RAFIK MONDAL Vs. ASHIT GHOSH

JUDGEMENT

(1.) CHALLENGE is to the Order No.16 dated May 31, 2011 passed by the learned Additional District Judge, 5th Court, Barasat in Title Appeal No.10 of 2010 thereby disposing of the applications filed by the appellants as well as the respondents for expunging the names of the respondent No.s 3 & 4 from the appeal.

(2.) THE plaintiffs / appellants / petitioners herein instituted a suit being Title Suit No.160 of 1979 against the defendants / opposite parties for a decree of declaration of title of the suit property, permanent injunction and other reliefs before the learned Civil Judge (Junior Division), 2nd Court, Barasat. THE defendant No.s 1 & 2 / opposite party No.s 3 & 4 herein entered an appearance by filing a vokalatnama, but they did not file any written statement and as such, the learned Trial Judge ultimately fixed the date for ex parte hearing against them. Subsequently, the defendant No.s 5 & 6 were added in the suit as defendants and the written statement along with the counter-claim were filed by the said defendant No.s 5 & 6. THEreafter, the plaintiffs filed an application for withdrawal of the suit and the learned Trial Judge allowed the said application for withdrawal of the suit without any liberty to sue afresh by an order dated July 26, 2002.

(3.) DURING the pendency of the said title appeal, the petitioners filed an application under Section 5 of the Limitation Act before the Appellate Court to the effect that the opposite party No.3 died long time back on October 9, 2006 and the petitioners came to know the same only on May 6, 2011 and as such, the application under Section 5 of the Limitation Act was filed. The opposite party No.s 1 & 2 also filed an application for expunge of the names of the opposite party No.s 3 & 4 on the ground that the opposite party No.s 3 & 4 never appeared in the suit and they did not file the written statement at all. The petitioners filed an application for expunge of the name of the opposite party No.3 from the appeal on the ground that the date of death of the opposite party No.3 was unknown to the parties and the plaintiffs came to know such fact only getting a death certificate on May 6, 2011 from the Kamarhati Municipality and as such, the decree was passed against a dead person. The petitioners filed an application for expunge of the name of the opposite party No.3 also.