Prasenjit Mandal, J. - (1.) THIS second appeal is at the instance of the plaintiff/appellant and is directed against the judgment and decree dated July 31, 1995, passed by the learned Additional District Judge, 2nd Court, Burdwan in Title Appeal No. 22/06/1994 thereby affirming the judgment and decree dated February 8, 1994 passed by the learned Assistant District Judge, 2nd Court, Burdwan in Title Suit No. 48 of 1992/107 of 1987. The plaintiff appellant herein instituted the aforesaid suit for declaration of title, permanent injunction and other reliefs. He has contended that his father being the owner of the suit property as described in the schedule to the plaint created a Debattar trust with regard to some of his properties by a registered deed in 1947 and donated the Plot No. 6753 together with another Plot in Mouza - Radhanagar and various lands. The suit property being Plot No. 6684 is a homestead having a two storied building with a garage thereon and the same always remained the property of the owner. Thereafter his father executed a will of the suit property in favour of the plaintiff along with other properties and then the plaintiff obtained letters of administration in respect of the suit property and thus became the owner of the suit property. After the death of the author of the trust, the plaintiff being his son became a trustee as per deed and because of his ill -health, he entrusted the property to the defendant No. 4 for management and thus the defendant No. 4 began to look after the trusted properties. The suit property was not a subject matter of the trust and it is not at all the Plot No. 6753 and as such when the dispute arose regarding the identification of the Plot, the plaintiff was compelled to file the said suit.
(2.) UPON recording evidence, the learned trial Judge dismissed the suit holding that the plaintiff had not sought for adequate relief including the cancellation of the deed. While disposing of the appeal preferred by the plaintiff, the appellate court endorsed the same view holding that there was a glaring incongruity in the plaint case and that the description of the suit property did not tally with that. Thus, the appellate court has held that unless the specific Plot over which the two storied building is situated is decided, the claim of the plaintiff cannot be considered and as such he has observed that the plaintiff is required to bring a comprehensive suit in proper frame and so he has dismissed the appeal. Being aggrieved this second appeal has been preferred. At the time of admission the following substantial questions of law have been framed for decisions: - I. For that the Courts below in view of the pleadings of the plaintiff and the scope of the suit erred substantially in law by not holding that it was not necessary for making a prayer for cancellation of the deed of trust dated 5th August, 1976. II. For that the Courts below erred in law by holding that the suit is not maintainable in the absence of prayer for cancellation of the Deed of Trust without considering the substance of the plaint. III. For that the courts below on the basis of the materials on records should have held that the suit property could never form the subject matter of the Trust and it was due to a bonafide mistake the suit property was mentioned in the Deed executed by the Plaintiff. IV. For that the courts below have failed to consider that it was not necessary for plot No. 6753 to be mentioned in the will in respect of secular properties executed by Bisalaksha Bose as the said plot was a part of the Trust Property. V. For that the courts below erred in law in not holding that the persons in possession of the bata plots of plot No. 6684 were not necessary parties to the said Suit as no relief was prayed for against him or them. VI. For that the courts below erred in law in not holding that there was no anomaly in the description of the suit property. VII. For that the Judgment and decree of the court of appeal below is perverse and bad in law for non -consideration of the materials on record inasmuch as it failed to draw proper presumption of possession of the suit property from the R.O.R. which was recorded in the name of the Plaintiff/Appellant. VIII. For that the court of Appeal below failed to appreciate that it was not necessary to mention in the impugned deed of Trust, since when the tenancy to Defendant No. 2 commenced and when the alleged structure were built. IX. For that the courts below erred in law by holding that there is inconsistency apparent on the face of the records. X. For that the Judgment and decree of the Court of Appeal below is otherwise bad in law as it proceeds in disregard of the fact that all the issues framed by the learned Assistant District Judge, 2nd Additional Court at Burdwan, were not discussed in the Judgment delivered by him on 21st February, 1994. XI. For that the courts below in dismissing the suit embarked upon irrelevant consideration beyond the scope of the plaint and accused grave miscarriage of justice. XII. For that in any event the learned courts below erred in law in not allowing an opportunity to amend the plaint. XIII. For that the learned courts below erred substantially in law by not holding that it is the substance and not the firm which determine the maintainability of a suit. XIV. For that the learned courts below erred in law by not giving the plaintiffs such relief as he was entitled to instead of proceeding on technical grounds. XV. For that the Judgment and Decree of the court of Appeal below is bad in law as it dismissed the Appeal of the Plaintiff without reversing the finding of the Trial Court.
(3.) UPON hearing the learned counsel for the appellant and on going through the materials on record, I find that the suit was dismissed ex parte. The defendants/respondents did not contest the suit and on the basis of the evidence on record, the learned trial Judge was of the view that as the plaintiff did not pray for cancellation of the deed or declaration that the deed was void or inoperative, the reliefs as sought for cannot be granted in favour of the plaintiff and as such he has dismissed the suit for such technical defects. While disposing of the appeal, the appellate court has also held the same view that no prayer has been made for cancellation of the impugned deed of trust and as such there is a technical defect in the suit and as such he has endorsed the same view as made by the learned trial Judge. Thus, I find that the main question relates whether the two storied building referred to in the plaint relates to Plot No. 6684 or the Plot No. 6753. This could be decided only by appointment of Survey Passed Commissioner.;