Swapan Mistry v. Sudhir Chandra Das And ORS.

IN THE HIGH COURT AT CALCUTTA

CIVIL APPELLATE JURISDICTION [CIRCUIT BENCH AT PORT BLAIR] ******** PRESENT: HON'BLE JUSTICE CHAITALI CHATTERJEE (DAS) SA/4/2024 SWAPAN MISTRY ... Appellant

Versus

SUDHIR CHANDRA DAS & Ors.

... Respondents For the appellant : Mr. Ananda Halder For the respondents : Mr. Gopala Binnu Kumar Heard on : 18.03.2026 Judgment on : 20.03.2026 CHAITALI CHATTERJEE (DAS), J.

1.

The second appeal under Section 100 of the Code of Civil Procedure, 1908 is filed against the judgment dated March 9, 2020 passed by the learned Additional Judge, North & Middle Andaman, Mayabunder in Other Appeal No. 5 of 2019 whereby set aside the judgement passed by the learned civil judge passed on dismissing the suit and decreeing the counter claim.

FACT OF THE CASE:

2.

A suit for Specific Performance of Contract was filed by the present respondent as plaintiff against the present appellant being defendant No.4 and other proforma respondents praying for transferring the land of 0.80 hectares to the plaintiff by executing an agreement for sale following the terms of the agreement dated June 20, 1993 and also to pay an amount of Rs.25,000/- by the defendant to the plaintiff as compensation withholding the same.

3.

The present appellant being defendant No.4 filed the written statement denying the contention of the plaintiff and also that there was no actual sale transaction entered by the defendant with the plaintiff in respect of the suit property and prayed for dismissal of the suit.

4.

At the time of filing of written statement a counter claim was also filed by the present appellant and 2 and 5 against the plaintiff praying for i) a decree declaring the suit properties are undivided joint properties of the defendants and a decree declaring the sale agreement dated 10.06.1993 of the plaintiff is forged manufactured and null and void and ii) a decree declaring the plaintiffs are in illegal possession of the suit property and a

iii) further decree directing the plaintiff to quit and vacate the schedule property after removing the tin shed house enabling the defendant to take possession of the schedule property.

5.

The learned Trial Court while dismissing the suit of the plaintiff allowed the prayer of the counter claim of the defendants to get a decree for recovery of possession against the plaintiff in respect of the schedule property . 6.

Being aggrieved thereby an appeal was filed by the plaintiff/appellant and the learned Appellate Court after hearing parties passed the judgment on 9th day of March, 2022, whereby the appeal was allowed and the judgment and decree passed by the learned Trial Court dismissing the suit in Other Suit No. 19 of 2011 was set aside and also set aside the judgement allowing the counter claim .

7.

Challenging which defendant no 4 has preferred this second appeal being SA No. 4/2024 . The point of law formulated by the Hon'ble Division Bench on are as follows:- i) Whether a single appeal challenging the dismissal the suit for specific performance of contract and allowing the counter claim for recovery of possession is maintainable at the instance of the plaintiff ?

ii) Whether in absence of separate appeal against the counter claim the Appellate Court can set aside the decree passed on the counter claim in a single appeal filed against the dismissal of the specific performance agreement?

8. The Learned Advocate appearing on behalf of the appellant assailed that the learned District judge was not right in setting

aside the judgement and decree passed in the counter claim when no separate appeal was filed .

9. It is further argued that it is settled law that the judgement passed by the learned court is a deemed decree and hence a separate appeal ought to have been filed, if such decree is to be challenged . In this regard relied upon the decision of the three Judges Bench in Ramesh Chand vs Jindu Ram and ors of the High Court of Himachal Pradesh at Shimla passed on 17th May 2022.

10. The learned advocate appearing on behalf of the Respondent on the other hand argued that it is settled law that when the parties are same the issue involved is same and the matter is pending before the same Court and by a common judgment the suit and counter claim has been dealt with there is no need to file two separate appeal . In this regard relied upon the decision reported in Narahari-Vs-Shanker 1953 AIR SC 419, AIR 1977 SC 1268 Narayan Prabhu-Vs- Venkatesh, 2007 0(Ker) 69 Pampara Philip vs Koorithottiyil, 2014 O Supreme (SC)774 Rathnavathi & Anr vs Kavita Ganashamdas and 2014 0 Supreme (Bom)2264Shankar Masu Dokare vs Shobha Subhas Dokare and prayed for setting aside the appeal.

ANALYSIS 11.

Heard submission of both the learned Advocates. This appeal is preferred by the present defendant No.4 in the suit filed by the plaintiff being respondent. The points of law formulated relates to the maintainability of the single appeal which was filed before the appellate court challenging the dismissal of the suit for specific performance of contract and allowing the claim of the respondent for recovery of possession. 12.

