Research › Search › Judgment

Calcutta High Court · body

2016 DIGILAW 637 (CAL)

Ramekbal Rai v. Shamsher Rahaman

2016-08-11

INDRAJIT CHATTERJEE

body2016
JUDGMENT : Indrajit Chatterjee, J. 1. This Court is hearing this second appeal as against the judgment and decree passed by the learned First Appellate Court being the learned District Judge, 1st Court at Alipore, 24-Parganas (South) as passed in Title Appeal No. 211 of 2012 dated 17th December, 2014 wherein the learned First Appellate Court was pleased to dismiss the appeal and confirm the judgment and decree passed by the learned Civil Judge (Junior Division), 1st Court at Alipore as passed in Title Suit No. 143 of 2012 dated 26-09-2012. It may be said at the very outset that the learned Trial Court disposed of the suit only on preliminary issue as to whether notice under section 586 of the Kolkata Municipal Corporation Act, 1980 (hereinafter called as Act of 1980) was necessary or not and the learned Trial Court came to the conclusion that such notice was necessary and as such, the suit was dismissed. 2. Let me now say in brief the fact of this case:- 3. The suit property originally belonged to Udani Rai, Ganga Devi and Ram Ekbal Rai. This Ram Ekbal Rai is the appellant No. 1. The other plaintiffs are the legal heirs of Ganga Devi and Udani Rai. The plaintiffs as per the plaint claimed that the defendant Nos. 1, 2 and 3 in collusion with the Kolkata Municipal Corporation managed to mutate their names in respect of the suit property being the Premises No. 110, Dr. Girindra Sekhar Bose Road within the P.S. Kasba, Kolkata -39 (hereinafter called as the suit property). 4. The defendant Nos. 4 and 5 appeared before the learned Trial Court by filing one written statement along with the counter claim. Girindra Sekhar Bose Road within the P.S. Kasba, Kolkata -39 (hereinafter called as the suit property). 4. The defendant Nos. 4 and 5 appeared before the learned Trial Court by filing one written statement along with the counter claim. The specific claim of the defendants was that the suit is barred by res judicata, constructive res judicata, mis-joinder of causes of action, that the suit being one for recovery of possession the plaintiffs are bound to pay ad valorem Court fees, that the suit is speculative and harassing one, that the allegations as made out in the plaint are false and frivolous and that those defendants strongly denied that the plaintiffs are the owner and occupier of the suit land and they only became the owner of the suit property by virtue of registered deed No. 494 purchased by Ganga Devi from M/s. Cultural Enterprises Private Limited Corporation or by registered deed No. 730 of 1966 purchased by Udani Rai in the year 1966 or the deed No. 731 of 1976 vide which Ram Ekbal Rai purchased the property in the year 1966. 5. The defendants further came up with a case that the Title Suit No. 35 of 1969 as filed by the predecessor-in-interest of the plaintiff, Udani Rai and another was a total falsehood and ultimately, the title suit was dismissed for default. The defendants denied that there was any collusion in between those defendants and the men of Kolkata Municipal Corporation. 6. The defendants further claimed that actually the defendant Nos. 1, 2 and 3 were the original owners in respect of the half share, i.e., 10 cottahs of the suit property and the defendant Nos. 4 and 5 are presently the owner of the remaining half share of the suit property which was purchased by those defendants by registered deed No. 02937 in the year 2010 which was registered at the office of the Additional District Sub-Registrar, Sealdah. They further claimed that the defendant Nos. 1, 2 and 3 being the legal and original owner of the entire suit property, the plaintiffs have no right over the suit property. 7. The contesting defendants further claimed that the officers of the Kolkata Municipal Corporation duly mutated the name of the defendant No. 4 as per that registered deed executed in his favour. 1, 2 and 3 being the legal and original owner of the entire suit property, the plaintiffs have no right over the suit property. 7. The contesting defendants further claimed that the officers of the Kolkata Municipal Corporation duly mutated the name of the defendant No. 4 as per that registered deed executed in his favour. The defendants further claimed that the deeds executed by the Cultural Enterprises (P) Limited were the outcome of fraud and that fraud has been specifically pleaded in paragraph 31 of the written statement. Thus, the contesting defendants claimed that they are the owners in respect of 9 cottahs 8 chittak out of 33 decimal of the suit property located in that plot number referred to above. The defendants prayed for a declaration that the deed Nos. 494, 730 and 731 all executed in the year 1966 are void deeds and not binding upon the defendants. They also prayed for permanent injunction in their favour. 8. The respondent Nos. 1, 2 and 3 did not file any written statement but they contested the appeal. 9. The Division Bench formulated in all three substantial question of law to be decided by this Court which are as follows:- "3. Whether the claims for a decree for declaration of title and a decree for cancellation of a certain deed or conveyance prayed for against the private respondents is liable to suffer for failure to issue statutory notice to the Kolkata Municipal Corporation under section 586 of the Act of 1980 prior to institution of the suit? 4. Whether the learned Trial Court or the learned Appellate Court has complied with the requirements of Order 14 Rule 2 of the Code of Civil Procedure, 1908 in dismissing the entire suit without framing the issue on which the suit was required to be determined? 