1
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
ORIGINAL SIDE
PRESENT:
The Hon'ble JUSTICE KALYAN JYOTI SENGUPTA
AND
The Hon'ble JUSTICE ASIM KUMAR RAY
APO No. 389 of 2010
GA 746 of 2010
With
CS 655 of 1983
College Street Publications Pvt. Ltd.
Vs.
Zafar Ahmed & ors.
APO 390 of 2010
With
CS 655 of 1983
College Street Publications Pvt. Ltd.
Vs.
Zafar Ahmed & ors.
APO 38 of 2011
GA 955 of 2010
With
CS 655 of 1983
Poly Sarkar
Vs.
Zafar Ahmed & ors.
Judgment on: 19.05.2011.
2
K. J. Sengupta, J.:-
The above appeal of College Street Publications Pvt. Ltd. is directed against
a judgment and order dated 23rd June, 2008, passed by learned Single Judge of
this Court in G.A.3248 of 1998 in connection with Civil Suit No.655 of 1983. By
the impugned order the appellant along with a number of persons were evicted
from the suit premises. The first respondent is a Receiver appointed by this
Court and on his application in connection with the decree passed in the
aforesaid civil suit impugned judgment and order was passed.
Admittedly, the appellant before us is not a party to the suit nor any decree
has been passed against him specifically until the impugned judgment and order
was passed. It appears from the records though chance was given by the learned
trial Judge to justify its possession and occupation in the portion of suit
premises on advise no such justification was placed filing affidavit when the
application was heard. Hence technically order was passed without hearing the
case and cause of the appellant.
In this appeal apart from challenging the legality and validity of the
aforesaid eviction order the appellant before us has tried to make out case to
remain in possession and occupation in the manner as follows:-
The appellant is a private limited company. On or about 10th December,
1997 by a written agreement the appellant was inducted as Bharatia by the
3
defendant No.1 in the above suit and the respondent No.2 herein, viz. Poly
Sarkar (hereinafter referred to as Poly) in respect of three rooms, kitchen and
bath in a partly tile shed and partly asbestos shed in respect of premises
No.T/31/B/ College Row now known as 31, College Row, Kolkata 700 009
(hereinafter referred as the said premises). Poly claiming herself to be a thika
tenant inducted the appellant as above at a rent of Rs.100/- per month payable
month by month to her. At the time of induction it was represented that Poly
being niece and heiress and legal representative of one Gour Hari Das who was
the original owner of the structure on the said thika land was entitled to induct
as a successor-in-interest in said thika tenancy right. Sometimes in 1982, the
said premises was vested to the State Government and consequent upon vesting
Poly became lawful tenant under the State and her name was also recorded in
the Records of Thika Controller, Government of West Bengal. Thus the appellant
has been lawfully inducted and has been in possession and occupation in the
said premises. Poly has been paying rent to the Thika Controller and rent receipt
is being issued by the Thika Controller to Poly who in her turn is also issuing
rent receipt to Bharatia. The appellant had been in peaceful possession without
any disturbance till 19th July 2008 when the appellant was found that some local
police authorities came to the suit premises along with respondent No.1 and
threatened appellant to oust and/or dispossess from the suit premises by virtue
of the impugned judgment and order. Thereafter, an application was made before
the learned Interlocutory Judge for declaration that the said decree in connection
of which the aforesaid application was made was invalid and not binding on it.
4
The said application however was dismissed by Justice Indira Banerjee ultimately
holding inter alia in view of the order impugned being subsisting no relief could
be granted.
It is also stated in the petition that no decree has been passed against Poly
through whom the appellant is deriving right, title and interest on the strength of
the said agreement and admittedly, the matter is still pending. Therefore, the
appellant cannot be evicted by the said impugned order.
It has also been alleged that the Receiver has not been in possession of the
suit premises and moreover no leave was obtained to file the aforesaid eviction
suit hence suit as well as application are not legally entertainable.
It appears from the records the case of Receiver factually is as follows:-
In 1971 Receiver was appointed in partition suit No.75/70 in respect of
amongst other 31, College Row, Calcutta and was put in possession thereof to
preserve the same and to protect the rights of the parties. The name of the
Receiver was mutated in the record of Calcutta Municipal Corporation (now
Kolkata Municipal Corporation). One Gour Hari Das was a tenant in respect of a
portion of suit property and he died in January 31, 1975 without leaving any
heirs or legal representatives. After death of Gour trespasser including the
defendant Nos.1 to 8 having taken possession entered into the said property
5
interfering with possession of the Receiver. The Receiver thus instituted a Suit
No.655 of 1983 for decree for possession of the suit property by evicting the
defendant Nos. 1 to 2 and/or persons claiming through them and for declaration
that Poly is stranger and trespasser. The defendant Nos.2 to 8 did not file written
statement. On 28th March, 1984 an ex parte decree was passed against
defendant Nos. 2 to 8. In March 1985 an execution application was filed and
thereupon the Sheriff was directed by the Court to deliver possession of the suit
property to the Receiver. In November, 1987 the Bailiff found the rooms in the
possession of the defendant Nos. 2 and 8 keeping the same under lock and key.
