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IN THE HIGH COURT AT CALCUTTA
SIDDHARTHA ROY CHOWDHURY, J.
Sampa Acharyya – Appellant
Versus
Malay Acharyya – Respondent
S.A. No. 129 of 2022
Decided On : 30-06-2023
EVICTION - DOCUMENTS NOT RE-EXHIBITED - EFFECT - REMAND - EVIDENCE ALREADY ON RECORD - RELEVANCE - ORDER OF REMAND - INTERPRETATION - JUST EXCEPTION - NEED FOR SPECIFICATION - RE-EXHIBITION OF DOCUMENTS - NO OBLIGATION - ERROR IN DISMISSING SUIT - EVIDENCE ON RECORD - CONSIDERATION MANDATORY - OWNERSHIP - PROOF - BURDEN OF PROOF - FAILURE TO DISCHARGE - LICENSE - TERMINATION - EVICTION DECREE - GRANT.
Fact of the Case:
Suit for eviction, mesne profit and permanent injunction against the defendant, who is the plaintiff's full blood bother, was dismissed by both the trial court and the first appellate court. The plaintiff challenged the dismissal in a second appeal, arguing that the courts erred in requiring the plaintiff to re-exhibit documents that had already been admitted into evidence and in dismissing the suit on the ground that the documents were not re-exhibited.
Finding of the Court:
1. The order of remand did not specify any just exception to the rule that evidence recorded during the original trial shall be evidence during the trial after remand, and therefore the courts below erred in holding that the evidence on record got wiped out as an aftermath of the order of remand. 2. The plaintiff had no obligation to re-exhibit the documents that had already been admitted into evidence and taken on record as exhibits 1 to 6, pursuant to the order of remand. 3. The courts below committed grave error in passing the impugned judgment dismissing the suit and appeal only because the documents already admitted into evidence were not “re-exhibited.” 4. In the absence of any specific direction to expunge the evidence already on record, such evidence, be that oral and documentary, recorded before the order of remand shall have to be considered as evidence on record after remand. 5. The defendant failed to discharge his onus to prove his claim of ownership that he wishes the Court to believe. 6. The plaintiff has acquired the right title interest over the suit property on the strength of Exhibit 2. 7. The defendant is liable to be evicted as his status is that of a licensee and the license has come to an end with the institution of the suit.
Issues: 1. Whether the parties to the proceedings are required to re-examine themselves and re-exhibit the documents, which have already been exhibited by proving with cogent evidence as the appellate Court directed the trial Court to decide the issues afresh while remanding the matter? 2. Whether both the Courts were justified in passing the impugned judgment as the exhibited documents were not re-exhibited after the remand and the other of the remand presupposes the fresh evidence to be adduced meaning thereby the evidence already-on-record has been wiped out don’t from part of the record? 3. Whether both the Courts were justified in passing the judgment, as the documents were not re-exhibited and the advantages taken in the cross examination shall loose its efficacy and shall remain on paper?
Ratio Decidendi: 1. Rule 23 of Order XLI of the Code of Civil Procedure envisages that evidence recorded before trial, shall remain as evidence after remand if no exception is indicated. 2. There is no room to conduct ‘de novo trial’ after remand and to answer the issues ignoring the evidence already on record. 3. The principle laid down under Rule 23 is applicable to Rule 23A of Order XLI of the Code of Civil Procedure. 4. Rule 25 of the Code of Civil Procedure speaks of recording additional evidence upon issues framed by learned Appellate Court. 5. When law mandates a course of action in a particular manner, it is to be done in that manner only and not otherwise. 6. Every order, be it appealable or not, except an order of remand, may be assailed in an appeal from final decree on the following ground: (a) that it is erroneous. (b) and such error affects the decision of the suit.
Final Decision: The second appeal is allowed. The impugned judgment and decree are set aside. The plaintiff/appellant is granted a decree for eviction of the defendant/respondent from the suit property. The defendant/respondent is directed to quit and vacate the suit property within two months from the date of the judgment, failing which the plaintiff shall be at liberty to put the decree in execution.
