Tuesday, 10 November 2015

Whether it is necessary to make other defts party in appeal if appeal is filed by one deft?

 Moreover, I am of the considered view that the appeal as filed
is not properly constituted. As pointed out the suit was filed by the
three plaintiffs against four defendants. After dismissal of the suit
the three plaintiffs filed an appeal against the four defendants. That
appeal by the plaintiffs was allowed and a decree had been passed
against all the defendants. Even if some of the defendants may not
challenge the decree, in case any one of the defendants challenge
the decree then all the parties to the suit should have been made
parties in the appeal.
 In Tripura, sub-rule 3 to Order XLI Rule 14 C.P.C. as amended
and applicable to Gauhati High Court is applicable and this provides
that the Appellate Court may make an order dispensing with the
service of such notice on any respondent who did not appear either
at the hearing in the court whose decree is complained of or in any
proceedings subsequent to the decree provided further that the
Court may require a notice of the appeal to be published in any
newspaper. This does not mean that all the parties should not be

made respondents. There is a decree against defendants 2 to 4,
namely Shri. Dilip Kumar Deb, Shri. Manik Lal Das and Murari
Mohan Das. This decree if it has to be set aside must be set aside
in favour of all the defendants and this cannot be done without
them being made parties.
THE HIGH COURT OF TRIPURA
A G A R T A L A
RSA NO. 10 OF 2006
Smt. Gita Deb,

 – V e r s u s –
 Smti. Smt. Gauri Das,

BEFORE
HON’BLE THE CHIEF JUSTICE MR. DEEPAK GUPTA

Delivery of judgment
and order : 21.07.2015
Citation; AIR 2015 (NOC)1189 TRIPURA


Briefly stated the facts of the case are that Madan Gopal ShilC
Karmakar along with his daughter Gouri Das and one Tridib Dey
filed a suit against the defendant (present appellant) Gita Deb, Dilip
Kumar Deb, Manik Lal Das and Murari Mohan Das the last two2
being the sons of Madan Gopal Shil Karmakar. It is not disputed that
Madan Gopal Shil Karmakar was the owner of the schedule land. He
filed the suit claiming that he had sold portion of the suit land at
Serial plot No. 1 to his daughter Gita Deb and Serial plot No. 2 of
the suit land to plaintiff No.2 Tridib Dey along with other lands vide
two separate sale deeds dated 21.03.1998. According to him, he
put the plaintiffs 1, 2 and 3 in possession of the suit land. The case
of the plaintiff further is that the defendant 1 and 2 being husband
and wife tried to forcibly take possession of the suit land on the
strength of sale deeds purported to have been executed by the
defendants 3 and 4 (sons of the plaintiff No.1) in favour of the
defendant No.1 Gita Deb on the strength of some Power of
Attorneys purported to have been executed at Gauhati on
28.08.1996 by plaintiff No.1 in favour of defendant Nos.3 & 4. It is
alleged that on the basis of this Power of Attorney defendant No.4
executed one sale deed in favour of defendant No.1 on 29.11.1996
and defendant No.3 executed another sale deed in favour of
defendant No.1 on the same date. The case of the plaintiff is that
he was not aware about these sale deeds or the Power of Attorney.
His case is that this Power of Attorney is totally forged and he has
no knowledge of the same.
2. It is further the case of the plaintiff that some dispute arose
between defendant 3 and 4 with regard to the manner in which the
money of these sale deeds was to be divided and then the plaintiff
came to know about the forged Power of Attorney and he
accordingly lodged a criminal case against the defendants at P.S.
Dharmanagar and finally GR Case 326 of 1999 was registered. The

case of the plaintiff is that the Power of Attorney was sent for
examination on the hand writing expert. The defendants contested
the suit and raised a number of objections. They pleaded that the
suit was not within limitation. It was also pleaded that the suit as
filed for declaration and possession was not maintainable without
first getting the sale deeds and Power of Attorney set aside. The
learned trial court framed the following issues in the suit :
“1. Is the suit maintainable in its present form ?
2.Whether the plaintiffs have any right, title, interest
over the suit land?
3. Whether the Power of Attorney bearing No.3790
dated 28.8.96 is the effect of forgery/forged
document and not binding upon the plaintiff ?
4. Whether the sale deeds bearing Nos. 1-3680 dated
29.11.96, 1-3679 dated 29.11.96 are fraudulent and
in-effective?
5. Whether the plaintiffs are entitled to the decree as
prayed for ?
6. Whether the parties are entitled to any other
relief/reliefs ?”
/Additional Issue/
1. Whether the suit is barred by the law of
limitation ?”
3. The trial court decided additional issue No.1 against the
plaintiff by holding that without seeking relief of cancellation of the
sale deeds the plaintiff could not file a suit for possession and since
the limitation for cancellation of the sale deeds was governed by
Article 59 of the Limitation Act the suit was barred limitation. On

merits the trial court held that the Power of Attorney was a valid
one and not a forged document and accordingly dismissed the suit.
4. All the three plaintiffs filed an appeal and the learned
Additional District Judge, North Tripura, Dharmanagar by a
judgment dated 02.12.2005 in Title Appeal 19 of 2005 allowed the
appeal and decreed the suit of the plaintiffs. The learned lower
appellate court held that the Power of Attorney was a forged
document. It further held that since the Power of Attorney was a
forged document the sale deeds executed on the basis of the Power
of Attorney were void ab initio , the suit filed on the basis of title
was within limitation.
5. Aggrieved by this judgment only Gita Deb has filed the
present appeal and in this appeal only Madan Gopal Shil Karmakar,
Gouri Das and Tridib Dey were arrayed as respondents. Dilip Kumar
Deb, Manik Lal Das and Murari Mohan Das who were defendants 2
to 4 in the suit have not been made parties in the appeal.
6. This appeal was only admitted on the following substantial
question of law.
“Whether the power of attorney on the basis of which
the suit land was transferred is a valid one?”
7. At the stage of hearing Sri DK Biswas submitted that in fact
the main question of law was whether a suit for possession and
declaration on the basis of title was maintainable without first
getting the sale deeds executed by Manik Lal Das and Murari
Mohan Das, sons of the plaintiff in favour of Gita Deb set aside.

