Smt. Suniti Banik vs Sri Dilip Kumar Banik
2024 Latest Caselaw 540 Tri

Tripura High Court

Smt. Suniti Banik vs Sri Dilip Kumar Banik on 4 April, 2024

                      HIGH COURT OF TRIPURA
                            AGARTALA
                         RSA No.7 of 2022

1. Smt. Suniti Banik
   W/o Lt. Rajmohan Banik
2. Sri Parimal Banik
3. Sri Nirmal Banik
4. Sri Raju Banik,
   All sons of Late Rajmohan Banik
5. Sri Prasenjit alias Mahadeb Banik
6. Sri Chiranjit alias Sahadeb Banik,
   both sons of Sri Parimal Banik,
  All resident of Vill-karaimura,
  P.s - Bishalgarh, Dist - Sepahijala.
                                            ------Defendant-Appellants
                                Versus
1. Sri Dilip Kumar Banik,
   S/o Late Jogesh Ch. Banik,
   Resident of vill-Karaimura,
   P.O- K.K. Nagar, P.S.-Bishalgarh
   District-Sepahijala
                                           ------Plaintiff-respondent

As per the Hon'ble Court order dt. 5.8.2022 necessary amendment/substitution is made as follows:

2. Smt. Surabhi Bhattacharjee (Ghosh), w/o Sri Billa Ranjan Ghosh, behind "Fish Bazar" of Bishalgarh New Market, P.S. & P.O. - Bishalgarh, District - Sepahijala;

Pin - 799102

----Added Defdt-Respondent

1. Smt. Suniti Banik W/o Lt. Rajmohan Banik

2. Sri Parimal Banik

3. Sri Nirmal Banik

4. Sri Raju Banik, All sons of Late Rajmohan Banik

5. Sri Prasenjit alias Mahadeb Banik

6. Sri Chiranjit alias Sahadeb Banik, both sons of Sri Parimal Banik,

All resident of Vill-karaimura, P.s - Bishalgarh, Dist - Sepahijala.

------Defendant-Appellants Versus

1. Sri Dilip Kumar Banik, S/o Late Jogesh Ch. Banik, Resident of vill-Karaimura, P.O- K.K. Nagar, P.S.-Bishalgarh District-Sepahijala

------Plaintiff-respondent As per the Hon'ble Court order dt. 5.8.2022 necessary amendment/substitution is made in the cause title:

2. Smt. Surabhi Bhattacharjee (Ghosh), w/o Sri Billa Ranjan Ghosh, behind "FISH BAZAR" of Bishalgarh New Market, P.S. & P.O. - Bishalgarh, District - Sepahijala;

Pin - 799102

----Added Defdt-Respondent

For Appellant(s) : Mr. S. M. Chakraborty, Sr. Adv, Mr. S. Saha, Adv.

For Respondents : Mr. D. R. Chowdhury, Sr. Adv, Mr. S. Sarkar, Adv.

For Appellant(s) : Mr. S. M. Chakraborty, Sr. Adv, Mr. S. Saha, Adv.

For Respondent(s) : Mr. D. R. Chowdhury, Sr. Adv, Mr. S. Sarkar, Adv.

    Date of hearing            :        11.03.2024

    Date of delivery of
    Judgment & Order           :        04.04.2024

    Whether fit for
    reporting                  :        NO

              HON'BLE MR. JUSTICE BISWAJIT PALIT

                          Judgment & Order

The appeal bearing no. RSA No.7 of 2022 and the

connected appeal bearing no. RSA No.8 of 2022 are arising

out of the same judgment and decree, as the subject matter

of both the appeals are same and identical and also amongst

the same parties so the matters are taken up together for

consideration and decision and by common judgment, this

two appeals are disposed of.

2. This appeal is directed challenging the judgment and

decree dated 15.09.2021 delivered by Learned District Judge,

Sepahijala, Sonamura in connection with T.A. No.2 of 2020. By

the said judgment, Learned District Judge has affirmed the

judgment dated 08.01.2020 and decree dated 20.01.2020

delivered by Learned Civil Judge, (Sr. Div.), Sepahijala District,

Sonamura in connection with T.S. No.17 of 2010.

3. Heard Learned Senior Counsel Mr. S. M. Chakraborty

along with Learned Counsel S. Saha representing the appellant-

defendants and also heard Learned Senior Counsel Mr. D. R.

Chowdhury assisted by Learned Counsel Mr. S. Sarkar

representing the respondents.