The suit was for specific performance of contract to execute the Deed of Sale. Prima-facie it appears from the pleadings that in the year 1993 the defendant Nos. 1 to 5 offered to sale their land measuring an area of 0.80 hectares, situated in a village of Madhupur and the plaintiff approached them to purchase the said land. The terms and conditions were finalized and fixed between the parties that the plaintiff will purchase such land out of total area of 2.4 hectare land on consideration of Rs.33,000/-. In terms of the same a written agreement for sale was executed between the parties on 20th day of June, 1993 and accordingly, an amount of Rs.25,000/- was paid by the plaintiff to the defendant as part payment in presence of witnesses and the plaintiff was put into possession of the said land on the said date by the Vendor. In terms of the agreement all defendants were to execute registered sale deed in favour of Sudhir Chandra Das, the plaintiff having performed all

the necessary formalities required for sell within one month. The remaining consideration amount of Rs.8,000/- was decided to be paid to the defendants at the time of registration by the plaintiff. After possessing the purchasing land of 0.80 hectares , the plaintiff with the family members cleared the jungle for the purpose of agriculture and continuing agriculture over the suit property till the day of filing of the plaint and as per agreement he requested all of the Vendors to transfer the land in his favour by following all required formalities to which he informed to them.

13.

After realizing the fact that the execution and registration of sale deed would not be possible the plaintiff continued cultivating agricultural crops over that part of suit property. In between on many occasions the plaintiff approached the defendant Nos.1 to 5 for execution of sale deed and consent was given for obtaining the no-dues certificate from the concerned department .The plaintiff obtained all the no-dues clearance, but the defendant denied or refused to transfer the land and the plaintiff then issued a legal notice to the defendant on July 6, 2011 through his Advocate, but no reply was given to the same. Having no other alternative the plaintiff had filed the suit. The cause of action of the suit was mentioned of June 20,1993, when the plaintiff entered into the sale agreement with defendant for purchase of suit property and paid Rs.25,000/-.

14.

On the contrary the defendant denied that they ever entered into any agreement or received any amount of Rs.25,000/- at any point of time from plaintiff and according to them the plaintiff was in permissive possession by consent of deceased Kanak Bala Mistry for a period of 18 years which was completed on 05.01.2011. According to the written statement, the agreement was challenged as fake and manufactured document and not in existence of any sale transaction. Subsequently, the defendants also filed the counter claim and the case made out therein was that Hemanta Kumar Mistry was the owner of the landed property and after his demise his legal heirs succeeded the said landed property and then mutated the names of all the legal heirs.

After demise of Kanak Bala and thereafter Gopal Mistry the second defendant used to pay the land revenue of the allotted land in the name of the legal heirs. Kanak Bala Mistry since deceased who was an illiterate widow allowed the plaintiff to reside in the suit property by raising a tin shed house and to cultivate the suit property of the deceased and accordingly they became the permissive possessor by consent of deceased Kanak Bala Mistry for a period of 18 years which completed on 05.01.2011.

property and allowed them to continue with the cultivation. On 05.01.2011 when the defendant asked for delivery of possession by removing such Katccha house the plaintiff made a request to allow them further to reside in the suit property. Again on 20.03.2011, the defendant asked them to vacate the property and they prayed for further time and all those two occasions the plaintiff never denied to vacate the suit property, but only prayed for extension of time. The defendant by filing the counter claim challenged the validity and legality of the alleged agreement dated 20.06.1993, putting the cause of action for filing such counter claim on January, 2011, when first time the defendant went to the plaintiff of the suit property to vacate the said property.

15.

The learned Trial Court while dismissing the suit and allowing the counter claim held that the deed of agreement for sale is marked without any objection on the part of the defendant and also that the witnesses of the plaintiff including the defendants witnesses confirmed the possession of the plaintiff in respect of the suit property . The learned court was of the view that the execution of the deed was proved and the no-dues certificate was issued on 11.08.2000 and it was evident from the record that no registration was made even after getting the certificate. Therefore, in terms of Article 54 of the Limitation Act, the starting point of three years starts from 12.08.2000 and

the suit was filed in the year 2011. Since, there was no date fixed and no refusal by the defendant the plaintiff cannot take his own time for filing a suit for specific performance. The plaintiff did not even leave any clue about the defence under Section 53 A of the Transfer of Property Act and no distinct evidence was placed to set up the defence against the defendants and therefore no case of adverse possession was made out and thereby ultimately held that the plaintiff failed to prove the case and hence the suit was dismissed on contest. 16.

