Calcutta High Court (Appellete Side)
Sri Sri Iswar Rameswarshib Thakur vs Nirmal Kanti Ganguly & Ors on 21 April, 2025
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
PRESENT:
THE HON'BLE DR. JUSTICE AJOY KUMAR MUKHERJEE
S.A. 255 of 2017
With
CAN 2 of 2025
Sri Sri Iswar Rameswarshib Thakur
Vs.
Nirmal Kanti Ganguly & Ors.
For the Appellant : Mr. Anirban Bose
Mr. S. Dutta
Mr. Satyajit Senapati
Ms. Atreyee Senapati
For the Respondent no.1 : Mr. Angshuman Chakraborty
Mr. Shivaji Mitra
For the Respondent : Mr. Rahul Nag
Nos. 2, 3 & 4 Mr. Jaydip Dhar
For the Respondent Nos.
7 to 14 : Mr. Debaditya Banerjee
Mr. Soumen Banerjee
Heard on : 16.01.2025
Judgment on : 21.04.2025
Dr. Ajoy Kumar Mukherjee , J.:
1. The appellant/plaintiff herein in the Second Appeal has challenged
the decree and judgment, dated 30th June 2015 passed by Additional
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District Judge Arambagh, Hooghly in Title Appeal no. 16 of 2014. By the
judgement impugned learned Appellate Court below has affirmed the
judgment and decree passed by learned Civil Judge, (Junior Division)
Arambagh in Title Suit. no. 24 of 2011 dated 26th may 2014.
2. The appellant herein as plaintiff filed aforesaid Title Suit no. 24 of
2011 contending inter alia that the suit property mentioned in ‘ka’ and
‘kha’ scheduled to the plaint are both debottar properties standing in the
name of deties Sri Sri Iswar Rameswar Shib Thakur and Sri Sri Iswar
Sitalamata Thakurani respectively and the name of the said deities have
been duly recorded in the L.R Record of Rights. The shebait of the said
deties are performing sheva pala (offering pujas) since long and the
proportion of seva pala to be performed by each shebaits has also been
recorded in the Record of Rights and except defendant no. 7 all original
shebaits of the deities have died.
3. Plaintiff alleged in the plaint that on and from 1.12.2010, the
defendant no. 1 along with other defendants are claiming that the suit
property as mentioned in scheduled to the plaint are not debottar property.
Plaintiff’s further allegation is that the father of defendant no. 1 in
connivance with defendant no. 7 filed a suit which was registered as T.S.
no. 138 of 1994 before Civil Judge (Junior Division) Arambagh which was
compromised on the very day of filing the suit and as per said compromise
decree, Ramsankar Gangopadhyay (predecessor of defendant No. 1 to 3)
obtained the said property. Plaintiff further stated that after obtaining
certified copy of the compromise decree, the plaintiff/ appellant (who is one
of the heir of deceased shebait Kalipada Gagnuli) had gathered knowledge
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about the compromise decree. Plaintiff’s specific case is that the said
compromise decree is fraudulent, collusive, void and not binding upon the
plaintiff/appellant deities. Plaintiff further stated in the plaint that in the
schedule of the plaint as well as in the decree, plot no. 1165 of Belekushma
Mouza has been included, though parties to the suit do not have any such
property in the said Mouza. The plaintiff/appellant therefore, filed the suit
for declaration that the suit property as mentioned in “Ka” and “Kha”
schedule to the plaint are the absolute Debotter properties of the deities
and plaintiff also prayed for a declaration that the abovementioned
compromise decree is void and non-est.
4. The defendant no.7 appeared in the suit and filed written statement
but defendant no. 1 to 3 did not appear to contest the suit and defendant
no. 4, 5, 6 and 8 to 15 (defendant No.8 to 10 are the other legal heirs of
plaintiff’s predecessor Kali pada Ganguli) jointly filed a separate written
statement. By filing written statement defendant no.7, has denied the
allegations made in the plaint and has taken a specific defence that Sanjay
Gangully, his mother and brother (Defendant no. 1 to 3) had earlier filed an
application under Order XXIII Rule 3 A of the Code of Civil Procedure
against defendant no.7 for setting aside the compromise decree passed in
T.S. No. 138 of 1994 interalia with a plea that Ram Shankar Gangully at
the relevant point of time was suffering from Mental illness. However, the
trial Court rejected the said application, against which they preferred a civil
revisional application before this High Court being CO No. 2255 of 2006,
which was also dismissed on 16th September, 2009. Against the order of
the High Court, a Special Leave Petition was filed before the Apex Court
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being Civil Appeal No. (S) 3149 of 2010, which was ultimately dismissed on
08.02.2010.