4. Before going to the conclusion of the appeal, let us

discuss the subject matter of the dispute amongst the rival

parties because this appeal has got a checkered history. The

respondent-plaintiff filed a suit in the Court of Learned Civil

Judge, Sr. Div Sepahijala District, Sonamura, which was

numbered as T.S. No.17 of 2010 for declaration of title and for

recovery of possession of immoveable property measuring 0.25

acres (suit land), for eviction and for perpetual injunction. It

was the case of the respondent-plaintiff that the appellant-

defendants Smt. Suniti Banik and her family are/were residing

on the suit land on permission but without consent of the

plaintiff started to construct a tin house on the suit land by

obtaining a loan from the office of the BDO, Govt. of Tripura at

Bishalgarh through Raghunathpur Gaon Panchayat under Indira

Abash Yujojana. The respondent-plaintiff filed an application to

the BDO office, Bishalgarh on 04.12.2009 and 08.12.2009. In

para 10 of the plaint, it was asserted that the cause of action of

the suit arose on and from 04.12.2009 when plaintiff raised

objection for construction of tin shed on the suit land. In

obedience to the notice issued, the appellant-defendants

appeared and contested the suit by filing written statement

denying the case of the respondent-plaintiff and along with the

written statement, the present appellant-defendants also filed

another counter-claim which was numbered as T.S.(C.C) No.82

of 2011 for specific performance of oral contract by executing

registered sale deed for 0.32 acres of land including the suit

land. According to the appellant, in the said title suit and

counter claim, learned Court below framed the following issues:

Issues framed in T.S. No.17 of 2010 are:

i) Whether the suit is maintainable in its present form and nature?

ii) Whether the suit is barred by law of limitation?

iii) Whether the plaintiff is entitled to get any decree for recovery of possession of the suit land from the defendants?

iv) Whether the entry in the name of the defendant No.1 in the column NO.24 of the Khatian of the plaintiff carry any weight at all when no such permission was even given by the plaintiff?

v) Whether the plaintiff has filed this suit to avoid their legal obligation to execute the sale deed in favor of the defendants as per oral agreement?

vi) Whether the suit of the plaintiff is liable to be dismissed with cost?

Issues famed in T.S.(C.C) No.82 of 2011 are:

i) Whether the counter-claim filed by the defendants is maintainable as per law?

ii) Whether the counter-claim is barred by limitation?

iii) Whether the counter-claimants are entitled to get a decree for specific performance of contract against the plaintiff, as prayed for?

iv) Whether the counter claimants are entitled to get a decree for injunction, as prayed for?

v) To what other relief/reliefs the counter claimants are entitled?

5. To substantiate the case and counter-case, both the

parties have adduced oral/documentary evidence on record but

no documentary evidence was adduced by the present

appellant-defendants.

Witness for the plaintiff-defendant:

1. Dilip Kumar Banik

2. Shankar Chandra Bhattacharjee

3. Hiralal Bhattacharjee

4. Makhan Banik Witnesses for the defendants-plaintiffs A) Suniti Banik B) Prantosh Banik C) Md,. Harmoj Miah Documents exhibited from the side of Plaintiff-

defendants:

1. Registered sale deed No.1-1665 marked as Ext.1

2. Khatian No.4087 marked as Ext.2.

3. Copy of Complaint addressed to BDO marked as Ext.3.

The Learned Trial Court after taking evidence and also after

hearing of arguments by a common judgment dated

05.10.2012 decreed the suit of the respondent-plaintiff but

dismissed the counter claim of the present appellant on the

ground that no cogent evidence was adduced to prove alleged

cause of action excepting the alleged application submitted to

the office of BDO, Bishalgarh.

6. Challenging that judgment, the present appellant-

defendant preferred two appeals in the Court of District Judge,

West Tripura, Agartala which were numbered as T.A. No.7 of

2013 and T.A. No.8 of 2013 and the Learned District Judge after

hearing both the appeals by a common judgment dated

29.10.2014 allowed the appeal by way of dismissing the suit

and allowed the counter claim directing the plaintiff to perform

in terms of the oral agreement as executed in the first week of

March, 1989 for sale of land measuring 0.32 acres of land to

the defendant no.1 Smt. Suniti Banik as the respondent-plaintiff

had already received the consideration money. Accordingly

decrees were drawn up.

