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2014 DIGILAW 75 (CAL)

Pabitra Deb v. Uttam Deb

2014-01-31

PRASENJIT MANDAL

body2014
JUDGMENT Prasenjit Mandal, J. 1. This second appeal is at the instance of the defendant no.1 and is directed against the judgment and decree dated February 18, 2009 passed by the learned Additional District Judge, 3rd Court, Hooghly in Title Appeal No.150 of 2006 thereby affirming the judgment and decree dated March 31, 2006 passed by the learned Civil Judge (Junior Division), 1st Court, Hooghly in Title Suit No.127 of 2000 decreeing the suit and dismissing the counter-claim filed by the defendant no.1. The plaintiff/respondent herein instituted the aforesaid title suit for declaration, permanent injunction and other consequential reliefs claiming ownership over the suit property on the basis of a deed of gift executed by his mother. 2. The defendant no.1, brother of the plaintiff, has filed a written statement contending, inter alia, that the deed of gift is not binding upon him and he has prayed for reliefs by way of counter-claim. 3. The other defendants have filed a separate written statement contending, inter alia, that they are the tenants and not the trespassers as contended by the plaintiff. 4. The parties adduced evidence over their respective pleadings and on the basis of the evidence of both the parties, the suit was decreed on contests without costs and the counter-claim filed by the defendant no.1 was dismissed on contests without costs. The learned Trial Judge has declared that the plaintiff has right, title and interest over the suit property covering the plot nos.1483 & 1484. The learned Trial Judge has also declared that the defendant nos.1 to 4 have no right, title and interest over the suit property and as such, the permanent injunction restraining them from entering into the suit property was granted. The defendant nos.2 to 4 had been further directed to quit and vacate the suit premises and deliver of khas possession thereof in favour of the plaintiff within 90 days from the date of the judgment. 5. Being aggrieved by such judgment and decree, the defendant no.4 preferred an appeal being Title Appeal No.150 of 2006 which was dismissed on contests thereby affirming the judgment and decree passed by the learned Trial Judge. 6. Being aggrieved, this second appeal has been preferred by the defendant no.1. 7. 5. Being aggrieved by such judgment and decree, the defendant no.4 preferred an appeal being Title Appeal No.150 of 2006 which was dismissed on contests thereby affirming the judgment and decree passed by the learned Trial Judge. 6. Being aggrieved, this second appeal has been preferred by the defendant no.1. 7. By the order dated March 20, 2009 of this Hon’ble Court, it has been indicated that this appeal shall be heard on the following two substantial questions of law only:- 1) Whether the learned judge in the lower appellate court substantially erred in law in affirming the judgment and decree of the learned trial judge without giving an opportunity to the appellant to file a written objection against the report of the commissioner for local investigation? 2) Whether the learned judge in the lower appellate court substantially erred in law in disposing of the suit without deciding the cross objection filed by the appellant under Order XLI, rule 22 of the Code of Civil Procedure? 8. Upon hearing the learned Counsel for the parties and on going through the materials on record, I find that, while disposing of the said title suit, the learned Trial Judge has committed irregularities which require that the judgments and decrees passed by the Courts below should be set aside and that an order of remand should be passed. 9. By the Order No.61 dated February 20, 2006, the learned Trial Judge recorded that the defendant no.1 had filed an application under Order 26 Rule 9 of the C.P.C. praying for an order for appointment of a Survey Passed Commissioner for holding a local investigation in respect of the points mentioned in the schedule to the application on the ground stated therein. 10. By the Order No.63 dated March 6, 2006, the learned Trial Judge had allowed the application under Order 26 Rule 9 of the C.P.C. thereby appointing an Advocate for holding the local investigation. The learned Commissioner submitted his report and such report forms part of the record as per provisions of Order 26 Rule 10(2) of the C.P.C. So, such report must be considered at the time of disposal of the suit. 11. The learned Commissioner submitted his report and such report forms part of the record as per provisions of Order 26 Rule 10(2) of the C.P.C. So, such report must be considered at the time of disposal of the suit. 11. In the meantime, a civil revision being C.O. No.2850 of 2005 was disposed of by this Hon’ble Court thereby directing the learned Trial Judge to dispose of the suit being Title Suit No.127 of 2000 by the end of March, 2006 without fail. 12. As indicated earlier, the plaintiff has claimed the suit property on the basis of a deed of gift executed by the mother of the plaintiff and the defendant no.1 and such deed of gift is under challenge by the defendant No.1 with his prayer for cross-objection and both the matters are being considered together as per provisions of the C.P.C. 13. From the Order No.78 dated March 28, 2006, it appears that the concerned deed of gift had been marked Exhibit-2 and the learned Advocate for the defendant no.4 prayed for some time to file a revisional application against the earlier order which deprives the defendant to cross-examine the plaintiff and his witness over the deed of gift and also to adduce evidence. 