Jyotirmay Bhattacharya, J.
Re: CAN 7346 of 2014 (Substitution)
1. Sole appellant, namely, Salil @ Sunil Kumar Sasmal died intestate on 5th June, 2014 leaving behind him surviving his heirs, heiresses and legal representatives as mentioned in paragraph 1 of the application for substitution. All the heirs and legal representatives of the said sole appellant, since deceased, excepting Beauty Mondal, the daughter of the pre-deceased daughter of the sole appellant, are major and sui juris. Beauty Mondal, the minor daughter of the pre-deceased daughter of the sole appellant, is represented by her natural guardian father Swapan Kumar Mondal.
2. The application for substitution has been filed within the prescribed period of limitation.
3. Hence, prayer for substitution of the legal representatives of the sole appellant in the place of the sole appellant, since deceased, is allowed.
4. Let the legal representatives of the sole appellant mentioned in paragraph 1 of the substitution application be substituted in place and stead of the sole appellant by amending the cause title of the memorandum of appeal.
5. Let it be recorded that the vakalatnama of the substituted heirs has been filed along with the substitution application.
Re : F.M.A.T. 187 of 2013.
6. This first miscellaneous appeal is directed against an order of remand passed by the learned Additional District Judge, redesignated Court, Paschim Medinipur, on 11th December, 2012 in Title Appeal No. 133 of 2010 at the instance of the defendant/appellant.
7. We have heard Mr. Saha, learned advocate, appearing for the appellant.
8. After hearing him, we find substance in his contention that the order impugned is not sustainable.
9. Accordingly, we admit the appeal.
10. Immediately after admission of the appeal when the application for stay of further proceeding of the suit filed by the appellant was taken up for hearing, we were invited by Mr. Saha, learned advocate for the appellant and Mrs. Dey, learned advocate, appearing for the plaintiff/respondent/caveator to hear out the appeal itself on merit on the basis of the materials on record before us.
11. Accordingly, we have considered the merit of this appeal by dispensing with the requirement of filing paper books in this appeal.
12. Let us now consider as to how far the impugned order of remand can be sustained in the facts of the instant case.
13. This is a suit where the plaintiffs sought for declaration of their right, title and interest in respect of the suit property upon a declaration that the entries in the R.S. record of rights are erroneous. They have also sought for an injunction for restraining the defendants from disturbing their possession in respect of the suit property.
14. The defendant/appellant appeared in the said suit and contested the same by filing written statement. In the said written statement they challenged the maintainability of the said suit on various grounds, including the ground of non-joinder of necessary parties. They alleged that the suit is barred by limitation. They also made a rival claim of title in respect of the suit property on the basis of the entries in the R.S. record of rights. The learned Trial Judge after considering the pleadings and evidence of the parties, including the documentary evidence, came to the conclusion that the suit is bad for non-joinder of necessary parties. The learned Trial Court held that Khudiram Nayek who was a recorded owner of the suit property as per the R.S. record of right is a necessary party in such a suit. Since Khudiram Nayek has not been joined as a party in the said suit, the learned Trial Judge held that the dispute involved in the said suit cannot be decided in absence of Khudiram Nayek. The learned Trial Judge, thus, held that the suit is bad for non-joinder of necessary parties. The learned Trial Judge also considered the other issues in the suit relating to the rival claims of the parties over ownership of the suit property. Ultimately, the learned Trial Court held that the plaintiff has failed to prove their title in respect of the suit property. Thus, the suit was dismissed.
15. Challenging the said judgment and decree of the learned Trial Judge, the plaintiff/respondent filed an appeal before the learned First Appellate Court. In the said appeal, the appellant filed an application before the learned First Appellate Court seeking leave to prove two documents, namely, the deed of partition and the deed of sale through which they were claiming their title in the suit property. It was stated therein that though those two documents were produced before the learned Trial Judge, but were not admitted into evidence as those documents were not proved by the plaintiff. The plaintiff thus prayed for leave to prove those documents so that those documents can be admitted into evidence and the plaintiff''s claim for title in the suit property is reconsidered after taking into consideration the title deed, i.e. the partition deed and the deed of sale as mentioned above. The learned Appellate Court also found that though those two documents were produced by the plaintiff before the learned Trial Court, but those two documents were not admitted into evidence, as those deeds were not formerly proved by the plaintiff. The learned Appellate Court held that those two documents are vital pieces of evidence which may throw some light on the plaintiff''s claim for title in respect of the suit property. Accordingly, the learned Appellate Court set aside the judgment and decree of the learned Trial Judge and sent the suit back to the learned Trial Judge for retrial of the said suit afresh on remand. The learned Trial Judge was directed to readjudicate these issues involved in the suit after giving an opportunity to the parties for proving those two documents in accordance with law. Leave was also granted to the defendant to amend the written statement in the light of the discussion made in the body of the order of remand.
16. It is rightly pointed out by Mr. Saha, learned advocate, that while disposing of the said appeal, the learned Appellate Court did not consider the legality and/or correctness of the finding of the learned Trial Judge on the issue regarding maintainability of the suit due to non-joinder of the necessary parties. Mr. Saha, thus, argues that if the suit is not maintainable, then no further issue is required to be reconsidered. Accordingly, he submits that the order of remand is bad and illegal.
17. In this context, we have examined the order of remand exhaustively. We find substance in such submission of Mr. Saha. The learned Appellate Court while passing the order of remand did not at all consider the legality and/or correctness of the findings of the learned Trial Judge on the issue No. 4, i.e. the maintainability of the suit for non-joinder of necessary parties. The learned Trial Court while discussing the issue No. 4 categorically recorded his finding that Khudiram Nayek who was recorded owner in the R. S. record of right is a necessary party and in his absence, the suit cannot be decided. Accordingly, the learned Trial Court held that the suit is bad for non-joinder of necessary parties.
18. We fully agree with the submission of Mr. Saha that unless that finding of the learned Trial Judge on the issue of maintainability of the suit is set aside, no further issue need be decided in the said suit as in a suit which is not maintainable, decision on other issues need not be taken.
19. Mrs. Dey, learned advocate, appearing for the plaintiff/respondent in her usual fairness submits that the Appellate Court while passing the order of remand did not consider the legality and/or correctness of that part of the finding of the learned Trial Judge regarding maintainability of the said suit on account of non-joinder of necessary parties. She also concedes in her usual fairness that without deciding the said issue by the Appellate Court, the order of remand ought not to have been passed.
20. In the facts and circumstances as stated above, we set aside the order of remand and send the appeal back to the learned First Appellate Court on remand for reconsideration of the said appeal. While reconsidering the said appeal, the Appellate Court is required to consider as to whether the suit is a defective one on account of non-joinder of necessary parties or not and then decide the said appeal on its own merit afresh after giving reasonable opportunity of hearing to the parties as early as possible, but preferably within a period of six months from the date of communication of this order.
21. The appeal and the connected application are, thus, disposed of.
22. Let this order be communicated to the learned First Appellate Court immediately by the Registry.
