Rizaul Molla vs Sabina Bibi & Ors.

Sugato Majumdar, J :

The instant First Appeal has been filed against the Judgment and Decree dated 30/01/2013, passed in Title Appeal No.136 of 2009 by the Learned Additional District Judge, 14th Court at Alipore. The Cross Appeal has also been filed against the same Judgment and Decree.

The original suit being the Title Suit No.293 of 2002 was filed by one Musammat Jobeda Khatoon against the Appellant in the instant First Appeal in the Court of the Learned Civil Judge, Junior Division, 6^th Court at Alipore. The suit was decreed in favour of the Plaintiff therein. An appeal was preferred by the Defendant of the suit who is the Appellant in the instant First Appeal (for the sake of convenience “the Appellant/Defendant”). The Learned First Appellate Court, in terms of the impugned Judgment and Decree remanded the matter to the Trial Court.

On being aggrieved and dissatisfied, both the parties preferred the instant First Appeal as well as the Cross Appeal.

The plaint case in nutshell may be considered at the outset.

The suit property originally belonged to the husband of the original Plaintiff, the aforesaid Musammat Jobeda Khatoon, who transferred by way of a registered gift dated 01/02/1972 the suit property to the original Plaintiff. Since then the original Plaintiff is in possession of the suit property and derived usufructs therefrom. Since the original Plaintiff was a pardanshin lady, she requested the Appellant/Defendant, her near relative, to look after the property. The Appellant/Defendant agreed to the same and began to look after the suit property. In doing so, the Appellant/Defendant got a deed of gift dated 22/11/1989 executed in his favour by the original Plaintiff representing the same as a general power of attorney. It was represented that the said power of attorney was needed for management and administration of the suit property. Subsequently, the original Plaintiff came to know the real nature of the said deed and that the deed was a deed of gift. Once the original Plaintiff became apprised of the nature of the deed, she instituted a suit in the Court of Civil Judge, Junior Division, 6th Court at Alipore, being Title Suit No. 134 of 1996 praying for cancellation of the said deed. The said suit had been allowed and the impugned deed was cancelled and avoided. The Appellant/Defendant preferred appeal but the same was dismissed. Subsequently on 01/01/1998 the Appellant/Defendant dispossessed the original plaintiff from the suit property. The original suit was filed being the Title Suit No. 293 of 2002 by the original Plaintiff praying for recovery of possession along with other reliefs.

The Appellant/Defendant being the Defendant in the original suit contested the same by filing written statement denying all the allegations. Contentions of the Respondent were that the suit was not maintainable, barred by limitation, insufficiently stamped and description of the suit property was vague. Plea was taken that the original Plaintiff transferred and delivered the possession of the suit property by executing the deed of gift in favour of the Appellant/Defendant and that the later had been enjoying the same accepting the deed of gift and taking possession thereof. The deed of gift had been executed voluntarily and out of free will by the original Plaintiff. It was a further case of the Appellant/Defendant that he had been in possession of the suit property for more than twelve years continuously for which he got the title by way of adverse possession. It was pleaded that the original Plaintiff had no right to interfere with the possession of the Appellant/Defendant in the suit property. The Appellant/Defendant prayed that the suit should be dismissed.

On the basis of rival pleadings, the following issues were framed:

Is the suit maintainable in its present form and in law?

Has the plaintiff cause of action to file the instant suit?

Is the plaintiff owner of the suit property?

Is the plaintiff entitled to get a decree as prayed for?

To what other relief or reliefs is the plaintiff entitled to?

Is the suit property valued and correctly stamped?

The Learned Trial Court decreed the suit in favour of the original Plaintiff directing the Appellant/Defendant to deliver khas possession of the suit property. The Learned Trial Court held that the suit was maintainable, properly stamped, the Learned Trial Court had jurisdiction to entertain the suit. The Learned Trial Judge took note of the decree passed in the earlier suit as well as in the appeal. The Learned Trial Judge also came to a conclusion that the Appellant/Defendant failed to establish adverse possession of the suit property and that the original Plaintiff was the rightful owner of the suit property; the Appellant/Defendant is estopped from challenging title of the original Plaintiff through the impugned deed of gift which had already been cancelled in the earlier suit. The Learned Trial Judge came to the conclusion that the Respondent is in illegal possession and directed him to deliver possession to the original Plaintiff.