8. On behalf of the respondents it has been urged that the
appeal itself is not properly constituted because Dilip Kumar Deb,
Manik Lal Das and Murari Mohan Das have not been impleaded as
parties in the appeal and the decree is indivisible and without the
other being made parties the appeal itself is not maintainable. Sri
Sankar Deb, learned senior counsel for the respondents also urged
that the sale deeds executed by Manik Lal Das and Murari Mohan
Das on the basis of the forged power of attorney were void deeds
and need not be set aside and in this behalf he relied upon the
judgment of the Delhi High Court in Sanjay Kaushish Vrs. D.C.
Kaushish and others : AIR 1992 Delhi 118 and judgment of the
Andhra Pradesh High Court in Suraneni Lakshmi Vrs. B.
Venkata Durga Rao and another : 2012 STPL (LE-Civil)
49841 AP.
9. As far as the Delhi High Court judgment is concerned, I am of
the opinion that may not be strictly applicable since that was a
judgment delivered to decide an issue as to whether the plaint
should be rejected under Order VII Rule 10 of the C.P.C. However,
the judgment of the Andhra Pradesh High Court is definitely
relevant. Para 12 & 13 of the said judgment read as follows:-
“12 In fact, it is the consistent view of the courts with
regard to void documents. In this case, the document
as such is not void since it was executed by the
plaintiff but the challenge is on the ground that it
was not out of free will and it was by fraud and
coercion. The suit was filed by the plaintiff for a
declaration of this title to the property and
injunction. It is needless to say that while considering

the relief in any suit the court has to consider the
allegations in the plaint and grant relief. If in
substance, the allegations in the plaint clearly goes
to show that as to how the documents were obtained
and not enforceable being vitiated and a declaration
is sought for title, the court has to take into
consideration such allegations while granting the
relief and a declaration if granted by the court is
substantially a declaration about the binding nature
and validity of the sale transactions.
13. It cannot be lost sight that suit for declaration of
title to be decided by a Court takes into its fold,
consideration of several factors as to how the plaintiff
is entitled for declaration of title. In such cases
the plea of the defendants about the validity and
binding nature and enforceability of any document
defeating the title of the plaintiff have also to be
considered. In such cases, the court naturally views
the evidence on both sides leaving apart the frame of
the suit. Therefore, the lower court found that though
specific cancellation is not asked, the declaration of
title is as good as a relief of cancellation of the sale
deeds and found that the suit is not bad.”
10. The law is that if pleadings are there and parties are aware
with regard to the dispute then merely because no declaration is
sought is not a ground to reject the plaint itself. Issue No.3 as
framed clearly sets out the dispute whether the power of attorney
is a forged document and issue No. 4 is really whether the sale
deeds are ineffective. Therefore, the parties were aware that these
are the two main issues in the suit and, therefore, in my opinion,

even if no specific declaration was sought the parties being aware
about the dispute decree for possession can be passed if it is held
that the sale deed is void, fraudulent and ineffective.
11. The learned lower appellate Court has given a finding of fact
that the power of attorney is a forged document. This is a pure
finding of fact and cannot be overturned and set aside in second
appeal.
12. Moreover, I am of the considered view that the appeal as filed
is not properly constituted. As pointed out the suit was filed by the
three plaintiffs against four defendants. After dismissal of the suit
the three plaintiffs filed an appeal against the four defendants. That
appeal by the plaintiffs was allowed and a decree had been passed
against all the defendants. Even if some of the defendants may not
challenge the decree, in case any one of the defendants challenge
the decree then all the parties to the suit should have been made
parties in the appeal.
13. Order XLI Rule 14 of the C.P.C. provides that the Appellate
Court if it decides not to dismiss the appeal under Order XLI Rule 11
should send notice to the respondents of the date of hearing of the
appeal.
14. In Tripura, sub-rule 3 to Order XLI Rule 14 C.P.C. as amended
and applicable to Gauhati High Court is applicable and this provides
that the Appellate Court may make an order dispensing with the
service of such notice on any respondent who did not appear either
at the hearing in the court whose decree is complained of or in any
proceedings subsequent to the decree provided further that the
Court may require a notice of the appeal to be published in any
newspaper. This does not mean that all the parties should not be

made respondents. There is a decree against defendants 2 to 4,
namely Shri. Dilip Kumar Deb, Shri. Manik Lal Das and Murari
Mohan Das. This decree if it has to be set aside must be set aside
in favour of all the defendants and this cannot be done without
them being made parties.
15. In view of the above discussion, I find that no question of law
must lesser substantial question of law arises in this appeal. I am
also of the view that the appeal itself is not properly constituted
since all the parties in the suit have not been arrayed as
respondents in the appeal.
16. The second appeal is accordingly dismissed. No order as to
costs.
17. Send down the lower court records forthwith.
 CHIEF JUSTICE
 sabyasachi
RSA 10 of 2006 Page 8 of 8
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