5. Defendant no.7’s specific case is that said Sanjay Gangully has set
up the plaintiff/appellant to file the suit. The plaintiff/appellant is not
residing at the village where the suit properties situate and they have no
connection with the suit properties. Plaintiff has filed the instant suit only
to create pressure upon defendant no. 7. All the Shebaits of the deities had
already partitioned their seva pala and are possessing the same according
to their share and are also performing their seva pala as per their
allotment. The properties mentioned in “ka” and “kha” schedule were
mutually partitioned between predecessor of defendant No.1 to 3 namely,
Ram Sankar Gangully, since deceased and defendant no.7. Said Ram,
Sankar Gangully was allotted both of those debottar properties and the
said properties were previously partitioned among the predecessor of other
parties, but the names of the shebait as allotted were not recorded as per
allotment in the L R Record of rights. Defendant no. 7 and Ram Sankar
Gangully obtained said compromise decree as per allotted share, without
touching the share of other shebaits. By the aforesaid mutual settlement
the defendant no.7 has relinquished his share in the suit property in favour
of said Ram Sankar Gangully, who was owning and possessing the
properties in terms of amicable allotments, whereas defendant no.7 in lieu
of property mentioned in the schedule to the plaint got a property situated
at Arambagh Town. Defendant no.7 therefore, prayed for dismissal of the
suit.
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6. The defendant no. 4, 5 and 6 and 8 to 15 jointly filed written
statement and supported the case of defendant no.7 stating interalia that
plaintiff appellant has no access to the suit property and the plaintiff never
performed any dev seva of the deities and he has permanently left the suit
village when he was a minor. These defendants further stated that all the
shebaits had the knowledge about institution of said T.S. No. 138 of 1994
and also about the compromise decree. It is the appellant/plaintiff who in
connivance with defendant no. 1 to 3 have filed the case on false ground
just to harass defendant no.7 and accordingly they have also prayed for
dismissal of the suit.
7. Learned Trial Court while dealt with the issue, observed that it
appears from the compromise decree that the parties to T.S. No. 138 of
1994 have not included or dealt with the entire property of the deities but
included only the allotment mentioned in respect of two shebaits who were
the parties to the aforesaid suit,. He further observed that from exhibit 1, 2
and 5, it is clear that the properties are the debottar properties of the
aforesaid two deities. Since the property recorded in the name of deity, the
recording of the name of shebaits who holds the land on behalf of the
shebaits, does not automatically creates any personal interest of the
shebaits in the property of the suit deity. The sebaits hold the land on
behalf of the deity and perform seva pala as per their share on the basis of
amicable arrangement among the sebaits. Although the shebaits cannot
transfer the property of the deity except in certain circumstances but
relinquishment of right of seva pala by one shebait in favour of another
shebait cannot anyway interfere the right of the deity. Accordingly whatever
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interest defendant no.7 has got in it as shebait, he has relinquished the
same in favour of Ram Shankar. In this connection he further held that
due to inadvertence plot no. 1165 has been included in the list but such
inadvertent mistake would not affect the arrangement between the parties
which is reflected from their respective pleading. He further observed that
the contention of the plaintiff regarding non registration of solenama decree
does not have any substance in view of the fact that neither defendant no.
1 to 3 nor the defendant no.7 have come before the court for declaration of
their interest on the basis of said solenama. Moreover, the validity of the
solenama decree passed in T.S. No. 138 of 1994 has been affirmed by the
Hon’ble High Court in Civil Revision No. 2255 of 2006 and the plaintiff filed
the instant suit for declaration, questioning the validity of solenama decree
without making any prayer for corollary relief.
8. Most importantly the trial court held that no cause of action accrued
in favour of plaintiff in filling the aforesaid suit. He observed that In the
instant suit defendant no.7, one of the shebait of the plaintiff/deity has
admitted that as per arrangement between himself and the predecessor-in –
interest of defendant no. 1 to 3 namely deceased Ram Sankar Gangully, he
has relinquished the entire property mentioned in the “kha” schedule of the
solenama decree which includes his interest in the property of the deity as
mentioned in “ka” and “kha” schedule of the instant suit, in favour of
predecessor in interest of defendant no. 1 to 3 in lieu of one property
situates at Arambagh. The plaintiff being one of the legal heirs of shebait
kalipada Gangully has filed the present suit, who admittedly reside in
Howrah District since long but the other legal heirs of said Kalipada
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Gangully who are impleaded in the suit as defendant no. 8 to 10 have
denied plaintiffs allegations in their written statement. Accordingly, from
the facts and circumstances, it is clear that no defendant has ever denied
or interested to deny the legal character and right of the plaintiff deities in
“ka” and “kha” schedule property. The existence of solenama decree in T.S.
no. 138 of 1994 is nothing but a mutual arrangement between the two
shebaits of the plaintiff/deities regarding their right as to performance of
seva pala of plaintiff deities which can no way cast a cloud on deities title.
Accordingly Trial Court concluded that since there is no infringement of
plaintiff’s right, plaintiff has no cause of action to file the said suit and
accordingly plaintiff is not entitle to get the declaration as prayed for and
since he is not entitled to get declaration as to the primary relief, he is also
not entitled to get the corollary declaration as sought for.
9. The appellate court below while affirmed the judgment of the trial
court had agreed with the trial court’s observation that the compromise
decree was not for partition but a settlement between two shebaits and as
such it can never be construed as denial of the right title or possession of
the deities in the suit property and said compromise decree has no way
affected the title of the deities and as such the plaintiff/appellant have no
cause of action to file the said suit. Furthermore, the
respondents/defendants (excepting defendant no. 1 to 3 who did not
contest) supported the contention that the compromise decree is valid and
was passed with the knowledge of all the shebaits. Appellate Court further
held that trial court rightly dismissed the suit because apart from plaintiff’s
failure to make out any cause of action to file the instant suit, the plaintiff
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also failed to prove the case as he did not face the witness box. In this
context court below observed that a power of attorney holder can depose
only in respect of the acts done by the attorney holder and not for the acts
which are done by the principal. The power of attorney (in short POA)
which has been filed by the plaintiff appeared to be executed on 30th
November 2012 and therefore the power of attorney holder can depose only
of those events and acts which are done in the capacity as power of
attorney holder subsequent to 30th November, 2012 and he cannot depose
on behalf of the plaintiff/appellants for all the events and the facts which
occurred prior to 30th November, 2012 and as such the court below held
that plaintiff avoided the dock and executed the power of attorney only four
days before the date of deposition of PW1 and as such plaintiff has failed to
prove his case. Regarding plaintiff’s prayer for declaration that the
solenama decree is void, the Court below held that such prayer has been
made by the plaintiff after about seven years of passing the decree and the
plaintiff appellant have failed to explain the delay in filing the suit for
declaration. Moreover, from the cross examination of PW1, it has been
clearly spelt out that the right title interest of the deities and its seva puja
are not affected by any means, due to said compromise decree. Accordingly
the court below dismissed the appeal and thereby affirmed the judgment of
the Trial Court.
10. Being aggrieved by the said judgment of affirmation Mr. Anirban
Bose learned counsel appearing on behalf of the appellant argued that
there is apparent fraud in obtaining the compromise decree dated 28th
September, 1994 because on the same day, in which the plaint was filed,
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solenama was also filed and order of compromise decree was passed by
learned Court in T.S. No. 138 of 1994. In the said decree some of the
properties of the plaintiff/deities were included. He further contended that
in the said suit neither the deities nor the other shebaits including the
present plaintiffs were made parties.
11. In this context he further argued that a presumption of fact can be
drawn from the conduct and how the compromise decree was obtained in
the said abovementioned suit under section 4 read with section 114 of the
Indian Evidence Act. In this context he relied upon judgments of Santosh
Vs. Jagat Ram and another reported in (2010) 3 SCC 251 and Sayad
Akbar Vs. State of Karnataka reported in (1980) 1 SCC 30.
12. Mr. Basu further argued that there is absolutely no bar under the
law and the power of attorney holder can very well depose on behalf of the
principal or a party to the suit whether being the plaintiff or defendant. It
depends on the facts and circumstances of each case. Since this is a suit
for declaration based on documentary evidence, the power of the attorney
holder can very well depose on behalf of the plaintiff. Even in the case of
specific performance of contract, the supreme Court has left window
opened and in exceptional circumstances, power of attorney holder can
depose. In this context he relied upon the judgment reported in AIR 2006
Karnataka 231 and (2010) 10 SCC 512. He further argued that drawing
adverse presumption by the court also depends upon facts and
Circumstances of each case and the present case is not of that nature.
13. Regarding cause of action learned counsel for the plaintiff/appellant
stated that both the courts below failed to appreciate the true meaning and
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scope of the word “cause of action” and held that since the defendants
admitted the claim of the plaintiffs and therefore no infringement and or
casting a cloud on the plaintiff’s title arises. Such observation is an error of
law which is apparent on the face of the record. He also argued that an
order, decree or judgment obtained by fraud is nullity in view of the
judgment reported in (2006) 7 SCC 41. Such order can be set aside and be
treated as nullity by any court and Order XXIII, Rule 3A does not prevent a
party, who was not a party to compromise decree, to bring a suit to set
aside the compromise decree obtained by fraud, which he had no previous
knowledge. In this context he placed reliance upon the ratio laid down in
2014 (4) CHN 4 and (2003) 8 SCC 319.
14. He further argued that rights of shebaits to transfer and claim title in
the debottar property is against the notions of policy of Hindu Law and
such are restricted. Reliance has been placed in this context in the case
reported in AIR 1974 SC 1932. He also contended that the defendant no.
