Ruma Pal, J. - (1.) The appellant is the defendant No. 3 in a suit filed by the respondent No. 1. The suit filed by the respondent No. 1 involves immovable property at Alipore (referred to as the suit property) admittedly outside the jurisdiction of this Court.
(2.) It is claimed in the plaint that the suit property along with other properties was the subject matter of a deed of trust dated 8th March, 1951 created by one Amarendra Nath (referred to as the Settlor). The Settlor's son Sailendra Nath was the sole trustee. The beneficiaries of the trust are the two sons of Sailendra Nath namely, Subir and Gautam, the defendant No. 2 and the plaintiff respectively, in the suit. Sailendra Nath died on 23rd November, 1990. According to the plaintiff he subsequently came to know that Sailendra Nath had in abuse of his powers as a trustee illegally transferred the plaintiff's share in the suit property to the defendant No. 2 by deed of gift dated 18th June, 1971 when the plaintiff was a minor and behind the plaintiff's back. It is the further case in the plaint, that a suit was filed by the defendant No. 1 who is a major shareholder of the defendant No. 3 against the defendant No. 2, in this High Court being Suit No. 42 of 1980. According to the plaintiff a collusive decree was passed in the suit on 22nd May, 1980 pursuant to which the defendant No. 2 sold the entire suit property to the defendant No. 3 at a gross under value. A deed of conveyance was executed on 14th February, 1981 by the defendant No. 2 transferring the suit property to the defendant No. 3. On 6th December, 1992 the plaintiff filed a suit before the Assistant District Judge at Alipore within the jurisdiction of which the suit property is situated, challenging the deed of gift dated 18.6.71 in favour of the defendant No. 2 as well as the conveyance dated 14.2.81 in favour of the defendant No. 3 and claiming the right to possession of the suit property under the trust. In 1996 an application was made in Title Suit No. 77 of 1992 by the defendant No. 3 under Order 7 Rule 11 of the Civil Procedure Code for rejection of the plaint. The plaintiff also filed an application under Order 7 Rule 10 read with Section 151 of the Civil Procedure Code for permitting the suit to be withdrawn for presentation to the Calcutta High Court. The plaintiff's application was allowed on contest by an order dated 16th April, 1996.
(3.) The plaintiff filed this suit in May 1996 in the High Court on the same cause of action as the Alipore Suit. In Paragraph 16 of the plaint it has been stated that since the validity of an order and the decree passed by the High Court in Suit No. 42 of 1980 had been called in question, by virtue of the Decree and Order Validation Act, 1936, the High Court had the jurisdiction to try the suit. The suit was filed with leave under Clause 12 of the Letters Patent.;