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2012 DIGILAW 183 (CAL)

Swapan Kumar Basu v. Ram Prosad Pal

2012-03-06

Prasenjit Mandal

body2012
JUDGMENT This second appeal is directed against the judgment and decree dated February 12, 2004 passed by the learned Civil Judge (Senior Division), 1st Court, Hooghly in Title Appeal No.147 of 2002 thereby reversing in part the judgment and decree dated June 10, 2002 passed by the learned Civil Judge (Junior Division), 1st Court, Hooghly in Title Suit No.208 of 2000 so far as it relates to the dismissal of counter-claim of the appellant. 2. The plaintiff/respondent filed a suit being Title Suit No.208 of 2000 praying for a decree of declaration that the plaintiff is the absolute owner and possessor of the property mentioned in Schedule ‘B’ and ‘D’ of the plaint and that the defendant No.1 has no interest therein. 3. The defendant No.1 contested the said suit by filing a written statement along with a counter-claim praying for the relief that the plaintiff did not acquire any absolute right to the property described in Schedule ‘D’ and that the defendant No.1 has right of easement over the property described in Schedule ‘D’ of the plaint. The defendant No.1 has also prayed for a decree of recovery of possession of the ‘D’ Schedule property and also a mandatory injunction directing the plaintiff to remove the construction etc. as described in Schedule ‘E’ of the counterclaim. 4. Issues were framed on the basis of the pleadings of the parties and the counter-claim as raised by the defendant No.1. The parties led evidence over the issues framed. 5. The learned Trial Judge decreed the suit on contest against the defendant No.1 and ex parte against the other defendants; but he dismissed the counter-claim of the defendant No.1. He has recorded that the plaintiff is the owner and possessor of ‘B’ and ‘D’ Schedule properties of the plaint and that the ‘D’ Schedule property is not a part of the common passage. Accordingly, he has also granted a decree of permanent injunction against the defendant No.1 restraining him from disturbing the peaceful possession of the plaintiff in respect of ‘B’ and ‘D’ Schedule properties as described in the Schedule of the plaint. 6. Being aggrieved by such judgment and decree, the defendant No.1 preferred an appeal being Title Appeal No.147 of 2002. 7. Upon hearing both the sides, the First Appellate Court allowed the appeal on contest in part. 6. Being aggrieved by such judgment and decree, the defendant No.1 preferred an appeal being Title Appeal No.147 of 2002. 7. Upon hearing both the sides, the First Appellate Court allowed the appeal on contest in part. The First Appellate Court has also declared that the plaintiff/respondent is the absolute owner in respect of ‘B’ Schedule property but he does not have any right, title and interest in respect of ‘D’ Schedule property and as such, the decree of permanent injunction has been set aside. 8. Being aggrieved by such orders, the defendant No.1 has preferred this second appeal. 9. At the time of admission of the second appeal, this Hon’ble Court has framed the following substantial questions of law for decision: (I) FOR THAT the Courts below erred in dismissing the Counter Claim of the Appellant although the Court of Appeal below found that the plaintiff has got no right over the ‘D’ Schedule Property. (II) FOR THAT the Court of Appeal below erred in law in not holding that since the Plaintiff has got no right over the ‘D’ Schedule Property, therefore the Appellant is entitled to get the Decree in respect of the Counter Claimant filed by the Defendant/Appellant. 10. Upon hearing the learned Advocate for the appellant and on perusal of the materials-on-record, I find that while the learned Trial Judge has recorded that the ‘D’ Schedule property as described in the Schedule of the plaint is not a part of the common passage and accordingly the plaintiff got a decree for permanent injunction against the defendant No.1 as indicated above. 11. The learned First Appellate Court in its judgment has recorded that the plaintiff/respondent is the absolute owner of the ‘B’ Schedule property but he does not have any right, title and interest in respect of the ‘D’ Schedule property and as such the decree of permanent injunction as granted by the Trial Judge was set aside. 12. While coming to the above conclusion by the First Appellate Court, he has made an observation that the ‘D’ Schedule property is a part of the common passage and the plaintiff does not have any right, title and interest in respect of such ‘D’ Schedule property. It may be noted herein that though the plaintiff/respondent contested the first appeal, he did not choose to contest the second appeal. 13. It may be noted herein that though the plaintiff/respondent contested the first appeal, he did not choose to contest the second appeal. 13. This being the position, when the First Appellate Court has clearly observed that the plaintiff does not have any right, title and interest in respect of ‘D’ Schedule property and as such he is not entitled to a decree for permanent injunction as granted by the learned Trial Judge, the First Appellate Court is required to consider the reliefs in the counter-claim as prayed for by the defendant/appellant herein in prayer Nos. ‘b’ & ‘c’ of the Paragraph No.9 of the said counter-claim. For convenience, the reliefs sought for in the counter-claim as made in Paragraph No.9 are quoted below: That the plaintiff prays for : (a) a decree of declaration to the effect that the plaintiff did not acquire any absolute title to the property described in Schedule-D and that the defendant no.1 has right of easement over the property described in Schedule-‘D’; (b) a decree of recovery of possession in respect of ‘D’ Schedule property; (c) a decree of mandatory injunction directing the plaintiff to remove the constructions etc. described in Schedule-‘E’; (d) a decree of permanent injunction restraining the plaintiff from converting the property described in Schedule-‘D’ to his own use and restraining the plaintiff from exercising all acts of right of easement of the defendant no.1 in ‘D’ schedule property. (e) Cost of counter claim; (f) Any other relief, fit and proper, in law and equity. 15. Thus, I find that while disposing of the first appeal, the First Appellate Court has failed to consider the aspects of the reliefs as noted in prayers ‘b’& ‘c’ of Paragraph No.9 of the counter-claim and so, the learned First Appellate Court has failed to come to a clear finding in this respect. The defendant No.1 filed the appeal against the entire judgment and decree dated June 12, 2004 and so the entirety of the judgment and decree was under challenge before the First Appellate Court. The First Appellate Court has, therefore, failed to adjudicate counter-claim as prayed for by the appellant. 16. So, the First Appellate Court has erred in passing the judgment and decree by not considering the reliefs sought for in the counter-claim. Therefore, the judgment and decree under challenge cannot be supported. The two substantial questions of law are, thus, decided. 17. The First Appellate Court has, therefore, failed to adjudicate counter-claim as prayed for by the appellant. 16. So, the First Appellate Court has erred in passing the judgment and decree by not considering the reliefs sought for in the counter-claim. Therefore, the judgment and decree under challenge cannot be supported. The two substantial questions of law are, thus, decided. 17. In that view of the matter, I have no other alternative but to remand the matter before the learned First Appellate Court for deciding the first appeal afresh including the question whether the reliefs as sought for in prayers ‘b’ & ‘c’ of Paragraph No.9 of the counter-claim made by the appellant could be granted. The judgment and decree under appeal are, therefore, set aside. 18. The learned First Appellate Court shall decide the matter in accordance with law, upon notice on the respondents, within a period of 4 months from the date of communication of the order to him. Send the Lower Court’s records to the First Appellate Court at once. 19. This second appeal is allowed in the manner indicated above. 20. Considering the circumstances, there will be no order as to costs. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.