Namita Ganguly vs Manik Chand Jain

Ranjan Kumar Mazumdar, J.—The instant Second Appeal is directed against the judgment and Order passed by the learned Additional District Judge, 3rd Court Howrah on February 28, 1979 in Title Appeal No. 86 of 1978 setting aside the judgment and Decree passed by the learned Munsif, 1st Court, Howrah on February 28, 1978, in Title Suit No. 329 of 1962 and this is at the instance of the substituted Plaintiff.

The case of the original Plaintiff before the learned trial Court below was that the suit property was the ancestral property of the original Plaintiff Shri Himangshu Bikash Ganguli and his other co-sharers. Subsequently the suit property and some other properties were exclusively allotted to the original Plaintiff by virtue of a partition decree passed in Title Suit No. 50 of 1949 by the subordinate Judge, 2nd Court, Howrah and since then the original Plaintiff began to possess the said properties exclusively as his own. The Defendant came to occupy the suit shop room even before the above mentioned partition as a tenant on a rental of Rs. 4.00 per month payable according to English Calendar month under the original Plaintiff and his co-sharers. Unfortunately the Defendant got his name wrongly recorded as a. Mat tenant in respect of the suit property in the R.S. Record of rights clouding thereby the right, title and interest of the original Plaintiff in the suit property. Hence the original Plaintiff was compelled to file Title Suit No. 329 of 1962 against the Defendant seeking certain declarations etc. However, during the pendency of the suit, the original Plaintiff expired and in his place the name of the present Plaintiff was substituted inasmuch as before the death of the original Plaintiff, he transferred the suit property and other properties to the present Plaintiff-Appellant by executing a registered deed of gift on June 13, 1969, and since then the present Plaintiff being the wife of the deceased and transferred has been possessing the same as an absolute owner and continued the suit in her own name as the substituted Plaintiff.

The defence of the Defendant before the learned Court below was that he took lease of the suit property from Shri Bhabataran Ganguli, the karta of the joint family of the original Plaintiff and his co-sharers and constructed two rooms on the suit land and started living there as a non-agricultural tenant. In the suit it was the further defence of the Defendant that he was the Mat tenant in respect of the suit holding and accordingly got his name mutated in the records of the Municipality. Again, according to the Defendant-Respondent, the present Plaintiff-Appellant had no locus standi to file the suit and that the alleged deed of gift dated June 13, 1969, executed by the original Plaintiff in favour of the present Plaintiff-Appellant was never acted upon. His further defence was that the suit property vested in the State of West Bengal and he became a tenant directly under the State.

After a full-dressed-trial, learned Munsif held and declared that the Defendant-Respondent was a tenant of the shop room in suit and not a Mat Bharatia in respect of the suit holding and decreed the suit. It was further declared that the recording of the name of the Defendant-Respondent in the R.S. Record of Rights as a Mat bharatia in respect of the suit dag was wrong and erroneous. Plaintiff-Appellant''s right, title and interest in the suit property was also declared by the learned trial Court. These findings of the learned Munsif were set aside by the learned 1st Appellate Court viz., the Court of Additional District Judge, 3rd Court, Howrah and the said Court remanded the suit to the Court of learned Munsif for fresh hearing and disposal in the light of the observations contained in the body of the judgment of the learned 1st Appellate Court. It has, inter alia, been observed by the learned Appellate Court that since the original Plaintiff died on October 6, 1974, and no application for substitution was filed within the statutory period of ninety days on behalf of the deceased Plaintiff, the suit abated and died a natural death and accordingly no suit was pending in the eye of law after the expiry of the said statutory period. According to the said Court, learned Munsif had no jurisdiction to allow the present Plaintiff''s applications dated January 28, 1975, and September 19, 1975, for amendment of plaint before setting aside the order of abatement. It has also been observed that the order of the learned Munsif allowing the Plaintiff''s application for substitution did not ipso facto set aside the order of abatement.

The only question requiring consideration in this Second Appeal was whether the judgment and Order of remand passed by the learned 1st Appellate Court on February 28, 1979, in Title Appeal No. 86 of 1978 should be set aside or not.

At the time of hearing, Shri Bidyut Kumar Banerjee, learned Counsel for the Appellant, vehemently submitted that the impugned judgment and Order passed by the learned 1st Appellate Court was totally wrong and illegal and hence it should be set aside. In that connection, it was submitted by Shri Banerjee that it was purely a case of devolution of interest of the original Plaintiff on the present Plaintiff being the wife and transferee of the original Plaintiff. He further submitted that the original Plaintiff died during the pendency of the suit on October 6, 1974, but before his death the. original Plaintiff executed a deed of gift in favour of his wife being present Plaintiff transferring his right, title and interest in the suit property to her and this deed of gift was executed on June 13, 1969. According to Shri Banerjee the provision contained in Order 22 Rule 10 CPC was attracted in this case. In that connection, he placed reliance on the case of Ghafoor Ahmad Khan Vs. Bashir Ahmad Khan (Dead) by Lrs., . It was also submitted by him that the suit was allowed to be continued by the learned Munsif in the name of the present Plaintiff for which learned trial Court allowed the petition of the present Plaintiff for substitution under Order 22 Rule 10 CPC Therefore, he sub-mitted that the finding of the learned 1st Appellate Court that the suit abated was totally illegal. He, therefore, urged upon this Court to allow the instant Second Appeal after setting aside the judgment and order passed by the learned 1st Appellate Court.

The materials on record divulged that the original Plaintiff died on October 6, 1974. The records also disclosed that before his death the original Plaintiff executed a deed of gift in favour of his wife, viz., the present Plaintiff on June 13, 1969, transferring the suit property and other properties to her. It was, therefore, a clear case of devolution of interest in the suit property on the present Plaintiff-Appellant following the execution of the deed of gift and there was no question of abatement upon the death of her husband, viz., the original Plaintiff on October 6, 1974. Accordingly I agree with Mr. Banerjee, learned Counsel for the Appellant that the provisions contained in Order 22 Rule 10 CPC were fully applicable to this case. I also agree with Shri Banerjee that the principles and ratio laid down in the case of Ghafoor Ahmad Khan v. Bashir Ahmad Khan (Supra) were applicable in this case. It has, inter alia, been laid down in the said case that if during the lifetime of the sole Respondent, there was a transfer of the property (subject matter of appeal) by the sole Respondent by way of a gift to his wife, it was a case of devolution of interest and hence the case fell under Order XXII Rule 10 CPC and hence there was no question of abatement.

In the facts and circumstances of the case, I am, therefore of the clear view that the learned 1st Appellate Court made a wrong approach towards the crucial question of abatement and wrongly passed an order of remand directing the learned trial Court to decide the question of abatement first. I, therefore, hold that the said judgment and order passed by the learned 1st Appellate Court should be set aside and that the judgment, Order and Decree passed by the learned Munsif should be restored and confirmed.

In the aforesaid background, I am constrained to set aside the judgment and Order passed by the learned 1st Appellate Court on February 28, 1979, in Title Appeal No. 86 of 1978. Simultaneously I confirm the judgment, Order and Decree passed by the learned Munsif, 1st Court, Howrah on February 28, 1978, in Title Suit No. 329 of 1962.

The instant Second Appeal is thus allowed and disposed of.

There will be no order as to costs.

Appeal allowed.