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2020 (3) TMI 1106

..... ney was paid from the fund of the joint family of the plaintiff and defendant No.1. - maintainability of the suit - HELD THAT:- In the instant case when the defendant abandoned the issue of maintainability of the suit on the point of inconsistent plea of title by the plaintiff and again right of tenancy over the self same property, the defendant cannot challenge the maintainability of the suit at the stage of first appeal. Mr. Saha also refers to the decision of this Court in Smt. Minati Sen @ D.P. Sen vs. Kalipada Ganguly [1997 (6) TMI 366 - CALCUTTA HIGH COURT] in the said report the respondent raised an issue that both the Courts below did not consider as to whether the defendant/appellant was guilty for damaging the suit property by addition and alteration. This Court found that the said issue was not pressed by the plaintiff/respondent in the trial court and held that when the issue was not pressed by the plaintiff/respondent in the trial court, there was no justification for the appellate court to go into this question and decide the same in favour of plaintiff/respondent. When a party has raised an issue in the trial court and deliberately has abandoned it, he cannot be allo .....

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..... romodh Chandra Das, plaintiff/respondent No.1, Subodh Ranjan Das the principal defendant and the appellant herein and Bimal Ranjan Das were three sons of one Abhay Charan Das, since deceased. Other proforma respondents are their kinsmen. The plaintiff filed Title Suit No.44 of 1987 for declaration of title, permanent injunction and partition in respect of 1/3 share in the suit the suit property on the pleading that the parties to the suit were originally residence of East Pakistan. Sometimes in 1949/1950 the plaintiff and his two brothers migrated to India and took shelter at Shibpur in the District of Howrah. Subsequently, the plaintiff and defendant No.1 secured job in the food department of the State of West Bengal. However, the defendant No.1/appellant was terminated from his service. Sometimes in the year 1953/54 the plaintiff, defendant No.1, proforma defendant No.2 and father of defendant No.3 purchased the suit property situated at mouza Uttor Bhavanipur within P.S Chakdaha in the district of Nadia together with some non suited properties in the names of the defendant No.1 and proforma defendant No.3 out of the fund from the joint family of the plaintiff/defendant No.1 and .....

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..... d their evidence in the trial court and on the basis of the evidence on record the learned Munsif by his judgment dated 6th May, 1987 decreed the suit on contest in preliminary form 5. The defendant/appellant preferred Title Appeal No.121 of 1987 in the court of the learned Assistant District Judge, 1st Court at Krishnagar. The said appeal was also dismissed affirming the judgment and decree passed by the learned trial court. 6. The defendant of the said suit has assailed the judgment and decree passed by the learned First Appellate Court affirming the judgment and decree passed by the trial court by filing the instant appeal before this Court. It is found from the record of the instant appeal that the appeal was admitted by the Division Bench of this Court vide order dated 11th January, 1995. However at the time of admission of appeal, no substantial question of law was formulated for adjudication of the appeal. Accordingly vide order dated 2nd November, 2017 a Coordinate Bench of this Court formulated the following substantial questions of law:- (I) Whether the learned Courts below erred in law in not holding that the suit filed on behalf of the plaintiff was not maintainable for .....

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..... pleaded by the plaintiff that sometimes in the year 1955 the defendant No.1 executed a registered putta in favour of the plaintiff and proforma defendant No.2. According to Mr. Basu the plaintiff cannot take such inconsistent plea of being the joint owners of the suit property and at the same time he is not permitted to claim tenancy under the defendant No.1. It is submitted by Mr. Basu that under Order VII Rule 7 of the Code of Civil Procedure, the plaintiff is entitled to claim a relief in the alternative and even in some cases, pray for inconsistent reliefs. But it must be shown by the plaintiff that each of such pleas is maintainable. When the plaintiff claims for partition on the plea of ownership over the suit property, plea of having patta from the defendant No.1 in respect of same property is not maintainable under the facts and circumstances of the case. Both the courts below failed to consider that the suit was not maintainable because the plaintiff prays for inconsistent reliefs on the basis of inconsistent pleas which is not maintainable. In other words, a person cannot claim right over a property as owner and at the same time as tenant. In support of his contention, M .....