Thus the delivery of the possession could not be given.
The defendant No.1, Poly filed an application for setting aside the decree,
and it was dismissed. Thereafter a suit was filed by the defendant Nos. 2 to 8
challenging the said decree passed ex parte and it was also dismissed in
2005. In the meantime an application was filed by the defendant No.1 for
obtaining leave to proceed against the Receiver but the same was also dismissed.
On or about 19th November, 1987 the defendant Nos.2 to 8 filed a suit being
No.1132 of 1987 praying for inter alia, declaration that the said decree dated
March 28, 1984 is not binding on the defendant Nos.2 to 8. However, the said
suit was dismissed for default on 21st March, 2005. In the meantime, Poly
claiming to be a thika tenant in respect of the suit property sought to have her
name entered in the Register of the Thika Controller and caused her name to be
inserted in the record of Calcutta Municipal Corporation by deleting the name of
6
the Receiver from the records. On appropriate legal action being taken by orders
of this Court all those illegal action taken by Poly have been set aside and every
thing is set right. In or about March 1998 defendant Nos. 1 to 8 in order to
frustrate the decree, illegally and without any authority came into possession of
the suit property, as the Receiver’s possession should not be disturbed and
interfered with. The Receiver then filed G.A. No.3248 of 1998 on which the
impugned order was passed for eviction of the persons mentioned in paragraph
11 of the said application. Joint Special Officers were appointed and they
inspected the suit property and made inventory thereof reported to the court. The
appellant duly appeared initially at the time of hearing of the said application
however, it chose not to appear in the matter subsequently nor did contest the
said application despite service of notice on repeated occasion. In the
circumstances the impugned judgment and order was passed by Justice Sanjib
Banerjee holding inter alia that the Receiver will be entitled to police help for
removal of all the persons mentioned in paragraph 11 of the said application
from the suit property.
Mr. S.N. Mitra, learned Senior Counsel for the appellant highlighting the
factual aspect of his client submits that the said application on which the
impugned order was passed was not maintainable as no decree has been passed
against Poly being respondent No.2 herein through whom the appellants herein
are claiming their rights. When no decree was passed against the respondent
No.2, no order could have been passed directing any of the appellants to be
7
removed from the suit premises for the reasons as stated above. The said
application ought not to have been filed because admittedly on 17th February,
1988 an interim order of injunction was passed restraining the Receiver from
dispossessing the defendants Nos. 2 to 8 and further execution application which
was filed for removing the defendants Nos. 2 to 8 was also stayed. Since
application was in nature of an execution and the same could not have been
granted in view of the subsisting interim order passed in earlier suit. Moreover,
prayers made in the said application were also in the nature of a final relief and
the same could not have been granted in view of the fact that the said suit filed
against the defendant No.1 was pending and all the persons who were sought to
be removed from the suit premises were claiming their right through the
defendant No.1. By the impugned order all persons named in paragraph 11 of the
application were directed to be removed from the suit premises except one United
Book Agency and its proprietor. The appellants’ name does not appear in
paragraph 11 of the said application and accordingly on the basis of such order
the appellant cannot be removed from the suit premises. Moreover, the address
of College Street Parika and appellant herein are different and their respective
places of business are also different. Accordingly, the appellant cannot be
removed from the suit premises. It is also submitted that from the record it does
not appear any leave was obtained by the Receiver to institute the suit as such
suit itself is not maintainable. He urges since the suit against the defendant No.1
is pending in view of averments made in the plaint no decree could have been
passed against the defendant Nos.2 to 8 directing them to hand over vacant
8
possession to the plaintiff/Receiver and the same itself was a nullity. Moreover, it
will appear from the schedule of the plaint that entire property is undemarcated
meaning thereby which portion is occupied by whom is not stated. In absence of
specific demarcation the decree cannot be executed. It is also contended that
without adjudicating right, title and interest of the defendant No.1(Poly) no order
can be passed directing the appellant to be removed from the suit premises.
Moreover, neither the Bharatia nor the thika tenant can be evicted in this
manner as it has been done by the learned Trial Judge. The Receiver was never
in actual possession and he was only in symbolic possession and possession
always remained with the persons and still are in the suit property. He has
submitted the legal proposition that mere appointment of Receiver cannot disturb
the right of the third party. Hence the appeal should be allowed. He contends
with support of the decision reported in AIR 1997 SC 173, that the right of the
third party cannot be interfered by the Receiver.
