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High Court Of Calcutta
CHITTATOSH MUKHERJEE, MUKUL GOPAL MUKHERJI
BANSHIDHAR POLLEY - Appellant
Versus
SM.KIRAN BALA ROY - Respondent
Civil Rule Nos. 2228 And 2354 Of 1979
Decided On : 06/07/1984
CIVIL PROCEDURE CODE - SECTIONS 151, 152, 153 - JURISDICTION - VARIATION OF DECREE - SUBORDINATE JUDGE DIRECTING PLEADER COMMISSIONER TO ALLOT 10 ANNAS SHARE TO PLAINTIFF - ORDER HELD TO BE WITHOUT JURISDICTION AND ILLEGAL - SUBORDINATE JUDGE ACTED ILLEGALLY AND WITH MATERIAL IRREGULARITY IN EXERCISE OF JURISDICTION IN DISMISSING DEFENDANT'S APPLICATION UNDER SECTION 151 OF THE CODE FOR SETTING ASIDE THE SAID ORDER.
Fact of the Case:
Plaintiff-respondent filed Title Suit No. 66 of 1962 for declaration that she had half share in Premises No. 5b, Ananda Banerjee Lane, P. S. Bhowanipore, and the two defendants jointly had the remaining half share, for partition by metes and bounds of the suit property and for permanent injunction to restrain the defendants from interfering with her possession. Defendant No. 1, plaintiff's father, claimed that he was the 16 annas owner of the suit premises and had made a gift of half share of the suit property in favor of his son, Defendant No. 2. Defendant No. 2 also claimed that his father had validly gifted half share of the suit property in his favor. The Subordinate Judge decreed the suit in preliminary form and declared that the plaintiff had half share in the suit property. Defendant No. 1 died intestate leaving as his heirs and legal representatives: (1) Sm. Sila Polley (since deceased), (2) Sm. Kiran Bala (daughter, the plaintiff), (3) Mihidana (daughter), and (4) Banshidhar Polley (son). Banshidhar, as one of the heirs and legal representatives of his father, presented Appeal from Original Decree No. 66 of 1968 against the said preliminary decree. The Division Bench dismissed the appeal and affirmed the judgment and decree of the Subordinate Judge. Pending the hearing of the appeal, the Subordinate Judge appointed Sri N. Guha Thakurata, as the Pleader Commissioner to effect partition of the suit property. The plaintiff filed a petition for noting the death of the defendant No. 1 and the names of the legal representatives of Srikrishna. The Subordinate Judge ordered that the names of the legal representatives of the defendant No. 1 be noted and also ordered the learned Pleader Commissioner to submit his report by 31st March, 1971. The plaintiff filed another petition stating that on the death of Srikrishna Policy his four heirs, including the plaintiff, had jointly inherited his 8 annas interest in the suit property. The plaintiff claimed that her share in the suit property had become 10 annas, i. e. , 8 annas under the Preliminary Decree and 2 annas by inheritance as one of the heirs of her deceased father. The plaintiff prayed for directing the learned Pleader Commissioner to allot to her 10 annas share of the suit property. The Subordinate Judge passed an order directing the Pleader Commissioner to allot 10 annas share to the plaintiff. The Division Bench of the High Court dismissed the appeal filed by Defendant No. 2 and affirmed the preliminary decree passed by the Subordinate Judge. The Pleader Commissioner submitted his report. The plaintiff prayed before the Subordinate Judge for appointing another Pleader Commissioner for carrying out the remaining works and for recording the death of Sila Polley, the widow of Srikrishna Polley. Defendant No. 2 filed an objection against the plaintiff's said petition. Defendant No. 2 filed an application under Section 151 of the Code for reconsideration of the trial court's order dated 3rd December, 1971 passed in Title Suit No. 66 of 1962 directing the Pleader Commissioner to allot to the plaintiff 10 annas share of the suit property. The Subordinate Judge dismissed the defendant No. 2's application under Section 151 of the Code on the ground that the same could not be entertained because the order Dt. 3rd December, 1971 varying the defendant's share amounted to decree and the same was appealable.
Finding of the Court:
The Subordinate Judge had committed a jurisdictional error by rejecting the aforesaid application under S. 151 of the Code filed by the petitioner for reconsideration of the order DA 3rd December, 1971 passed in Title Suit No. 66 of 1962.
Issues: Whether the Subordinate Judge had jurisdiction to vary the preliminary decree passed in Title Suit No. 66 of 1962 during the pendency of the appeal filed by Defendant No. 2.
