Research › Search › Judgment

Calcutta High Court · body

2011 DIGILAW 1513 (CAL)

Kiran Bala Biswas v. Pradip Biswas

2011-12-13

SUBHRO KAMAL MUKHERJEE

body2011
JUDGMENT : - Subhro Kamal Mukherjee, J. Although, the matter is appearing under the heading ‘for orders’, by consent of Mr. Probal Mukherjee, learned advocate for the appellants, and Mr. Sourav Sen, learned advocate for the respondent nos. 2 to 11, I take up this appeal for hearing for final disposal. 2. This is an appeal by the defendants against an order of remand. 3. The suit was for declaration of title and for permanent injunction. One Bhadu Nath Biswas took settlement of thirty three (33) decimals of land from Shaktinagar Shaktimandir Co-operative Land Mortgage Bank and Housing Society Limited. He died intestate, inter alia, leaving behind him his five sons. Five sons entered into an amicable settlement by executing a registered deed of partition dated December 28, 1950. Co-sharers were allotted specific portions in the land in which their predecessors-in-title took the settlement. The plaintiffs were fishermen and as they were frequently roaming from places to places for pursuing their profession, inasmuch as the fishermen must follow the fish. The defendant no. 1, taking advantage of the absence of the plaintiffs, got his name recorded in the Revenue Settlement Record of Rights collusively. The recording was erroneous. Therefore, the plaintiffs filed a suit for declaration of title and for permanent injunction. 4. The suit was contested by the defendants principally on the ground that the suit was barred under Section 34 of the Specific Relief Act, 1963 (hereinafter referred to as the said Act of 1963), inasmuch as the plaintiffs were not in possession of the property-in-suit, but omitted to ask for a decree for recovery of possession. 5. The defendants, also, stated that they had acquired title in the property-in-suit by way of adverse possession. 6. The learned trial judge, although, found title of the plaintiffs in the property-in-suit, but declined to pass a decree as the plaintiffs omitted to ask for a decree for recovery of possession. The learned judge was of the opinion that the suit was barred under Section 34 of the Act of 1963. 7. The plaintiffs preferred an appeal in the court of the learned District Judge, Nadia. This appeal was eventually transferred to the court of the learned Assistant District Judge, Second Court, Nadia. 8. The learned judge was of the opinion that the suit was barred under Section 34 of the Act of 1963. 7. The plaintiffs preferred an appeal in the court of the learned District Judge, Nadia. This appeal was eventually transferred to the court of the learned Assistant District Judge, Second Court, Nadia. 8. By the impugned order of remand, the learned judge in the lower appellate court remanded the suit with liberty to the plaintiffs to ask for recovery of possession by amending his plaint. 9. Section 34 of the said Act of 1963 runs as under :- “34. Discretion of court as to declaration of status or right.- Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief : Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so. Explanation.- A trustee of property is a “person interested to deny” a title adverse to the title of some one who is not in existence, and whom, if in existence, he would be a trustee.” 10. Both the courts below concurrently found, as findings of fact, that the plaintiffs were not in possession of the property-in-suit and as they were not in possession, no decree for permanent injunction could be passed in their favour. 11. Section 34 of the said Act of 1963 provides that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so. 12. On the date of commencement of the suit, the plaintiff was not in possession of the property-in-suit, but he did not ask for a decree for recovery of possession. 13. The Supreme Court of India in the case of Mst. 12. On the date of commencement of the suit, the plaintiff was not in possession of the property-in-suit, but he did not ask for a decree for recovery of possession. 13. The Supreme Court of India in the case of Mst. Rukhmabai Versus Lala Laxminarayan and Others reported in AIR 1960 SC 335 held that it was a well settled rule of practice not to dismiss the suit automatically, but allow the plaintiff to ask for amendment, if he seeks to do so, in terms of Section 42 of the Specific Relief Act, 1877. 14. It is only necessary to add that provisions of Section 42 of the Specific Relief Act, 1877, have been engrafted in Section 34 of the said Act of 1963, and in view of that an opportunity should be given to the plaintiff to amend the plaint. 15. The learned judge in the lower appellate court, therefore, rightly granted liberty to the plaintiffs, as sought for, to apply for amending their plaint to seek a decree for recovery of possession. 16. I do not find that in passing the order of remand, the learned judge in the lower appellate court has committed any substantial error of law requiring interference by this Court in appeal. 17. The appeal is, therefore, dismissed. 18. In view of dismissal of the appeal, the connected applications become infructuous and those are disposed of accordingly. 19. Since, the suit is pending for a considerable period of time, I request the learned trial judge to dispose of the suit as expeditiously as possible. 20. The office is directed to send down the lower courts records along with a copy of this order to the learned trial judge to secure compliance of this order as expeditiously as possible. 21. I make no order as to costs.