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..... , he was not entitled to get any decree for declaration of title over 1/3rd share in respect of the suit property. 11. In this regard, Mr. Basu submits that in a case where it is asserted that an assignment in the name of the person is in reality for the benefit of another, the real test is the source whence the consideration came. But when it is not possible to obtain the evidence which conclusively establishes or rebuts the allegation, the case must be dealt with on reasonable probability and legal interference arising from proved or admitted facts. In the instant case there is absolutely no evidence of payment of consideration money from the joint fund of the family of the plaintiff and defendant No.1 and proforma defendant No.2. There is no evidence tell that the plaintiff and defendant No.1 used to reside in jointness, far less than payment of consideration money from the joint family fund. In support of his contention Mr. Basu refers to the following decision:- (i) Vidyadhar Krishnarao Mungi and Ors. vs. Usman Gani Sahab Konkani & Ors : AIR 1974 SC 658 (ii) Smt. Rebti Devi vs. Ram Dutt & Anr. ETC : 1998 WBLR (SC) 17. 12. Referring to another decision of the Hon ble Su .....

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..... e that he was the real owner in respect of 1/3rd share of the suit property and in respect of his share, the defendant No.1 was merely a name lender. 15. It is further urged by Mr. Basu that the plaintiff has prayed for a declaration that the entries in the RS Record of Rights in the name of the defendant No.1 alone in respect of the suit property is wrong. In view of the specific provision of Section 51(c) of the West Bengal Land Reforms Act, such declaration cannot be granted by the Civil Court. According to the learned Senior Counsel for the appellant both the courts below failed to appreciate this aspect and accordingly the impugned judgments are liable to be set aside. 16. Mr. Amal Krishna Saha, learned Advocate on behalf of the respondent on the other hand submits that the defendant/appellant cannot dispute the issue of the maintainability of the suit at the stage of second appeal when the said issue was not pressed by him during the trial of the suit. In support of his contention, Mr. Saha refers to a decision of the Division Bench of this Court in the case of Premchand Manickchand vs. Fort Gloster Jute Manufacturing reported in AIR 1959 Cal 620. In the aforesaid decision th .....

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..... ed it, he cannot be allowed to raise it again at the appellate stage. 18. It is alternatively submitted by Mr. Saha that even assuming that the question of maintainability of a suit on the ground of any legal prohibition can be decided during second appellate stage, the principle led down in by the Hon ble Supreme Court in Prem Raj (Supra) is not applicable under the facts and circumstances of the case. In the said reported decision, plaintiff filed a suit for declaration that certain contract was void having been obtained by undue influence. Alternative plea of specific performance of the same contract was also taken by the plaintiff. The Hon ble Supreme Court was pleased to hold that under Section 37 of the Specific Relief Act, 1877, a plaintiff suing for specific performance of contract can alternatively sue for rescission of the agreement and in the alternative sue for specific performance of contract. Section 35 of the Specific Relief Act states the principles upon which the rescission of contract may be adjudged but there is no provision in Section 37 or in other Section of the Specific Relief Act, 1877 that a plaintiff suing for rescission of the agreement may sue in the alt .....

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..... ss of the record. 22. It is submitted by Mr. Saha that the Civil Court can grant declaration on the basis of title of a party to the suit. 23. Having heard the submission made by the learned Counsels for the appellant and the respondent, and on perusal of the impugned judgments passed by the learned Judge in trial court as well as the courts below held in favour of the plaintiff/respondent his title over the suit property on the basis of registered putta executed by defendant No.1 in favour of plaintiff and proforma defendant No.2. 24. Order VII Rule 7 of the Code of Civil Procedure reads thus:- R.7. Relief to be specifically stated.- Every plaint shall state specifically the relief which the plaintiff claims either simply or in the alternative, and it shall not be necessary to ask for general or other relief which may always be given as the Court may think just to the same extent as if it had been asked for. And the same rule shall apply to any relief claimed by the defendant in his written statement. 25. Order VII Rule 7 of the Code of Civil Procedure authorizes the appellant to claim a relief in the alternative on the facts stated in the plaint and it is open to him to pray even .....

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