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2016 DIGILAW 710 (CAL)

Bhabotosh Maity v. Jogendranath Bhunia

2016-09-06

ISHAN CHANDRA DAS, JYOTIRMAY BHATTACHARYA

body2016
JUDGMENT : Jyotirmay Bhattacharya, J. 1. This is a defective appeal. Defects are notified in the report of the Stamp Reporter. It is reported that the name of the defendant/respondent No. 10 mentioned in the certified copy of the decree on appeal does not find place in the cause title of the instant appeal. With regard to the said defect, it is submitted by Mr. Manna, learned advocate appearing for the appellants that the defendant/respondent No. 10 viz. Kanai Bag died during the pendency of the appeal. His legal heirs were on record. As such, the name of the respondent No. 10 was expunged by an order being No. 8 dated 19th June, 2010 passed by the learned first Appellate Court. We, thus, do not find any defect in the memorandum of appeal for not joining the respondent No. 10 in this appeal. Stamp Reporter also refers to another defect i.e. the names of the respondent Nos. 18 to 22 mentioned in the certified copy of the decree on appeal do not find place in the certified copy of the decree of the learned Trial Court. In this regard, it is submitted by Mr. Manna that those respondents were added as respondents in suit vide order being No. 29 dated 26th April, 2004 passed by the learned Trial Judge. As such, they were impleaded as respondent Nos. 18 to 22 in this appeal. We, thus, do not find any defect in the appeal in this regard. 2. The other defect mentioned in the Stamp Reporter's report is curable by the learned advocate of the appellants. We grant leave to the learned advocate-on- record of the appellants to rectify the said defect in the memorandum of appeal. 3. This second appeal is directed against the judgment and decree dated 14th March, 2016 passed by the learned Additional District Judge, Fast Track 1st Court, Tamluk, Purba Medinipur in Title Appeal No. 02 of 2013 reversing the judgment and decree dated 9th July, 2009 passed by the learned Civil Judge (Junior Division), 3rd Court at Tamluk in Title Suit No. 63 of 2002 at the instance of the plaintiffs/appellants. 4. 4. Let us now consider the merit of the appeal to find out as to whether any substantial question of law is involved in this appeal for which the appeal is required to be admitted for hearing under the provision of Order 41 Rule 11 of the Code of Civil Procedure or not. 5. The plaintiffs/appellants filed a suit in the representative capacity under Order 1 Rule 8 of the Civil Procedure Code praying for passing a decree for declaration of easementary right of the villagers for discharging drainage of water through drain (nala) situated over the suit plot of land and further declaration that the defendant No. 1 has no right to erect structure on the suit plot of land and a decree for demolition of structure raised by the defendant No. 1 on the suit plot of land. It was contended by the plaintiffs that there was a drain (nala) over the suit plot No. 1600 within Mouza-Rajnagar. The said drain (nala) is used for drainage of water from the suit mouza. The land adjoining to the drain (nala) is used as public pathway by the villagers. It was alleged by the plaintiffs that the defendant No. 1 assembled bricks and sand and made an attempt to raise structure over the drain (nala) and the land adjoining to the drain (nala) on 10th May, 2002 and 23rd June, 2002 infringing the easementary right of the villagers. Hence, the instant suit was filed. 6. The defendant No. 1 appeared in the said suit and contested the same by denying the allegations made out in the plaint. He did not dispute the existence of the drain (nala) over the suit plot No. 1600 and the customary right of the villagers for drainage of water through the said drain (nala). The defendant No. 1, however, denied the existence of any pathway over the land adjoining to the said drain (nala). The defendant No. 1 claimed that he is the owner of two decimals of land lying at plot no. 1628 which was adjoining to suit plot No. 1600 and he has house standing on a part of plot No. 1628. The defendant No. 1, thus, denied the allegation of raising any construction by him over a portion of the suit plot No. 1600. 7. 1628 which was adjoining to suit plot No. 1600 and he has house standing on a part of plot No. 1628. The defendant No. 1, thus, denied the allegation of raising any construction by him over a portion of the suit plot No. 1600. 7. In course of trial of the suit, the suit plot was inspected by an Advocate Commissioner who submitted his report in the suit. An investigation was also made by Survey passed Commissioner to resolve the dispute between the parties as indicated above. 8. Learned Trial Judge was pleased to decree the suit on contest by relying on those two report of the Advocate Commissioner as well as of the Investigation Commissioner. 9. Being aggrieved by and dissatisfied with the said judgment and decree of the learned Trial Judge, the defendant No. 1 filed an appeal before the learned first Appellate Court. The learned first Appellate Court was pleased to allow the said appeal by reversing the judgment and decree of the learned Trial Judge. The learned first Appellate Court held that the learned Trial Court was not justified in decreeing the suit by relying upon the reports of the local inspection and/or the investigation report as, such reports were all made without any reference to the pleadings of the parties. 10. In this regard, we have considered the pleadings of the parties as well as those two reports submitted in the suit. We find that the plaintiffs alleged in the pleadings that the defendant No. 1 was trying to raise construction on the public drain (nala) and the land adjoining to such drain (nala) by affecting the easementary right of the villagers. The investigation report shows that construction has already been made by the defendant No. 1 on the public drain. The plaintiffs never stated in the plaint that such construction was made on the public drain affecting the easementary right of the villagers. As such, we are of the view that the investigation report which is nothing but a piece of evidence could not have been relied upon by the learned Trial Court for passing a decree in favour of the plaintiffs in the absence of the pleadings regarding any construction which had already been raised by the defendant No. 1 on the public drain affecting the easementary right of the villagers. 11. 11. The principle as laid down in 30 Privy Council page 51 that no amount of evidence can be looked into by the Court which is beyond the pleading of the parties is well settled. We, thus, relying upon the said principle hold that the learned first Appellate Court did not commit any illegality in allowing the said appeal by reversing the judgment and decree of the learned Trial Court. 12. We, thus, do not find involvement of any substantial question of law in this appeal for which the appeal is required to be admitted for hearing under the provision of Order 41 Rule 11 of the Code of Civil Procedure. We, thus, decline to admit this appeal. The appeal, thus, stands dismissed. Re: CAN 4495 of 2016 (Stay) Since we have not admitted the appeal under the provision of Order 41 Rule 11 of the Code of Civil Procedure, no further order need be passed on the interim application for stay. The said application being CAN 4495 of 2016 is, thus, deemed to be disposed of.