On being aggrieved and dissatisfied, the Respondent preferred an appeal which was registered as Title Appeal No.136 of 2009.

The Learned First Appellate Court concurred with the Learned Trial Court that the Appellant/Defendant failed to establish adverse possession in the suit property. The First Appellate Court also found that the original Plaintiff was the owner of the suit property by virtue of the registered deed of gift dated 01/02/1972 and that the original Plaintiff was entitled to get a decree for possession. However, the Learned First Appellate Court, after having considered so, noticed that the original deed of gift dated 01/02/1972 had not been produced before the Learned Trial Court though the Appellant/Defendant did not take any plea disputing the existence, execution and registration of the same. However, since the original Plaintiff prayed for recovery of possession, she must prove his title in the suit property. The original Plaintiff was entitled to get a decree for declaration of title and for recovery of possession. Enthused by such consideration, the Learned First Appellate Court held that the original Plaintiff was entitled to decree for declaration of title and for recovery of possession subject to production of the original title deed dated 01/02/1972 or a certified copy of the same. On being so produced, the Learned Trial Court should admit the same as evidence, dispensing with formal proof. Thereafter, the Learned Trial Court would pass decree of declaration of title of the original Plaintiff along with recovery of possession evicting the Appellant/Defendant. Observations on valuation of relief as well as the other findings were not interfered with. Accordingly, the Learned First Appellate Court allowed the appeal with the order of remand.

Being aggrieved and dissatisfied with the order passed by the First Appellate Court, the Appellant/Defendant preferred the First Miscellaneous Appeal. On the other hand, the legal heirs of the original Plaintiff filed Cross Appeal against the said order.

The argument advanced on behalf of the Appellant/Defendant was that he is the sole legal heir being the adopted son of the original Plaintiff. The Respondent/Cross objectors are strangers and no order should be passed in their favour.

Per contra, the Learned Counsel for the Cross objectors argued that it had already been adjudicated in the previous suit that the original Plaintiff was the owner of the property. On the strength of the decree, the title of the original Plaintiff was undisputed. The Appellant/Defendant also did not dispute the title of the original Plaintiff. In this conspectus of fact production of title deed and passing declaratory decree, not prayed for, is redundant. The impugned judgment and the order of the First Appellate Court should be set aside, as argued.

The suit is for recovery of possession. There is no plea for declaration of title. The deed allegedly executed in favour of the Appellant/Defendant by the original Plaintiff had been set aside by a civil court of competent jurisdiction which was subsequently confirmed by the Appellate Court. There is no dispute on the title of the original Plaintiff in the suit property. In defending the alleged execution of the gift deed in favour of the Appellant/Defendant, the later tacitly admitted the title of the original Plaintiff in the suit property. No dispute is there that the original Plaintiff was the owner. In that case, on the basis of admitted and undisputed fact adducing evidence to establish title by producing the title deed was redundant. The First Appellate Court was oblivious of the prayer and pleading of the plaint and of the fact that parties were not at issue on the title of the original Plaintiff in the suit property. This is not only error of fact but a serious error of law. The Trial Court correctly decided the issue on appreciation of evidence and keeping in mind the plea of the parties. A fresh plea was taken by the Appellant/Defendant that he was the adopted son of the original Plaintiff. This is a question of fact, neither in the pleading nor raised before the two courts. This point need not be considered, therefore.

The Order of Judgment and Decree passed by the First Appellate Court contains serious infirmities and is liable to be set aside.

For reasons stated as aforesaid the impugned Judgment and Decree dated 30/01/2013 passed by the First Appellate Court, Additional District Judge, 14^th Court, Alipore, 24-Parganas(S) is hereby set aside.

The Judgment and Decree dated 29/11/2008 passed by the Trial Court, Civil Judge (Junior Division), 6^th Court, Alipore, 24-Parganas (S) is hereby upheld.

The Respondent is directed to hand over possession of the suit property to the Appellants within 60 days from the date of drawing up of a decree in case of default of which the Appellant shall be at liberty to draw up the execution proceeding. Liberty is given to the Appellant to file suit for calculation and recovery of mesne profit.

The instant First Miscellaneous Appeal as well as the Cross Appeal is hereby disposed of. Common decree may be drawn up.

T.C.R be returned.