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2012 DIGILAW 678 (CAL)

Sanatan Mondal v. Sreepati Mondal

2012-07-24

TARUN KUMAR GUPTA

body2012
Judgment TARUN KUMAR GUPTA, J. 1. THE defendants being appellants have challenged the judgment dated 31st July, 2008 passed by learned Civil Judge (Senior Division), First Court at Contai, Midnapur (West) in Title Appeal No.75 of 1997. It was passed in terms of an order of remand dated 28th February, 2007 passed in S. A. No.15 of 1999. 2. THE plaintiff filed the Title Suit No.149 of 1994 in the Court of learned Civil Judge (Junior Division), First Court at Contai, Midnapur (West) alleging inter alia that 'Ka' schedule land originally belonged to Padu Prodhan and his sister Dayamoyee. Dayamoyee predeceased Padu Prodhan having no issue and Padu Prodhan became absolute owner of entire 'Ka' schedule property. Padu Prodhan, father of defendant No.4 and maternal grandfather of plaintiff and defendant No. 1 to 3. AND 5 died on 01.02.1943 leaving behind Nirada as his wife and defendant No.4 Anandamoyee as his daughter. On his death Nirada acquired life interest in the 'ka' schedule property as per old Hindu law. After promulgation of the Hindu Succession Act, 1955 she became the absolute owner of the 'ka' schedule property. She executed a deed of gift in respect of said 'ka' schedule in favour of plaintiff on 12th July, 1969 and since then plaintiff became absolute owner in possession of 'ka' schedule property. The defendant No.1 ?4 are residing in the varanda of the plaintiff's house as mentioned in 'ka-1' schedule of the plaint with permission of the plaintiff with further condition that they would leave the suit verandah after construction of their own house. As they did not vacate 'ka-1' schedule property and threatened the plaintiff to dispossess from 'ka' schedule land the plaintiff was compelled to file said suit. 3 The defendants contested the suit alleging inter alia that Padu Prodhan died on 1st of February, 1960 and 'ka' schedule property devolved upon his wife Nirada and daughter Anandamoyee (defendant No.4) in equal shares. The defendant No.4 along with other defendants and plaintiff are residing in the suit land. Nirada was insane and had no capacity to execute any deed of gift and the deed of gift, if any, was obtained by plaintiff by way of false personification. The defendant No.4 along with other defendants and plaintiff are residing in the suit land. Nirada was insane and had no capacity to execute any deed of gift and the deed of gift, if any, was obtained by plaintiff by way of false personification. The alternative case of the defendants is that if the plaintiff got suit property through any deed of gift then the defendants acquired title to the same by way of adverse possession of the same over 12 years and the plaintiffs' case was liable to be dismissed. 4. LEARNED Trial Court held that the suit property belonged to Padu Prodhan who died on 1st February, 1943 and not on 1st February, 1960 and that on his death the suit property devolved upon his wife Nirada in life interest according to Hindu law and after passing of the Hindu Succession Act Nirada became absolute owner of the 'ka' schedule property and that plaintiff acquired right, title and interest thereupon on the strength of a deed of gift dated 12th of July, 1969 executed by Nirada. Learned Trial Court further observed that the defendants failed to establish their title to the suit property by way of adverse possession of the same over 12 years and decreed the suit by evicting the defendants from 'ka ?1' schedule property and restraining them by an order of injunction in respect of both 'ka' and 'ka-1' schedule property. 5. THE defendants preferred an appeal being Title Appeal No.75 of 1997 in the Court of learned Civil Judge (Senior Division), 1st Court at Contai (Purba Midnapur). Learned Lower Appellate Court concurred with learned Trial Court that Padu Prodhan died on 1st February, 1943 and that on his death his widow Nirada acquired life interest in the 'ka' schedule property as per old Hindu law and that after promulgation of Hindu Succession Act Nirada became absolute owner of the entire 'ka' schedule property and that on the strength of a deed of gift dated 12th July, 1969 executed by Nirada the plaintiff became absolute owner of the entire 'ka' schedule property and that the defendants failed to establish their alleged claim of title of the same through adverse possession and that plaintiff was entitled to get an order of ejectment of the defendants from 'ka-1' schedule of the property as well as injunction relating to 'ka-1 schedule property. However, learned Lower Appellate Court observed that as plaintiff was not in exclusive possession of the 'ka' schedule property and there was no prayer for recovery of said 'ka' schedule property plaintiff was not entitled to get any order of injunction relating to 'ka' schedule property. 