Smt. Gita Das vs Sri. Samir Dey

Jyotirmay Bhattacharya, J.—This is a defective appeal. Defects are notified in the report of the Stamp Reporter. After hearing Mr. Roy Karmakar, learned advocate appearing for the appellant, we are of the view that the defects are of such nature which cannot be cured at this stage as his application for curing such defects before the learned first Appellate Court was rejected by the learned first Appellate Court. Hence, we have decided to consider the appeal, as it stands now, for the purpose of hearing under the provision of Order 41, Rule 11 of the Code of Civil Procedure.

Heard Mr. Roy Karmakar, learned advocate appearing for the appellant. We have considered the judgements and decrees of the learned courts below. We are of the view that substantial questions of law are involved in this second appeal. As such, we admit this appeal on the following substantial questions of law :-

Whether the learned first Appellate Court was justified in rejecting the appellant''s application for addition of left the out defendants as respondents in the first appeal ?

Whether the learned first Appellate Court was justified in holding that the entries appearing in the certified copy of the suit register regarding execution of the earlier decree as on 3rd March, 1962 in column No. 26 therein is merely a clerical mistake without comparing the said entry in the certified copy of the suit register with the original record ?

Since Mr. Kajal Roy, learned advocate has already entered appearance on behalf of the plaintiffs/respondents, service of notice of appeal upon the respondents is dispensed with. The appeal is thus treated ready as regards service of notice of appeal upon the respondent.

Immediately after the appeal is admitted by this Court, we are requested by Mr. Kajal Roy, learned advocate appearing for the plaintiffs/respondents to dispose of the appeal itself on merit on the basis of the materials available before us. Mr. Roy Karmakar, learned advocate appearing for the defendant no.1/appellant has also not opposed such prayer of Mr. Kajal Roy.

Considering such submission made by the learned counsel appearing for the parties, we have decided to dispose of the appeal on merit on the basis of the materials available before us by dispensing with the requirement of filing paper book in this appeal and/or calling for the lower court records.

Let us now consider the merit of the instant appeal in the facts of the instant case.

Here is the case where we find that the plaintiffs filed a suit for recovery of possession from the defendant no.1/appellant by treating her as trespasser in the suit property. Defendant no.1/appellant contested the suit by filing written statement denying the material allegations made out by the plaintiffs in the plaint. The defendant no.1/appellant claimed title in the suit property by way of adverse possession. She claimed that earlier the predecessor-in-interest of the plaintiffs filed a suit for eviction against the predecessor-in-interest of the defendants herein and the said suit having been dismissed on contest, the predecessor-in-interest of the plaintiffs filed an appeal which was allowed by the learned first Appellate Court.

The decree for recovery of possession which was passed in the said appeal on 15th December, 1962 still remains unexecuted and the time for execution of the said decree has now become barred by limitation. Thus, the defendant no.1/appellant by her continuous possession in the suit property acquired title by adverse possession as she exercised all the rights of a legal owner in respect thereof to the knowledge of the plaintiffs'' and/or their predecessor-in-interest continuously for a period of more than twelve years.

The other defendants viz. defendant nos. 2 to 4 also appeared in the said suit and filed written statement admitting therein that they are not in possession of the suit property. Thus, they did not claim any title by way of adverse possession in the suit property.

The parties led evidence in support of their respective claims in the said suit. The learned Trial Court was pleased to decree the said suit on contest in favour of the plaintiffs. Being aggrieved by and dissatisfied with the said judgement and decree of the learned Trial Court, the defendant no.1 alone preferred an appeal before the learned first Appellate Court for challenging the said decree passed by the learned Trial Court. In the said appeal, the other defendants were not joined as parties in either capacity. After the said defect was detected, the defendant no.1/appellant filed an application before the learned first Appellate Court praying for permission of the court to implead those left out defendants as respondents in the said appeal.

The learned first Appellate Court rejected the appellant''s said application for addition of party by holding, inter alia, that there is no provision in law which permits the appellant to implead the other left out defendants to join them as appellants in the appeal. The learned first Appellate Court held that when the other defendants are not aggrieved by the said judgement and decree of the learned Trial Court and further when they do not want to challenge the said decree in appeal, the defendant no.1/appellant cannot seek permission of the court to implead those left out defendants as appellants in the said appeal. Holding as such, the appellant''s application for addition of those left out defendants as parties in the said appeal was rejected and thereafter the learned first Appellate Court held that the appeal was liable to be dismissed for nonjoinder of necessary parties.

Let us now consider the legality and/or correctness of this part of the findings of the learned first Appellate Court.

