Dulal Maity v. Gopal Ghanta

IN THE HIGH COURT AT CALCUTTA

(CIRCUIT BENCH AT PORT BLAIR) SAT/11/2024 Dulal Maity Vs Gopal Ghanta Mr. KMB Jayapal Mr. Pradeep Singh ... for the appellant September 06, 2024 [SR] Item No. 6 This second appeal arises out of a judgment and decree dated 12.08.2024 passed in Other Appeal No. 04 of 2021 whereunder the First Appellate Court has upheld the decree of the learned Trial Court dated 30.09.2020 passed in Other Suit No. 16 of 2018.

The appellant is the defendant in the suit. The suit was filed for eviction of the defendant describing him to be a trespasser and/or unauthorized occupant.

The learned Trial Court had framed the following issues:- "1.

Whether the suit is maintainable in its present form and law?

2.

Whether the plaintiff has any cause of action for filing this suit?

3.

Whether the defendant has any right over the suit property?

4.

Whether the plaintiff is entitled to get any relief as prayed for?

5.

Whether the plaintiff is entitled to get other relief either under law or in equity?"

The issue No. 3 is a re-casted issue set out herein above is in connection with the right of the defendant, being the

appellant herein over suit property. After considering the evidence led, the learned Trial Court came to the conclusion that the appellant herein had no right over the suit property. The appellant had run a case before the Trial Court that he holds an agreement for sale. The said assertion was not only rejected but on the contrary it was found that the appellant had no right, title and interest over the suit land. The appellant had also filed no suit for specific performance for enforcement of the alleged agreement. In the written statement, the appellant did not make any counter claim for specific performance.

The judgment of the Trial Court also records that the appellant has admitted to be not in possession of the suit property and admittedly found that the suit property is owned by the plaintiff being the respondent herein. The suit property, as we find from the records is a part of the property purchased by the respondent along with another person namely Bikash Mondal. The plaintiff/respondent along with Bikash Mondal are the joint recorded tenants and their names are also mutated in the Record of Rights. After purchasing the entire property the plaintiff/respondent and the said Bikash Mondal got the property subdivided and started using and enjoying their respective subdivided portions exclusively.

Records also reveal that the appellant/defendant had urged that the Bikash Mondal had agreed to sale the house built on his subdivided portion of land for which a suit for specific performance is pending between the appellant/defendant and the said Bikash Mondal. Bikash Mondal was called as defendants witness No. 5. The said Bikash Mondal has categorically deposed that the plaintiff/respondent has at his own cost built a building in his subdivided portion of land. The appellant/defendant had forcibly taken possession of the plaintiffs' house and did not vacate the same despite repeated request from the plaintiff/respondent. Bikash Mondal has also deposed that he has not given possession of the suit land to the appellant/defendant and has objection as to this possession. The plaintiff/respondent also did not grant any permission to the appellant/respondent to occupy the suit property.

On the basis of such evidence, the suit was decreed. Before the First Appellate Court, the appellant/plaintiff made an application for amendment of the written statement and also an application for adducing additional evidence under Order 41 Rule 27 of the Code of Civil Procedure, 1908 (in short 'CPC'). Under the provisions of Order 6 Rule 17 of CPC, it is specifically provided that an application for amendment shall be allowed after the trial has commenced, unless the court comes to the conclusion that instead of due diligence, party could not have raised the matter before the commencement of the trial.

In the instant case, the application for amendment of the written statement was made subsequent to the decree being passed. No ground for amendment of the written statement, despite the decree having been passed, was made out before the First Appellate Court. The application for additional evidence was only to mark the cheques particulars of which were provided before the Trial Court as exhibits. The marking of the cheques, as exhibits, would not bring any substantial change to the facts of the case.

It was all along the case of the appellant/defendant that by way of such cheques, he had paid a sum of Rs. 2,14,500/-. The appellant/defendant had also given a loan of Rs.1.00 lakh to the plaintiff/respondent and was entitled to receive of Rs. 2.00 Lakhs on account of sale of shuttering materials.

The appellant/defendant, therefore, claimed to have paid in total, a sum of Rs. 5,14,500/- as consideration money for sale of the suit property.

The case made out by the defendant also emboldens the case made out by the plaintiff/respondent that the appellant/defendant was his business partner, in view of the loan and sale of the shuttering materials. The appellant/defendant has not been able to produce any documents acknowledging the receipt of consideration money by the plaintiff /respondent admitting to have received Rs. 2,14,500/- towards consideration for sale of the suit property. Even if, the cheques were marked as exhibits along with the bank account statement then also it will not prove that such payments were made towards consideration

money as no evidence to that effect has been led by the appellant/defendant.

The First Appellate Court has accepted the finding on facts by the Trial Court. There have been concurrent findings of two Courts. The appellant/defendant did not raise an issue that the Trial Court did not have the jurisdiction to receive, try and determine the suit and the jurisdiction is vested on the Revenue Court.

No foundation of the case was not made before the Trial Court under the provision of Regulation 204 of the Andaman and Nicobar Islands Land Revenue and Land Reforms Regulation, 1966. No evidence was led in this regard. The question of application of Regulation 204 will come only when the suit is for eviction of a sub tenant by a recorded tenant, as urged by the appellant/defendant. The appellant/defendant on the contrary has made out a case for sale agreement for consideration and not being put into possession of the suit property as a sub-tenant. The defence of the appellant/defendant before the Trial Court as also before the First Appellate Court was that he had entered into possession by virtue of the agreement for sale. No case was made out either in the written statement or at the trial that the appellant/defendant was a tenant under the plaintiff as recorded tenant.

In the absence of any pleadings or any issue being raised and evidence being led on such issue, a new point even if, it is a point of law cannot be raised at the second appeal stage as the foundation for the same has not been laid at the trial. In the aforesaid facts and circumstances, there is no existence of any substantial question of law for which a second appeal is required to be admitted.

The second appeal is accordingly dismissed.

(Arindam Mukherjee, J.) (Biswaroop Chowdhury, J.)