14. It will reveal from the Order No.76 dated March 27, 2006, Order No.77 dated March 27, 2006 even when the learned Commissioner submitted his report, the respective parties could not get any opportunity to file any objection against the report and from the judgment of the learned Trial Judge, it appears that the said report has not been properly considered. 15. Mr. Subrata Roy Karmakar, learned Advocate appearing for the respondent no.4 has contended that the report submitted by the learned Advocate Commissioner supports the contention of the defendant, but the said report has not been considered at all and the Commissioner has not been examined. These irregularities I have noticed in the judgment and decree passed by the learned Trial Judge. 16. While disposing of the title appeal, the First Appellate Court determined the three points for consideration in the appeal and these three points are described below:- 1) Whether plaintiff became owner of the suit Property on the strength of alleged deed of gift? These irregularities I have noticed in the judgment and decree passed by the learned Trial Judge. 16. While disposing of the title appeal, the First Appellate Court determined the three points for consideration in the appeal and these three points are described below:- 1) Whether plaintiff became owner of the suit Property on the strength of alleged deed of gift? 2) Whether the counter claim of defendant no.1 that deed of gift bearing No.869/2000 is inoperative and not binding upon defendant no.1 and also that a structure comprise of bathroom and privy are lying in plot No.1482 and not the suit plot. 3) Whether defendant nos.2 to 4 are trespassers of the suit property. 17. Thus, I find that the three points are very much related to the proof of deed of gift and the report of the learned Advocate Commissioner submitted. But owing to the closer of the evidence after rejecting the prayer on behalf of the defendants for further adjournment on the ground of illness, I find that the defendants have been deprived of adducing evidence in support of their contention and the report submitted by the learned Commissioner has not been properly considered accordingly. The judgment of the appellate Court does not lay down any discussion in this regard, but, simply mentions that the structure is located on the Dag No.1482. The First Appellate Court has simply recorded without reasons that the learned Trial Judge was of the view that there was no merit in the counter-claim and that the learned Trial Judge had rightly dismissed the counter-claim of the defendant no.1. 18. Anyway, since the defendants did not get adequate opportunity to file an objection against the report of the Commissioner and to cross-examine the P.W.s examined on behalf of the plaintiff, in my view, both the Courts below have committed substantial error of law in arriving at the conclusion without due consideration of the situation and the fact that the defendants were deprived of adducing proper evidence on the grounds already recorded. The report submitted by the learned Commissioner, prima facie, has a bearing in arriving at a correct conclusion of the suit. 19. The report submitted by the learned Commissioner, prima facie, has a bearing in arriving at a correct conclusion of the suit. 19. Accordingly, in my view, the judgments and decrees passed by the Courts below cannot be sustained and thus, in my view, both the Courts below have committed substantial errors of law in depriving the appellant of the right to cross-examine the P.W.s and is not giving any opportunity to the appellant to file a written objection against the report of the Commissioner. Similarly, the First Appellate Court has also committed a substantial error of law by not deciding the cross-objection under Order 41 Rule 22 of the C.P.C. filed by the appellant on merits. 20. The substantial questions of law are, thus, answered. 21. In the result, I have no other alternative but to set aside the judgments and decrees passed by the Courts below with a direction upon the learned Trial Judge to proceed with the suit afresh from the stage of submitting the report by the learned Commissioner. He shall give an opportunity to file a written objection within a short time to be fixed by him and then hear out the objection, if any, filed by the parties against the report of the Commissioner. He shall give adequate opportunities to the defendants to cross-examine the witnesses on behalf of the plaintiff and to adduce evidence on their own behalf including the evidence to be adduced on the counter-claim on behalf of the defendant no.1. Thereafter, he shall dispose of the suit and the counterclaim in accordance with law. Such exercise should be done as early as possible preferably within six months from the date of communication of this order without granting any unnecessary adjournment to either of the parties. 22. The appeal succeeds and the same is allowed. 23. The judgments and decrees passed by the Courts below as referred to earlier stand set aside. The learned Trial Judge shall proceed with the suit in the manner indicated above and he shall also endeavour to dispose of the suit within the time-frame as indicated above. 24. Considering the circumstances, there will be no order as to costs.