JUDGMENT :
SIDDHARTHA ROY CHOWDHURY, J.
1. Challenge in this Second Appeal is to the judgment and decree passed by learned Additional District Judge, 7th Court, Barasat, North 24 Parganas, in Title Appeal No. 6 of 2016 on 3rd July, 2019 affirming thereby the judgment and decree passed by learned Civil Judge, Senior Division, 2nd Court, Barasat dismissing the Title Suit No. 69 of 2007.
2. To appreciate the appeal in its proper perspective it is expedient to narrate the facts of the case in brief. The Appellant in the Second Appeal, filed a suit for eviction, mesne profit and permanent injunction against her full blood bother Malay Acharyya. It is contended that father of the plaintiff Sri Kiran Chandra Acharyya was allotted the land by the State of West Bengal in Sector-III of Bidhannagar (Salt Lake Town City within District North 24 Parganas). Subsequently, on 26th July, 1982 a deed of indenture was executed by the State of West Bengal in favour of Sri Kiran Chandra Acharyya who thereafter, constructed a two storied building over the said land and started residing there. Malay Acharyya, one of the sons of Kiran Chandra Acharyya has also been staying in the first floor of the suit house with his wife and son, with the permission of his father. Subsequently, Sri Kiran Chandra Acharyya decided to transfer the property including his lease hold right in favour of his daughter Smt. Sampa Acharyya and after obtaining permission from the government he transferred the property by executing a deed of gift in favour of his said daughter, the plaintiff/appellant herein. After the property was acquired by plaintiff/appellant, the defendant/respondent, (hereinafter referred to as Plaintiff and Defendant respectively for convenience) who happens to be her brother, approached her seeking permission to continue his stay in the first floor of the ‘A’ Schedule Property, depicted as Schedule ‘B’ for 6-7 months with an undertaking that he would quit and vacate the first floor of the ‘A’ Schedule Property in favour of plaintiff and would move to his new place of abode. As it was from the brother, the plaintiff acceded to such request. However, she started possessing the property after mutating her name by paying rates and taxes to the Municipal Authority. But when the plaintiff Sampa Acharyya requested the defendant to quit and vacate the property, the defendant refused to surrender his possession and challenged the authority of the plaintiff. Hence, the suit.
3. The defendant contested the suit by filing written statement denying all material averments made by the plaintiff in her plaint. It is the specific case of the defendant that Kiran Chandra Acharyya did not construct the house, rather he instructed his son, the defendant, to undertake the work of construction of the building and assured him that the property would be given to him in due course of time. His father would execute required documents. Thus on good, the defendant borne the entire cost of the construction and started occupying the property like owner of the same. According to the defendant the deed of gift was never executed by his father. The document is not valid. The defendant further contended that the deed of gift dated 15th September, 2006 is void, it was never acted upon, it was obtained by practicing fraud upon his father and he prayed for dismissal of the suit.
4. Learned Trial Court after considering the pleadings the parties framed issues and started witness action. Debabrata Acharyya, the husband of the plaintiff, adduced evidence on behalf of the plaintiff as P.W. 1 and produced the documents namely the lease deed executed by the State of West Bengal in favour of Kiran Chandra Acharyya, Deed of gift being no. 9808 dated 15th September, 2006 executed by Kiran Chandra Acharyya in favour of her daughter, Mutation certificate issued by Bidhannagar Municipal Authority, Bills showing payment of property tax issued by Bidhannagar Municipal and Challan. The documents were admitted
AI
Evidence recorded during the original trial shall be evidence during the trial after remand, unless otherwise directed by the court in the order of remand.
The main legal point established in the judgment is the importance of considering material aspects and appreciating the findings of the trial court in property dispute cases.
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The court affirmed that procedural rules should facilitate justice, allowing for the admission of correction deeds and maintaining suits for injunction without a declaration when no cloud on title is....
The procedural non-compliance in document admission does not invalidate evidence or decrees when the substantive findings are unchallenged.
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