KABIRUDDIN MALLICK Vs. ABDUL SATTAR MALLICK

JUDGEMENT

(1.) The second appeal was against a judgment of affirmation. Before the Courts below the respondent established their title in a suit for declaration and injunction. In second appeal, it was contended that the findings of title arrived at by the Courts below were erroneous since the Courts below did not take into consideration evidence filed by way of documents which were marked as exhibits in the suit and as such the judgment impugned warranted interference in second appeal. The second appeal was admitted by an order dated November 16, 1994 on the substantial question of law whether "the court of appeal below committed a substantial error in arriving at a finding about nonproduction of any documentary evidence on the part of the defendantappellant in support of his case of surrender and creation of a new tenancy when, in fact, such documents are claimed to have been filed vide, exhibits V, B, D, E, M and N."

(2.) Mr. D.P. Adhikari learned Advocate appearing on behalf of the appellant contended that, the suit was for declaration and injunction. The suit was amongst private parties. The respondent was exercising rights as a raiyat in respect of the immovable properties concerned. According to him, the State of West Bengal was a necessary and a proper party since the record of rights maintained by the State of West Bengal was up for consideration in the suit. Since, the State of West Bengal was not a party to the suit, according to him, the suit was bad for non-joinder of necessary and proper party. In support of the proposition that, the State was a necessary a proper party Mr. Adhikari relied upon (Jugraj Singh & Anr. v. Jaswant Singh & Ors., 1971 AIR(SC) 761).

(3.) He contended that, the First Appellate Court did not consider Exhibit 'V', 'B', 'D', 'E', 'M' and 'N' which were documentary evidence when the First Appellate Court came to a finding that no documentary evidence was produced on behalf of the appellant to establish his title. He submitted that, such documentary evidence was required to be apprised by the Courts below. The Courts below not having apprised such evidence on record the suit should be remanded. On remand it should be transferred to the tribunal established under the West Bengal Land Reforms and Tenancy Tribunal Act. In that context, he referred to Section 9 under the West Bengal Land Reforms and Tenancy Tribunal Act.