R.V.W. 265 of 2016. Case: Dilip Kumar Dutta and Ors. Vs Sanatan Saha and Ors.. High Court of Calcutta (India)

Case NumberR.V.W. 265 of 2016
CounselFor Appellant: Gopal Chandra Ghosh, Sanjib Kumar Mukhopadhyay, Sunirmal Khanra and Kalpita Pal, Advs. and For Respondents: Pradip Kumar Roy and Shraboni Sarkar, Advs.
JudgesAshis Kumar Chakraborty, J.
IssueCivil Procedure Code
Judgement DateMarch 28, 2017
CourtHigh Court of Calcutta (India)

Judgment:

Ashis Kumar Chakraborty, J.

  1. This is an application for review of the order dated May 13, 2016 passed by this Court in F.M.A. No. 558 of 2012. By the said order, this Court allowed the appeal filed by the present respondents and set aside the order dated September 15, 2011 passed by the learned Civil Judge (Senior Division), Ghatal in Title Appeal No. 3 of 2009 thereby, allowing the present petitioner, the plaintiffs appellants to amend their plaint filed in Title Suit No. 133 of 2000, setting aside the decree passed by the learned Civil Judge (Junior Division), Ghatal dismissing the suit and remanding the suit to the learned trial Judge.

  2. One of the grounds on which the present respondents, as the appellants in the above appeal, assailed the aforementioned order dated September 15, 2011 was that the learned appellate Court below erred in law in sending back the suit on open remand without interfering with the decree passed by the learned trial Judge on merit, but solely on the ground of allowing the plaintiffs appellants to amend their plaint. The other ground urged by the present respondents in the above appeal before this Court was that in any event, the learned appellate Court below committed an error of law in allowing the plaintiffs, to amend their plaint by incorporating various reliefs which were ex-facie barred by the laws of limitation.

  3. By the said order dated May 13, 2016 this Court upheld both the above grounds of challenge urged by the present respondents, the appellants in the above appeal and set aside the order dated September 15, 2011 passed by the learned first appellate Court below and sent back Title Appeal No. 3 of 2009 to the learned first appellate Court below for disposal on merit, on the basis of the materials on record and if necessary, by allowing the parties to adduce fresh evidence only with regard to the facts arisen subsequent to the decree passed by the learned trial Judge in the suit.

  4. Shorn of unnecessary details, the facts relevant for consideration in this application are that the present petitioners filed Title Suit No. 133 of 2000, before the learned Civil Judge (Junior Division), Ghatal, against the respondents claiming, a declaration that they are the owners and in possession of the "A" schedule of the plaint, (hereinafter referred to as "the suit property") and a decree for permanent injunction restraining the respondents from interfering with their possession of the suit property and from constructing any building at the suit property. In the suit, the petitioner traced their title to the suit property through one Satkari Pal and alleged that their cause of action to file the suit arose on September 12, 2000 when the respondents caused digging of the land of the suit property for constructing a building. The respondents contested the suit, they claimed that they are in possession of the suit property and the suit to be hit by the proviso to Section 34 of the Special Relief Act. The respondents claimed that by a registered conveyance dated May 31, 1961 executed by one Panchkari Pal, Smt. Renukarani Chowdhuri, (hereinafter referred to as "Renukarani") purchased the suit property and thereafter, by a registered conveyance dated October 29, 1999 the latter sold the suit property to them. According to the respondents, there was a mistake in the sale deed executed by Renukarani in their favour, which was subsequently rectified by Renukarani by executing a deed of rectification dated June 18, 2001 and after obtaining the sanctioned plan from the Municipality they sought to commence construction of their building at the suit property owned by them.

  5. During the pendency of the suit before the learned trial Judge, the petitioners amended their plaint by incorporating paragraph 12(a) alleging that Panchkari Pal did not have any right or title in respect of the suit property and he did not sell the suit property to Renukarani, the latter was never in possession of the suit property and the deed of rectification dated June 18, 2001 executed by Renukarani in favour of the respondents is fraudulent and void. The petitioners, however, did not incorporate any relief in the pliant challenging the validity of the said deed of rectification dated June 18, 2001 or the deed of conveyance dated October 29, 1999 executed by Renukarani.

  6. After appreciating the evidence adduced by the respective parties, in the judgment dated February 26, 2009 the learned trial Judge found that by virtue of a partition dated May 30, 1969 between Panchkari Pal and his brother Satkari Pal, the suit property was allotted Panchkari Pal, exclusively and the plaintiffs, the present petitioners, could not establish their right, title or interest in respect of the suit property or that they are in possession of the suit property. By a decree dated February 26, 2009 the learned trial Judge dismissed the suit filed by the petitioners. The petitioners challenged the said decree by filing the appeal, being Title Appeal No. 3 of 2009, before the learned first appellate Court below. In the said appeal, on November 11, 2009 the petitioners filed an application for further amendment of their plaint, seeking to incorporate the averments in the plaint that the deed of conveyance executed by Panchkari Pal in favour of Renukarani, conferred no title on Renukarani and consequently the deed of conveyance...

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