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2007 DIGILAW 569 (CAL)

SUBHRA SINHA ROY v. IMAN KALYAN DEY

2007-07-27

ALOK KUMAR BASU, JAPAN KUMAR DUTT

body2007
ALOK KUMAR BASU, J. ( 1 ) THIS appeal has been directed against the judgment and decree passed in connection with Title Suit No. 2044 of 1997 by the learned judge, 10th Bench of City Civil Court, Calcutta. ( 2 ) THE present appellant as plaintiff filed Title Suit No. 2044 of 1997 against the respondent as defendant of the said suit for a decree of mandatory injunction for a direction upon the defendant for dismantling of a staircase from the common passage so as to make the same free from obstruction as per terms of settlement of the decree passed by the High court in Partition Suit No. 646 of 1960 and for other consequential reliefs. ( 3 ) THE plaintiff-appellant contended in the plaint that her predecessor-in-interest pursuant to a compromise decree passed in partition Suit No. 646 of 1960 by the High Court acquired absolute ownership over the suit property including right over a common passage free from any obstruction. The plaintiff-appellant stated in the plaint that subsequently her predecessor-in-interest Smt. Sephali Patra sold away the suit property along with the right over the common passage to the present plaintiff on 14. 7. 1978 with a tenant. The plaintiff-appellant after evicting the tenant from the suit property through a suit got physical possession over the suit property in the year 1993. ( 4 ) THE plaintiff-appellant applied for mutation of her name before the Calcutta Municipal Corporation and the Assistant Assessor of Calcutta municipal Corporation by his letter dated 7th June, 1982 informed the plaintiff-appellant that without dismantling of the staircase belonging to the defendant and standing on the common passage, no action could be taken for mutation of plaintiff's name. The plaintiff-appellant thereafter requested the defendant for removal/dismantling of the staircase from the common passage as per terms of settlement of the compromise decree passed in the earlier partition suit, but, the defendant-respondent did not pay any heed to such request of plaintiff. The plaintiff subsequently filed section 144 of the Cr. P. C. against the defendant in the year 1997, but, without any effect and only thereafter she filed the suit in question for a decree of mandatory injunction. The plaintiff subsequently filed section 144 of the Cr. P. C. against the defendant in the year 1997, but, without any effect and only thereafter she filed the suit in question for a decree of mandatory injunction. ( 5 ) THE defendant-respondent contested the suit before the trial Court by filing written statement denying thereby all the material averments of the plaint contending inter alia that the suit was bad for non-joinder of necessary parties and the suit was also hopelessly barred by limitation. The defendant-respondent further stated that as per the plaint case itself the right over the passage accrued on the basis of the compromise decree passed in the year1962 and since the predecessor-in-interest of the plaintiff-appellant did not take any step for execution of that compromise decree, it is not open for the plaintiff-appellant to file a separate suit for enforcement of that compromise decree after a gap of long 35 years. The defendant-respondent further contended that since the predecessor-in-interest of plaintiff-appellant waved her right regarding dismantling of the staircase standing over the passage for a considerable period of time, the plaintiff-appellant had no cause of action to bring the suit for mandatory injunction. ( 6 ) THE learned Trial Court on perusal of pleadings of the parties framed several issues to decide the suit including issue framed on the question of maintainability of the suit and the learned Trial Court while disposing issue No. 1 which was regarding maintainability of the suit and after hearing the learned Advocate of both plaintiff-appellant and respondent-defendant observed that the suit as framed by the plaintiff-appellant was bad for non-joinder of necessary parties and at the same time, the learned Trial Court also observed that the suit was hopelessly barred by limitation and on such findings, the learned Trial Court dismissed the suit of the plaintiff-appellant holding that the suit itself was not maintainable in law. ( 7 ) THE plaintiff being aggrieved by and dissatisfied with the judgment and decree passed by the learned Trial Court preferred this appeal contending inter alia that the learned Trial Court was not justified in dismissing the suit on a preliminary issue touching maintainability of the same and the learned Trial Court ought to have decided the main issue as to whether the plaintiff succeeded in establishing her case for mandatory injunction in view of the fact and evidence-on-record. The plaintiff also contended that the findings of the learned Trial Court that the suit was bad for non-joinder of necessary parties and on the ground of limitation are not legally tenable. ( 8 ) THE learned Advocate for the appellant submits before us that at the time of filing of the suit, the respondent-defendant alone was in physical possession of the front portion of the building and the respondent-defendant has been creating obstructions over the common passage which is the subject-matter of the suit by making repair to the existing staircase which was directed to be dismantled by virtue of the compromise decree of the partition suit. The learned Advocate submits that since respondent defendant alone was creating the obstruction and he was alone in physical occupation of the front portion of the premises in dispute, there was no necessity of implicating other persons as contended by the respondent. The learned Advocate in this context has drawn our attention to the provision of Order 1 Rule 9 of the C. P. C. ( 9 ) THE learned Advocate for the appellant contends that appellant acquired her interest in the passage only on the year 1978 and from 1980 onwards she has been making continuous protest for the obstruction created over the passage for the existence of the staircase belonging to the respondent and in the year 1982 when the appellant received letter from the Calcutta Municipal Corporation requesting her for keeping the passage free from obstruction, she