Anukul Chandra Ghosh vs Tarak Nath Ghosh alias Tarak Nath Ghosh Sunti

P.N. Mookerjee, J.—This is the Plaintiff''s appeal and it arises out of a suit for declaration of title and recovery of possession on the allegation, inter alia, that the Defendant was a licensee. There was a claim also for mesne profits.

The suit property comprises c.s. plot No. 410, which originally belonged to the Defendant and his co-sharers. The Plaintiff claims to have purchased the land appertaining to the said c.s. plot, along with the kutcha structures or ghars standing thereon, by two kobalas dated December 4, 1935 and February 14, 1938. Thereafter, according to the Plaintiff, he raised a pucca one-storied building on the said land after demolishing the kutcha huts and allowed the Defendants, who was one of the original owners and whose interest had been purchased by him, as aforesaid, to occupy the same as licensee. The licence, according to the Plaintiff, was later on revoked and thereafter, the present suit was brought for eviction and recovery of possession.

The defence was a plea of adverse possession and also a plea that under an arrangement between the parties, the Defendant had a right to remain in possession and he actually remained in possession, even, after the sale to the Plaintiff, with a further allegation that the pucca structures, mentioned above, were raised by him and not the Plaintiff. There was an additional written statement, which was filed on July 31, 1956, whereby the Defendant questioned the Plaintiff''s valuation of the suit property, the sufficiency of the court-fee paid by him and also raised a question of jurisdiction.

The learned trial Judge overruled the defences and decreed the Plaintiff''s suit in part, that is, for ejectment, rejecting the Plaintiff''s claim for mesne profits as, according to him, there was not an iota of evidence on the point, which would support the Plaintiff''s said claim for mesne profits. In decreeing the suit, as above, the learned trial Judge accepted the main allegations of the Plaintiff and found, in his favour, on the merits of his case as to possession and title and found specifically that the Defendant was a licensee under the Plaintiff.

On appeal by the Defendant, the above decision of the learned Munsiff was reversed by the learned Subordinate Judge, as, in his view, the Plaintiff had failed to establish his case of licence, or that the Defendant was a licensee under him. He was further of the opinion that the question of title should be further investigated, as, although, in the written statement, there was no specific plea that the Defendant was a minor at the time of the alleged kobala, obtained by the Plaintiff, such a case was made in evidence and in the circumstances of this case, the Defendant should have been given an opportunity of proving the said case of minority. The learned Subordinate Judge was also of the opinion that the defence plea of adverse possession should also be further considered, as also the question of limitation under Article 142 of the Indian Limitation Act. Upon this view, he set aside the judgment and decree of the learned Munsiff and remanded the case for further hearing in the light of the findings made by him and in the light of the observations in his judgment. From this appellate decision, the present second appeal has been filed by the Plaintiff.

A question was raised before me by Mr. Guha, who appeared for the Defendant Respondent that, in the circumstances stated above, the instant appeal would not be maintainable. It was an appeal, in substance, from an order of remand, which would not come under Order 41, Rule 23 of the CPC and would necessarily have to be placed u/s 131 of the Code and from such an order no appeal lay. He sought to distinguish the two cases of this Court, reported in Bhairab Chandra Dutt v. Kali Kumar Dutt 37 C.L.J. 491 and (Sreemati) Radharani Santra v. Ramesh Chandra Kalamuri AIR 1923 Cal. 213 and in any event, he submitted and submitted with respect, those decisions were against the preponderant view or current of authorities on the point and he further submitted with respect, that those decisions were also indefensible on principle.