5. Whether the learned Trial Court or the learned First Appellate Court has been justified in dismissing the entirety of the suit as also against the private individuals for non-service of statutory notice to the Kolkata Municipal Corporation prior to institution of suit. 6. Whether the determination of the cancellation of the deed of conveyance dated 4th October, 2010 is dependent on the question of the recording of rights of the purchasers through such deed in the record of the Kolkata Municipal Corporation?" 10. Mr. 6. Whether the determination of the cancellation of the deed of conveyance dated 4th October, 2010 is dependent on the question of the recording of rights of the purchasers through such deed in the record of the Kolkata Municipal Corporation?" 10. Mr. Amitava Das the learned advocate appearing on behalf of the appellants submitted by taking me to section 586 of the Act of 1980 to substantiate his claim vis-a-vis the plaint and the prayer portion that actually no notice was necessary to be given to the said Corporation. He took me to the prayer portion of the plaint to convince this Court that the plaintiffs only prayed for declaration of title and also for permanent injunction with other consequential reliefs. He further submitted by taking me to Clause 5 of section 586 of the said Act of 1980 to convince this Court that the prayer as made before the Learned Trial Court can very well be covered under that clause which has given authority to a party to file a suit without any notice to the Corporation if the claim is based on permanent perpetual injunction as contemplated under section 38 of the Specific Relief Act, 1963 (hereinafter called as the Act of 1963). 11. Mr. Das further submitted that he has no objection if the names of the defendant Nos. 6 and 7 are deleted. He further submitted that actually in the prayer portion nothing was claimed against the Corporation and that was duly taken care of by the First Appellate Court but the First Appellate Court considering the recital in the body of the plaint preferred to walk with the Learned Trial Court in dismissing the appeal and affirming the order of the Learned Trial Court. 12. He further submitted that even if the names of the defendant Nos. 6 & 7 are deleted that cannot debar the plaintiffs from raising their voice before the said Corporation Authorities if the Deed No. 2957 of 2010 is set aside and the suit is decreed in favour of the plaintiffs. He further submitted by taking me to Order 14 Rule 1 & 2 of the Civil Procedure Code to say that the manner in which the suit was disposed of on the basis of one 151 petition is unheard of. He further submitted by taking me to Order 14 Rule 1 & 2 of the Civil Procedure Code to say that the manner in which the suit was disposed of on the basis of one 151 petition is unheard of. He attacked the order of the Learned Trial Court and submitted that the Learned Trial Court must have framed at least the preliminary issue as regards the maintainability of the suit because of non-service of notice under section 586 of the said Act of 1980. 13. Mr. Das took me to the judgment of the First Appellate Court where the First Appellate Court doubted as regards the bar of further suit which may be filed by the Kolkata Municipal Corporation on the ground of constructive res judicata. On this point Mr. Das that submitted as in the prayer portion the story of collusion between the defendants and the Kolkata Municipal Corporation authority is not there, there was no reason to frame any issue on this point and the said matter as regards the collusion may be automatic one only and as such the Corporation will not suffer any prejudice. 14. Mr. Das thus concluded that the order passed by the First Appellate Court is to be set aside and the matter be remanded back to the Learned Trial Court for framing of issues on the pleading of the parties, to record evidence and thereafter to dispose of the suit on merit covering all the issues. He further submitted that this Court may kindly dispose of the matter as regards the implication of section 586 in the suit. 15. Mr. Das concluded his argument by saying that a private person cannot take advantage of the rigors of section 586 of the Act of 1980 and only the Kolkata Municipal Corporation can use the said section as a shield. 16. On behalf of the respondent Nos. 4 and 5, Mr. Bhudeb Chatterjee, learned Advocate, submitted by taking me to Order 14 Rule 2 of the Code of Civil Procedure to say that the learned Trial Court did not err in disposing the suit in a preliminary manner and as such, the judgment of the learned Trial Court is protected under Rule 2 of that order. 4 and 5, Mr. Bhudeb Chatterjee, learned Advocate, submitted by taking me to Order 14 Rule 2 of the Code of Civil Procedure to say that the learned Trial Court did not err in disposing the suit in a preliminary manner and as such, the judgment of the learned Trial Court is protected under Rule 2 of that order. He further submitted that the judgment passed by the learned Trial Court was upheld by the First Appellate Court and that the Court had such power as there was bar in view of section 586 of the Act of 1980. 