again insisted the respondent for dismantling of the staircase and she filed a case under Section 144 of the cr. P. C. in the year 1997 and when she did not get any result ultimately she filed the present suit in the year 1997 and naturally, the cause of action of the suit starting from 1980 onwards continued up to 1997 and the suit was filed in the year 1997 for mandatory injunction. P. C. in the year 1997 and when she did not get any result ultimately she filed the present suit in the year 1997 and naturally, the cause of action of the suit starting from 1980 onwards continued up to 1997 and the suit was filed in the year 1997 for mandatory injunction. ( 10 ) THE learned Advocate for the appellant submits that the suit was for mandatory injunction and the learned Trial Court without discussing the relevant issue raised in the pleadings of the parties disposed of the suit on the preliminary issue of maintainability and that was against the provision of law contained in Order 14 Rule 2 of the C. P. C. ( 11 ) THE learned Advocate, therefore, submits that findings of the trial Court both on the point of defect of parties as well as on the point of limitation cannot be supported in view of the pleadings of the parties and in view of the settled position of law and hence, the judgment and decree of the trial Court must be set aside and when the trial Court did not record its observation on the merit of the suit, the suit should be remanded back for judgment on merit. The learned Advocate has referred to his written note of argument in this context for our consideration. ( 12 ) THE learned Advocate representing the respondent-defendant, on the other hand, submits before us that from the plaint itself along with the prayer portion of the plaint it would be very much clear that plaintiff-appellant has sought for a decree of mandatory injunction in the matter of dismantling of the staircase standing on the common passage on the strength of the compromise decree passed in the partition suit in the year 1962. The learned Advocate contends that in the written statement, the respondent at the earliest raised the plea that the partition suit was contested by predecessor-in-interest of the present appellant in one hand and by one Hari Narayan Dey, the father of the present respondent and one Kartick Pal on the other hand and on the demise of Hari Narayan dey, both the present respondent as well as his sister inherited the share of Hari Narayan Dey, and for that reason Kartick Pal, the present respondent and sister of the respondent were necessary parties for proper adjudication of the issue raised in the suit filed by the appellant and when admittedly Kartick Pal and sister of respondent were not impleaded, the suit in its present form could not continue. ( 13 ) WE find that both in his written statement as well as in his examination-in-Chief through affidavit, the respondent took the specific point that the suit was bad for non-joinder of necessary party and after considering the decree of the partition suit which ended in compromise, we find that both Kartick Pal and sister of the present respondent were indeed necessary parties for the suit when the common passage was allotted and demarcated by the partition suit has been the subject-matter of the present suit filed by the appellant and in this regard with reference to the provision of Order 1 Rule 9 of the C. P. C. , we are of the clear view that if parties considered necessary for adjudication of a dispute are not impleaded, the suit cannot continue legally. ( 14 ) FROM the plaint as well as from the documentary evidence produced by the appellant we find that the appellant being encouraged from the recitals of the compromise partition which was made part of the decree passed in partition suit of 1960 by this High Court filed the suit for mandatory injunction with a direction upon the respondent for dismantling of the staircase standing on the common passage. ( 15 ) ADMITTEDLY, the decree of the partition suit was passed in 1962 and the predecessor-in-interest of the appellant accepted the decree without taking any further action up to 1978 and in 1978 the present appellant acquired interest of her predecessor-in-interest by virtue of a registered sale deed and naturally, according to law of limitation any suit touching the compromise decree passed in the year 1962 could have been brought within 1974, but, that was not done by the person who was legally authorized to do so. ( 16 ) THE plaintiff-appellant only in the year 1997 filed the suit which was admittedly after 35 years from passing of the compromise decree and from this angle, the learned Judge observed that the suit was hopelessly barred by limitation and we do not find any ground to differ from such observation. ( 17 ) WE have examined the provision of Order 14 Rule 2 of the C. P. C. and we find that generally no Court should dispose of a suit without discussing the main issues, but, if any preliminary issue is framed touching question of fact and law and if that preliminary issue strikes at the existence of the suit, the trial Court on deciding the preliminary issue can dispose of the suit itself and there is no legal bar for such disposal. In the present case the trial Court framed as many as seven issues after considering the pleadings of the parties and when the trial Court on examination of the pleadings was satisfied that the suit should be primarily decided on the question of defect of parties and limitation, we do not find any illegality in deciding such preliminary issue which included both the question of fact and law. ( 18 ) THUS, after considering submissions of the learned Advocate of the respective parties and also considering the written note of arguments placed before us by the learned Advocate for the appellant, we are of the view that the suit framed by the appellant was bad for non-joinder of necessary parties and, that apart, the suit was hopelessly barred by law of limitation and that being the position of the record, the learned Trial court rightly dismissed the suit on the point of maintainability and we do not find any merit in the present appeal to interfere with the ultimate conclusion of the learned Trial Court. ( 19 ) THE appeal accordingly stands dismissed, but, having regard to the fact and circumstances we make no order as to costs.