The above two decisions sought to support the maintainability of an appeal from a remand order on the ground that such an appeal would lie, where the remand order would amount to a decree. In the earlier of the above two cases, namely, 37 C.L.J. 491 , which was a judgment, delivered by Sir Ashutosh Mukherjee, the matter appears to have been put very briefly and in a cryptic manner and the only test, deducible from the same, for a decree for the purpose was that, where the decree of the Court below was set aside, the decision would amount to a decree. If that was the'' test, then every remand order would be appealable as a decree, as, whenever the appellate Court remands a case to the trial Court, apart from the provisions of Order 41, Rule 25 of the Code of Civil Procedure, it has to set aside the decree of the learned trial Judge. If, then, that was the test, every remand order would be appealable, which is a view never accepted in any case and not accepted even in the above cited authority (1, Supra). The reason, therefore, must be deeper but of that we get no indication, either in the aforesaid judgment in 37 Clause J. 491 (1, Supra) or in the judgment in (Sreemati) Radharani Santra Vs. Rameshchandra Kalamuri and Others, , which merely followed the same without any discussion and if I may say so with respect, it followed the same in preference to other cases, without giving any reason except that, where the Appellant files the appeal as an appeal from a decree, that distinguishes it from cases, where he files the appeal as an appeal from an order, obviously intending, by this distinction, that it was open to the Appellant to give him a right of appeal by giving a particular description to the appeal, filed by him. If that is so, with respect, again I would say that this is hardly a test, which will be accepted in legal parlance.

The other line of cases, a long line, no doubt, proceeds on the purported theory that a remand order, although coming strictly u/s 151 of the CPC and not being a remand in a case where the trial Court decided the matter on a preliminary point so as to bring it within the language of Order 41, Rule 23 of the Code, may still be considered to be a remand, purporting to be one under the said provision of the Code, namely, Order 41, Rule 23.

I am unable to see how a decision, which does not come within the terms of the above statutory provision and is a decision or determination the merits on all the issues between the parties, can still be regarded as a decision, purporting to be only a preliminary point and thus brought within the above statutory provision. This line of reasoning has already been dissented from in this Court in Banka Behari Deb Vs. Birendra Nath Dutta and Another, and Page J. gave cogent reasons for refusing to follow the said line of reasoning. Page J., however, accepted the view that, where the remand decision amounts to a decree, it will be appealable as such. The net result of the above discussion will be, that there will be no appeal from a decision of the lower appellate Court, remanding the case to the trial Court for further hearing or judicial consideration, except where the trial Court''s earlier decision had disposed of the suit on a preliminary point so as to attract Order 41, Rule 23 to the case, or, where the lower appellate Court''s decision amounts to a decree under the law (Section 2(2) of the Code).

Having broadly laid down the test as above, I have to proceed cautiously as it is not always easy to determine whether a particular remand amounts to a decree. Notwithstanding the very wide definition of decree in the Code (vide Section 2(2)), it is well-settled, although on reasonings, not uniform or always satisfactory, that it must have a restricted meaning. Thus, for example, decisions on preliminary issues have been taken out of its scope vide the Full Bench case of Chanmalswami Rudraswami Vs. Gangadharappa Baslingappa, and Bharma Shidappa Pujari Vs. Bhamagavda Shivagavda, and Shib Sharan Sha v. Janaki Nath Dey 18 C.L.J. 78 : 21 I.C. 387, although, apparently, they would have been within its wording, leading to great practical difficulties and almost to an impossible situation. Such considerations have weighed with the Court generally with just a few exceptions vide Sm. Anita Karmokar and Another Vs. Birendra Chandra Karmokar, and Pratima Bose v. Kamal Kumar Bose 68 C.W.N. 316, where a wider and a more liberal view was taken to the sacrifice of practical considerations.

In the intriguing situation, deducible from the above, I would reserve my final opinion on this difficult and complicated question, as I find that, whether the appeal be maintainable or not, I am free, in the instant case, as I shall presently show, to treat the appeal as revision and as, on my view on the merits, the result will be the same here in either case. The question of maintainability of the instant appeal will, therefore, be left open and I would proceed on the footing that the same would not be maintainable. The fact, however, that the appeal is incompetent does not exhaust the power of this Court in matters of this kind. It is open to this Court to treat the instant appeal as an application for revision and as the requisite court-fees have been paid in the instant case and even more, there is no bar tot my treating the same as a revisional application, I, therefore, proceed to dispose of this matter in that view.