6. BEING aggrieved the plaintiff preferred a second appeal being Second Appeal No.15 of 1999 wherein a substantial question of law was framed as to whether the learned First Appellate Court erred in decreeing the suit in part after having found the deed of gift to be valid being in agreement with the Trial Court. 7. LEARNED Judge of this Court while disposing of this second appeal observed that the learned Courts below correctly held that Padu Prodhan died on 4th February, 1943 before passing of the Hindu Succession Act, 1956 leaving his widow Nirada and a daughter Anadamoyee (defendant No.4) and that Nirada had acquired a life interest in the suit property as per old Hindu law and that after passing of the Hindu Succession Act she became absolute owner of the same and that the plaintiff by virtue of the deed of gift dated 12.07.1969 executed by Nirada (Ext.5) became absolute owner of the same. Learned Judge further held that the defendants failed to establish their title to the suit property by way of adverse possession as they admitted joint possession of the suit property by the parties. It was further held that as plaintiff has title to the suit property the plaintiff is entitled to recover possession of the suit 'ka-1' schedule property from the defendants by evicting them therefrom. Learned Judge further held that when the plaintiff was admittedly out of possession in respect of 'ka-1' schedule property he was not entitled to get a decree for permanent injunction and that he was entitled to get a decree for declaration of his right, title, interest in respect of 'ka-1' schedule property and eviction of the defendant therefrom and that the judgment of the learned Lower Appellate Court in that regard was liable to be confirmed. Learned Judge further observed that learned Lower Appellate Court declined to give any decree for declaration of right, title, interest as well as injunction relating to 'ka' schedule property as it was found that the plaintiff was not in absolute possession of the same and the defendants were also in possession of the same and as there was no prayer for recovery of said 'ka' schedule property by the plaintiff. Learned Judge observed that as in the plaint the plaintiff did not merely claim a declaration but also pray for consequential reliefs and accordingly the prayer for recovery of possession will not cause serious injustice to the defendants who have failed to prove the advese possession in the suit property and that there is no bar for permitting the plaintiff to amend the plaint to add the prayer for recovery of khas possession in respect of the 'ka' schedule property excluding ka-1' schedule property. Accordingly, learned Judge affirmed the judgment and decree of learned First Appellate Court regarding 'ka-1' schedule property but set aside the judgment of Trial Court regarding 'ka' schedule property and remanded back the matter to the learned First Appellate Court for decision regarding said 'ka' schedule property excluding said 'ka-1' schedule property after giving plaintiff an opportunity to amend the plaint as regards alternative relief of the recovery of khas possession of 'ka' schedule property excluding 'ka-1' schedule property and also to put proper valuation of the suit property. Learned First Appellate Court was also directed to allow the defendants to submit additional written statement in case of amendment of plaint only on the point of valuation of the suit properties and to decide the question of valuation of the 'ka' schedule property excluding 'ka-1' schedule property after giving the parties an opportunity of being heard and to pass a judgment afresh in the light of the observation made in the body of the judgment. In terms of said remand order dated 28th February, 2007 the impugned judgment dated 31st July, 2008 was passed by the learned Lower Appellate Court. By the judgment impugned dated 31st July, 2008 learned Lower Appellate Court passed a decree for declaring plaintiffs' right, title and interest in respect of 'ka' schedule property with a further decree of eviction of defendants therefrom and recovery of khas possession of the same by the plaintiff. 8. By the judgment impugned dated 31st July, 2008 learned Lower Appellate Court passed a decree for declaring plaintiffs' right, title and interest in respect of 'ka' schedule property with a further decree of eviction of defendants therefrom and recovery of khas possession of the same by the plaintiff. 