The learned Trial Court also observed that no convincing and substantial evidence was found to declare that the deed of agreement Exhibit 1 as fake or manufactured and therefore held that the defendants are entitled to get the order of eviction of the plaintiff from the suit property and accordingly decreed the counter claim.

17.

The learned Appellate Court also concurred with the observation of the learned Trial Court that the agreement for sale Exhibit 1 was duly proved and hence the contention of the defendant of Bhag Chas cannot be believed only on the basis of oral evidence. Further observed that the defendants failed to prove that they transferred the suit property to the plaintiff on Bhag Chas for a period of 18 years. The learned Appellate Court further observed that the time was not the essence of contract in that case and even after the no-dues certificate was obtained

by the plaintiff on 11.08.2011 and after the defendants were approached for execution and registration of the sale deed it was refused and hence the limitation to file suit for specific performance of contract commenced in the year 2000, but it was instituted in the year 2011 and therefore it was hopelessly barred by limitation.

18.

However, the learned Appellate Court did not consider the observation made by the learned Trial Court on the issue of readiness and willingness and the satisfaction about seeking protection under Section 53 A of the Transfer of Property Act and therefore held that plaintiff is entitled to protect his possession in the suit property under provision of Section 53 A of the Transfer of Property Act, and the defendants are not entitled to recover possession of the suit property and accordingly, allowed the appeal and the judgment and decree was set aside and dismissed the counter claim. 19.

In the decision relied upon by the learned Advocate representing the appellant the plaintiff filed a suit for prohibitory injunction in which a counter claim was filed .Both the same was tried together and were allowed in part by a common judgement .The said judgement was affirmed by the Learned District Judge . The question arose whether a common appeal questioning the correctness of the judgement and decree passed in civil suit as well as counter claim was maintainable

legally before the court below. The issue was referred to this larger bench of the High Court Himachal Pradesh at Simla passed on 07th day of May, 2022 Ramesh Chand Vs Jindu Ram & Ors. where several decision of Hon'ble Supreme Court including Narahari and Ors. vs Shanker & Ors. 1950 0 Supreme (SC) 32 were discussed . The Hon'ble Special Bench in the said decision in Paragraph 42 summarized the principles deducible from the discussion which are as follows:- (i) When two suits are consolidated and tried together with commons issues framed and common evidence led by the parties, resulting in a common judgment and decree, the same can be subjected to challenge by way of a single appeal at the instance of the aggrieved party;

(ii) Where a single appeal is filed questioning the judgment and decree passed in two suits, which were consolidated and decided by a common judgment, decision of such single appeal, by a common judgment, reversing or modifying the claim in one suit out of the two, can be challenged by the aggrieved party also, in a single appeal;

(iii) When two suits though not consolidated but are decided by a common judgment, resulting into preparation of two separate decrees, the aggrieved party would be required to challenge both of them by filing separate appeals;

(iv) When both the suit and the counter claim are decreed by a common judgment, regardless of whether separate decree has been prepared in the counter claim, both would be required to be challenged by the separate appeals;

(v) In a case where two separate appeals are required to be filed against judgment of the suit and the counter claim and if appeal is filed only against one and not against the other, non filing of appeal against such judgment and decree would attach finality thereto and would attract not only the principle of resjudicata but also waiver and estoppal and the judgment and decree not appealed against would be taken to have been acquiesced to by the party not filing appeal; (vi) When however, two appeals are filed against a common judgment passed by the trial Court, both the plaintiff and the defendant, and are disposed of by the first appellate Court by modifying/reversing/affirming judgment of the trial Court, the aggrieved party, would be required to challenge both by two separate appeals, in absence of which, non-filing of appeal against one shall attract bar of the principles of res-judicata against another;

(vii) Where more than one appeals are required to be filed or are filed and one or more of them are dismissed for default, delay of any other similar reason, any such situation would attract res-judicata and such dismissal would satisfy the requirement

of appeal being heard and finally decided on merits "in a formed suit" for the purpose of attracting principles of resjudicata. In the said paragraph (iv) it was observed that when both the suit and counter claim are decreed by a common judgment regardless of whether separate decree has been prepared in the counter claim both would be required to be challenged by separate appeals. 20.

In order to buttress the argument of the appellant the learned Advocate representing the respondent relied upon the decision of Narahari & Ors. (Supra) which according to him still holds as a good law. It was observed there that " it is now well settled that where there has been one trial, one finding and one decision there need not be two appeals even though two decrees may have been drawn up". 21.

