KSHITISH CHANDRA PURKAIT Vs. SANTOSH KUMAR PURKAIT

JUDGEMENT

(1.) The plaintiff in Title Suit No. 89 of 1958, Munsif 1st Court, Diamond Harbour, is the appellant. The defendants in the suit are the respondents. The suit was filed for declaration of plaintiffs title and recovery of possession of the suit land (1.80 acres of land of Mouja Durganagar P.S. Diamond Harbour). Incidentally, there was a prayer for declaration that the entries in the R. S. record are erroneous. The plaint-property originally belonged to Haran Chandra Halder and Barada Prasad Halder, and by various gifts or other documents, Kshirodamani Dasi became the full owner of the suit property. The plaintiff purchased the suit property from Kshirodamani Dasi by registered Deed dated 12 Baisakh, 1365. The plaintiffs vendor had sole occupancy right in 1.80 acres of land in Mauja Durganagar. She possessed such land during the material period through the 4th defendant with whom the land was settled annually on advance rent. On 30th June, 1954, the principal defendants (defendant Nos. 1 and 2) trespassed into the suit land and dispossessed the 4th defendant. Subsequently, the trespassers got their names recorded as korfa tenants of the suit land at different fictitious jamas under Kshirodamani, the plaintiffs vendor, in the R.S. record. The plaintiffs vendor Kshirodamani never settled the suit land by granting Patta to or accepting any Kabuliyat from such trespassers. On these and other averments the suit was filed for declaration of plaintiffs title to the suit property and for recovery of the same from the defendants.

(2.) The main contesting defendants are defendant Nos. 1 and 2. They put forward the plea that the suit was not maintainable, that they were cultivating tenants as thika tenants, under the plaintiffs vendor on payment of advance rent and the land was settled with them on a permanent basis. The third defendant is the State of West Bengal. The State pleaded that the suit was not maintainable and they have been unnecessarily impleaded. The trial Court decreed the suit. It was found that the plaintiff has title to the suit land and the defendants have no tenancy right in the property. The plaintiff was held entitled to recover possession with mesne profits. The suit was decreed on 28-2-1961. In the appeal filed by defendant No. 1 in Title Appeal No. 362 of 1961 before the Subordinate Judge, 8th Court, Alipore, the judgment and decree of the Munsif was set aside and the suit was dismissed. The plaintiff filed S.A. 993/62 and assailed the judgment and decree of the Subordinate Judge rendered in Title Appeal No. 362/61. By judgment and decree dated 26-2-1976, the appeal was allowed and the matter was remitted to the lower appellate Court for a fresh disposal, in accordance with law. After remit, Title Appeal No. 362/61 was disposed of by Subordinate Judge, 8th Court, Alipore on 12-2-1977. The appeal was dismissed affirming the judgment and decree of the trial Court dated 28-2-1961 except regarding the grant of declaration that the R.S. record of raiyat is incorrect. The defendants assailed the concurrent judgments and decrees of the Courts below by filing Second Appeal No. 871/81 before the High Court of Calcutta. The plaintiff filed a memoranda of cross-objections in the said Second Appeal against the deletion of the declaration that the R.S. record regarding the suit land is incorrect. The Second Appeal and the Memoranda of Cross Objection were disposed of by a learned single judge of the Calcutta High Court by his Judgment dated 30-11-1982. The High Court allowed the Second Appeal filed by the contesting defendants and held that the suit for recovery of possession of the disputed land, i.e. the suit land, is not maintainable and the suit was dismissed. It is thereafter, the plaintiff in the suit obtained special leave in S.L.P. (Civil) No. 10083/83 by order passed by this Court dated 4-11-1986 and the consequent Civil Appeal is before us.

(3.) We heard counsel. It is evident from the judgment of the High Court, impugned herein, that the High Court set aside the concurrent judgments and decrees of the lower Courts on the basis of a new plea raised before it. Appellants counsel submitted that the High Court acted illegally and committed an error of jurisdiction in entertaining a new plea in Second Appeal, without complying with the provisions of Section 100, C.P.C. as amended. Counsel for the respondents submitted that the new plea raised before the High Court was a question of law and the Court acted within its jurisdiction in entertaining the said question of law and in disposing of the Second Appeal on that basis.