8. AT the time of admission of this second appeal the following substantial question of law was framed. 9. WHETHER the learned Judge in the appellate court substantially erred in law in decreeing the plaintiff's suit for recovery of khas possession of 'ka schedule property on the strength of the amended plaint in the absence of any evidence in support of the amended plaint averments ignoring the principle of law that no decree can be passed on the basis of mere pleading. 10. MR. P. B. Sahoo, learned counsel for the appellant defendants, submits that the order of remand dated 28th February, 2007 passed in S. A. No.15 of 1999 was an open remand and hence an interlocutory order. He further submits that though plaintiff was permitted to amend plaint for incorporating the prayer for recovery of possession relating to 'ka' schedule property excluding 'ka-1' schedule property but defendant was not permitted to file additional written statement on that score. In this connection he refers case laws reported in AIR 1921 Cal page 169 and AIR 1990 Calcutta page 135 (Para-18) (Pieco Electronics and Electricals Ltd., vs. Smt. Tribeni Devi). He further submits that defendants were also denied the opportunity to adduce evidence under Order 41 Rule 27 of the Code of Civil Procedure. He next submits that though plaintiff did not adduce any evidence to prove the prayer for recovery of possession of the 'ka' schedule property excluding 'ka-1' schedule property but learned Lower Appellate Court passed a judgment and decree. He further submits that said amendment for incorporating the prayer for recovery of 'ka' schedule property excluding 'ka-1' schedule property was allowed without keeping the question of limitation open. In this connection he refers case laws reported in (2001) 6 SCC page 163 (Vishwambhar and others vs. Laxminarayan and another) (para 9 and 10), (2010) 14 SCC page 596 (Van Vibhag Karamchari Griha Nirman Sahkari Sanstha Maryadit vs. Ramesh Chander and Others), (2001) 2 SCC page 472 (Ragu Thilak D. John vs. S. Rayappan and others) and AIR 2004 SC page 4102 (Pankaja and another vs. Yellappa (D) by L.Rs. and others) (para 17 to 19). He further submits that in view of amendment of the plaint and enhancement of valuation statement the Trial Court lost pecuniary jurisdiction relating to the suit and the learned Lower Appellate Court did not consider the same and that the impugned judgment also vitiated on that score. He submits that the defendants should have been permitted to contest amended plaint on all respects namely recovery of possession of 'ka' schedule property excluding 'ka-1' schedule property in addition to the valuation point and that parties should have been permitted to adduce evidence in support of their respective claims regarding those amendments. He further submits that parties were not allowed to argue the matter in the learned Lower Appellate Court by violating the principles of natural justice. In this connection he refers a case law reported in 57 IC page 34 (Mahmud Khan and others vs. Ghazanfar Ali and others). Mr. Sahoo strongly submits that the remand order being an interlocutory order can be challenged being an improper order at the time of hearing of this second appeal on final disposal of the suit, in terms of the judgment of Hon'ble Apex Court reported in AIR 2005 SC page 1964 (Mangal Prasad Tamoli vs. Narvedshwar Mishra). He further submits that though said order of remand was passed by a Single Bench of this Court but still this Court while hearing the second appeal relating to the judgment passed in pursuant to said remand order has the authority to examine the remand order to ascertain whether the same was legal and valid or not. 11. IN support of his contention he refers case laws reported in 1980 (2) CLJ page 309 (Mrs. Prova Sen vs. Jagadish Chakraborty and others), 1999 WBLR Cal page 506 (The Deputy Managing Director CESC Limited and others vs. Naba Kumar Mondal and others) and 2005 (2) CHN page 667 (Gulshan Bibi vs. Hasmat Ali and others). 