7 did not dispute the compromise decree passed in T.S. no. 138 of 1994
and he also admitted the suit property as a debottar property but in the
plaint it has been stated that the property got partitioned. The witness also
stated that said T.S. No. 138 of 1994 was a partition suit and plaintiff/deity
has not been included in the said suit. When such facts were admitted by
the defendants in their pleading, then both the courts below ought to have
passed a decree in favour of plaintiff.
15. Mr. Chakraborty and Mr. Nag and Mr. Banerjee learned Counsel
appeared on behalf of the respondents/defendants contended that after
losing first round of litigation up to Supreme Court of India, Defendant no.
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1,2 and 3 have set upon plaintiff to file the present suit on almost same
ground and as such instant suit is barred by the principles res judicata.
Moreover the present suit, which has been filed seven years after passing of
the compromise decree, is hopelessly barred by limitation, specially when it
is the specific case of the defendants including the other legal heirs of
deceased Kalipada Gangully (father of the plaintiff) that all the shebaits had
knowledge about the compromise decree from the beginning. He further
contended that both the Courts below however have taken into
consideration the evidence of the power of attorney holder, while coming to
the concurrent finding of the fact that the plaintiff has no cause of action to
file the suit. From Exhibit A it will be evident that respondent no. 2 to 4
who are also Shebaits of the deity had taken the exact plea which the
present appellant is trying to canvass again in the present suit. This High
Court specifically held while disposing the abovementioned civil revisional
application that it cannot be said that the terms of compromise in which
decree was based was not lawful. The Apex Court also declined to interfere
with the order and the SLP (Special Leave Petition) was dismissed. The
issue raised in the instant suit were directly and substantially in issue
while deciding the application under Order XXIII, Rule 3A CPC, being
raised by another set of shebaits, having common claim and interest with
the appellants. As such instant suit is barred under the said provision of
law.
16. The defendant no. 4 to 6 and 8 to 15 also more or less adopted the
argument advanced by the defendant no. 7. Said defendants also agreed
that the seva of the deities have never been disturbed or affected and it is
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still continuing. Moreover the pleading of a party have to be read as a whole
and if the entire pleading of defendants is considered as a whole and
construed meaningfully and in it’s proper perspective, it will be clear that
the defendants never denied that the suit properties are the debottar
properties or that they are claiming the suit property to be their own
property. Accordingly defendant/respondents prayed for dismissal of the
appeal.
17. A Division Bench of this court while admitted this Second Appeal
vide it’s order dated 10th July, 2019 held that this Appeal will be heard on
the following substantial questions of law:-
(a) Whether both the courts below were justified in holding that the
constituted attorney cannot adduce evidence on behalf of the
principal in relation to the facts terminated prior to the date of his
appointment?
(b) Whether the constituted attorney is debarred from adducing any
evidence in relation to the facts which are not within the special
knowledge of the Principal?
(c) Whether the compromise decree passed in an earlier suit remains
binding on the party even if neither such party nor his predecessor
was the party in the suit.
(d) Whether an adverse inference can be drawn against the plaintiff as
he personally did not depose in the said case and the evidence was
adduced by the constituted attorney.
Additional issue framed vide order dated 27.09.2023
(e) Whether the learned court below erred substantially in dismissing the
suit on the ground that there was no infringement of the right of the
plaintiff and there was no cause of action to maintain the suit
through in the written statement same of the defendants have
claimed the ownership over the suit property and some of the
defendants considered the property of deity as secular property and
got part of debottar estate partitioned in a suit without impleading
all the co-owners.
Decision with reason
18. It is no more res integra that the High Court has the jurisdiction to
decide the second appeal only on the substantial questions of law framed
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at the time of admitting the appeal. Section 100 (5) of the Code of Civil
procedure in express terms provides that the jurisdiction of the High Court
to decide the second appeal is confined only to the questions framed and
not beyond it. Reference can be made in this context in the judgment of
Ranjit Kumar Karmakar Vs. Hari sankar Das reported in (2019) 5 SCC
477 and Vijay Arjun Bhagat Vs. Nana Laxman Tapkire, reported in
2018 (3) CHN (SC) 302.
19. Now, so far as the issue relating to admissibility of the evidence of
plaintiff who deposed through his constituted attorney (who is plaintiff’s
daughter) is concerned, it appears that in the instant suit one of the core
issue is the date of knowledge of the plaintiff about the compromise decree
in respect of which he has sought for declaration and its effect on the deity
along with the shebaitship, conduct of Dev seva and pala by the shebaits. It
is important in the present context to apprise the court when, where and
from whom plaintiff gathered the information regarding the compromise
decree and when he obtained the certified copy of decree passed in Title
Suit no. 138 of 1994, which is within the special personal knowledge of the
plaintiff. The cause of action of the suit as framed by the plaintiff arose
from the alleged denial of title of the deities, as averred in the plaint, by the
defendants on 01.12.2010, which is also within the personal knowledge of
the plaintiff and nowhere plaintiff has stated in the plaint that act
regarding seva pala was done by his daughter/constituted power of
attorney or that relevant facts specially related to cause of action were
made known to the said daughter or she alone had personal knowledge
about the same.