The learned advocate further relied upon the decision of Shankar Masu Dokare Vs Shobha Subhash Dokare 2014 0 Supreme (Bom) 2264, where again it was reiterated that where there was one trial, one finding, finding of one appeal cannot be said to be in contravention of any of the provisions of the Code of Civil Procedure. It was further held that this is not a case where the relief sought by way of counter claims had nothing to do with the subject matter of the suit or that the counter claims were directed against some of the parties who are not parties to the suit against whom the plaintiffs were not claiming reliefs.

22.

The learned advocate further relied upon the decision of Pampara Philip Vs. Koorithottiyil Kinhimohammed reported in 2006 0 Supreme (Ker) 680 and 2009 0 Supreme (SC) 623 and also

2014 0 Superme(SC) 774 Rathnavathi & Anr. Vs Kavita Ganashamdas.

23.

The Hon'ble Special Bench discussed the case of Narahari(supra) where the suit was filed for mesne profits and the plaintiff claimed possession on the grounds taken therein. There were two sets of defendants and each set claimed that they are in possession of 1/3rd land and maintained that they are entitled to as their share in the family property .The trial court decreed the suit in favour of the plaintiff .Two separate appeals were filed by two sets of defendants .The first appellate court allowed both the appeals and dismissed the plaintiff's suit directing the copy to be placed on the file of the other connected appeal .Hence two separate decree were prepared and plaintiffs preferred two separate appeals.

The latter appeal was time barred and at the hearing of appeal the point of res judicata was raised as the first appeal was then dismissed. The High court held the plaintiffs should have filed two separate appeals. It was then decided by the Hon'ble Supreme Court that all the defendants were impleaded as party and their prayer covered both the appeal and also they paid the consolidated court fees so when it was settled that where there is one trial, one finding and one decision there need not have to be two appeal even two decrees may have been drawn up. When there is one suit question of Res judicata does not arise. 24.

In the case of Pamapara Philip (supra) the claim of the plaintiff for realization of Rs 19.000/- was allowed and defendant's claim for

realization of Rs 25000/- was refused so it was necessary to challenge both the findings which according to him is unified proceeding. In the present case the plaintiff's suit was for specific performance of contract when the counter claim was for recovery of possession and to declare the deed as fake and forged and the prayer for recovery of possession was allowed and the suit for specific performance was dismissed. Initially two distinct nature of prayer was made . 25.

In the case of Shankar Masu Dokare it was held that "it is not a case where the relief sought by way of counter claim had nothing to do with the subject matter of the suit or that the counter claim were directed against some of the parties who were not parties to the suit or against whom the plaintiffs were not claiming reliefs". 26.

In the present case the suit for specific performance was dismissed, so the claim of the plaintiff to execute the sale deed was not considered by the trial court being tome barred which was also affirmed by the learned appellate court but since the protection order regarding possession was allowed under section 53A of the Transfer of property Act the appellate court further set aside the judgement whereby the counter claim for recovery of possession was allowed . CONCLUSION 27.

Therefore in the light of the discussion made and the law discussed in the above and considering the decision of the Special Bench of the Himachal Pradesh High Court and that in the Memo of appeal no consolidated court fees was paid the points of law so

formulated is answered in this manner that single appeal is not maintainable to challenge the judgement and decree whereby the suit for specific performance was dismissed and counter claim was allowed to recover the possession.

28.

It is now seen that the appellant preferred this second appeal against the order setting aside the counter claim to recover possession and also protection of possession of the plaintiff in terms of section 53A of Transfer Property .The substantial question of law involved in this case whether the learned Appellate Court passed the order of protection of possession of the plaintiff by wrong interpretation of the provision under Section 53A of the Transfer of Property Act, when the suit for specific performance is dismissed being time barred. It appears that the appellant before the learned trial court only took the ground that the counter claim was not maintainable but the learned appellate court went a step further and passed such protection order when the plaintiff also never claimed. It was never ascertained as to whether the possession was handed over only after execution of the agreement or not since the appellant specifically raised objection about execution of the agreement or receiving of any money to wards part performance.

29.

It was admitted by both the learned courts that possession of the appellant in the suit premises was within the knowledge and he was possessing for more than 18years. No case of adverse possession was make out by the plaintiff who only wanted the land to be

transferred in his name by executing an instrument in terms of the agreement of sale. It is settled law that the relief under section 53A of the Transfer of Property act cannot be used as a weapon . 30.

Hence on that score also the order of the appellate court is liable to be set aside .

31.

Hence this appeal stands allowed. The judgment passed by the learned Appellate Court is hereby set-aside.

32.

Decree be drawn up accordingly.

33.

The Registry is directed to send down the copy of this judgment along with Trial Court Record to the learned Trial Court at once. 34.

Urgent Photostat certified copy of the judgment, if applied for, be supplied to the parties upon compliance with all requisite formalities.

(CHAITALI CHATTERJEE (DAS), J.)