12. MR. Jiban Ratan Chatterjee, learned senior counsel for the respondent plaintiff, on the other hand, submits that said remand order of this Court was not an open remand order and was a limited remand order. He further submits that this Court having concurrent jurisdiction with the learned Court which passed the order of remand cannot examine the propriety of said order of remand. He further submits that this Court having concurrent jurisdiction with the learned Court which passed the order of remand cannot examine the propriety of said order of remand. In this connection he refers case laws reported in 2005 (2) SCC page 280, 2007 (13) SCC page 482, (2009) 8 SCC page 483 (para 18, 23) (Bihar School Examination Board vs. Suresh Prasad Sinha). He further submits that no appeal was preferred against the order of remand dated 28th February, 2007 by this Court and that there is no scope of challenging the same at this stage in view of the bar contained in Section 105 (2) of the Code of Civil Procedure. He further submits that in the petition under Order 41 Rule 27 of the Code of Civil Procedure filed in the Court of learned Lower Appellate Court after passing order of remand it was alleged that there was compromise between the parties during pendency of this second appeal, but it was not pleaded before this Court in the earlier occasion at the time of hearing of this second appeal and accordingly learned Appellate Court was justified to reject the same. Mr. Chatterjee further submits that learned Lower Appellate Court passed the impugned order in accordance with the order of remand dated 28th February, 2007 passed by this Court and that impugned order cannot be challenged alleging that it did not give opportunity to the defendants to file additional written statement on the point of recovery of 'ka' schedule property excluding 'ka-1' schedule property, or not permitting the defendants to adduce evidence on that score or for not allowing the parties to make further argument in this regard. Mr. Chatterjee accordingly prays for dismissal of this appeal. 13. ADMITTEDLY, the impugned judgment and decree dated 31st of July, 2008 passed by learned Civil Judge (Senior Division), First Court at Contai in Title Appeal No.75 of 1997 arose out of an order of remand dated 28th February, 2007 passed by Justice Tapan Mukherjee in S. A. No.15 of 1999. Mr. Chatterjee accordingly prays for dismissal of this appeal. 13. ADMITTEDLY, the impugned judgment and decree dated 31st of July, 2008 passed by learned Civil Judge (Senior Division), First Court at Contai in Title Appeal No.75 of 1997 arose out of an order of remand dated 28th February, 2007 passed by Justice Tapan Mukherjee in S. A. No.15 of 1999. There is also no denial that learned Lower Appellate Court in terms of said judgment of remand dated 28th February, 2007 was directed to allow the plaintiff to amend plaint for addition of the prayer of recovery of khas possession in respect of 'ka' schedule property excluding 'ka-1' schedule property within 15 days from the date of receipt of the record, to allow such cost by the plaintiff to the defendant as learned Appellate Court will deem fit and proper, to give the defendants an opportunity to file additional written statement regarding valuation of the suit property, to decide the question of valuation of the suit 'ka' schedule property excluding ka-1' schedule property after giving the parties an opportunity of being heard, to allow the plaintiff to pay Court fees ad valorem upon the claim of recovery of khas possession in respect of 'ka' schedule property excluding 'ka-1' schedule property and if plaintiff makes amendments and deposits court fees as per order of the Court then learned First Appellate Court shall pass judgment afresh in respect of the said property in the light of the observations made by the High court in the body of the judgment. It appears from the impugned judgment that learned Lower Appellate Court complied said directions of this High Court passed vide order of remand dated 28th February, 2007 strictly in letters. There is also no denial that learned Lower Appellate Court did not allow the defendants to file any additional written statement against said prayer for recovery of possession and also did not take any fresh evidence in view of said amendment of the plaint regarding recovery of possession and did not also consider any question as to whether said amendment was time barred or not and also rejected the application filed by the defendant under Order 41 Rule 27 of the Code of Civil Procedure for bringing on record some documents as additional evidence and wrote judgment without asking the parties to make any further argument in the matter. It cannot be said that by resorting to said Act learned Court below committed any mistake as he complied the order of remand dated 28th February, 2007 passed by one of the Hon'ble Judges of this Court true to its letters. There can also be no dispute that a Court subordinate to the High Court is bound to comply the order of the High Court and there is no scope of taking any further step beyond the direction of the order of remand. 