AMAR NATH KUNDU Vs. NIHARBALA MANNA

JUDGEMENT

(1.) This first appeal is at the instance of the plaintiff in a suit for declaration and injunction and is directed against the judgment and decree dated 6th December, 2001 passed by the learned Judge, Tenth Bench, City Civil Court at Calcutta in Title Suit No.2375 of 1985 by which the learned Trial Judge dismissed the suit.

(2.) Being dissatisfied, the plaintiff has come up with the present first appeal. The case made out by the plaintiff was that he was a thika tenant in respect of one of the huts being the hut No.6 of the premises No.162/1 Bepin Behary Ganguly Street, Calcutta, P.S. Muchipara, under one Gopendra Krishna Kundu Chowdhury, the predecessor-in-interest of the defendant Nos.2 to 6. After the promulgation of the Calcutta Thika Tenancy (Acquisition and Regulation) Act, the suit property vested in the State of West Bengal and he became a direct tenant under the State. The defendant Nos.2 to 6, even after the date of vesting, by an alleged deed of sale dated 17th February, 1984 transferred a portion of the thika tenanted property in favour of the defendant No.1 by virtue of which the defendant No.1 claimed to be the owner of a portion of the said property which included the thika tenanted portion of the plaintiff. The plaintiff alleged that the defendant No.1 was raising objection to the plaintiffs "â„¢ application for supply of electricity from C.E.S.C. and was also creating impediment in installation of electric meter and fixing boundary wall of the western portion of the property. Hence, the suit was filed for declaration that the purported deed of sale dated 17th February, 1984 between the defendant Nos.2 to 6 in one hand and the defendant No.1 on the other was invalid, inoperative and not binding upon the plaintiff and for permanent injunction restraining the defendant No.1 including his men, agent and servants from interfering in anyway with his peacefully enjoyment of the thika tenanted property of the plaintiff. The suit was contested by the defendant No.1 by filing written statement thereby denying the material allegations made in the plaint and according to the defendant No.1, he purchased the property from the defendant Nos. 2 to 6 and by virtue of such purchase, acquired absolute title of the property. The portion purchased by the defendant No.1, according to him, was not part of the thika tenanted property but was in actual possession of the defendant Nos.2 to 6 as owner. The defendant No.1 denied encroachment upon the plaintiffs "â„¢ portion. The maintainability of the suit was also challenged.

(3.) In spite of the fact that three witnesses were examined on behalf of the plaintiff and further three on behalf of the defendant No.1, the learned Trial Judge dismissed the suit not on merit but on some technical grounds. The first reason assigned by the learned Trial Judge was that although the suit was filed by Amar Nath Kundu, the verification and affidavit had been affirmed by one Smt Padmabati Pandit as constituted attorney unaccompanied by any documentary evidence that she was really the constituted attorney of the plaintiff. Therefore, the plaint as it stood, according to the learned Trial Judge, the suit was liable to be dismissed. The second reason was that although the plaintiff wanted to have a declaration that he should get electricity in his thika tenanted property from C.E.S.C., the said C.E.S.C. had not been made party and as such, no direction could be given upon C.E.S.C. Thirdly, it was pointed out that the plaintiff asked for declaration that the deed dated 17th February, 1984 between defendant Nos. 2 to 6 and the defendant No.1 was illegal, invalid and inoperative and should be cancelled but according to Section 34 of Specific Relief Act, the plaintiff cannot sue for cancellation of a deed in which he is not a party and he could, at best sue for a declaration that the deed was not binding on him. In the present case, according to the learned Trial Judge, the plaintiff had wrongly chosen both the reliefs, namely, cancellation of the deed and for declaration that the sale was not binding upon him in the same breath, which is not proper. The learned Trial Judge further held that in the framework of the suit, the plaintiff was not entitled to such declaration unless prayer for recovery of possession was made. The learned Trial Judge, however, did not decide the other issues on merit involved in the suit.