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20. Though the P.W.-1, constituted POA has stated that her father came
to know about Title Suit no. 138 of 1994 two years ago, but such fact must
be within the personal/special knowledge of the father of P.W-1 and are not
within personal knowledge P.W-1 and as such plaintiff is the best witness
to state about of this fact but for the reason best known to him, he
intentionally chosen not to depose personally. The court below accordingly
disbelieved the evidence of P.W-1 as nowhere said P.W-1 stated that P.W-1
was personally present when the Dev sheva was being conducted or the
knowledge of alleged denial of title by the defendants was made known in
presence of her or that she had conducted all the relevant acts on behalf of
the plaintiff.
21. It is also curious enough that even if it is presumed that plaintiff had
any predicament in physically appearing before the court (through there is
no such pleading), but it also appears that no attempt was made by the
plaintiff to depose on commission and as such the defendant/respondent
lost his valuable right to cross examine the plaintiff on the aforesaid
material facts pertaining to plaintiff’s personal knowledge. The law is well
settled on this point that a power of attorney is not a competent witness to
adduce evidence on facts which are not within the knowledge of the
attorney holder but are within the personal knowledge of the
principal/plaintiff. It farther appears that the certified copy of judgment
and decree of Title Suit no. 138 of 1994 which was tendered in evidence by
the attorney of the plaintiff, though marked as exhibit being a public
document but mere exhibiting the said document does not imply that the
POA had knowledge regarding the time of discovering of the said document
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or when and from whom the plaintiff got knowledge of the said document
and under what circumstances and where such knowledge were obtained
because these are all within the special knowledge of the plaintiff and the
defendants have a right to cross examine the plaintiff regarding such facts
which are essential to establish the cause of action of the plaintiff. This is
also important because admittedly the instant suit for declaration that
compromise decree passed in Title Suit no. 138 of 1994 is void, has been
filed seventeen years after passing of the compromise decree and most
importantly the other defendants including the other legal heirs of
plaintiff’s predecessor stated specifically that all the shebaits had
knowledge of the compromise decree from the very beginning. It is worthy
to be mentioned in this context that the power of attorney holder i.e. P.W-1
was a 9 year old girl, when the compromise decree was passed in 1994.
P.W 1 has not disputed that she was born in 1985 and she adduced
evidence in the year 2012 when she was staying at her matrimonial home.
22. However inspite of aforesaid legal disabilities, it is evident that both
the courts below have taken into consideration the evidence of POA/P.W 1
while coming to the concurrent finding of fact that the plaintiff has no
cause of action to file the suit. There are other aspects in the matter also. It
appears that by the said power of attorney, no express or implied power to
depose on behalf of the plaintiff has been conferred in specific terms upon
the POA. Learned appellate court made a clear observation that POA can
depose only in respect of the acts done by the attorney holder and not for
the acts which is exclusively within the knowledge of the principal. The
POA in specific terms states that to work, manage, control, supervise
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manage and administer of all the debottar properties, in respect of which
plaintiff is the shebait was given to the power of attorney holder (P.W-1)
only on the date of execution of P.O.A i.e. on 01.12.2012. In Vidyadhar Vs.
Manik Rao and another reported in (1999) 1 SCR 1168 the court held
that when a party to the suit does not appear in the witness box and states
his own case on oath and does not offer himself to be cross examined by
the other side, a presumption would arise that the case set up by him is
not correct.
23. In Janki Vashdeo Bhojwani and another Vs Indusind Bank
Limited and another reported in (2005) 2 SCC 217 Supreme Court held
in paragraph 13 as follows:-
“13. Order 3 Rules 1 and 2 CPC empower the holder of power of attorney to
“act” on behalf of the principal. In our view the word “acts” employed in
Order 3 Rules 1 and 2 CPC confines only to in respect of “acts” done by the
power-of-attorney holder in exercise of power granted by the instrument. The
term “acts” would not include deposing in place and instead of the principal.
In other words, if the power-of-attorney holder has rendered some “acts” in
pursuance of power of attorney, he may depose for the principal in respect of
such acts, but he cannot depose for the principal for the acts done by the
principal and not by him. Similarly, he cannot depose for the principal in
respect of the matter of which only the principal can have a personal
knowledge and in respect of which the principal is entitled to be cross-
examined.”