14. THE main point which was argued before me during hearing of this second appeal is that the order of remand dated 28th February, 2007 passed by one of the judges of this Court in S. A. No.15 of 1999 being an interlocutory order in nature can be reopened and assailed by this Court at the instance of the appellant defendant. This assertion of learned counsel for the appellant defendants was countered by the learned counsel for the respondent plaintiff. Let me examine their submissions on this score with reference to the case laws referred by them. 15. IN Mangal Prasad Tamoli vs. Narvedshwar Mishra's case (supra) it was held by the Hon'ble Apex Court that an order of remand by the High Court being an interlocutory judgment, which did not terminate the proceedings, it is open to the aggrieved party to challenge it in the Supreme Court after the final judgment. 16. IN the case of the Deputy Managing Director CESC Limited and others (supra) it was held by learned Single Judge of this Court that a Court of coordinate jurisdiction can overlook and byepass an order passed in the earlier stage of coordinate jurisdiction if the order appears to be not understandable and the same is contrary to the structural pattern of the system of judicial hierarchy and if there is possibility of giving wide interpretation of the nature of construction contained in the order of remand, the different Courts in interpreting the said order may be in the state of disarray. 17. IN Mrs. 17. IN Mrs. Prova Sen's case (supra) it was held by another Single Bench Judge of this High Court that when High Court kept the second appeal pending and directed the Trial Court to take additional evidence after amendment of plaint and to record its findings on evidence and to remit the case records to High Court for disposal of second appeal said remand order being bad in law can be challenged at the hearing of the second appeal after remand. 18. IN Pieco Electronics and Electricals Ltd.'s case (supra) it was held that if the subsequent Bench is convinced that the decision passed by a coordinate Bench was erroneous then the latter Bench was not bound by said earlier Bench decision. 19. IN Satyadhyan Ghosal's case (supra) it was held by the Hon'ble Apex Court that the order of remand is an interlocutory order and that it did not purport to dispose of the case. It was further held therein that if an appeal did not allow from the order of remand the correctness thereof could be challenged by an appeal from the final decision as in the cases of other interlocutory orders and that Section 105 (2) of the Code of Civil Procedure did not apply to the appeals to the Supreme Court as no appeal lies to the Supreme Court against an order of remand of High Court. 20. FROM the aforesaid judgments of the Hon'ble Supreme Court it appears that Hon'ble Supreme Court was considering the question as to whether a party while coming to the Supreme Court in appeal against the final order of the High Court can agitate the earlier remand order passed by the High Court in connection with said case as erroneous, and has given the answer in the affirmative. But from the above referred judgment of the Hon'ble Supreme Court there is no answer as to whether the High Court while deciding the second appeal arising out of a judgment which was passed in terms of an order of remand by a concurrent Bench of the same High Court, can reopen said order of remand on the allegation that it was wrong or erroneous. 21. 21. IT appears from the referred judgments of this High Court that Hon'ble Single Benches of the concerned cases were of the opinion that earlier order of remand passed by a Judge of this Court can be reopened if the same leads to apparent anomalies when the same is to be noted again. 22. BUT in this case the order of remand dated 28th February, 2007 cannot be branded as an order of remand which cannot be acted upon or which leads to anomalies. It is true that in said order of remand though the plaintiff was permitted to make some amendments of the plaint by incorporating a prayer for recovery of a portion of the suit property but the defendant was not given the opportunity to file any written statement to deny the same and the parties were not also asked to lead any evidence in support of the respective stands regarding said amendment of plaint towards recovery of khas possession and also did not give any direction for giving opportunity to the parties to make further arguments before passing judgment by the learned Lower Court. But the moot point is whether this Court of concurrent jurisdiction while hearing this second appeal under Section 100 of the Code of Civil Procedure can scrutinize said order