On perusal of the said application, we find that the appellant therein did not seek leave of the court to implead those left out defendants as appellants in the said appeal. The appellant prayed for leave to implead those left out defendants as respondents in the said appeal. Learned first Appellate Court misread the application for addition of party filed by the appellant therein and wrongly rejected her prayer for addition of party under a wrong impression that as if the said application was filed for adding those left out defendants as co-appellants in the said appeal. In this regard, we also like to mention here the provision contained in Order 41, Rule 4 of the Civil Procedure Code which authorises any of the defendants suffering from a common decree to file and/or maintain an appeal against a common decree passed against all the defendants.

In view of the said provision contained in Order 41, Rule 4 of the Civil Procedure Code, we hold that the first appeal is well maintainable at the instance of the defendant no.1/appellant alone. In our view, the learned first Appellate Court ought to have allowed the appellant''s application for addition of party. We, thus, set aside this part of the findings of the learned first Appellate Court and allow the appellant''s application for addition of party. Let the left out parties be added as respondents in the said appeal.

The concerned department of the first Appellate Court is directed to carry out this order by amending the cause title of the memorandum of first appeal filed before the learned first Appellate Court.

The first substantial question of law framed by this Court is thus answered in favour of the defendant no.1/appellant.

Let us now consider the other substantial question of law framed in this appeal.

Here is the case where we find that the predecessor-in-interest of the plaintiffs/respondents filed a suit for recovery of possession against the predecessor-in-interest of the defendant earlier on the selfsame cause of action in respect of the very same suit property. The said suit which was registered as Title Suit No. 306 of 1960 was dismissed on contest with costs on 6th March, 1962. Being aggrieved by and dissatisfied with the said judgement and decree of the learned Trial Court, the predecessor-in-interest of the present plaintiffs filed an appeal being Title Appeal No. 122 of 1962 before the learned first Appellate Court. The learned first Appellate Court was pleased to allow the said appeal after setting aside the judgement and decree of the learned Trial Court. A decree for recovery of possession was passed in the said appeal on 15th December, 1962.

It appears from the certified copy of the suit register which was entered into evidence in the said suit as Exhibit-9(i) that an execution was levied by the said decree-holder in 1963 before the learned Executing Court. The said execution case was registered as Title Execution Case No. 6 of 1963. It further appears from the said certified copy of the suit register that possession of the judgement-debtor was taken over in pursuance of the writ issued under Order 21, Rule 35 of the Civil Procedure Code on 3rd March, 1962. This creates confusion in the mind of the court as to the correctness of the entries in column No.26 regarding the date of execution of the decree mentioned therein. The learned first Appellate Court came to the conclusion that the date for recovery of possession through the process of execution as mentioned in column No. 26 is nothing but a clerical mistake as possession cannot be recovered in 1962 when the execution was levied in 1963.

In our view, before coming to the said conclusion, it was the duty of the appeal court to compare the certified copy of the said suit register with the original record. This has not been done by the learned first Appellate Court. We cannot agree with such finding of the learned first Appellate Court inasmuch as, such finding was arrived at by the learned first Appellate Court merely on the basis of surmise and conjecture. We, thus, cannot uphold such finding of the learned first Appellate Court. This part of the findings of the learned first Appellate Court is also set aside by this Court.

The second substantial question of law framed by this Court is thus answered in favour of the defendant no.1/appellant.

We are of the view that the appeal is required to be reheard in the presence of the added respondents afresh. The judgement and decree passed by the learned first Appellate Court is, thus, set aside. The said appeal is, thus, sent back to the learned first Appellate Court on remand for fresh consideration on merit.

The learned first Appellate Court is, thus, requested to complete service of notice of appeal upon the added respondents and thereafter consider the appeal on merit.

Since this order is passed in the presence of the defendant no.1/appellant and the plaintiffs/respondents, notice of appeal need not be served upon them by the learned first Appellate Court. However, an intimation should be given both to the defendant no.1/appellant and the plaintiffs/respondents and/or their respective learned advocates intimating them the date of hearing of the appeal so that they may also get sufficient opportunity to represent themselves in course of hearing of the first appeal.

It is made clear that all points raised in the appeal are left open to be decided by the learned first Appellate Court in accordance with law and the learned first Appellate Court will do so without being influenced by any of the observations made herein above.

Since the suit is pending for a long time, we request the learned first Appellate Court to make all endeavour to dispose of the appeal as early as possible, preferably within six months from the date of completion of service of notice of appeal upon the added respondents.

Further proceedings of the connected execution case being Title Execution Case No. 29 of 2010 pending before the learned Civil Judge (Junior Division), 1st Court, Chandannagore will remain stayed till the disposal of the first appeal.

The appeal is, thus, disposed of.

Re: CAN 5626 of 2016 (Stay)

In view of disposal of the appeal in the manner as aforesaid, no further order need be passed on the stay application. The stay application being CAN 5626 of 2016 is thus deemed to be disposed of.

Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible.