it can be reasonably presumed that the person is dead.

12. The defendant-appellant No.2 is the younger

brother of Nagendra Dutta, defendant-appellant No.1 and

he was holding General Power of Attorney („GPA‟ in short)

on behalf of Nagendra Dutta. In view of the fact that

Nagendra Dutta, has gone missing and is reasonably

presumed dead, he has no locus to contest the matter as an

authority since his attorney becomes invalid. Further, Mr.

Babul Ranjan Dutta @ Babul Dutta, the defendant-appellant

No.2 has also died during the pendency of the proceedings

and his legal heirs have come on record. Mr. S. Lodh,

representing the appellants argued the matter on the

pretext that they are class-II heirs to the property of the

Nagendra Dutta.

13. In the course of argument, the learned counsel

appearing for the appellants has drawn the attention of this

Court to some orders wherein some observations are there

with regard to the legitimacy of Smt. Mangala Dutta,

plaintiff-respondent herein as the daughter of Sri Nagendra

Dutta and Smt. Shayama Rani Dey(Dutta). It is seen from

the record that the orders which are referred, with due

respect to the brother Judges and also to the judicial

proceedings, this Court defers from the said findings on the

sole reason that the findings which have been given were

not the suit for declaration of Smt. Mangala Dutta as the

daughter of Nagendra Dutta and Smt. Shayama Rani

Dey(Dutta). Whereas, the present case in hand i.e. Title

Suit 06 of 2013 on the file of learned Civil Judge, Senior

Division, Dharmanagar, North Tripura which is the subject

matter of this RSA, the prayer itself was to declare Smt.

Mangala Dutta as the legitimate daughter of Nagendra

Dutta and Smt. Shayama Rani Dey(Dutta). Accordingly, the

Trial Court has examined all witnesses and the evidence on

record and on the strength of the same has decided Smt.

Mangala Dutta as the legitimate child of Sri Nagendra Dutta

and Smt. Shayama Rani Dey(Dutta) and decreed the suit to

the effect. The same has been confirmed by the lower

Appellate Court.

14. The entire dispute runs around the declaration of

the plaintiff-respondent as the legitimate child of Nagendra

Dutta and Smt. Shayama Rani Dey(Dutta) and she is the

legal successor of the said property.

15. This second appeal is filed against the concurrent

findings of the order passed by the appellate Court

substantially affirming the order of the Trial Court and the

same is not interfered. It is further clarified that the

defendant-appellant No.2 in the suit was holding the GPA

for managing the properties of Nagendra Dutta and since

Nagendra Dutta is declared dead under Section 108 of the

Indian Evidence Act, and the attorney also died, pending

the litigation, as such, the GPA becomes invalid.

16. In view of the above discussion, this instant

appeal is liable to be dismissed.

17. Accordingly, the instant appeal stands dismissed

and as a sequel, miscellaneous applications pending, if any,

shall stand closed.

Send down the LCRs.

JUDGE

suhanjit