Ratio Decidendi: The Subordinate Judge had no jurisdiction to amend, vary, or modify the preliminary decree passed by it which was under appeal. The variation in the quantum of Kiran Bala's share was apparently not brought to the notice of the Division Bench which had subsequently dismissed F. A. No. 66 of 1968 and had affirmed the trial court's preliminary decree declaring that Kiran Bala had 8 annas share in the suit property. The Subordinate Judge did not direct service of any notice upon the defendant No. 2, Banshidhar, or upon his lawyer who was then representing him. The plaintiff Sm. Kiran Bala's said notice was served upon the learned Pleader Commissioner and the learned lawyer for Mihidana Polley. The learned Subordinate judge did not record any evidence before allowing the said petition and directing the Commissioner to allot her 10 annas share. He did not also record any reason for doing so. The Subordinate Judge did not further direct that the preliminary decree be amended declaring the extent of the undivided interest of the deceased defendant No. 1 in the suit property and for making separate allotments in favor of his heirs.
Final Decision: The High Court set aside the order of the Subordinate Judge directing the Pleader Commissioner to allot 10 annas share to the plaintiff and remanded the case for fresh disposal of the plaintiff's petition. The court directed the Subordinate Judge to first decide whether Sri Krishna's deed in favor of Banshidhar was valid and was acted upon or not and what was the extent of Srikrishna's share. The court also directed the Subordinate Judge to give opportunities to the parties to adduce evidence and then decide according to law.
( 1 ) SM. Kiran Bala Roy, the plaintiff-respondent herein, had instituted Title Suit No. 66 of 1962 in the 4th Court of the Subordinate Judge, Alipore, against her father, Srikrishna Polley and her brother, the petitioner, Sri Banshidhar Policy, as defendants 1 and 2, inter alia, for declaration that she had half share in Premises No. 5b, Ananda Banerjee Lane, P. S. Bhowanipore, and the two defendants jointly had the remaining half share, for partition by metes and bounds of the suit property and for permanent injunction to restrain the defendants from interfering with her possession. In her plaint Kiran Bala had stated that on 23rd July, 1962 her father Srikrishna Polley had purported to execute a fraudulant and collusive Deed of Gift in favour of his son, Banshidhar, in respect of half share of the suit property. But she did not pray for any relief in respect of the said deed in Banshidhar's favour.
( 2 ) SRIKRISHAN Polley, the defendant No. 1, had filed a written statement in the said suit claiming that her daughter, the plaintiff, was his Benamdar. Srikrishnu claimed that he was the 16 annas owner of the suit premises. He also had stated in his written statement that out of his 16 annas interest he had made gift of the half share of the suit property in favour of his son. Banshidhar Polley, the present petitioner.
( 3 ) BANSHIDHAR, the defendant No. 2 had also filed a separate written statement in the said suit, inter alia, supporting the case of the defendant No. 1 and also claiming that his father, the defendant No. 1, had validly gifted in his favour half share of the suit property. But he did not further contest the suit.
( 4 ) THE learned Subordinate Judge, 4th Court, Alipore, did not frame any issue as to whether or not the aforesaid Deed of Gift by Srikrishna Polley, the defendant No. 1, in favour of his son, Banshidhar Polley, the defendant No, 2, was acted upon and was valid. On 14th December, 1966, the learned Subordinate Judge decreed the Title Suit No. 66 of 1962 in preliminary form and, inter alia, declared that the plaintiff, Kiran Bala Roy, had half share in the suit property. The learned Subordinate Judge rejected the claims of Srikrishna, the defendant No. 1, that her daughter, Kiran Bala, was his Benamdar and that he was the full owner of the suit premises. The learned Judge did not record any finding as regards the validity of the purported Deed of Gift by Srikrishna, the defendant No. 1, in favour of his son, Banshidhar the defendant No. 2.
( 5 ) ON 22nd December, 1966 Srikrishan Polley, the defendant No. 1, in the said suit, died intestate leaving as his heirs and legal representatives : (1) Sm. Sila Polley (since deceased ). (2) Sm. Kiran Bala (daughter, the plaintiff ). (3) Mihidana (daughter) and (4) Banshidhar Polley (son ). Banshidhar, as one of the heirs and legal representatives of his father, presented Appeal from Original Decree No. 66 of 1968 against the said preliminary decree dated 14th December, 1966 passed by the learned Subordinate Judge, 4th Court, Alipore, in Title Suit No. 66 of 1962. Sm. Sila Polley, the widow of Srikrishna and Mihidana Polley (daughter) were made pro forma respondents in the said Memorandum of Appeal. Subsequently, Sm. Sila Polley died and upon an application of the appellant, in the Memorandum of Appeal it was noted that her son, Banshidhar and her ttwo daughters, Kiran Bala and Mihidana were heirs of deceased Sila Polley. On 24th May 1977, M. M. Dutt and R. K. Sharma, JJ. , dismissed the said F. A. No. 66 of 1968 and affirmed the judgment and decree of the learned Subordinate Judge. The Division Bench in the said case had rejected the appellant's case that Kiran Bala was a Benamdar of her father, Srikrishna and upheld her case that she was the owner of half share of the suit premises and was entitled to get a decree for partition of her said undivided share. The Division Bench also did not record any finding as to whether the Deed of Gift by
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