17. He took me to the plaint to establish his contention that the relief claimed by the plaintiffs is basically for declaration and permanent injunction and other reliefs are consequential. On this point, he further submitted that the suit as framed cannot be treated as a suit for perpetual injunction as contemplated under section 38 of the Act of 1963 and had it been so the plaintiffs ought to have paid the Court fees on the market value of the suit property and not the ad valorem Court fees as per his assessment. Thus, he submitted that these plaintiffs/appellants cannot get the protection of clause 4 of section 586 of the said Act of 1980. 18. In this connection, he cited a Single Bench decision of this Court as reported in 2005(1) CHN 501 as passed in CO. 1470 of 2004 on 6th July, 2004 (Kolkata Municipal Corporation v. Chanda Properties Private Limited). Learned Advocate took me to paragraph-14 of the said judgment wherein the Hon'ble Single Judge held that the suit as framed (as was the case before the Trial Court) was a suit for declaration and perpetual injunction was a consequential relief and as such, the said suit is not saved under section 586(4) of the said Act of 1980. He also took me to page-10 of the paper book, i.e. the prayer portion as made out in the plaint to convince this Court that all the declaration have been prayed for against all the defendants and such declaration cannot be separated to take out the allegation against the Kolkata Municipal Corporation Authority. He also took me to page-10 of the paper book, i.e. the prayer portion as made out in the plaint to convince this Court that all the declaration have been prayed for against all the defendants and such declaration cannot be separated to take out the allegation against the Kolkata Municipal Corporation Authority. He took me to paragraphs 10 and 11 of the plaint to establish his contention that there is direct cause of action against the Kolkata Municipal Authority and as such, the Trial Court rightly held that notice under section 586 of the Act of 1980 was necessary. 19. He ended his argument by taking me to paragraph-8 of the judgment of the First Appellate Court (page 42 of the paper book) to say in the same tone with the said court that any decree passed in the suit as framed will automatically bind the Municipal Corporation and as such, the findings of the Trial Court can safely treated as res judicata and/or constructive res judicata if any fresh suit is filed regarding the same property making the Kolkata Municipal Corporation as a party or if the Kolkata Municipal Corporation files any case against such private litigants. 20. On behalf of the respondent Nos. 1 to 3, Mr. Kartick Bhattacharyya, learned Advocate, is present and submitted that it is the admitted position that his clients have sold the suit property to the respondent No. 4, which is a Private Limited Company and the respondent No. 5 is the Director of the said Private Limited Company. He fairly submitted that his points have already been covered by Mr. Chatterjee appearing on behalf of the respondent Nos. 4 and 5. He supplemented it by taking me to the prayer portion of the plaint that in the plaint itself, the plaintiffs claimed relief against all the defendants both in respect of declaration of title and also for permanent injunction. 21. On the notice point, Mr. Bhattacharyya submitted by taking me to Section 586 of the Act of 1980 to convince this Court that it is one statutory requirement and no Court can lose sight of this. 22. Mr. Ghosh, learned Advocate, appearing on behalf of the defendant Nos. 21. On the notice point, Mr. Bhattacharyya submitted by taking me to Section 586 of the Act of 1980 to convince this Court that it is one statutory requirement and no Court can lose sight of this. 22. Mr. Ghosh, learned Advocate, appearing on behalf of the defendant Nos. 6 and 7 submitted by taking me to that section of the Act of 1980 to convince this Court that actually the notice under section 586 of the said Act was a must as the relief claimed by the plaintiffs is inseparable one as the relief sought for was against all the defendants including the officers of the Kolkata Municipal Corporation. He further submitted that if the names of those defendants remain in the plaint and the allegations are also there, then certainly the result of the suit will be treated as res judicata or constructive res judicata vice versa either in favour of the Kolkata Municipal Corporation or in favour of the private litigants. Thus, he submitted that the suit as framed is clearly barred for non-service of such notice. 23. In reply, it was argued by the learned Advocate appearing on behalf of the appellants banking upon the previous submission on the other date that if the prayer as made out in the plaint is amended along with the paragraph Nos. 10 and 11 of the plaint, this notice cannot be a bar to the proceeding. He further submitted that the decision of this Court in Kolkata Municipal Corporation v. Chanda Properties Private Limited (Supra) cannot apply on the facts and circumstances of this case as in that case, the Municipal authority was the principal party as the assessment order was challenged. He frankly submitted that in that case naturally the notice was a must under section 586 of the Act of 1980. 24. So long myself was in the midst of hearing of argument, this court is not unmindful of the undertaking given by the plaintiffs that they are eager to amend the plaint suitably so that there remains no allegation against the Kolkata Municipal Corporation and the names of defendant Nos. 6 and 7 will be deleted from the cause title of the plaint to make the plaint valid to cure it out of rigour of section 586 of the said Act of 1980. 