Charupado Mondol and others Vs. Chinmay Bachar and others, VII ADC (2010) 492

Case No: Civil Petition for Leave to Appeal No. 1179 of 2008

Judge: Md. Abdul Aziz,

Court: Appellate Division ,,

Advocate: Mr. Bivash Chandra Biswas,,

Citation: VII ADC (2010) 492

Case Year: 2010

Appellant: Charupado Mondol and others

Respondent: Chinmay Bachar and others

Subject: Procedural Law,

Delivery Date: 2009-7-5

 
Supreme Court
Appellate Division
(Civil)
 
Present:
MM RuhulAmin CJ
Md. Tafazzul Islam J
Md. Abdul Matin J
Md. Abdul Aziz J
 
Charupado Mondol and others
………………....Petitioners
Vs.
Chinmay Bachar and others
……………….....Respondents
 
Judgment
July 5, 2009.
 
Leave to appeal is directed against the judgment and order rejecting an application for amendment of the plaint. …. (2)
It was further alleged that the suit property was in ejmali possession. Khatians were not correctly prepared and there was difficulty in ejmali possession so the plaintiffs were compelled to come up for partition with declaration of title in the ‘kha’ schedule land. ….. (3)
Contested the suit by filing written statement, contending, inter-alia, that the statements of the plaint are false and concocted and barred by principles of res- judicata. …. (4)
 
Lawyers Involved:
Bivash Chandra Biswas, Advocate-on-Record-For the Petitioners.
Not represented- the Respondents.
 
Civil Petition for Leave to Appeal No. 1179 of 2008
(From the judgment and order dated 25.09.2007 passed by the High Court Division in Civil Revision No.4008 of 2000)
 
JUDGMENT
 
Md. Abdul Aziz J.
 
Delay of 259 days is hereby condoned.
 
2. This petition for leave to appeal is directed against the judgment and order dated 25.09.2007 passed by a Division Bench of the High Court Division in Civil Revision No.4008 of 2000 making the Rule absolute and reversing the judgment and order dated 14.11.1999 passed by the learned Subordinate Judge (now Joint District Judge), 4th Court, Khulna in Title Suit No. 129 of 1995 rejecting an applica­tion for amendment of the plaint.
 
3. Facts, in short, are that the plaintiff-petitioners filed the aforesaid Title Suit No. 129 of 1995 praying for declaration of title in the suit land alleging, inter alia, that the disputed land belonged to one Akrur Thander, who had 4 sons namely, Kali Charan, Naba Kumar, Baburam and Bhagaban and 5 daughters namely, Sumitra, Duli, Bhani, Kanchan and Feli; that all the 4 sons predeceased of Akrur Thander. Thereafter, Akrur Thander died leaving behind one wife, Padma Debi and said five daughters and Padma Debi also died leaving behind the said five daugh­ters and thus they inherited the entire estate of Kali Charan. Among the daugh­ters, Duli died Childless, Sumitra died leaving a son Shibpada and Shibpada died leaving behind son Sashi Mondal and Sashi Mondal died leaving behind two sons Keshab and Monohar. Sumitra gave up her claim to the disputed land in favour of her 3 sisters, Bhani, Kanchan and Feli. The sons of Bhani and Feli as plaintiffs in this suit claimed 23 share, while the sons of Kanchan and Sumitra are defendants. It was further alleged that the suit property was in ejmali possession. Khatians were not correctly prepared and there was diffi­culty in ejmali possession so the plaintiffs were compelled to come up for partition with declaration of title in the "Kha" schedule land.
 
4. Defendant Nos.1-11 contested the suit by filing written statement, contending, inter alia, that the statements of the plaint are false and concocted and barred by principles of res judicata. The suit property was acquired by Kali Charan in 23 share and Shyam Mondal in 13 share and accordingly, the C.S. Khatian was pre­pared. It was asserted that this property never belonged to Akrur Thander and his daughters never inherited the suit proper­ty. It was also stated that Kali Charan died leaving a widow Tanti Bewa whose name was also recorded in the khatian and said Tanti Bewa for her legal necessity leased out her 23 share to Nakul by patta dated 16.03.1932. Thereafter, Nukul took this lease for self and his other full brothers and step brothers and there was wrong description as to the area of the land in the said patta. Consequently, this was correct­ed by a Solenama filed in Rent Suit No. 1759 of 1932 brought by Tanti Bewa. They were the legal heirs of Nakul and they became owners of the "Kha" Schedule land and were in possession thereof on payment of rents. The prede­cessor of the plaintiff filed a suit for parti­tion before the learned Subordinate Judge (now Joint District Judge), Khulna being Title Suit No.384 of 1968 in which the predecessor of these defendants was the defendant and the said suit was dismissed on 31.07.1970. Against which, the prede­cessor of the plaintiffs filed First Appeal No.338 of 1970 before the High Court and the same was also dismissed on 01.03.1988. Thus the said suit is barred by principles of res judicata.
 
