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2026 DAILYLAW 32378 (CAL)

SUBIR BAGAL v. SUBHAJYOTI MAJUMDER AND ORS

CO/2523/2026 · 2026-08-21

Hiranmay Bhattacharyya

body2026

Judgment text

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IN THE HIGH COURT AT CALCUTTA CIVIL REVISIONAL JURISDICTION APPELLATE SIDE Before: The Hon’ble Justice Hiranmay Bhattacharyya C.O. 2523 of 2026 Subir Bagal Vs. Subhajyoti Majumder & Ors. For the Petitioner : Mr. Debjit Mukherjee Mr. Kaustav Bhattacharya …. advocates For the Opposite Parties : Mr. Sayantan Basu, Sr. Adv. Mr. Debdutta Raha …..advocates Heard on : 10.08.2026 Judgment on : 21.08.2026 Hiranmay Bhattacharyya, J.:- 1. This application under Article 227 of the Constitution of India is at the instance of the defendant and is directed against an order being no. 43 dated April 20, 2026 passed by the learned Civil Judge, Senior Division Second Court at Barasat in Title Suit no. 878 of 2018. 2. By the order impugned, the application under Section 10 of the Code of Civil Procedure filed by the petitioner stood rejected. 3. The opposite party filed Title Suit no. 878 of 2018 for recovery of Khas possession against the petitioner herein. Petitioner filed an application for grant of probate of the last will and testament of one Tapan Kumar Ghosh, since deceased, being Misc. Case no. 175 of 2019. The said Misc. Case is pending before the learned District Delegate, Barackpore. 4. Petitioner filed an application under Section 10 of the Code of Civil Procedure praying for stay of all further proceedings in Title Suit no. 878 of 2018 till the disposal of the Probate case being Misc. Case no. 175 of 2019. 5. The learned Trial Judge rejected the application under Section 10 of the Code of Civil Procedure by the impugned order. Being aggrieved, the defendant in Title Suit No. 878 of 2018 approached this Court. 6. Mr. Mukherjee learned advocate appearing for the petitioner submitted that the determination made in the probate proceeding shall have an impact on the decision of the suit for recovery of khas possession filed by the opposite parties against the petitioner. He, thus, submitted that the further proceedings in the suit for recovery of Khas possession should be stayed till the disposal of the probate proceeding. In support of such contention Mr. Mukherjee placed reliance upon the decision of a co-ordinate bench in Indrajit Mukherjee vs. Pradip Kumar Halder reported at (2013) SCC Online Cal 1967. For the same proposition Mr. Mukherjee also placed reliance upon the decisions of the Hon’ble Supreme Court in Nirmala Devi vs. Arun Kumar Gupta and others reported at (2005) 12 SCC 505 and Balbir Singh Wasu vs. Lakhbir Singh and Ors. reported at (2005) 12 SCC 503. 7. Per contra Mr. Bose learned Senior Advocate representing the opposite party nos. 1 and 2 submitted that there is no existence of the probate proceeding at present and, therefore, the learned Judge was right in rejecting the application for stay of all further proceedings of the suit for recovery of possession. Mr. Bose also placed reliance upon an order of the co-ordinate bench passed on 27.08.2018 in CO No. 3033 of 2017 in the case of Sri Binod Prasad vs. Haridas Sen in support of his contention that the suit filed by the opposite party should not be stayed. Page 3 of 8 8. Mr. Bose further placed reliance on an order dated June 11, 2018 passed by the co-ordinate bench in CO 1437 of 2018 in the case of Sri Supriya Saha vs. Sushma Das and others in support of his contention that pendency of a probate proceeding cannot be a ground to stay the suit for eviction. 9. Mr. Bose also placed reliance upon a decision in the case of Amrita vs. Rakesh Kumar reported at (2016) SCC Online Pat 824 in support of his contention that the suit for recovery of possession and probate proceedings are distinct and, therefore, the Title Suit cannot be stayed till the disposal of the probate proceeding. 10. In reply Mr. Mukherjee contended that the petitioner already filed an application under Section 151 of the Code of Civil Procedure praying for recalling the order by which the probate proceeding stood dismissed for default. He further submitted that liberty was granted to the petitioner to approach the learned District Delegate, Barackpore with an appropriate prayer. He, thus, contended that since the recalling application has already been filed and the same is pending before the learned District Delegate, the suit for recovery of possession should be stayed. 11. Heard the learned advocates for the parties and perused the materials placed. 12. It is not in dispute that one Tapan Kumar Ghosh was the original owner of the suit property and the petitioner was inducted as a licensee by the said Tapan Kumar Ghosh. The predecessor-in-interest of the opposite parties namely Pubali Bishnu Majumdar claimed to be the elder sister of the said Tapan Kumar Ghosh. The wife of Tapan Kumar Ghosh predeceased him and the opposite parties claim that upon the death of Tapan Kumar Ghosh the said Pubali Bishnu Majumdar have inherited the suit property being the elder sister of the said Tapan Kumar Ghosh and the said Tapan Kumar Ghosh left behind him no other legal heirs. The said Pubali Bishnu Majumdar filed Title Suit no. 278 of 2018 for recovery of Khas possession in respect of the said property against the petitioner. During the pendency of the said suit Pubali Bishnu Majumdar died and upon her death, the opposite parties have been substituted in place and stead of the deceased plaintiff in Title Suit no. 878 of 2018. 13. The petitioner is contesting the Title Suit no. 878 of 2018 and has also set up a counter claim claiming ownership in respect of the suit property on the basis of a will executed and published by Tapan Kumar Ghosh. The opposite party applied before the learned District Delegate, Barackpore for grant of probate to the last will and testament alleged to have been executed by the said Tapan Kumar Ghosh. Petitioner claims to have been appointed as an Executor and also a Legatee. The said application is registered as Misc. Case no. 175 of 2019(P). 14. The issue that arises for consideration is whether the suit for recovery of Khas possession being Title Suit no. 878 of 2018 should be stayed till the disposal of the probate proceedings. 15. Record reveals that the evidence of the parties in the suit for recovery of Khas possession has been completed and a date for argument was fixed. At that stage the petitioner filed an application for stay of all further proceedings of the suit for recovery of Khas possession till the disposal of the probate proceeding. 16. The probate proceeding, however, stood dismissed for default on 18.03.2026. An application under Section 151 of the Code of Civil Procedure has been filed and such application is pending. 17. At this stage it would be relevant to take note of the decisions cited at the Bar. 18. In Indrajit Mukherjee (supra) the co-ordinate bench held that the determination made in the probate proceeding has some impact on the decision of the suit for recovery of possession upon revocation of license. In the light of the said observation the co-ordinate bench permitted the learned Judge of the Trial Court to proceed with the suit for recovery of Khas possession; to take evidence of the parties but did not allow to proceed with the argument for determination of the suit finally, till the disposal of the probate proceeding. 19. The Hon’ble Supreme Court in Nirmala Devi (supra) after observing that the decision in the probate proceedings on the question of proof of the will shall have a direct bearing on the civil suit, transferred the title suit to the Court of the District Judge where the probate proceeding was pending with a direction to club the title suit and the probate case for being tried together. 20. In Balbir Singh Wasu (supra) the Hon’ble Supreme Court after noting that a large number of issues in the suit for declaration and injunction and the probate proceedings would overlap, was pleased to transfer the title suit to the Court of the learned District Judge where the probate proceeding was pending for clubbing the two proceedings and for disposal of the probate proceedings together with the civil suit. 21. Section 10 of the Code of Civil Procedure states that no Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other Court in India having jurisdiction to grant the relief claimed. 22. From a bare reading of Section 10 it is evident that it is the pendency of the previously instituted suit that constitutes a bar to try the subsequent suit. 23. In the case on hand the suit for recovery of Khas possession is the previously instituted suit and the probate proceeding is the subsequent proceeding. In the application under Section 10 of the Code of Civil Procedure, the petitioner prayed for stay of the previously instituted suit. To the mind of this Court, the provisions of Section 10 of the Code of Civil Procedure do not stand attracted to the case on hand. Page 6 of 8 24. It is now judicially settled that in cases not covered by the provisions of Section 10 of the Code of Civil Procedure, the Court may in exceptional situations pass an order of stay in exercise of inherent powers under Section 151 of the Code of Civil Procedure to make orders ex debito justitiae. 25. It is well settled that in a probate proceeding the Court only declares upon the validity and genuineness of the execution of will in respect of the properties covered in the will. The probate Court cannot investigate or decide the title of the parties. 