Misapplication of law in determining property possession constitutes sufficient grounds for modification in review proceedings under the Code of Civil Procedure.

JUDGMENT :

Partha Sarathi Chatterjee, J.

1. This memorandum of review has been filed seeking a review of the order dated 20.04.2021, passed in Second Appeal No. 36 of 2008, along with the connected application, CAN 5 of 2019. By the said order dated 20.04.2021, the Hon'ble Court had partly allowed the second appeal, set aside the common judgment and decree passed by the First Appellate Court in Title Appeal No. 4 of 2000 and Title Appeal No. 19 of 2000 (which had been heard analogously), and restored the judgment and decree of the learned Trial Court in Title Suit No. 174 of 1981.

2. The review of the order dated 20.04.2021 has been sought primarily on the ground that, although the Hon'ble Court decided all the substantial questions of law framed at the time of admission of the appeal in favour of the respondents/petitioners, it proceeded under a misconception of law in deciding a question of fact, namely that the First Appellate Court had erred in treating defendant no. 3/appellant as a rank trespasser in respect of 5½ decimals of land in the Schedule A property, without properly ascertaining the actual possession of defendant no. 3/appellant over the nonsuit plot. It was further observed in that order that, in the absence of a local investigation of the said plot of land, the finding regarding possession was premature, and therefore, the direction for eviction was not sustainable in law.

3. Prior to delving into the nuanced labyrinth of the present controversy, it would be apposite to recount the essential facts that led to the presentation of this review petition.

4. One Sabita Sarkar (hereinafter referred to as Sabita), since deceased, instituted a suit for declaration and injunction before the learned 1st Munsif (now, redesignated as Civil Judge, Jr. Divn., 1^st Court) at Barasat on 07.01.1981, registered as T.S. 14 of 1981. Shortly thereafter, on 09.01.1981, she transferred her share in the suit property to Sanatan Sarkar and two others. Due to lack of territorial jurisdiction, the plaint was returned on 24.03.1981, and on the same day, it was re-filed before the learned 2nd Munsif now, redesignated as Civil Judge, Jr. Divn., 2^nd Court), Barasat, as T.S. 174 of 1981. Subsequently, the plaint was amended to include an averment that defendant no.3, Kalyan Kumar Dutta, was in unauthorized possession of the suit property, and a decree of eviction was accordingly sought against him.

5. In the plaint, it was averred that the suit properties originally belonged to Kiran Bala Dasi, who died leaving behind two daughters, Sabita, the original plaintiff, and Nanibala. Sabita was married to Monoranjan Sarkar, and two daughters, Sunita Ghosh and Gita Rani De, the defendant numbers 1 and 2, were born of the said marriage. However, due to strained marital relations, Sabita was compelled to leave her husband and reside with her own relatives. Monoranjan entered into a second marriage during Sabita's lifetime, and their two daughters began residing with Nanibala.

6. In 1981, Sabita came to learn that her two daughters and Nanibala had executed a deed of partition among themselves in respect of the properties left by Kiran Bala, based on a false representation that Sabita had suffered civil death, as she had been untraceable for a considerable period. Nanibala also executed a will bequeathing her share of the properties in favour of Sunita. Subsequently, after demise of Nanibala, the will was probated in Misc. Case no. 181 of 1975 in the Court of 1^st Munsif, Barasat.

7. In the plaint, the original plaintiff contended that