SHEFALI PODDAR Vs. MONOTOSH PANJA

JUDGEMENT

(1.) One Mahamaya was the original 16 annas owner of the property in question. She mortgaged such property to one Kalipada. Kalipada was holding such property as a benamdar of one Priyabala. Mahamaya was not in a position to pay the amount as per mortgage deed. As a result whereof, Kalipada claimed to be the owner of the land and instituted an ejectment suit against Mahamaya. However, even after obtaining ejectment decree, Kalipada did not execute the same, but, allowed her to continue in possession. After death of Kalipada, Priyabala transferred 16 annas share in the property to Mahamaya on 08.12.1962 and on the same day, by a deed of gift, she retransferred the property to one Anil. Anil instituted a suit for declaration and injunction in the year 1966, being Title Suit No. 674 of 1966. Such suit was dismissed for default on 16.02.1970. Anil transferred 16 annas share of the property to one Shefali by a deed of gift, who is the defendant/appellant herein. One Tarasundari, daughter of first wife of Kalipada transferred her alleged 1/3rd share in respect of the self-same property to the plaintiffs/respondents herein. Thereby, the suit arose. The suit is in the nature of partition. The learned Judge of Court of first instance dismissed the suit by taking a view that possession by assertions of open and hostile title and of ouster to the knowledge of the other owners. The case of the plaintiffs/respondents is that there are three share-holders of Kalipada's property having 1/3rd share each. Tarasundari, daughter of the first wife is holding 1/3rd share. Priyabala, second wife, is holding 1/3rd share and Malina, daughter of first wife is holding 1/3rd share. Thus, Priyabala cannot transfer 16 annas share in the property of Kalipada to Mahamaya consequently to Anil and further consequently to Shefali. In other words, Shefali cannot seize and possess 16 annas share in the property. However, the Court of first instance categorically held as follows:

(2.) The question of benami transaction is not before me. The only point struck mind of the learned Judge of the first appellate Court to that the adverse possession was arrested between the period of filing of the suit for declaration of injunction by Anil in the year 1966 till its dismissal for default on 16th February, 1970. Therefore, there is no proof of adverse possession for consecutive 12 years. The relevant portion of the judgment is as follows :

(3.) Therefore, this appeal arises in the form of First Miscellaneous Appeal. Technically speaking in the order of remand, an appeal is to be called as First Miscellaneous Appeal at the second appellate stage whereas the decree reversed finally by the first appellate Court, it will called as Second Appeal. Little analysis is required in this respect. Order 41 Rule 23 of the Code of Civil Procedure is governing the filed in respect of remand of the case by the appellate Court in respect of preliminary point wherein Rule 23A, of the Code of Civil Procedure is governing the field other than preliminary point. Even in such case, the appellate Court shall have the same power as it has under Rule 23 of the Code of Civil Procedure. In the instant case, decree passed in the preliminary form in a partition suit. The suit was sent back on remand for further steps. Therefore, in effect, it is a reversal decree. Yet at the time of admission of the appeal by a Division Bench of this Hon'bie Court in presence of the respondents, it was recorded that the order of remand was passed by the appellate Court. When it is recorded as an order of remand by a Division Bench, the same is to be heard as First Miscellaneous Appeal'alone. Therefore, no question of technicality is left open for me to consider leaving aside scope of adjudication. The point is that whether the adverse possession of Anil (Sri Anil Mukherjee) is arrested by the suit instituted by him which was dismissed for default or not.