Utpal Kundu Vs Uttam Kundu — Calcutta HC (2025) — LawSathi Research

Utpal Kundu Vs Uttam Kundu — Calcutta HC (2025) — LawSathi Research

What the court decided

AI extract

Outcome

Appeal disposed of with the impugned judgment and order dated 29.01.2024 set aside; suit restored to the file of the Civil Judge (Senior Division) at Jalpaiguri; matter remanded to frame an additional issue on the lifetime transfer of the 132 sq. ft. shop room (under the D.I. Fund); parties permitted fresh evidence and recall/re-examination of witnesses; Trial Court may consider permitting amendment of pleadings; connected pending applications disposed of; no order as to costs.

Issue for consideration

Whether the Trial Court ought to have framed (and the Court below must now frame) an additional/specific issue on whether the shop room comprising 132 sq. ft. under the D.I. Fund was transferred to the plaintiff by his father during his lifetime, and therefore belongs in the hotchpot/ejmali estate for partition.

Court's answer

The impugned judgment of the Trial Court is set aside.

Ratio / Principle

The matter is remanded to the Court below, which shall frame an additional issue as to whether the shop room comprising 132 sq. ft. under the D.I. Fund was transferred to the plaintiff by his father during his lifetime.

Key takeaways

On remand, if the parties wish to lead fresh evidence on the said issue, they may be permitted to do so; the Court below shall consider the matter afresh.ratio¶13
Witnesses who already deposed in the suit may be once again recalled and re-examined by the Trial Court.ratio¶13
As a matter of abundant caution, the Trial Court may consider granting the parties leave to amend their pleadings before evidence is led.ratio

Detailed headnote1 paragraphs

FAT 2 of 2024 (Circuit Bench at Jalpaiguri, decided 21.05.2025) — Utpal Kundu v. Uttam Kundu. The judgment and order dated 29th January, 2024 of the Civil Judge (Senior Division), Jalpaiguri, dismissing the plaintiffs' partition suit because a 132 sq. ft. shop room was not included as ejmali property of the parties' father, was set aside. The appeal was disposed of with a remand: the Court below is directed to frame an additional issue on whether the shop room (under the D.I. Fund) was transferred to the plaintiff by his father during his lifetime, to consider the matter afresh, to permit fresh evidence and recall/re-examination of witnesses already examined, and may grant leave to amend pleadings. Suit restored to the file of the Civil Judge (Senior Division), Jalpaiguri; connected pending applications disposed of; no order as to costs.

21.05.2025 Court No.1 Item No.13 pk/AP

HIGH COURT AT CALCUTTA CIRCUIT BENCH AT JALPAIGURI

FAT 2 of 2024 Utpal Kundu Vs. Uttam Kundu

Mr. Bikramaditya Ghosh Mr. Debojit Kundu

… For the Appellant.

Despite repeated service, respondent is not represented today. Affidavit of service filed in Court today is taken on record.

The instant appeal is directed against a judgment and order dated 29^th January, 2024 passed by the Civil Judge (Senior Division), Jalpaiguri. The suit was for partition. The suit was dismissed on the ground that one shop room comprising of 132 sq. ft. was not included by the plaintiff as ejmali property of the father of the parties.

Mr. Ghosh, learned counsel for the appellant submits that the said shop room was already conveyed by the father during his lifetime to the plaintiff/appellant. This has been deposed by the appellant in the trial. Since the defendants in the suit have challenged non-inclusion of the said shop room

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in their written statement, a specific issue ought to have been framed by the Trial Court on this score.

It is only if such issue is framed that the parties could not only led evidence but also advanced arguments giving an opportunity to the Trial Judge to pronounce thereupon i.e. as to whether the said shop room comprising in 132 sq. ft. could or should not have been part of the hotchpot of the properties of the father of the parties.

This Court is of the view that impugned judgment is liable to be set aside. The matter is remanded back to the Court below to frame an additional issue as to whether the shop room comprising of 132 sq. ft. under the D.I. Fund was transferred to the plaintiff by his father during his lifetime.

The Court below shall consider the matter afresh if the parties wish to lead any fresh evidence on the said issue, they may be permitted to do so. The witnesses already deposed in the suit may be once again recalled and re-examined by the Trial Court.

The Trial Court is requested to take up the matter and dispose of the suit as expeditiously as possible. As a matter of abundant caution, the Trial

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Court may consider granting leave to the parties to amend pleadings before evidence is led.

The suit is restored to its file of the Civil Judge (Senior Division) at Jalpaiguri.

With the aforesaid observations, the appeal is disposed of.

Consequently, all connected pending

applications, if any, are also disposed of.

There shall be no order as to costs.

All parties shall act on the server copy of this order duly downloaded from the official website of this Court.

(Rajasekhar Mantha, J.)

(Ajay Kumar Gupta, J.)