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2016 DIGILAW 943 (CAL)

Tapas Roy Mondal v. Bijoy Roy Mondal

2016-11-29

ISHAN CHANDRA DAS, JYOTIRMAY BHATTACHARYA

body2016
JUDGMENT : Jyotirmay Bhattacharya, J. 1. This appeal will be heard on the following substantial question of law. 2. Whether the matter at issue is required to be reconsidered in the light of the additional evidence which the defendants/appellants are seeking to adduce by filing an application under Order 41 Rule 27 of the Code of Civil Procedure or not? 3. After the appeal was admitted for hearing, when we were considering an application for injunction filed by the appellants in this appeal, we were invited by the learned counsel appearing for the parties to dispose of the appeal itself on merit by dispensing with the requirement of filing paper books in this appeal. 4. All the parties are now before us. As such, service of notice of appeal upon the respondents is dispensed with. 5. The appeal is, thus, treated ready as regards service. 6. Let us now consider the merit of the instant appeal in the facts of the instant case. 7. This instant second appeal is directed against the judgment and decree dated 7th August, 2014 passed by the learned Civil Judge (Senior Division), Sadar, Cooch Behar, in Title Appeal No. 02 of 2012 affirming the judgment and decree dated 19th December, 2011 passed by the Learned Civil Judge (Junior Division), Dinhata, in Title Suit No. 44 of 2005, at the instance of the defendants/appellants. 8. Let us now consider as to how far the learned courts below were justified in passing a decree for eviction against the defendants/appellants on termination of licence. 9. It is alleged by the plaintiffs that the defendants were in permissive possession in the suit property. It is further alleged that the permission which was granted in favour of the defendants, was revoked by the plaintiffs. Since the defendants failed and neglected to vacate the suit premises and give up vacant and peaceful possession thereof to the plaintiffs/respondents, the instant suit was filed by the plaintiffs/respondents against the defendants/appellants. 10. The defendants/appellants appeared in the said suit and contested the same by filing written statement denying the materials allegation made out by the plaintiffs in the plaint. 11. The allegation of the plaintiffs that the defendants were in permissive possession in the suit property was denied by the defendants. 12. 10. The defendants/appellants appeared in the said suit and contested the same by filing written statement denying the materials allegation made out by the plaintiffs in the plaint. 11. The allegation of the plaintiffs that the defendants were in permissive possession in the suit property was denied by the defendants. 12. The defendants claimed that by virtue of a deed of partition, executed between the predecessor-in-interest of the parties, the suit plot was allotted to the predecessor-in- interest of the defendants. As such, they became the owners of the suit property by way of such family arrangement and after the death of their predecessor-in-interest, the defendants inherited the suit property by way of succession. Thus, the defendants resisted the plaintiffs' prayer for eviction by asserting their title in the suit property. 13. The parties led evidence in support of their respective claims in the suit. Though the defendants contested the said suit by asserting their title in the suit property on the strength of the deed of partition dated 19th March, 1969 executed between Baneswar Roy Mondal and Bisseswar Roy Mondal but the said deed of partition was not proved by the defendants in their evidence. As a result, the learned Trial Judge held that the defendants have failed to prove their title in the suit property. The learned Trial Court thus, believed the plaintiffs' claim that the defendants were in permissive possession in the suit property. 14. An eviction decree was thus, passed against the defendants/appellants, as they failed to vacate the suit premises even after revocation of their licence. 15. Being aggrieved by and dissatisfied with the said judgment and decree of the learned Trial Court, the defendants/appellants filed an appeal before the learned First Appellate Court. 16. The learned First Appellate Court dismissed the said appeal and affirmed the findings of the learned Trial Court. The learned First Appellate Court also held that the defendants have failed to prove their title in respect of the suit property as they did not produce and/or prove the deed of partition through which they are claiming title in the suit property. 17. The legality and/or correctness of the said judgment and decree of the learned First Appellate Court is under challenge in this second appeal at the instance of the defendants/ appellants. 18. 17. The legality and/or correctness of the said judgment and decree of the learned First Appellate Court is under challenge in this second appeal at the instance of the defendants/ appellants. 18. In connection with this appeal, an application under Order 41 Rule 27 of the Code of Civil Procedure was taken out by the defendants/appellants. In the said application, it was stated that subsequent to the disposal of the First Appeal as aforesaid, the defendants/ appellants discovered the title deed through which they were claiming title in the suit property. They want to bring the said title deed into evidence by way of additional evidence. A copy of the said deed is annexed to the appellants' application under Order 41 Rule 27 of the Code of Civil Procedure. Even the original deed has also been produced before us. 19. We have considered the said deed. The said deed was described as a deed of gift. One Baneswar Roy Mondal was described as the donor in the said deed. Bisweswar Roy Mondal was described as the donee. Bisweswar Roy Mondal and Baneswar Roy Mondal were two brothers. The plaintiffs/respondents are the successors of Baneswar Roy Mondal. The defendants/appellants are the successors of Bisweswar Roy Mondal. By the said deed dated 19th March, 1969 the entire suit property was gifted by Sri Baneswar Roy Mondal in favour of Bisweswar Roy Mondal. The admissibility of the said document, being thirty years old document, under Section 90 of the Evidence Act cannot be disputed. 20. As such, we feel that the said deed of gift is a vital document which will ultimately determine the fate of this litigation. 21. However, Mr. Purnasish Roy, learned advocate, appearing for the plaintiffs/ respondents submits that the document through which the defendants are claiming title in the suit property is not the document referred to in the written statement though which they claimed title in the suit property. By referring to the judgment of the Court's below, he pointed out that the defendants claimed the suit property by way of deed of partition and not through any deed of gift. He, thus, challenged the admissibility of the said document which has not even been referred to in the pleadings. 22. We find some substance in such contention of Mr. He, thus, challenged the admissibility of the said document which has not even been referred to in the pleadings. 22. We find some substance in such contention of Mr. Roy as it is well settled that no amount of evidence can be looked into which is beyond the pleadings of the parties. 23. As such, we feel that the defendants should be given an opportunity to amend the written statement. 24. We, thus, set aside the impugned judgment and decree and send the suit back to the learned First Appellate Court for reconsideration of the issues involved in the suit afresh. 25. The defendants/appellants are permitted to amend their pleadings suitably and in the event such an application for amendment is filed, the learned First Appellate Court will allow the appellants' prayer for such amendment and thereafter will permit the defendants to prove their document of tile in accordance with law. 26. Needless to mention here that the plaintiffs/respondents will also be permitted not only to lead further evidence in the suit, but also will be permitted to cross-examine the defendants' witness. 27. The learned First Appellate Court is, thus, requested to dispose of the appeal in the light of the observations made hereinabove as early as possible, but preferably within six months from the date of communication of this order. 28. Since the plaintiffs/respondents have already recovered possession in the suit premises from the defendants/appellants through the process of execution and they are in possession of the suit property, we restrain the plaintiffs/respondents from transferring and/or letting out and/or creating any third party interest in the suit property and/or from changing the nature and character thereof till the disposal of the First Appeal. 29. The appeal is, thus, allowed. All the applications filed in connection with this appeal are also disposed of. 30. Drawing up decree of this appeal is dispensed with. 31. Let this order be communicated to the court below by special messenger at the cost of the appellants to be deposited within a week. 32. The original document, which is produced by Mr. Bagchi, learned senior counsel, appearing for the appellants before us, is returned to him.