24. In the subsequent judgments also the Apex Court reiterated same
view in S. Kesari Hanuman Goud Vs. Anjum Jehan and others reported
in (2013) 12 SCC 64 where Court held in paragraph 23 as follows:-
“23. It is a settled legal proposition that the power-of-attorney holder cannot
depose in place of the principal. The provisions of Order 3 Rules 1 and 2
CPC empower the holder of the power of attorney to “act” on behalf of the
principal. The word “acts” employed therein is confined only to “acts” done
by the power-of-attorney holder, in exercise of the power granted to him by
virtue of the instrument. The term “acts”, would not include deposing in
17place and instead of the principal. In other words, if the power-of-attorney
holder has preferred any “acts” in pursuance of the power of attorney, he
may depose for the principal in respect of such acts, but he cannot depose
for the principal for acts done by the principal, and not by him. Similarly, he
cannot depose for the principal in respect of a matter, as regards which, only
the principal can have personal knowledge and in respect of which, the
principal is entitled (sic liable) to be cross-examined.
(See Vidhyadhar v. Manikrao [(1999) 3 SCC 573 : AIR 1999 SC 1441]
, Janki Vashdeo Bhojwani v. Indusind Bank Ltd. [(2005) 2 SCC 217]
, Shankar Finance and Investments v. State of A.P. [(2008) 8 SCC 536 :
(2008) 3 SCC (Cri) 558 : AIR 2009 SC 422] and Man Kaur v. Hartar Singh
Sangha [(2010) 10 SCC 512 : (2010) 4 SCC (Civ) 239] .)”
25. If the aforesaid facts and circumstance of the case put to the settled
principal of law, I find no reason to observe that the order of the court
below suffers from perversity, where it was held that the POA can depose
only in respect of the acts done by the attorney holder and not for the acts
which are done by the principal and for nonappearance of plaintiff who has
personal knowledge of the facts pleaded in the plaint, adverse presumption
can be raised against him specially in the context of limitation point, where
plaintiff pleaded that he gathered knowledge above the decree passed in
said title suit only two years back and other defendants including other
heirs of Kalipada Ganguli stated that all shabits were aware about
compromise decree from the beginning and also on the point of plaintiff’s
cause of action to file the suit, which is based on defendants alleged denial
of title of the deities.
26. So far as the question as to whether compromise decree passed in an
earlier suit shall remain binding on the plaintiff, even if the plaintiff or his
predecessor was a not a party to the said suit, it clearly reveals form the
documents that earlier the defendant no 1 to 3 made the same prayer for
cancellation of decree on the ground that it was void and collusive decree
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and such prayer was turned down. The defendant no. 7 in his Written
Statement has categorically pleaded that the heirs of Ram Sankar Gangully
being defendant no. 1 to 3/respondent no. 2 to 4 herein, filed an
application under Order XXIII, Rule 3A of CPC, challenging the validity of
the compromise decree which was dismissed by the Trial Court on
28.04.2006 and against which Civil Revisional application being CO no.
2255 of 2006 was preferred but this court affirmed the order of the Trial
Court and thereafter the Respondent no 2 to 4 herein preferred SLP before
Supreme Court being SLP (Civil No. 3149 of 2010) but the same was also
dismissed and the certified copy of said three orders are marked as exhibit
A,B & C. From Exhibit A it is clear that present respondent 2 to 4 who are
also heirs of Ramshankar took the plea that the compromise decree had
been obtained by practicing fraud upon court and the decree is not lawful
and valid and is collusive which is apparent from the fact that the
compromise decree was passed on the same date of filing the suit and that
the compromise decree is against the provisions of the Indian Registration
Act and section 19 & 19A of the Contract Act and that the debottar
property are not transferable though included in the compromise decree.
The Trial Court framed specific issue to that effect and decided against the
plaintiff. It further appears form exhibit A that whatever interest the
defendant no.7/opposite party has got in it as shebait he has relinquished
the same in favour of Ramsankar and it is merely an arrangement between
Ramsankar and defendant opposite party who are shebait and it did not
affect the interest of deities. Trial court also discarded the contention of
said plaintiff that the compromise decree is collusive as it was passed on
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the same date of filing the suit by observing that compromise petition was
filed by the parties duly signed by them and their respective advocates and
the party was examined on dock and all formalities contemplated under
Order XXIII, Rule 3A were duly complied. This High Court while disposed of
said Revisional Application held that the finding arrived at by the learned
trial court do not appear to be incorrect and the same are based on
appreciation of the materials on record and also it cannot be said that the
terms of compromise on which decree was based was not lawful. So the
exact pleas being taken by the appellant herein in the instant proceeding
regarding validity of compromise decree and that the deities and shabaits
were not being made party in the said earlier Title suit, where compromise
decree was passed, or that the compromise decree was not registered and
that the compromise decree passed on the same date on which the suit was
filed, have already been taken by respondent no. 2 to 4 herein and such
issues were directly and substantially in issue while deciding the
application under Order XXIII, Rule 3A CPC, being raised by another set of
shebaits having common claim and interest with the Appellant herein, both
parties being shebaits and legal heirs of shebaits of the deities. So only
because the plaintiff appellant or his predecessor was not a party to the
compromise decree does not affect the fact that the question agitated in the
instant suit has already been agitated, adjudicated upon and finally
decided up to the Supreme Court. Therefore the findings in the order dated
28.04.2006 passed by the Trial Court, while disposing application under
Order XXIII, Rule 3A filed by respondent no. 2 to 4 operates as res judicata
under explanation VI to section 11 of the Code.
