Biseswar Mondal v. The Deputy Commissioner And ORS.

IN THE HIGH COURT AT CALCUTTA

CIVIL APPELLATE SIDE JURISDICTION CIRCUIT BENCH AT PORT BLAIR

BEFORE:

The Hon'ble Mr. Justice Ravi Krishan Kapur And The Hon'ble Mr. Justice Tirthankar Ghosh MA 3 of 2021 CAN No. 25 of 2021 With WPA No. 85 of 2020 Shri Biseswar Mondal -vs- The Deputy Commissioner, Mayabunder & Ors.

For the appellant : Mr. K. Vijay Kumar, Advocate For the respondent : Mr. N.A. Khan, Advocate For the administration : Mr. Sivabalan Reserved on : 8 February, 2023 Judgment : 14 March, 2023 Ravi Krishan Kapur, J. :-

1. The appellant assails an order dated 26 February 2021 disposing of the writ petition directing the Tehsildar, Diglipur and Assistant Commissioner, Diglipur to demarcate the land of the writ petitioner.

2. Briefly the appellant is the son of Smt. Sarala Mandal (wife of Late Kirodh Mandal). Late Kirodh Mandal was the original owner of the land titled Survey no.3/1 and 3/3 measuring an area of 0.8166 hcts and 0.1845 hectares situated at Diglipur North Andaman ("the

premises"). Upon the death of Kirodh Mandal, the premises was mutated in the name of Sarala Mandal. It is alleged that Sarala Mandal had executed a sale deed on 1 June 2006 in favour of the appellant. It is further alleged that during a visit to the house of her daughter, the respondent no.4, Sarala Mondal had been coerced to execute a gift deed of the premises in favour of the respondent nos. 4 & 5. Subsequently, Sarala Mandal, filed a suit (Title Suit No.36 of 2003) before the Learned Civil Judge, Senior Division at Port Blair inter-alia challenging the gift deed. The suit was subsequently transferred to the Learned Civil Judge Senior Division at Mayabunder and renumbered as Title Suit No 74 of 2012. During the pendency of the suit, Smt Sarala Mandal expired and the suit abated. Thereafter, the appellant filed an application under Order 22 Rule 9(2) of Code of Civil Procedure, 1908 challenging the order of abatement which was dismissed by an order dated 13 January, 2016.

3. Subsequently, the appellant has also filed Title Suit No.12 of 2016 before the Learned Civil Judge Senior Division at Mayabunder to have the gift deed declared null and void and for a declaration to have 1/3rd share in the premises. This suit is pending for final disposal.

4. Diverse proceedings have been filed from time to time by both parties to establish the rival claims of the parties. The respondent nos. 4 & 5 had also filed an application before the Revenue Authorities seeking demarcation of the premises. By an order dated 5 May 2014, the

Tehsildar, Diglipur, found that the demarcation of the premises was not possible in view of the pendency of Title Suit no.74 of 2012.

5. This writ petition has been filed seeking directions on the respondent authorities to demarcate the premises on the basis of the proceedings initiated in R.C No.148 of 2019. By the impugned order, the Tehsildar, Diglipur has been directed to demarcate the premises of the petitioner. Hence, this appeal.

6. It is contended on behalf of the appellant that the impugned order was passed without considering the pendency of the different proceedings and the orders passed therein. Moreover, the appellant was not even heard before passing of the impugned order.

7. On behalf of the respondent nos.4 & 5, it is contended that the appellant has repeatedly attempted to obstruct the process of demarcation of the plots. It is also alleged that pursuant to the interim order, the respondent authorities have completed demarcation of the premises on 18 March 2021. The respondents further contend that the appellant could not have executed the sale deed since after the death of Late Kirodh Mandal, all the surviving heirs were entitled to 1/4th share in the premises.

8. I find that the appellant was not even heard before passing of the impugned order. The rival claims of the parties have also not been adverted to nor considered before passing of the impugned order. There are also no reasons recorded in the impugned order. The

impugned order also does not take into consideration the pending proceedings between the parties and the orders passed therein.

9. In such circumstances, the impugned order is unsustainable and is set aside.

10. For the above reasons, MAT 3 of 2021 stands allowed. CAN 25 of 2021 stands disposed of. All connected applications also stand disposed of. The Learned Judge is requested to hear and dispose of the writ petition including the question of maintainability preferably within a period of three months from date of this order without granting any unnecessary adjournments to any of the parties. There shall be no order as to costs.

I agree.

(Tirthankar Ghosh, J.) (Ravi Krishan Kapur, J.)