2021 Supreme(Cal) 20

IN THE HIGH COURT AT CALCUTTA
Shivakant Prasad, J.
Kalyan Kumar Dutta – Appellant
Versus
Sanatan Sarkar – Respondent
SA 36 of 2008 With CAN 5 of 2019, Old No. CAN 8384 of 2019
Decided On : 20-04-2021

Point of Law: Civil Suit - Deed of partition – Share - Rule 18 of Order 6 provides that if an Order for leave to amend is obtained and if a party does not amend within time limited for that purpose by the order or within fourteen days from the date of the order he shall not be permitted to amend after expiry of such limited time unless time is extended by Court.

Headnote:

Code of Civil Procedure, 1908 – Order 6 Rule 18, Order 22 Rule 10 – Title Suit – Amendment of plaint – Recovery of possession – Instant appeal is that one KiranbalaDasi was owner of suit property – Said KiranbalaDasi died intestate leaving behind her surviving two daughters as heirs and legal representatives – Eldest daughter NanibalaGhosh died without any issue and her husband also predeceased her – According to plaintiffs’ case the youngest daughter acquired share of late NanibalaGhosh in respect of above property which originally belonged to KiranbalaDasi their mother – Thus it is contended that said SabitaSarkar inherited entire immovable properties left by KiranbalaDasi – Said SabitaSarkar when felt disturbances from her two daughters and when she came to learn that her said daughters in collusion with NanibalaGhosh fraudulently created registered deed of partition showing said SabitaSarkar as non traceable and defendant no. 2 Gitarani De got 51/2 decimal and defendant no. 1 got rest half of the land out of 11 decimal in Dag as mentioned in schedule ‘kha’ to the said partition deed which is a non suit plot – It has been specifically contended that said partition deed is manufactured as plaintiff has been shown as non traceable and dead. – In said partition deed Gitarani De got ‘kha’ schedule property and Sunitarani got ‘ga’ schedule property having inherited from their mother SabitaSarkar, though said SabitaSarkar was then alive. – Hence, SabitaSarkar filed title suit in Court of Munsif at Barasat praying for declaration that plaintiff is the absolute owner in respect of suit property mentioned in schedule to plaint. – Original plaintiff further stated that defendant no. 1 in connivance with defendant no. 2 manufactured a Will in name of NanibalaGhosh who died – Accordingly, it was claimed that SabitaSarkar being only sister of Nanibala as heir and legal representative acquired 50 per cent share in suit property of her said sister and said Will has been probated – Specific case of present plaintiffs is that said SabitaSarkar transferred suit property in favour of SanatanSarkar and his other three brothers who have been subsequently substituted and added as per provision of Order 22 Rule 10 of the Code of Civil Procedure by order of Trial Court – Due to lack of territorial jurisdiction original plaintiff was permitted to return plaint and to re-file same in Second Court of Munsif, Barasat and said suit was re-numbered as Title Suit – Further case of plaintiffs/respondents 1 to 4 is that by way of amendment of plaint they sought for recovery of possession of 5% decimal of land in the suit property from defendant no. 3 /appellant herein whose possession was allegedly illegal as per his purchase by sale deed executed and registered by said Gitarani De/defendant no. 2 in suit.

Finding of the court : At time of admission of appeal when order of amendment was allowed by Trial Court treating said amendment application as part of plaint cannot be any substantial question of law in not following Order 6 Rule 18 C.P.C. because application under Order 6 Rule 17 has been made part of plaint by Trial Court, nevertheless Rule 18 of Order 6 provides that if an Order for leave to amend is obtained and if a party does not amend within time limited for that purpose by order or within fourteen days from date of the order he shall not be permitted to amend after expiry of such limited time unless time is extended by Court – An apparent error on part of Appeal Court below has cropped up for decreeing appeal in holding defendant no. 3/appellant herein as rank trespasser in respect of 5% decimal of land in A schedule property directing defendant no. 3/appellant to quiet and vacate from suit property within three months from judgement without ascertaining real possession of defendant no. 3/appellant herein in non suit plot, ergo, in order to dispel misgiving in the judicial mind with regard to possession of defendant no. 3/appellant herein in suit plot or in non suit plot decree of Appeal Court could be executable only on survey investigation to ascertain real possession of defendant no. 3/appellant and not otherwise – Trial Court judgment and decree is restored and that of appellate judgment and decree in respect of eviction of defendant no. 3/appellant herein from 5% decimal of land in suit plot is hereby set aside.

Result : Appeal Allowed In Part