On this part of the case, an objection was raised by Mr. Guha that, if it is to be treated as a revision, the Appellant or the Petitioner will have no case inasmuch as the finding of the lower appellate Court that the Plaintiff has failed to prove that the Defendant was a licensee, would conclude him, so far as the instant suit is concerned and that finding would not be challengeable in revision.

I am unable to accept this submission in the facts before me. It is true, that the learned Subordinate Judge negatived the Plaintiff''s case that the Defendant was a licensee; but, in doing so, he appears to have been considerably influenced by his observations on the question of the Plaintiff''s title and it is, in that context, that he arrived at his said finding, negativing the Plaintiff''s case of licence. On the question of title, however, the learned Subordinate Judge appears to have misdirected himself and made an entirely wrong approach. As I have already said, it was no part of the defence case in the written statement that the Defendant was a minor at the time or date of the relevant sale to the Plaintiff. On the other hand, the written statement of the Defendant clearly indicates and I may even say, categorically asserts that he had, before that date, attained the age of majority, although his allegation was that he was still of immature understanding and due to the same and the surrounding circumstances, the kobala to the Plaintiff was not his free act or intelligent act, so as to be binding upon him. This clearly negatives the defence case of minority, which was sought to be introduced in evidence. The learned Subordinate Judge had no jurisdiction to decide the matter on a case, not to be found in the pleadings of the parries, at least, in circumstances like the present and that made his decision of the question of title vulnerable in revision and necessarily also, his dependent finding on the question of licence. In this view, I would hold that the judgment of the learned Subordinate Judge suffers, from quite a serious defect, which entitles me to interfere with the same in revision.

I may add here that, once the door is opened as above, there will be no difficulty in my way, as the said judgment is hardly a proper judgment of reversal.

In the above view, I would set aside the judgment and order of the learned Subordinate Judge and send the matter back to him, to be dealt with in accordance with law, in the light of the observations made hereinbefore.

Before concluding, it is necessary to refer to one aspect of the matter, which was sought to be urged by Mr. Guha. Mr. Guha contended, in the last resort, if this Court was inclined to send the matter back to the learned Subordinate Judge for further consideration, it should give the Defendant an opportunity to amend his written statement by including therein a plea of his minority at the time of the relevant kobala to the Plaintiff. As I have already said, this would be contradictory to his specific case in the written statement. I asked Mr. Guha for authorities, where the Court has permitted such a contradiction in circumstances, like or similar t@ the present. I do not deny that the Court has power in the matter of an amendment of pleadings to allow even such contradictions in a proper case, but the instant case is not one, where such an amendment should be allowed, as the allegations in the original written statement are too precise and too specific and too categorical to permit the introduction of such a contradictory plea or statement or the raising of such an inconsistent case. The three decisions, which were cited to me for permitting Mr. Guha''s client to amend the written statement by including a case of minority, as mentioned hereinbefore, are the two recent cases of the Supreme Court in L.J. Leach and Company Ltd. Vs. Jardine Skinner and Co., and Pirgonda Hongonda Patil Vs. Kalgonda Shidgonda Patil and Others, and the decision of this Court, reported in the case of the Commissioner of Wakfs v. Mohammad Mohshin 58 C.W.N. 252. Those cases, undoubtedly, lay down the powers of the Court in the matter of amendment of pleadings in very wide terms but, even they would not permit the amendment, prayed for by Mr. Guha, directing contrary to and patently in consistent with his original specific case in the written statement, in circumstances like the present. I do not think, therefore, that any of the said case would be of any assistance to Mr. Guha''s client in the matter of the above prayer, made on his behalf. I, accordingly, reject this submission of Mr. Guha.

Subject as above, the appeal before me is treated as an application for revision and that application is allowed. The impugned judgment and order of the learned Subordinate Judge are set aside and the case is sent back to him to be dealt with further in accordance with law in the light of the observations made in this judgment.

There will be no order for costs in this Court. Other costs will be in the discretion of the learned Subordinate Judge, when he finally disposes of the matter.