5. The plaintiff-respondent filed an appli­cation before the trial Court for amend­ment of plaint for adding a new prayer for a declaration that the patta dated 16.03.1932 is forged, collusive, void and not binding upon the plaintiff and the learned Subordinate Judge vide his judg­ment and order dated 14.10.1999 rejected the application on the finding that regard­ing the deed of patta dated 16.03.1932, a decision was given in the judgment of Title Suit No.384 of 1968.
 
6. Being aggrieved by and dissatisfied with the aforesaid judgment and order of rejection, the plaintiff-respondent filed Civil Revision No.4008 of 2000 before the High Court Division and obtained Rule.
The learned Judges of the High Court Division upon hearing the parties made the Rule absolute vide judgment and order dated 25.09.2007. Hence this leave-peti­tion by the petitioners.
 
7. Mr. Bivash Chandra Biswas, the learned Advocate-on-Record appearing for the petitioners, submits that the prayer for amendment relating to patta dated 16.03.1932 is barred by res judicata as the said patta adjudicated in Rent Suit No.1759 of 1932, Title Suit No.384 of 1968 and Title Suit No.21 of 2002 and the transfer was found as good and valid but the High Court Division committed an error in allowing the petition for amend­ment of the plaint without considering that the said prayer is barred under law. He submits that the patta was adjudicated in the Title Suit No.384 of 1968, F.A. No.338 of 1970 and in Title Suit No.21 of 2002 and in Title Appeal No.339 of 2002 and if the prayer for amendment is allowed, the plaintiff will get a further chance to chal­lenge the patta but in the eye of law he is not entitled to challenge the patta again and as such the impugned judgment is ille­gal. He also submits that it has been found and proved by the judgment and decree dated 31.07.1970 passed in Title Suit No.384 of 1968 that Tanti Bewa died in 1346 B.S. and as the plaintiffs claim them­selves as reversioner of Kalicharan hus­band of Tanti Bewa and filed the instant Title Suit No.129 of 1995 as reversioner the prayer for challenge the patta dated 16.03.1932 is time barred under provision of Hindu Law and as such the impugned judgment and order is illegal.
 
8. We have heard the learned Advocate-on-Record for the petitioners and perused the impugned judgment and order of the High Court Division and other materials available on record.
 
9. The plaintiffs filed an application for amendment by correcting of some words in the plaint and for addition of some facts about taking settlement of 19.2 acres of land from the Ex-landlord and also for addition of a relief in the prayer portion of the plaint to the effect that the deed dated 16.06.1932 registered with the Dakupi Sub-Registrar Office was forged, collusive and not binding upon the plain­tiffs. Trial Court rejected the said applica­tion observing that addition of the afore­said relief cannot be allowed since the deed being No.1181 dated 16.06.1932 was affirmed by the plaintiffs in Title Suit No.384 of 1968. The Judges of the High Court Division set aside the said order of the learned Joint District Judge and allowed the application for amendment holding that addition of a relief to the plaint does not in way change the nature and character of the suit nor does it sub­stitute one cause of action for the other and the fact that deed No.1181 executed by Tanti Bewa on 16.03.1932 was adjudi­cated upon in Title Suit No.384 of 1968 could not be a ground for rejection of the proposed amendment. The learned Judges held that such amendment is nec­essary for the purpose of determining the real questions involved in the suit between the parties and observed that the decision given relating to the said deed in an earlier suit between the parties is a matter of merit to be decided at the time of trial of the suit.
 
10. In view of the above findings and deci­sions of the learned Judges of the High Court Division, we do not any merit in the submissions made by the learned Counsel for the petitioners. The leave-petition is accordingly dismissed.
 
11. The petitioners are however at liberty to raise the question of res judicata in the instant suit, and the trial Court, if the ques­tion is so raised, is directed to decide the same in accordance with law.
 
Ed.