20
27. Moreover one of the tests in deciding whether the doctrine of res
judicata would apply or not depends upon the facts as to whether upon
determination, two inconsistent decree will come into existence, if the
principle of res judicata be not applied. In this context reliance has been
placed upon Narayana Prabhu Venkateswara Prabhu Vs. Naraynya
Prabhu Krishna Prabhu reported in (1977) 2 SCC 181. Supreme Court in
paragraph 20 held as follows:-
“20. We think that the submission made by the learned Counsel for the
respondents is sound. In a partition suit each party claiming that the
property is joint, asserts a right and litigates under a title which is
common to others who make identical claims. If that very issue is litigated
in another suit and decided we do not see why the others making the
same claim cannot be held to be claiming a right “in common for
themselves and others”. Each of them can be deemed, by reason of
Explanation VI, to represent all those the nature of whose claims and
interests are common or identical. If we were to hold otherwise, it would
necessarily mean that there would be two inconsistent decrees. One of
the tests in deciding whether the doctrine of res judicata applies to a
particular case or not is to determine whether two inconsistent decrees
will come into existence if it is not applied. We think this will be the case
here.”
28. In this context it is also worthy to be mentioned that plaintiff failed to
show any cause of action in challenging the legality and validity of the
compromise decree in view of the fact that plaintiff is a stranger/third party
to the compromise decree and same may not be binding upon him unless
plaintiff adversely affected by the decree. He cannot have a right to
challenge the compromise decree specially when parties to the decree
accepted it and the decree has no adverse impact upon the interest of the
deities. Infact plaintiff has no interest either as shebait or otherwise in the
subject matter of the compromise decree. A stranger to the decree can
challenge a compromise decree which affects his rights. In Smt. Suraj
21
Kumar Vs. District Judge, Mirjapur reported in AIR 1991 Allahabad 75
it was held in paragraph 22 as follows:-
“22. The petitioner’s second submission regarding the applicability of O. 23, R.
3-A of the Code of Civil Procedure is misconceived the provision is confined only
to the parties to the suit. The said provision is not applicable to a stranger to the
said compromise decree. A suit by stranger to set aside the compromise decree,
which affects his rights is not barred by the said provision. Order 23, Rule 3-A of
the Code of Civil Procedure cannot be read dehors its earlier provision of the
same chapter. The said provision is only a part of the entire Chapter of Order 23
of the Code of Civil Procedure which prescribes provisions for withdraw and
adjustment of the suit. Order 23, Rule 3 of the Code of Civil Procedure provides
for a situation where the parties have arrived at a compromise. Order 23, Rule 3
and Rule 3-A of the Code of Civil Procedure as added by Amending Act No. 104
of 1976 read together, makes it clear that a party to the suit is debarred from
filing suit for setting aside compromise decree on the ground of being unlawful.
Such a party has remedy by moving appropriate application before the Court
concerned which has passed the compromise decree.”
29. In Sardar Balvir Singh Vs. Atma Ram Srivastava reported in AIR
1977 Allahabad 211, it was held that a cause of action arises from the
invasion of the plaintiff’s legal right by violation of some duty imposed upon
the defendant in favour of the plaintiff either by voluntary contract or by
positive law. It was also held that the essential elements of a cause of
action are the existence of a legal right in the plaintiff with a corresponding
legal duty in the defendant and a violation or breach of that “right or duty”
with consequential injury or damage to the plaintiff for which plaintiff may
maintain an action for appropriate relief. Here plaintiff is not shebait in
connection with the properties mentioned in the compromise decree and as
such there has been no violation of such right or corresponding duty and
there is no question of suffering loss or injury by the plaintiff.
30. Moreover in the instant case the entire debottar properties were not
subject matter of the compromise decree and there is only exchange of
shebaitship right in between Ramsankar Ganguly and Nirmal Ganguly. All
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other defendants including other legal heirs of Kalipada Kanti Ganguly
except plaintiff (who is also the legal heir of Kalipada) have filed there
written statement contending that seva puja of the deities never hampered
due to compromise between Ramsankar and Nirmal. Even P.W 1/ POA in
her deposition admitted that defendant no. 9 Shymal Ganguly (who is
brother of plaintiff) actually performing seva puja of the deities and P.W 1
has no grievance against said shebait Shymal Ganguly. Accordingly
plaintiff cannot make any grievance against said compromise. For the said
self-same reason, in the said earlier suit the deities were not made parties
because the interest of deities are not going to be affected by the decree.