7. Being dissatisfied with the said judgment of the first

appellate Court, again two appeals were preferred by the

respondent-plaintiff which were numbered as RSA No.3 of 2015

and RSA No.4 of 2015 before the High Court. This Court

thereafter by a common judgment and order dated 24.07.2018

was pleased to set aside the judgments of both the Trial Court

as well as the First Appellate Court and remitted back both the

suit and the counter claim with a direction to add one Shankar

Chandra Bhattacharjee as a defendant by issuing summons

asking him to submit his written statement and to pass a fresh

judgment after conclusion of fresh trial.

8. The case was remanded back and said Shankar

Chandra Bhattacharjee who was already examined as PW-2 was

added as defendant no.7 in the main suit and summon was

issued asking him to submit his written statement. Said

Shankar Chandra Bhattacharjee appeared and submitted his

written statement where he deviated from his earlier statement

of purchasing 0.24 acres of land from the plaintiff out of 0.49

acres and stated that he purchased only 0.10 acres of land from

the respondent-plaintiff Dilip Kumar Banik by registered sale

deed and one Smt. Manju Saha also purchased 0.14 acres of

land from Sri Dilip Kumar Banik by another registered sale deed

and submitted that he has also got no claim over any portion of

the suit land.

On the basis of written statement one additional issue

was framed:

"whether defendant no.7 Sri Sankar ch. Bhattacharjee has purchased any portion of the suit land from the plaintiff and he has got possession over any portion of the suit land".

But said Shankar Bhattacharjee to substantiate his

contention did not submit any sale deed or khatian and he also

did not stand as witness to face cross-examination.

Finally, Learned Trial Court by judgment and order

dated 08.01.2020 allowed the suit of the respondent-plaintiff

but dismissed the counter claim of the present appellants.

For the sake of convenience, the operative portion of

the judgment and order of the Learned Trial Court is mentioned

hereinbelow:

"Order of T.S. 17 of 2010 In the result, it is hereby held that the plaintiff has succeeded to establish the cause of action for the suit against the defendants and the suit is allowed and decreed on contest with cost with declaration that

plaintiff has got right, title and interest over the suit land. Plaintiff is also entitled to get recovery of vacant possession of suit land evicting the defendants No.1 to 6 therefrom. Defendants No.1 to 6 and/or their men or agent are hereby directed to hand over the vacant possession of the suit land in favour of plaintiff removing all obstructions therefrom within 45 days from this date.

Prepare decree accordingly and place it before me for signing within 14 days. The suit is thus disposed of on contest. Make necessary entry in the relevant Trial Register.

The record shall be consigned to the Record Room after due compliance.

Order of T.S.(CC) 82 of 2011 In the result, it is hereby held that the Counter claimant-defendant-plaintiffs have not succeeded to establish the cause of action of their counter claim suit against the plaintiff-defendant and the suit is not allowed.

Counter claimant-defendants-plaintiffs are not entitled to get the decree for specific performance of contract against plaintiff- defendant to execute registered sale deed in favour of defendant-plaintiff No.1. They are also not entitled to get the decree of permanent injunction against plaintiff- defendant in respect of the suit land. Consequently, this counter claim suit is herby dismissed with cost.

Prepare decree accordingly and place it before me for signing within 14 days. The suit is thus disposed of on contest. Make necessary entry in the relevant Trial Register.

The record shall be consigned to the Record Room after due compliance."

9. Challenging that judgment and decree, the present

appellant-defendants again preferred an appeal under Section

96 of CPC before the Learned District Judge, Sepahijala District,

Sonamura and Learned District Judge by a common judgment

disposed of the T.A. No.2 of 2020 and T.A No.1 of 2020. For the

sake of convenience, I would like to mention hereinbelow the

operative portion of the order/Judgment of Learned First

Appellate Court runs as follows:

"The instant appeal is dismissed on contest being devoid of merit.

The judgment and decree dated 08.01.2020 and 20.01.2020 passed by Ld. Civil Judge(Senior Div), Sepahijala District, Sonamura in T.S-17 of 2010 is hereby affirmed.

Considering the circumstances of the case I make no order as to costs.

Prepare decree accordingly.

Send back the L.C. record along with the copy of this Judgment to the Ld. Court below immediately."

By the said judgment, the Learned First Appellate Court

also dismissed the appeal. Being dissatisfied with the judgment,

the appellant defendants again preferred appeal under Section

100 of CPC before the High Court.

