IMPORTANT POINT
The central legal point established in the judgment is the need for specific identification of the suit property and the appointment of a survey commissioner to ascertain the property.

JUDGMENT :

Supratim Bhattacharya, J.:

1. The instant First Miscellaneous appeal has arisen out of an order of remand passed by the Ld. First Appellate Court that is the Ld. District Judge Malda whereby the said Court has passed the following:

“The appeal succeeds on contest. The observation and finding of the Ld. Trial Court as regard issue No. 4 is hereby set aside and the suit is remanded back to the Ld. Trial Court to properly ascertain the suit property by engaging a survey commissioner and thereafter consider the prayer for decree of permanent injunction as has been sought for by the plaintiff on the basis of the documents as well as evidence adduced at the time of trial of the suit. … ”

2. Background facts:

Proceeding before the Trial Court:

i) The appellants herein were the defendants before the Ld. Civil Judge Junior Division, Malda in Title Suit No. 171 of 2011, while the respondent No. 1 was the plaintiff in the said suit. The respondent No. 2 that is Tribal Welfare officer-cum Project Officer who is the proforma respondent was the proforma defendant in that suit. As the proforma respondent herein did not appear in and contest the lis so the matter has been heard in absence of the said proforma respondent.

ii) Through the said plaint the plaintiff had sought for permanent injunction on establishment of the right and title in respect of the suit property.

iii) The plaintiff has sought for right and title in respect of the suit property by claiming himself to be the owner of the said suit property that is 66 decimal, by filing a plaint which was later amended.

iv) The plaintiff has stated that the property was once purchased by one Danesh Muhammed in the year 1973 and thereafter being subsequently purchased by one Ganesh Prasad Saha who in turn sold to Ramdhoni Saha who thereafter sold the suit property on 24.01.2005 to the plaintiff namely Malati Saha.

v) The principal defendants in the title suit contested the same by filing written statement and thereafter has also filed an additional written statement and has stated that the total area of the property in Dag No. 473 is 1.34 acres and not 66 decimal which has been claimed by the plaintiff.

vi) The defendants have stated that Jyotsna Rani Das Sarkar had in her possession 66 decimal which she had sold to Ganesh Prasad Saha while Danesh Muhammad had 66 decimal which he had also sold to Ganesh Prasad Saha. The defendants have further stated that Ganesh thereafter sold the entire property to Ajijur Rahaman who in turn sold 66 decimal to Gyanandra Nath Chowdhury who thereafter sold to Kanika Das and the said Kanika Das sold the said 66 decimal to the defendants.

vii) Through the additional written statement the defendants have stated that 66 decimals of land which has been purchased by them from Kanika Das has detailed description of the boundary and they are accordingly enjoying the rightful possession of the same.

viii) The Trial Court framed four issues which are as follows:

1. Is the suit maintainable in its present form and in law?

2. Is the suit bad for non-joinder of necessary parties?

3. Has the plaintiff acquired absolute right, title and interest over the schedule suit land through alleged registered deed of sale being no 157 dated 24.01.2005?

4. Is the plaintiff entitled to get relief/reliefs as sought for in this suit? ix) The Trial Court has disposed of the suit by deciding all the issues in favour of the plaintiff except the issue No. 4.

x) In respect of the issue No. 4 the said Trial Court has come to the finding that “in absence of certainty of the exact location of the suit property in the suit plot and upon the consideration that the suit plot has other co-sharers, and also upon consideration that defendants too are claiming certain portions in the suit plot, I do not find the present case to grant a prayer for permanent injunction. This issue is accordingly disposed of against the plaintiff ”

xi) The Trial Court ordered “that the instant suit be and the same is dismissed