- (1.) THESE two First Miscellaneous Appeals have arisen out of the judgment and decree dated December 5, 2005 passed by the learned Additional District Judge, 1st Court, Howrah thereby allowing the two appeals being Title Appeal No.s 14 of 2000 and 17 of 2000 arising out of the two suits (heard analogously), namely, Title Suit No.204 of 1997 and Title Suit No.104 of 1997. The Title Suit No.204 of 1997 was sent back on remand for fresh trial in the light of the judgment passed by the Appellate Court as well as in the misc. appeal being Misc. Appeal No.16 of 1998. Being aggrieved by such orders, these two appeals have been preferred by the two parties.
(2.) THE short facts leading to the filing of the two appeals are stated below:- i) One Guru Prosad Das got 2 Cottahs 6 Chittacks 15 sq. ft. of land comprising holding No.44/A, Hem Chakraborty Lane in the Partition Suit No.7 of 1957. ii) Guru Prosad Das executed a Registered Sale Deed in favour of Baridi Bilas Das. THE said Baridi Bilas Das mutated his land with the Municipality and the Holding No. became 44/A/1, Hem Chakraborty Lane. iii) Out of the said land, Baridi Bilas Das sold 1 Cottah 12 Chittacks and 35 sq. ft. of land by a Registered Sale Deed dated December 12, 1980 to Satyendra Nath Adak with right to use of the common passage as described in Schedule C by putting scaffold on the C Schedule property for construction and repairing the suit property and this property is described in Schedule B to the plaint in the suit. iv) THEreafter, on May 7, 1982, Satyendra Nath Adak transferred his purchased share to Madan Mohan Sadhukhan with the same right to use the passage described in Schedule C for construction and repairing of B Schedule by putting scaffold of C Schedule passage. v) Ranadhi Das purchased the remaining property from the heirs of Baridi Bilas Das by a Registered Sale Deed dated September 6, 1994 subject to the right of the passage being C Schedule property given by Baridi Bilas Das in favour of the transferee. vi) Ranadhi Das instituted a suit being Title Suit No.204 of 1997 before the learned Civil Judge (Junior Division), 7th Court, Howrah against Madan Mohan Sadhukhan for a decree of permanent injunction praying for restraining the defendant from using C Schedule suit property in any manner whatsoever and from obstructing the construction of the boundary wall and the entrance door C Schedule property contending, inter alia, that the extent of his purchased land is upto the pucca wall of the shed by the side of 43 wide strip in land by Southern and there is an opening towards the said strip of land. vii) THE plaintiff filed an application for temporary injunction praying for restraining the defendant Madan Mohan Sadhukhan from using the strip of land contending, inter alia, that C Schedule property is a part and parcel of A Schedule property. viii) THE learned Trial Judge while disposing of the said application directed that both the parties should maintain status quo in respect of the C Schedule property. ix) THE plaintiff, Ranadhi Das filed an appeal being Misc. Appeal No.16 of 1998 against the said order while disposing the said appeal, the order of the learned Trial Judge was modified to the extent that the respondent was restrained from disturbing the peaceful possession of C Schedule property. THE respondent was further restrained from disturbing the plaintiff from constructing bamboo fencing over the Northern side of CSchedule property and also from putting any gate on the mouth of Hem Chakraborty Lane, that is, the disputed CSchedule Property. x) THEreafter, in 1998, Madan Mohan Sadhukhan filed a title suit being Title Suit No.104 of 1998 against Ranadhi Das for a decree of declaration that the plaintiff is the owner of the schedule property mentioned as per deed and plan and/or injunction restraining the defendant, his men and agents from raising any bamboo fencing encroaching the plaintiff land on the Southern side of the property. In that suit, the defendant filed a counter-claim praying for demolition of the construction on the ground that the construction was made without leaving side space and the said construction was contrary to the sanctioned plan. xi) THE defendant / appellant preferred a revisional application being C.O. No.2098 of 1998 which was allowed by setting aside the aforesaid order of the Appellate Court. xii) THE plaintiff filed a Special Leave Petition against the aforesaid order of the Honble High Court in C.O. No.2098 of 1998 and the said Special Leave Petition was dismissed. xiii) THE learned Trial Judge heard both the suits analogously. THE Title Suit No.204 of 1997 was dismissed and the suit filed by the defendant / appellant being Title Suit No.104 of 1998 is decreed on contest against the defendant. THE counter-claim filed by the defendant in Title Suit No.104 of 1998 was also dismissed. xiv) Accordingly, two appeals being Title Appeal No.s 14 & 17 of 2000 have been preferred by the plaintiff in Title Suit No.204 of 1997 which was allowed by remanding the case to the Trial Court to decide the suit afresh in the light of the observations made therein and also observations passed in Misc. Appeal No.16 of 1998. xv) Being aggrieved, these two First Misc. Appeals have been preferred by the two parties. Upon hearing the learned Counsel and on perusal of the materials on record, I find that the plaintiff of the Title Suit No.204 of 1997 has contended that Baridi Bilas Das had sold B Schedule property to Satyendra Nath Adak and retained A Schedule property along with C Schedule property as his passage to Hem Chakraborty Lane and this C Schedule property is the only passage for egress and ingress. He has contended that the defendant had no right over the C Schedule property. Per contra, defendant has contended that he purchased the B Schedule property and towards the Southern side of his land, he left 19 as side space for repairing etc. to his premises but the plaintiff of Title Suit No.204 of 1997 or his predecessor, namely, Baridi Bilas Das had no right and title over the C Schedule property. So, there are triable issues to be decided in the suit. THE learned Trial Judge has disposed of the suit in the manner indicated above. What is surprising that the learned First Appellate Court did not address either of the issues. On the other hand, he has framed another issue which is quoted below:- How does the plaintiff Ranadhi Das account for possession and ownership of extra land in the suit property as referred in exbts A, B and I. For the reasons stated above, the dispute is over the side space and for putting encroachment of door etc. on the side space. While disposing of the appeals, the learned First Appellate Court did not come to a clear finding in this respect. The learned First Appellate Court has simply discussed the materials placed by both the parties and what is the lacuna on the part of the Trial Judge. But, he did not come to a clear finding over the dispute. The learned First Appellate Court has given certain directions upon the learned Trial Judge as to how the suit being Title Suit No.204 of 1997 is to be disposed of after remand. With due respect to the learned First Appellate Court, I am of the view that since the First Appellate Court has not arrived at any of the conclusion over the dispute between the parties. The impugned judgment cannot be described as a judgment and decree at all. The manner and contains by which the judgment was delivered by the First Appellate Court cannot be stated to be judgment of the First Appellate Court passed by the learned Additional District Judge which is expected from a high rank of the judicial officer. Since, the judgment does not lay down any findings or conclusions over the matter in dispute and neither of the parties support the additional issue to be framed and I do not find any basis of framing of such additional issues, I am of the view that the impugned judgment cannot be supported at all. I have no other alternative but to send back the appeals on remand for decision afresh by the First Appellate Court on all the issues framed by the learned Trial Judge. The additional issue as framed by the learned Trial Judge need not be framed for decision in the suit for the time being. Accordingly, I am of the view that these First Miscellaneous Appeals succeed and they should be allowed accordingly.
(3.) IN that view of the matter, the two first misc. appeals are allowed. The impugned judgment and decree passed by the learned First Appellate Court in Title Appeal No.s 14 & 17 of 2000 are hereby set aside. The learned First Appellate Court is directed to dispose of the two appeals afresh within a period of three months from the date of communication of the order without fail in the light of the observations made above. Considering the circumstances, there will be no order as to costs.;