Research › Search › Judgment

Calcutta High Court · body

2011 DIGILAW 1200 (CAL)

Rafik Mondal v. Ashit Ghosh

2011-08-30

PRASENJIT MANDAL

body2011
Judgment :- Prasenjit Mandal, J. Challenge is to the Order No.16 dated May 31, 2011 passed by the learned Additional District Judge, 5th Court, Barasat in Title Appeal No.10 of 2010 thereby disposing of the applications filed by the appellants as well as the respondents for expunging the names of the respondent No.s 3 & 4 from the appeal. The plaintiffs / appellants / petitioners herein instituted a suit being Title Suit No.160 of 1979 against the defendants / opposite parties for a decree of declaration of title of the suit property, permanent injunction and other reliefs before the learned Civil Judge (Junior Division), 2nd Court, Barasat. The defendant No.s 1 & 2 / opposite party No.s 3 & 4 herein entered an appearance by filing a vokalatnama, but they did not file any written statement and as such, the learned Trial Judge ultimately fixed the date for ex parte hearing against them. Subsequently, the defendant No.s 5 & 6 were added in the suit as defendants and the written statement along with the counter-claim were filed by the said defendant No.s 5 & 6. Thereafter, the plaintiffs filed an application for withdrawal of the suit and the learned Trial Judge allowed the said application for withdrawal of the suit without any liberty to sue afresh by an order dated July 26, 2002. The counter-claim proceeded with accordingly and the plaintiffs filed a written statement denying all the material allegations contained in the counter-claim and ultimately, the learned Trial Judge decreed the counter-claim by its judgment and decree dated November 21, 2009. Being aggrieved against the said judgment, the plaintiffs /petitioners herein preferred an appeal being Title Appeal No.10 of 2010 before the learned District Judge, Barasat and the said Title Appeal was transferred to the Court to the learned Additional District Judge, 5th Court, Barasat and the same was re-numbered as Title Appeal No.10 of 2010. During the pendency of the said title appeal, the petitioners filed an application under Section 5 of the Limitation Act before the Appellate Court to the effect that the opposite party No.3 died long time back on October 9, 2006 and the petitioners came to know the same only on May 6, 2011 and as such, the application under Section 5 of the Limitation Act was filed. The opposite party No.s 1 & 2 also filed an application for expunge of the names of the opposite party No.s 3 & 4 on the ground that the opposite party No.s 3 & 4 never appeared in the suit and they did not file the written statement at all. The petitioners filed an application for expunge of the name of the opposite party No.3 from the appeal on the ground that the date of death of the opposite party No.3 was unknown to the parties and the plaintiffs came to know such fact only getting a death certificate on May 6, 2011 from the Kamarhati Municipality and as such, the decree was passed against a dead person. The petitioners filed an application for expunge of the name of the opposite party No.3 also. The petitioners filed also an application before the First Appellate Court under Order 1 Rule 10 of the C.P.C. for incorporating the heirs of the legal representatives of the opposite party No.3 as the opposite party No.s 7, 8 & 9 on the ground that before passing the judgment and decree by the trial court, the opposite party No.3 died. The opposite party No.s 1 & 2 filed a written objection against the said application under Order 1 Rule 10 of the C.P.C. By the order dated May 31, 2011, the learned First Appellate Court has observed that he did not find any reason to allow the application for adding the legal heirs of the said Ankur Nath Chattopadhyay in the appeal and rejected the same and on the other hand, the petitions filed by the appellants as well as the respondents / opposite parties for expunging the names of the respondent No.s 3 & 4 in the title appeal were allowed. Being aggrieved, this application has been preferred. Now, the question is whether the impugned order should be sustained. Mr. Gopal Chandra Ghosh appearing for the petitioners submits that the opposite party No.3 was the defendant No.1 in the said title suit and his name was never expunged and the decree was passed against him when he was dead. So the decree had been passed against a dead person. So, the legal heirs are required to be substituted. Mr. Gopal Chandra Ghosh appearing for the petitioners submits that the opposite party No.3 was the defendant No.1 in the said title suit and his name was never expunged and the decree was passed against him when he was dead. So the decree had been passed against a dead person. So, the legal heirs are required to be substituted. Moreover, the opposite party No.s 1 & 2 in their counter-claim had claimed that they purchased 64 decimals of land in suit from the defendant No.s 1, 2 and others when the total land is 65 decimals of land and the legal heirs of the original owners have the right, title and interest over 1 decimal of land and, therefore, these heirs are required to be substituted. It may be mentioned herein at the cost of repetition that the opposite party No.s 3 & 4, though, entered an appearance in the suit, they neither filed any written statement nor contested the said suit. The defendant No.s 1, 2 and others had transferred their right, title and interest in the suit property in favour of the defendant No.s 5 & 6 to the extent of 64 decimals of land out of their 65 decimals of land and so, I find that the heirs of the vendor / opposite party No.3 still inherited 1 decimal of land in the suit property. Although, in the matter of counter-claim, the decree was passed in favour of the defendant No.s 5 & 6 and not against the defendant No.s 1 & 2, in spite of the fact of death of the defendant No.1, the said decree was passed without any step for substitution. Since, the heirs of the defendant No.1 inherited 1 decimal of land, I am of the view that the simple expunge of the names of the defendant No.s 1 & 2 from the suit will not solve the dispute between the parties once for all and it may create problems subsequently. There may not be the end of the litigation between the parties to the suit. Therefore, the impugned order simply for recording the death of the name of the defendant No.1 and the expunge of the names of the defendant No.s 1 & 2 as passed by the First Appellate Court cannot be supported. The impugned order, therefore, cannot be supported. Therefore, the impugned order simply for recording the death of the name of the defendant No.1 and the expunge of the names of the defendant No.s 1 & 2 as passed by the First Appellate Court cannot be supported. The impugned order, therefore, cannot be supported. Instead of passing any specific orders, I am of the view that the First Appellate Court shall be directed to hear out the matter afresh and to pass appropriate orders so that the steps for substitution may be taken after hearing both the sides. Accordingly, the impugned order cannot be sustained. The revisional application, therefore, succeeds. It is, therefore, allowed. The impugned order is hereby set aside. The learned First Appellate Court is directed to hear out the matters, i.e., the application for expunge, application for substitution of the heirs of the defendant No.1 and the application under Section 5 of the Limitation Act afresh by him within a period of 30 days from the date of communication to him. Thereafter, he shall pass appropriate orders in accordance with law. Considering the circumstances, there will be no order as to costs.