10. In course of hearing of argument, Learned Senior

Counsel first of all drawn the attention of Court referring para

no.5 of the plaint submitted by the respondent-plaintiff and

further submitted that there was no cause of action to file the

suit against the appellant-defendants by the respondent-

plaintiff. Rather had there be any cause of action that could

have been against the BDO of the concerned block and also

against the GP of the respective panchayat. But those persons

were not arrayed as party in the suit by the respondent-plaintiff

and as no cause of action revealed against the present

appellant-defendants so the suit ought to have been dismissed

under Order VII Rule 9 of CPC. But the learned Courts below did

not consider the same rather decreed the suit of the

respondent-plaintiff and dismissed the counter claim of the

present appellant-defendants. Furthermore, according to

Learned Senior Counsel from the written statement of Sankar

Bhattacharjee, it was revealed that one Manju Saha was

necessary party who purchased land measuring 0.14 acres from

the respondent-plaintiff but she was not made as party by the

respondent-plaintiff in the suit. So, finally, Learned Senior

Counsel fairly submitted that the judgment of the Learned

Courts below suffers from perversities for want of cause of

action and also for want of necessary party for which the matter

needs to be remanded back.

11. On the other hand, Learned Senior Counsel Mr. D. R.

Chowdhury for the respondent-plaintiff submitted that both the

Learned Courts below gave concurrent findings and there is no

substantial question of law leans in favour of the appellant-

defendants for reversing the judgment of the Learned Courts

below and Learned Senior Counsel further submitted that the

appellant-defendants could not substantiate her case before the

Learned Court below as well as to the Appellate Court and as

such the Learned Court below rightly decreed the suit in favour

of the respondent-plaintiff which the Learned First Appellate

Court affirmed and at this stage, there is no materials on record

to interfere with the judgment delivered by the Learned First

Appellate Court. It is the admitted position that at this stage

there is no scope to reappreciate the evidence on record by this

Court. The suit land comprises of land measuring 0.25 acres as

described in the schedule of the plaint. There is also no dispute

on record that the respondent-plaintiff was the owner of the

land measuring 0.49 acres of land and the respondent-plaintiff

permitted the appellant-defendant no.1 to live on a part of the

suit land about 30years back on temporary arrangement basis

and when Raghunathpur Gaon Panchayat intended to provide

fund and materials for construction of a room on the suit land

under Indira Abash Yojojana that time the respondent-plaintiff

raised objection on 04.12.2012 and because of that objection

the benefit was not given to the appellant-defendants.

12. It was the case of the appellant-defendants that in the

last week of March, 1981 the respondent-plaintiff proposed to

sell part of the suit land measuring 0.32 acres and after

accepting the proposal, the appellant-defendant no.1 paid a

sum of Rs.40,000/- as the entire consideration money with

condition that the respondent-plaintiff shall execute the deed

and on 15.08.2009 for the purpose of execution of sale deed ,

the said defendant-appellant further paid Rs.2,000 when the

respondent-plaintiff further demanded the sum of Rs.10,000/-

and the appellant-defendant no.1 also agreed to pay the said

amount but on 20.02.2009 the respondent-plaintiff refused to

execute the sale deed. Hence, the appellant-defendant also filed

the counter claim. In the Khatian, the appellant-defendant no.1

has been shown as the permissive possessor.

13. In course of hearing of argument, Learned Senior

Counsel referred few citations. In Bibhash Ranjan Paul v.

Dipak Paul reported in 2005 (2) GLT 341 at para 19 the

Hon'ble Gauhati High Court observed as under:

"19. The endeavour to seek shelter under Sections 91 and 92 of the Indian Evidence Act, 1872, having regard to the materials on record is futile. Section 91 mandates that when the terms of a contract or of a grant or of any disposition of property have been reduced to the form of a document, no evidence in proof of such terms in permissible except the document itself or the secondary evidence of its continents in cases in which secondary evidence is admissible in law. Section 92 bars evidence of any oral agreement or statement for the purpose of contradicting varying, adding to or subtracting from the terms of the contract or grant or other disposition of property or any matter required by law to be reduced to the form of a document and proved in terms of Section 91. Ext.-12, the execution whereof is not in dispute clearly overrides the earlier agreements, Exts-1 and 2, with the terms and conditions contained therein. Exts.-1 and 2, therefore, had been rendered nonest by Ext.12. The aspect of oral agreement entered into between the parties on 10.4.96 for conveyancing the suit property has been dealt with hereinabove. In law an agreement for sale of immovable property need not be in writing and can be oral. In view of the fact that the oral agreement was entered into at a point of time when Exts.-1 and 2 were admittedly not in force, the provisions of Sections 91 and 92 are not attracted in the facts of the instant case."