of remand as to whether the same was right or not. I am afraid that this Court cannot examine or scrutinize said order of remand passed by a Judge of this Court as an Appellate Forum though said power is with Hon'ble Supreme Court. In this connection I like to refer to the case law reported in AIR 1977 Supreme Court page 1011 (Jasraj Indersingh vs. Hemraj Multanchand) wherein it was held as follows:- "In an appeal against the High Court's finding, the Supreme Court is not bound by what the High Court might have held in its remand order. It is true that a subordinate court is bound by the direction of the High Court. It is equally true that the same High Court, hearing the matter on a second occasion or any other court of co-ordinate authority hearing the matter cannot discard the earlier holding, but a finding in a remand order cannot bind a higher Court when it comes up in appeal before it. It is equally true that the same High Court, hearing the matter on a second occasion or any other court of co-ordinate authority hearing the matter cannot discard the earlier holding, but a finding in a remand order cannot bind a higher Court when it comes up in appeal before it. This is so because the remand order by the High Court is a finding in an intermediate stage of the same litigation. When it came to the trial Court and escalated to the High Court, it remained the same litigation. The appeal before the Supreme Court is from the suit as a whole and, therefore, the entire subject matter is available for adjudication before the Supreme Court. If, on any other principle of finality statutorily conferred or on account of res judicata attracted by a decision in an allied litigation the matter is concluded the Supreme Court too is bound. Otherwise, the whole lis for the first time comes to the Supreme Court and the High Court's finding at an intermediate stage does not prevent examination of the position of law by the Supreme Court. Intermediate stages of the litigation and orders passed at those stages have a provisional finality." 23. IN the above referred judgment of the Hon'ble Supreme Court it was held by the Hon'ble Apex Court in unequivocal terms that not only a subordinate court is bound by the direction of the High Court passed in an order of remand but also the same High Court hearing the matter on a second occasion or any other Court of coordinate authority hearing the matter cannot discard the earlier holding, though a finding in the remand order cannot bind a higher Court when it comes up before it on appeal. If that be the position of law then this Court while hearing the matter on a second occasion cannot reopen the order of remand dated 28th February, 2007 to ascertain whether the same was right or wrong. 24. IT appears from the case record that respondent plaintiff gave evidence in the Trial Court and prayed for a decree as per prayers made in the plaint. In terms of the order of remand dated 28th February, 2007 there was amendment of the plaint by including a prayer for recovery of 'ka' schedule property excluding suit 'ka-1' schedule property. 24. IT appears from the case record that respondent plaintiff gave evidence in the Trial Court and prayed for a decree as per prayers made in the plaint. In terms of the order of remand dated 28th February, 2007 there was amendment of the plaint by including a prayer for recovery of 'ka' schedule property excluding suit 'ka-1' schedule property. Said amendment in the absence of a specific direction related back to the date of filing of the plaint. As such, the evidence of the respondent plaintiff praying for a decree as per prayers in the plaint which was already on record covered the prayer for recovery of said 'ka' schedule property excluding suit 'ka-1' schedule property as brought on record by an amendment. As such, learned Lower Appellate Court did not commit any mistake by passing the impugned judgment and decree allowing said prayer for recovery of possession of 'ka' schedule property excluding suit 'ka-1' schedule property, even when there was no fresh evidence after said amendment of the plaint. The submissions of learned counsel for the appellant defendants on other points challenging the order of remand cannot be entertained on the grounds as stated above. 25. ACCORDINGLY, I find and hold that the impugned judgment and decree do not call for any interference by this Court under Section 100 of the Code of Civil Procedure. As a result, the appeal is hereby dismissed on contest. However, I pass no order as to costs. 26. URGENT Photostat certified copy of this judgment be supplied to learned counsels of the parties, if applied for.