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2023 Supreme(Cal) 1192
IN THE HIGH COURT AT CALCUTTA
SIDDHARTHA ROY CHOWDHURY
Nazrul Haque – Appellant
Versus
State of West Bengal and Others – Respondents
F.M.A. No. 110 of 2019 CAN No. 2 of 2020
Decided On : 02-08-2023
Advocate Appeared:
For the Appellants : Partha Pratim Roy, Arjun Kumar Samanta.
For the Respondents: Sanjoy Ghosh, Jayanta Samanta, Reshma Chatterjee.
A deed of endowment declared invalid and not acted upon by a competent court cannot be the basis for impleading deities as parties to a subsequent suit, as the issue is barred by the principle of res judicata.
Headnote:
RES JUDICATA - ARPANNAMA - SECOND APPEAL NO. 316 OF 1960 - SUCCESSION - ORDER 1 RULE 10(2) OF THE CODE OF CIVIL PROCEDURE - The High Court at Allahabad, in Second Appeal No. 316 of 1960, held that the deed of endowment or Arpannama in favor of deities Shyam Behari Ji and Sukheswar Nath Mahadev Ji was never acted upon. The deities, represented by one of its Sebayets, Ritesh Bhakat, were impleaded as respondents in a suit for declaration of title and permanent injunction. The court held that the deities could not be impleaded as respondents since the Arpannama was declared to be invalid and not acted upon, and the issue was finally decided in the Second Appeal.
Fact of the Case:
Plaintiff filed a suit for declaration of title and permanent injunction, claiming absolute title over the suit property through registered deeds of sale. The State of West Bengal contested the suit, relying on a deed of endowment in favor of deities Shyam Behari Ji and Sukheswar Nath Mahadev Ji. The plaintiff argued that the deed was declared invalid and not acted upon by the High Court at Allahabad in Second Appeal No. 316 of 1960.
Finding of the Court:
The court held that the deities could not be impleaded as respondents through Sebayets in the suit since the deed of endowment or Arpannama was declared to be invalid and not acted upon by the High Court at Allahabad in Second Appeal No. 316 of 1960. The court set aside the order of the Appellate Court allowing the deities to be joined as parties and directed the Appellate Court to readmit the appeal and dispose of it on merit.
Issues: 1. Whether the deities, represented by their Sebayet, could be impleaded as respondents in the suit despite the High Court's finding that the deed of endowment was invalid and not acted upon. 2. Whether the principle of res judicata applied to bar the deities from contesting the suit.
Ratio Decidendi: 1. The court relied on the principle of res judicata, as the issue of the validity of the deed of endowment had been finally decided by the High Court at Allahabad in Second Appeal No. 316 of 1960. 2. The court held that the deities, represented by their Sebayet, could not be impleaded as respondents in the suit since the Arpannama was declared to be invalid and not acted upon, and the issue was finally decided in the Second Appeal.
Final Decision: The court set aside the order of the Appellate Court allowing the deities to be joined as parties and directed the Appellate Court to readmit the appeal and dispose of it on merit.
JUDGMENT :
SIDDHARTHA ROY CHOWDHURY, J.
1. Challenge in this appeal is to the judgment and order dated 13th September, 2016 passed by learned Additional District Judge, 4th Court, Burdwan in Title Appeal No. 3 of 2015, remanding the suit being Title Suit No. 91 of 2010 to the learned Trial Court after allowing the prayer of the petitioner under Order 1 Rule 10 (2) of the Code of Civil Procedure with a direction upon learned Trial Court to grant opportunity to the parties to the suit to put their respective claims and to pass judgment afresh.
2. For the sake of convenience the parties will be referred to as they were arrayed before the learned Trial Court.
3. Briefly stated, the plaintiff, Sk. Nazrul Hoque filed the suit for declaration of title and permanent injunction against the State of West Bengal represented by Collector, Burdwan and the Block Land & Land Reforms Officer, Burdwan stating, inter alia, that the suit property was originally owned by Beni Madhab Bhakat and after his demise his legal heirs and successors stepped into his shoes and by registered deed of partition dated 4th May, 1926 got the property partitioned and Sukdev Prosad Bhakat acquired the property in suit and after his demise his son Kedarnath Bhakat acquired the property by inheritance. Kedarnath Bhakat was survived by his three sons namely, Suraj Kumar Bhakat, Mohan Kumar Bhakat and Ramesh Kumar Bhakat having 1/3 share each in the suit property. They transferred 1/3 share in the suit property in favour of the plaintiff by a registered deed of sale dated 6th November, 1991 and on 14th November, 1997, they transferred remaining 2/3 share of the property in favour of the plaintiff and thus the plaintiff acquired absolute title in respect of the suit property. He has been possessing the same by mutating his name in the revenue record of rights. But in the L.R.R.O.R. the plaintiff has been depicted as ‘permissive possessor’. Upon enquiry the plaintiff came to know about deed of endowment in respect of the above properties in suit in favour of Shri Shri Shyam Behari Ji and Shri Shri Sukheswar Nath Mahadev Ji by Sukdev Bhakat, Oudh Behari Bhakat and Sankar Dayal Bhakat. Upon enquiry it is further found that Krishna Mohan Bhakat, one of the successors-in-interest of Sankar Dayal Bhakat filed the suit being Civil Suit No. 255 of 1955 before the learned Court of Munsif, Balia, West, Uttar Pradesh with regard to the said deed of Arpannama. The suit was however, dismissed. Sankar Dayal Bhakat and others preferred an appeal being Title Appeal No. 130 of 1957 before the learned Additional District Judge, Balia. The said appeal was dismissed with the finding that deed of endowment was not acted upon. Therefore, the application for mutation was also not entertained by the competent authority.
4. Sankar Dayal Bhakat and other then preferred a second appeal being Second Appeal No. 315 of 1957 before the Hon’ble High Court at Allahabad and by order dated 6th November, 1963, the said second appeal was dismissed and thereby the order of learned Lower Appellate Court was confirmed.
5. But the State of West Bengal after considering the aforesaid findings of Hon’ble High Court at Allahabad recorded the property in the name of deity Shyam Behari Ji in the R.S.R.O.R. The L.R. record of right does not reflect the correct picture of ownership as well as possession of the property. Hence the suit.
6. The suit was contested by State of West Bengal by filing written statement denying all material allegations made against the State. The learned Trial Court after considering the pleadings of the parties framed the issues and considering the evidence on record was pleased to declare the right title interest of the plaintiff over the suit property and perpetually restrained the defendant State from interfering with the peaceful possession of the plaintiff in respect of the suit property. The State being aggrieved by and dissatisfied with the judgment and decree passed by learned Trial Court