In Swamy Atmananda and others v. Sri

Ramakrishna Tapovanam and others reported in AIR

2005 SC 2392 wherein in para 27, Hon'ble Apex Court

observed as under:

"27. A cause of action, thus, means every fact, which, if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the Court. In other words, it is a bundle of facts which taken with the law applicable to them gives the plaintiff a right to relief against the defendant. It must include some act done by the defendant since in the absence of such an act no cause of action can possibly accrue. It is not limited to the actual infringement of the right sued on but includes all the material facts on which it is founded."

In Chaturbhu Pande and others v. Collector, Raigarh

reported in AIR 1969 SC 255 at para 6, Hon'ble Apex Court

observed as under:

"6. But that is of no assistance to the appellants. As mentioned earlier, the High Court has refused to rely on the oral testimony adduced in support of the appellants' claim as regards the value of the orchard. It is true that the witnesses examined on behalf the appellants have not been effectively cross-examined. It is also true that the Collector had not adduced any evidence in rebuttal; but that does not mean that the court is bound to accept their evidence. The Judges are not computers. In assessing the value to be attached to oral evidence, they are bound to call into aid their experience of life. As Judge of fact, it was open to the appellate Judges to test the evidence placed before them on the basis of probabilities."

In Smt. Sawarni v. Smt. Inder Kaur and others reported

in AIR 1996 SC 2823 wherein in para 7, Hon'ble Apex Court

observed as under:

"Having heard the learned counsel for the parties and having scrutinised the judgment of the trial Judge as well as that of the lower appellate court, we find sufficient force in all the contentions raised by the learned counsel for the appellant. At the outset, it may be noticed that the plaintiff had filed the suit claiming half interest for herself and claiming half interest in favour of the husband and sons of Roori and, therefore, the learned Additional District Judge was wholly in error to hold that the plaintiff could not have filed the suit in question. In view of rival stand of the parties the main question that arose for consideration was whether Roori was daughter of Gurbax Singh or Inder Kaur, defendant no. 5 was the daughter of same Gurbax Singh? The learned trial Judge after elaborate discussion of the evidence on record both oral and documentary came to the positive conclusion that it was Roori who was the daughter of Gurbax Singh as alleged by the plaintiff and not Inder Kaur. The lower appellate Court without focusing his attention to the weighty reasons advanced by the trial Court and without examining the materials on record in that respect even did not set aside the said finding of the trial Judge and yet reversed the decree of the trial Judge. We have no hesitation to come to the conclusion that the said judgment of the Additional

District Judge is wholly unsustainable in law. The crucial point being as to who was the second daughter of Gurbax Singh, namely Roori or Inder Kaur, and the trial Judge having come to the positive conclusion that it was Roori who was the second daughter of Gurbax Singh, the lower appellate Court was not justified in not considering the material evidence as well as reasons advanced by the trial Judge and merely coming to the conclusion that the evidence on the file do not prove Roori to be the daughter of Gurbax Singh. Further, the lower appellate Court has not come to any positive finding that Inder Kaur was the daughter of Gurbax Singh. He has been swayed away by the so called mutation in the revenue record in favour of Inder Kaur. Mutation of a property in the revenue record does not create or extinguish title nor has it any presumptive value on title. It only enables the person in whose favour mutation is ordered to pay the land revenue in question. The learned Additional District Judge was wholly in error in coming to a conclusion that mutation in favour of Inder Kaur conveys title in her favour. This erroneous conclusion has vitiated the entire judgment. That apart, as it would be seen, the learned trial Judge had considered the oral evidence adduced on behalf of the parties to establish the respective stand as to who was the second daughter of Gurbax Singh and on perusal of the same came to the conclusion that it was Roori who was the second daughter of Gurbax Singh. The Additional District Judge has not even discussed anything about the said oral evidence and the reasonings advanced by learned trial Judge in coming to the conclusion that it was Roori who was the second daughter of Gurbax Singh Non consideration of the oral evidence adduced by the parties, by the lower appellate Court vitiates the ultimate conclusion on the question whether Roori was daughter of Gurbax Singh or not. It is further seen that Gurdip Kaur, widow of Gurbax Singh had executed a Will in respect of the entire estate in favour of plaintiff and Roori and after death of Gurdip Kaur a succession certificate had been issued by the Civil Court under the Indian Succession Act in favour of plaintiff and said Roori. The said succession certificate and rights flowing therefrom cannot be ignored. Admittedly no attempt has been made by defendant nos. 1 to 4 to annul the succession certificate on the grounds available under the Succession Act. The Additional District Judge committed serious error of law in not considering the said Will and the succession certificate in question which unequivocally clinches the matter and thereby the ultimate judgment of the Additional District Judge is vitiated. The High Court also was in error in not examining these questions and dismissing the Second Appeal in limine."