25. 6 and 7 will be deleted from the cause title of the plaint to make the plaint valid to cure it out of rigour of section 586 of the said Act of 1980. 25. Myself have gone through the substantial questions of law as framed by the Hon'ble Division Bench. Regarding substantial question No. 3 (sic). 26. This Court is at one with the learned First Appellate Court that the suit as framed is bad for non-service of notice under section 586 of the Act of 1980. The theory behind the service of notice is to make the Corporation authority aware regarding the grievances against its officials as made out by the citizen so that the Corporation may redress the grievances of the citizen without going for unnecessary litigation. 27. Accordingly, this Court is satisfied that if the defendant Nos. 6 and 7 remain as party and the allegations are there, the suit is perfectly barred for non-service of such notice. The question now is whether the private respondents are liable to suffer for failure to issue statutory notice to the Kolkata Municipal Corporation? My answer on this point is that so long these defendant Nos. 6 and 7 are there, the private respondents may very much claim that the suit as filed was barred for non-service of such notice. Regarding substantial question No. 4 (sic). 28. This Court on reading and re-reading Order 14 Rule 2 of the Code of Civil Procedure is satisfied that the learned Trial Court did not err in deciding the matter on preliminary issue without answering the other issues. Rule 2 of the said Order is very much there to protect the said Order of the learned Trial Court. The findings of the learned first Appellate Court on that score cannot be altered by this Court in view of the said Order and Rule of the Code of Civil Procedure. Thus, the finding in this regard is hereby affirmed. Regarding substantial question No. 5 (sic). 29. This question is almost similar to the question No. 4, which I have answered in details. The answer to this substantial question will naturally be derived from the answer given by this Court while deciding the substantial question No. 4. Thus, the finding in this regard is hereby affirmed. Regarding substantial question No. 5 (sic). 29. This question is almost similar to the question No. 4, which I have answered in details. The answer to this substantial question will naturally be derived from the answer given by this Court while deciding the substantial question No. 4. Myself reiterate that both the learned Trial Court and the learned first Appellate Court were perfectly correct in dismissing the entire suit also against the private individuals for non-service of notice. Service of notice as contemplated under section 586 of the Act of 1980 is a statutory requirement and that cannot be taken out by any order of the Court. Thus, this point is also answered in the same tone with the Courts below. Regarding substantial question No. 9 (sic). 30. The question is whether the determination of cancellation of the deed of conveyance dated 4th October, 2010 will depend on the question of recording of rights of the purchasers (defendant Nos. 4 and 5) through such deed in the record of Kolkata Municipal Corporation. On this point, this Court says that mere mutation of a name based on deed which is under challenge before a Court of law cannot create any right in favour of such defendants provided the Court answers in the affirmative as regards cancellation of such deed in favour of the plaintiffs. The mutation certificate cannot be treated as a document of title but it is one proof of possession like that of the Record of Rights. Thus, to make it clear, I say that, if the plaintiffs win the legal battle, then naturally such recording in the Register of the Municipal authority can safely be changed by production of the decree of the Court. 31. In view of the discussion so long made, this Court is satisfied that neither the learned Trial Court nor the first Appellate Court erred in coming to the conclusion as noted above. 32. I re-affirm that the suit as framed is bad for non-service of such notice. I do not like to throw out the plaintiffs/appellants from the arena of this legal battle as it is basically a fight between the private parties if they are willing to amend the plaint suitably to wipe out any allegation made against the defendant Nos. 6 and 7 and by deleting the names of the defendant Nos. I do not like to throw out the plaintiffs/appellants from the arena of this legal battle as it is basically a fight between the private parties if they are willing to amend the plaint suitably to wipe out any allegation made against the defendant Nos. 6 and 7 and by deleting the names of the defendant Nos. 6 and 7 from the cause title of the plaint. 33. If such amendment petition is filed before the learned Trial Court, the learned Trial Court will consider the matter sympathetically considering the views expressed by this Court. Such amendment petition, if preferred to be filed, must be filed within three months from this day. 34. This second appeal is, thus, disposed of on contest with the observations as made above. 35. There will, however, be no order as to costs. 36. Office is directed to communicate this order to the learned Trial Court forthwith along with a copy of this judgment and the Lower Court records. Photostat certified copy of this order, if applied for, be supplied to the parties on usual undertaking.