26. From the aforesaid discussion, it follows that though the nature and scope of a probate proceeding and a title suit may not be the same and identical, but, if it is found that the determination made in the probate proceeding shall have some impact on the decision of the title suit, the title suit can proceed till the stage prior to the stage of argument and the argument and the final decision may be stayed till the disposal of the probate proceedings as observed by the co-ordinate bench in Indrajit Mukherjee (supra). 27. However, in the case on hand this Court is inclined to make a departure from the aforesaid proposition laid down in Indrajit Mukherjee (supra) for the reasons as stated hereinafter. 28. In the suit for recovery of Khas possession the evidence of the parties have been completed and a date for arguments in the title suit has already been fixed and at that stage the petitioner applied for stay of all further proceedings of the title suit till the decision of the probate proceedings. In the meantime the probate suit already stood dismissed and only an application for recalling of the order of dismissal of the probate proceeding is pending. 29. Mere pendency of a recalling application, by no stretch of imagination, can be said to have the effect of reviving the probate proceeding. 30. Therefore, since there is no existence of the probate proceeding in the eye of law at present, this Court is not inclined to pass an order of stay of the title suit which has already reached the stage of argument. This Court holds that the learned trial Judge was right in rejecting the prayer for stay of the title suit. 31. In Binod Prasad (supra) the co-ordinate bench approved the view taken by the learned trial Judge that under Section 10 of the Code of Civil Procedure the previously instituted suit for declaration cannot be stayed on the ground of pendency of the subsequently instituted probate proceeding. There is no quarrel to the aforesaid proposition of law. The said decision supports the view taken by this Court on the issue of applicability of Section 10 of the Code of Civil Procedure to the facts of this case. 32. Whether the provisions of Section 151 of the Code of Civil Procedure could have been invoked in such a situation did not fall for consideration before the co-ordinate bench in Binod Prasad (supra). 33. In Supriya Saha (supra) the mother of the parties executed the will in favour of the petitioner therein and subsequent to the execution of the will, the mother executed sale deeds transferring the same property to the opposite parties. Upon the death of the mother, the petitioner filed an application for grant of probate of the will executed by his mother and a title suit was filed challenging the sale deeds executed in favour of the opposite parties. The opposite parties filed a suit for eviction of the petitioner from the suit property on the strength of the aforesaid sale deeds. On the aforesaid factual matrix, the co-ordinate bench held that in the event the sale deeds are vindicated and an eviction decree is passed, the probate, even if granted would be of no effect. Thus, the co-ordinate bench refused to pass an order of stay of the title suits till the disposal of the probate proceeding. 34. In Nirmala Devi (supra) and Balbir Singh Wasu (supra) the Hon’ble Supreme Court directed the probate proceedings and the title suit to be clubbed together and be heard and disposed of together. The said decisions are not authorities for the proposition of law that the previously instituted title suit should be stayed on the ground of pendency of a subsequent suit under Section 10 of the Code of Civil Procedure or that a suit for recovery of khas possession should be stayed during pendency of a probate proceeding. Thus, the said decisions cannot come to the aid of the petitioner in the case on hand. 35. In Amrita (supra) the Hon’ble High Court of Patna held that the proceeding in a partition suit and the probate proceeding are distinct and the proceeding in title suit cannot be stayed which is plenary in nature whereas the probate proceedings are summary in nature to be granted by a Court of limited jurisdiction where only the legality and validity of the will can be examined. The said decision did not deal with the effect of pendency of a probate suit on a suit for recovery of Khas possession. The said decision being distinguishable on facts cannot be applied to the case on hand. 36. For all the reasons as aforesaid this Court is not inclined to interfere with the impugned order. Accordingly CO No. 2523 of 2026 stands dismissed. There shall be, however, no order as to cost. 37. Urgent photostat certified copies, if applied for, be supplied to the parties upon compliance of all formalities. (HIRANMAY BHATTACHARYYA, J.)