Referring the aforesaid citations, Learned Senior

Counsel submitted that there was no valid cause of action in

the suit but the Learned Courts below did not consider the

same, so, Learned Senior Counsel prayed for allowing the

appeal by setting aside the judgments of the Learned Court

below for want of cause of action.

14. It was further submitted that there is no scope to

apply the provision of Section 52 of the Easements Act

because the same act has not been adopted in the State and

in this regard, Learned Senior Counsel also referred another

citation in Umesh Chandra Goswami v. Pachu Gopal

Barua and others reported in 1989 1 GLR 310 wherein the

Hon'ble Gauhati High Court in para 6 observed as under:

"6. Before proceeding further, it may be stated that the Act has no application as such in this State. But then it is settled law that the principles of the same would apply in this State also in accordance with the principles of justice, equity and good conscience. This was the view expressed by Tekchand. J. in Jagat Singh v. District Board, AIR 1940 Lahore 409 and by Suleman, C.J, in Mathuri v. Bhola Nath, AIR 1934 All 517. To be fair to Shri Barua, it may be stated that the learned counsel has not disputed this proposition."

Finally, Learned Senior Counsel urged for allowing the

appeal.

15. Learned Counsel for the respondent-plaintiff totally

countered the same and submitted that since both the Learned

Courts below gave concurrent findings so there is no scope to

allow the appeal at this stage and the appellant-defendants

could not project any case to allow the appeal and prayed for

dismissal of the appeal with cost.

16. In pursuance of the direction of the High Court, in RSA

No.3 & 4 of 2015, Sankar Chandra Bhattacharjee was added as

party who filed written statement and in the written statement,

he specifically stated that he purchased land measuring 0.10

acres from the respondent-plaintiff by a registered sale deed 1-

11183 dated 22.12.2003 and one Smt. Manju Saha, wife of

Late Sukumar Saha also purchased land measuring 0.14 from

the respondent-plaintiff by another registered sale deed by no

1-11184 dated 22.12.2003 i.e. on the same date and the same

land was also mutated in her favour in Khatian No.4133. Thus,

said Sankar Chandra Bhattacharjee and Manju Saha purchased

land measuring 0.24 acres from the respondent-plaintiff but

said Manju Saha has not been made as party and neither the

parties stated anything about said Sankar Bhattacharjee and

Manju Saha in their claim and counter claim. So, Manju saha

is/was a necessary party in both the suit and the counter claim.

Apart from that, on perusal of the evidence on record, it

appears that there was no valid cause of action to file the suits

and the respondent-plaintiff failed to prove any valid cause of

action to the Trial Court below.

17. So, after considering the materials on record and after

hearing submissions of Learned Counsel of both the parties, it

appears to this Court that the judgments of both the First

Appellate Court and the Trial Court be set aside and matter be

remanded back to the Learned Trial Court for further

adjudication of the matter.

In the result, the judgments and decree passed by the

Learned First Appellate Court and the Trial Court are hereby set

aside. The suit is remanded back to the Learned Trial Court with

a direction to make said Manju Saha as a party i.e. the

defendant in the suit as well as in the counter claim of its own

motion and thereafter to issue summons upon the said

defendant asking her to appear and to file written statement

and after submission of written statement, additional issue, if

any, may be framed by the Trial Court. The parties, if

necessary, be allowed to adduce fresh evidence. In addition to

that, regarding cause of action, another issue also be framed

and be decided by the Trial Court and after that, a fresh

decision be given in respect of the suit and the counter claim.

Since the matter is pending since long back so the Trial Court

shall take all efforts to dispose of the suit and the counter claim

within a period of 04(four) months from the date of the receipt

of the copy of the judgment. The parties be asked to appear

before the Trial Court on 17.04.2024.

18. In the result, the appeals are allowed to the extent

stated above.

Pending application(s), if any also stands disposed of.

Prepare decree accordingly.

Send down the LCRs.

JUDGE SABYASACHI Digitally signed by SABYASACHI BHATTACHARJEE BHATTACHARJEE Date: 2024.04.06 18:22:35 -07'00' Deepshikha