NAGENDRA DUTTA Vs. MANGALA DUTTA

JUDGEMENT

(1.) This is an appeal filed under Sec. 100 of the Code of Civil Procedure, 1908, against the impugned Judgment and Decree dtd. 26/2/2018 passed by the learned District Judge, North Tripura, Dharmanagar, in Title Appeal No. 39 of 2016, whereby the learned District Judge, North Tripura, Dharmanagar dismissed the appeal and substantially affirmed the judgment and decree dtd. 8/7/2016 and 19/7/2016 respectively, passed by the learned Civil Judge, Senior Division Dharmanagar, North Tripura, in Title Suit 06 of 2013.

(2.) The facts in brief as stated in the plaint are that the marriage between the defendant-appellant No. 1, Sri Nagendra Dutta, and the pro forma defendant-respondent, Smt. Shayama Rani Dey (Dutta) was solemnized on 4/3/1981 and they started to live together as husband and wife at North Panisagar. It is further contended that out of their wedlock, Mangala Dutta, plaintiff-respondent herein was born on 4/6/1982. After 2/3 years of the marriage, Nagendra Dutta, defendant-appellant No. 1 herein had been suffering from serious mental insanity and during that period of his insanity, he filed one divorce case vide No. T.S. (Divorce) 03 of 1988 against the pro forma defendant-respondent herein before the learned District Judge, North Tripura, Kailashahar, on the ground of suppressing the fact of the birth of the plaintiff-respondent herein. After registration, the said case was transferred to the Court of learned Addl. District and Sessions Judge, Dharmanagar, North Tripura for disposal. Thereafter, summon was issued, and on receipt of the summon, the pro forma defendant-respondent engaged a lawyer to contest her case. But ultimately, for her ignorance, the case was decided ex-parte beyond her knowledge, vide judgment dtd. 12/4/1988, whereby divorce was allowed as pro forma defendant-respondent did not contest the suit on the pretext of her thought that the divorce case would be automatically dismissed due to insanity of Nagendra Dutta, defendant-appellant No. 1 herein. She, also contended that after getting the information about the granting of divorce, the pro forma defendant-respondent filed a petition under Sec. 151 of CPC before the learned Court of District Judge, the then North Tripura, Kailashahar, for setting aside the judgment and decree dtd. 12/4/1988 passed in T.S. (Divorce) 03 of 1988, which was registered as Civil Misc. No. 04 of 1995. In that Misc. Case Nagendra Ch. Dutta was represented by his elder cousin brother Amarendra Dutta as guardian. After hearing the parties, vide order dtd. 22/11/1995, the petition filed under Sec. 151 CPC was rejected. The plaintiff-respondent, in her plaint also contended that her mother i.e. the pro forma defendant-respondent, by filing an appeal before the Hon'ble Gauhati High Court, challenged the judgment and decree dtd. 12/4/1988 passed in T.S. (Div) 03 of 1988. The Hon'ble High Court vide judgment and decree dtd. 25/3/2001 dismissed the appeal.

(3.) The story of the plaintiff-respondent herein is that her mother, Pro-forma defendant-respondent did not take proper steps, and hence, she lost the case. She further pleaded that she stayed at Panisagar, Dharmanagar for some time in the rental house with her mother, and sometimes they were in the house of the maternal uncle. Since her childhood, the plaintiff-respondent could not see her father as he was moving here and there due to his insanity. Her mother consoled her narrating this or that about her father and in this way, long days passed and the plaintiff-respondent has grown up. In the year 2010, the plaintiff-respondent came to learn that divorce was granted against her mother while the defendant-appellant No. 2 Sri Babul Rajan Dutta @ Babul Dutta (since deceased represented by his legal heir), the brother of the appellant No. 1, was trying to grab the landed property of her father, depriving her declaring that the plaintiff-respondent herein is not the daughter of Nagendra Dutta. The plaintiff-respondent also pleaded that defendant-appellant No. 1 was missing for long and none can say his whereabouts. On getting the information about the divorce case of her mother, wherein the plaintiff-respondent was treated as an illegitimate child and after hearing the unbearable sorrow of her mother, pro forma defendant-respondent No. 2 herein, began to search those cases and collected the certified copies and has filed the suit. The said suit was registered and marked as Title Suit No. 06 of 2013 before the learned Civil Judge, Senior Division, Dharmanagar, North Tripura.