Research › Search › Judgment

Calcutta High Court · body

2014 DIGILAW 892 (CAL)

Ananta Roy v. Kalipada Gayen

2014-09-12

SUBRATA TALUKDAR

body2014
JUDGMENT : Subrata Talukdar, J. In this application under article 227 of the Constitution of India the order No. 70, dated 20th July, 2010 passed by the Learned 1st Civil Court (Junior Division), Diamond Harbour in Title Suit No. 123 of 2005 is assailed. 2. By the said order impugned the Ld. Trial Court was pleased to consider the application of the present petitioners/defendants for filing additional written statement. It is relevant to mention that the defendant Nos. 1, 2, 6, 7 and 11 filed two petitions dated 10th July, 2009 for permission to file additional written statement as well as acceptance of their additional written statement. The said petitions dated 10th July, 2009 were resisted by the present opposite parties/plaintiffs by filing written objections. 3. By the order impugned dated 20th July, 2010 the Ld. Trial Court was pleased to, inter alia observe that the defendants wanted to file the said additional written statement claiming that the kha Schedule suit property belongs to the defendant no. 6 which was partitioned with other non-suit lands on 20.2.1979 and registered on 23rd February, 1979 by registered Partition Deed among the co-sharers, including the defendant No. 6. The defendants claim that the above noted fact of partition was omitted in the original written statement due to bona fide mistake and, therefore, the defendants want to add the said fact and mark the certified copy of the Partition Deed as an exhibit. 4. The Learned Trial Court was further pleased to observe that the written statement filed by the defendants shows at paragraph 11 thereof that the said kha schedule suit property belongs to the defendant nos. 1, 2, 6, 7 and 11 and the said defendants are in possession of the same by constructing a house as well as are in enjoyment of a pond situated in the suit property. The learned advocate for the plaintiffs had submitted before the Learned Trial Court that the defendants are deviating from their pleadings made in paragraph 11 of the original written statement by which they have admitted the factum of their possession and enjoyment over the kha schedule land. According to the plaintiffs, in the event the additional written statement is accepted the same will contradict the statements made at paragraph 11 of the original written statement and the plaintiffs shall lose a valuable right which has accrued in their favour. 5. According to the plaintiffs, in the event the additional written statement is accepted the same will contradict the statements made at paragraph 11 of the original written statement and the plaintiffs shall lose a valuable right which has accrued in their favour. 5. The Learned Trial Court, therefore, rejected the petitions filed by the defendants dated 10th July, 2009 on contest and imposed cost of Rs. 200. Aggrieved thereby the present petitioners/defendants have filed the present CO 1401 of 2011. 6. Sri Sandip Das, Learned Counsel appears on behalf of the petitioners. None appears on behalf of opposite parties. 7. Sri Das contends that by filing the additional written statement the petitioners want to demonstrate the title held by their predecessor-in-interest in the suit property. Drawing the attention of this Court to paragraph 11 of the original written statement appearing at page 26 of CO 1401 of 2011, Sri Das submits that it is specifically pleaded at paragraph 11 that the defendants are the owners of the suit property including the kha schedule property. It is also submitted that the Banthannama was registered on 23rd February, 1979. 8. In the additional written statement it is, inter alia, pleaded that the defendants are desirous of producing the registered Deed of Partition. From the registered deed the petitioners/defendants want to demonstrate the right, title and interest of their predecessors-in-interest in the suit property. 9. According to Sri Das, since the suit is one for declaration of title, the defendants are entitled to prove their title before the Ld. Trial Court. From the additional written statement the defendants want to demonstrate before the Ld. Trial Court that the plaintiffs do not have any title to the suit property. 10. He further submits that by the order impugned dated 20.07.2010 the Learned Trial Court has failed to consider the pleadings in the additional written statement in the context of the reliefs claimed in the suit. Sri Das also draws the attention of this Court to the sketch of the suit property appearing at page 29 of the present CO 1401 of 2011 and submits that in the event the additional written statement is accepted, the plaintiffs shall be always entitled to contest the same. 11. Heard. Considered the materials on record. 12. Sri Das also draws the attention of this Court to the sketch of the suit property appearing at page 29 of the present CO 1401 of 2011 and submits that in the event the additional written statement is accepted, the plaintiffs shall be always entitled to contest the same. 11. Heard. Considered the materials on record. 12. This Court notices that having asserted their claim to the suit property in the written statement, the defendants are entitled to produce before the Ld. Trial Court the Partition Deed showing the title of their predecessor-in-interest in the suit property. This Court is sufficiently persuaded by Sri Dass argument that in a suit for declaration of title, the defendants are entitled to produce the registered Deed of Partition to trace the title of their predecessor-in-interest in the suit property. 13. The attention of this Court is also drawn to the order dated 20th July, 2010 whereby the Ld. Trial Court was pleased to peruse the written statement of the defendants. Noticing paragraph 11 of the said written statement, the Ld. Trial Court was pleased to, inter alia, observe that the kha schedule suit property belongs to the defendant Nos. 1, 2, 6, 7 and 11 and the said defendants are in possession as well as in enjoyment of the same. 14. This Court notices that the pleadings in the written statement show that the defendants claim title in the suit property and the pleadings in the additional written statement seek to show the document in support thereof. In such view of the matter this Court is unable to conclude that the statements made in the additional written statement are inconsistent and/or contradictory to the original written statement. 15. It is by now well-recognized in law that the plaintiffs will have a right to object to and contest the additional written statement filed by the defendants. It is also noticed that the Ld. Trial Court has not expressed any view on the present stage of the trial which may have persuaded this Court on the sustainability of the order impugned dated 20th July, 2010. The reasons shown by the Ld. Trial Court for non-acceptance of the additional written statement primarily pertain to a comparison of the pleadings in the written statement and in the proposed additional written statement. The reasons shown by the Ld. Trial Court for non-acceptance of the additional written statement primarily pertain to a comparison of the pleadings in the written statement and in the proposed additional written statement. From the submission of Sri Das which are supported by the documents on record as discussed above in this order this Court is unable to agree with the findings of the Ld. Trial Court. The order impugned NO. 70 dated 20th July, 2010 is accordingly set aside. The Ld. Trial Court is directed to produced with the suit in accordance with law from the stage of acceptance of the additional written statement and decide the same on its own merits uninfluenced by any observation made by this Court. 16. CO 1401 of 2011 is allowed. 17. There will be, however, no order as to costs. 18. Urgent Xerox certified copy, if applied for to be handed over to the parties at their own costs.