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2014 DIGILAW 124 (CAL)

Laxmi Kanta Roy v. Chitta Ranjan Mondal

2014-02-19

PRASENJIT MANDAL

body2014
Judgment : Prasenjit Mandal, J. This appeal is directed against the judgment and decree dated March 17, 2009 passed by the learned Additional District Judge, Fast Track Court-II, Bongaon, District North 24- Parganas in Title Appeal No.145 of 1999 thereby reversing the judgment and decree dated August 30, 1999 passed by the learned Civil Judge (Junior Division), Bangaon, District North 24-Parganas in Title Suit No.34 of 1992. The plaintiff/appellant herein instituted the aforesaid title suit before the learned Trial Judge praying for declaration of title, permanent injunction and other consequential reliefs. The defendant no.1 is contesting the said suit by filing an appropriate written statement contending, inter alia, that the suit is not maintainable in its present form and law. It is hit by the provisions of the Specific Relief Act. The suit also suffers from non-joinder and misjoinder of necessary parties. The defendant no.1 is also a co-owner of the suit property as described in the schedule to the plaint and so, the suit should be dismissed. Upon recording evidence, the learned Trial Judge decreed the suit in part declaring the share of the plaintiff in the suit property and also granting a decree of permanent injunction against the defendant no.1. Being aggrieved by such judgment and decree, the defendant no.1 preferred an appeal which was allowed reversing the judgment and decree passed by the learned Trial Judge. The learned First Appellate Court also directed that the order of remand was an open one and the parties were given liberties to amend their pleadings and to adduce evidence in the light of the observations made in the judgment. Being aggrieved, the plaintiff/appellant herein has preferred this first miscellaneous appeal. Now, the question is whether the First Appellate Court is justified in reversing the judgment and decree passed by the learned Trial Judge and remanding the suit for a fresh decision under Order 41 Rule 23A of the C.P.C. Upon hearing the learned Counsel for the parties and on going through the materials on record, I find that while decreeing the suit, the learned Trial Judge has passed the following decree:- ORDERED. that the suit be and the same is decreed in part, but considering the facts and circumstances of the case, without cost on contest against the defendant no.1 and exparte against other. that the suit be and the same is decreed in part, but considering the facts and circumstances of the case, without cost on contest against the defendant no.1 and exparte against other. The right, title, interest and possession of the plaintiff over the land in suit plot No.558 in accordance with his 1/7 share excluding the land sold by him is hereby declared and the defendant no.1 is hereby restrained by an order of permanent injunction from disturbing the plaintiff in his peaceful possession over the land within his title, as well in the suit land possessed by him as co-sharer of his other relatives, who have yet not sold their lands to others. No order as to costs of the suit or as to other relief is made. The case is disposed of finally on contest. Thus, from the aforesaid decree, it appears that the decree suffers from vagueness with declaration that the plaintiff has right, title and interest to the extent of 1/7th share excluding the land already sold by him. There is no observation in the decree as to the exact share or the land or the boundaries of the property over which the plaintiff has right, title, interest and possession over the suit property. So, the decree passed by the learned Trial Judge suffers from vagueness. Not only that, the plaintiff is not claiming right, title and interest over the entire property but to the extent as indicated above and from the schedule of the plaint, it appears that the suit property comprises two plots being Plot No.558 measuring total land of 89 decimals and the plaintiff has claimed 67 decimals of land out of 89 decimals of land. The plaintiff has also claimed 26 decimals of land in Plot No.557. While the defendant no.1 has contended that one Kalicharan Halder, the original owner of the two plots had transferred 16½ decimals of land out of Plot No.558 measuring 89 decimals of land to one Gauranga Sarkar, Kalicharan had transferred the remaining 72½ decimals of land in Plot No.558 and 38 decimals of land in Plot No.557 totalling 110½ decimals of land to Mahadeb Roy and Mahadeb Roy died leaving his heirs, such as, wife, five sons and a daughter as heirs and the plaintiff is one of the sons of Mahadeb Roy. Admittedly, the other heirs of Mahadeb Roy had also sold a portion of the land from the Plot Nos.558 & 557 to the defendant no.1 by virtue of a registered sale deed dated April 29, 1982. It has also transpired from the evidence that an agreement of sale over the 65 decimals of land out of two suit plots was held between some of the heirs of Mahadeb Roy on one side and the defendant no.1 on the other side upon receiving a sum of Rs.1,400/- as earnest money out of the total consideration money of Rs.4,530/-. According to the defendant no.1, the possession of such lands was delivered. Therefore, the decree as passed by the learned Trial Judge is not only vague but also incomplete in the true sense keeping such facts in mind. Under such circumstances, while dealing with the appeal, the First Appellate Court has sent back the case on remand with a direction to give opportunities to the parties to amend the pleadings and then to give opportunities to adduce evidence on the pleadings. In my view, the learned First Appellate Court has adopted a correct approach in the matter to solve the dispute between the parties once for all. The Court should not pass a decree which could not be executed at all. On perusal of the decree passed by the learned Trial Judge, it appears that the decree suffers from vagueness and for that reason, the decree is not executable at all. Moreover, since the property claimed by the plaintiff/appellant herein is not identified by boundaries, if the other co-owner, such as, the defendant no.1 enters the plots in suit from any direction, he would be liable for violation of the order of injunction and as such, he may have to face punishment or contempt for violation of the Court’s order. So, the judgment and decree as passed by the learned Trial Judge cannot be supported at all. Under the circumstances, the First Appellate Court has rightly passed an order setting aside the judgment and decree passed by the learned Trial Judge with an order of an open remand. So, I do not find any reason to interfere with the impugned judgment and decree. Under the circumstances, the First Appellate Court has rightly passed an order setting aside the judgment and decree passed by the learned Trial Judge with an order of an open remand. So, I do not find any reason to interfere with the impugned judgment and decree. But, the First Appellate Court, in my view, has taken a correct approach to solve the dispute between the parties once for all by passing an order of remand under Order 41 Rule 23A of the C.P.C. Accordingly, in my view, there is no scope of interference with the impugned order at all. The impugned judgment and order should be sustained and this appeal is devoid of merits. Accordingly, this appeal is dismissed. Considering the circumstances, there will be no order as to costs. Since the suit is old, the learned Trial Judge is directed to take effective steps at early so as to ensure the disposal of the suit within one year from the date of communication of the order.