Neither party of the suit challenged the title of deities and as such deities
are not necessary party. It is submitted that out of 16 properties included
in the compromise decree only 3 are debotter properties and exhibit 1 and
2 indicates that it is a private debotter property and plaintiff’s predecessor’s
name recorded as shebait and not the name of plaintiff. Considering all
these I do not find that the courts below had made any mistake in
observing that the compromise decree passed in the earlier suit is binding
upon the plaintiff in the present suit.
31. Now so far as the additional substantial question of law framed by
this court on 27.09.2023 as to whether the courts below erred
substantially in dismissing the suit on the ground that plaintiff has no
cause of action to maintain the suit it appears even if in the written
statement some of the defendants allegedly have misdescribed ownership
over the suit property and thereby allegedly loosely used the term
“partition” in their pleading but it is to be made clear that on construction
23
of the pleading as a whole as filed by the defendants, nowhere I find that
the defendants have disputed the character of suit properties as debottar
properties. It has been specifically stated in the respective written
statements that the earlier shebaits of the deities being the predecessor of
the parties have long ago made amicably arrangement of all the debottar
properties among the shebaits and have been enjoying and possessing their
respective portions. It has been also been stated that the portion of the
sebaitship which was of the predecessor of defendant no. 8 to 15, the seva
pala and Dev Seva of that portion is being performed by defendant no. 8 to
15 continuously. It has also been stated that Ramsankar Ganguly used to
conduct Dev Seva for his share of pala as well as of the pala of Nirmal
Ganguly, the defendant no. 7 and after his death the defendant no. 1 to 3
have been conducting the Dev Seva of both the share of Ramsankar and
Nirmal Ganguly. Accordingly from the written statement filed by the
defendants separately it is clear that the title of the deities have never been
denied by the defendants since otherwise the question of performing Dev
Seva and Pala would not arise and would not have been mentioned in the
pleading and on the contrary it is admitted by the defendants that the sava
pala is being performed regularly by the present shebaits of the deities.
32. Moreover cause of action pleaded by the plaintiff has to stand on its
own and plaintiff cannot rely upon the weakness of the defence version or
for the reason that the pleading of defendant is loosely worded to prove his
cause of action. In other words by picking up some words from here and
there from the written statement, plaintiff cannot set up his cause of action
to file the instant suit. In fact cause of action comprises bundle of facts but
24
it has no relation whatever to the defence version which came much later,
nor the character of the relief prayed for by the plaintiff depends upon
contents of written statement. In this context reliance has been placed
upon A.B.C Laminart Private Ltd. Vs. A.P. Agencies, reported in (1989)
2 SCC 163.
33. From exhibit 3 it is clear that in Title Suit no. 138 of 1994, which
was compromised was not a partition suit between Ramsankar and Nirmal,
so question of partition of the suit property among the said two persons
does not arise at all. Property which was compromised was only the share
of seva pala Ramsankar and Nirmal in respect of three debutter properties
as well as other 13 secular properties. So far as share of other secular
properties that are involved in the compromise decree in question,
impleading of other co-owners does not arise.
34. In the above backdrop learned courts below rightly held that as there
has been no challenge to the right title or interest of the plaintiff/deities
and plaintiffs title in the suit property has not been clouded by any
manner, the plaintiffs is not entitled to get either the principal relief or the
corollary relief as prayed in the plaint.
35. It is well settled that the general rule is that High court will not
interfere concurrent findings of the court below but it can interfere in some
well recognized exceptions like:-
I) When concurrent finding of fact is recorded dehors the pleading
II) Where judgment is based on no evidence or misreading of material
evidence
III) The judgment has been recorded against any provision of law
25IV) The decision is one which no judge acting judicially could
reasonably have reached
V) The court have wrongly casted the burden of proof
(reference have been taken from Nazir Mohamad Vs. J. Kamal
and others reported in (2020)19 SCC 57 and State of
Rajasthan and others Vs. Shib Dayal and another reported in
(2019) 8 SCC 637).
36. From the aforesaid discussion it is quite clear that is no scope to say
that the courts below have based their decisions on no evidence or
misleading evidence or that the findings are such, by which it can be said
that no judge acting judicially could reach the conclusion as held by the
courts below.
37. In such view of the matter S.A. 255 of 2017 stands dismissed.
Connected Application also thus stands disposed of.
Urgent Xerox certified photocopies of this Judgment, if applied for, be given
to the parties upon compliance of the requisite formalities.
(DR. AJOY KUMAR MUKHERJEE, J.)
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