Learned counsel for the respondent No.2, Poly supports the contention of
the appellant in addition thereto it is contended that no decree has been passed
against this respondent and when the suit is still pending the area of occupation
cannot be disturbed by any order. It is also said that admittedly appellant has
been inducted by her under lawful and valid agreement, as Bharatia. It is urged
that in view of the Thika Tenancy (Acquisition and Regulation Act) 1981 the State
of West Bengal is only competent authority to evict and the Receiver has no
9
authority to bring any action for eviction. These valid points require adjudication
before passing any order of eviction.
Mr. Sakya Sen, learned Counsel appearing for the Receiver submits that it
would appear from the record admittedly the said purported agreement was
executed in 1997 on the strength of which the appellant came into possession,
after the Receiver was appointed, and thereafter the decree for eviction was
passed against the defendant Nos. 2 to 8. It would appear from the plaint itself
as well as the decree passed in the said suit the Receiver at all material times
had and still has been possession and Poly having inducted the appellant with
the execution of the said 1997 document has disturbed in and interfered with his
possession. Admittedly, no leave of the Court was obtained to come in and
occupy the said portion of the property.
After hearing the learned counsels for the parties and having examined the
record point for decision is whether the said order of eviction passed by the
learned Trial Judge can be operated against the appellant or not; in other words
whether the appellant is entitled to remain in the possession on the strength of
the said agreement of 1999 placed before the Court.
The said tenancy agreement being the sheet-anchor of case of the
appellant, was executed between the respondent No.2, Poly and the appellant in
10
the year 1997 at the time when the Receiver had been in possession over the suit
property.
We are unable to accept the contention going through the records that
Receiver was not in physical possession of the property. It appears from the copy
of the plaint filed in the aforesaid suit No.655 of 1983 in paragraph 1 it has been
specifically stated by the plaintiff/Receiver that the Receiver duly took charge
and possession of the said premises. Poly, respondent No.2 herein as the alleged
landlady/thika tenant filed written-statement, therein factum of taking
possession has not been denied and disputed at all. Moreover, on passing decree
by the learned Trial Judge the Court is deemed to have accepted the fact that
Receiver had been in possession otherwise decree for eviction in favour of the
plaintiff could not have been passed. Decree for possession is granted to the
plaintiff by the court only when it is proved to the satisfaction of the Court that
plaintiffs had been in possession and dispossessed illegally. It appears from the
copy of the decree the learned Trial Judge recorded that evidence was adduced in
support of the case made out in the plaint and after being satisfied the decree for
delivery of possession was granted. Hence the decisions of the Supreme Court
(AIR 1997 SC 173) cited by Mr. Mitra has no application in this case as it is not a
case of vesting of the property it is a question of taking of possession by the
Court through Receiver. The Supreme Court explained legal principle that with
appointment of Receiver of the Court, there cannot be vesting of title. This
11
judgment rather supports the case of the Receiver/Respondent. In paragraph 28
of report it is stated:
“28………………where a receiver appointed by the
Court is in actual physical possession of a property, no
one, whoever he may be, can disturb the possession of
the receiver and the Court may hold such person who
disturbs receiver’s possession as guilty for committing
contempt of Court. A man, who thinks he has a right
paramount to that of receiver, must, before he takes any
step of his own motion, apply to the Court for leave to
assert his right………………”
We do not find any force in the argument that the Receiver without leave of
the Court filed the suit as in paragraph 7 of the plaint it has been specifically
stated that Receiver on 25th April, 1983 had been authorized to institute the suit
in his capacity as Receiver. Again in the written statement filed by Poly in
paragraph 5 such statement and averment has not been denied and disputed.
We thus conclude that the appellant came into possession of the suit
property disturbing and interfering with the possession of the Receiver if not
dispossessing him, as Receiver had been in possession of the suit property in its
entirety. If any person entered into possession without prior leave of the Court
12
such possession is amount to disturbing Court’s possession. We hold
unhesitatingly without leave of the Court or for that matter without even
informing the Receiver, and with the help of Poly the appellant took possession.
Order of eviction of Poly in this case, in our view is not condition precedent for
eviction of any person including the appellant even if being inducted and/or
brought in by Poly, for it is the Court and Court alone can allow to take
possession, none else.
We are unable to accept this possession is lawful and valid rather it
amounts to interference with the possession of the Court and so to say the
interference with the administration of justice. We fail to comprehend how order
dated 17 February 1988 as urged by Mr. Mitra is helpful to his client for the said
order was passed in Suit No.1132 of 1987 (Kalyani Bhattacherjee -vs.- Smt Poly
Sarkar) wherein the appellant was not party, furthermore the said suit was
dismissed by order dated March 31, 2005 and the same does not appear to have
been restored. It is true that application in which impugned order is passed is
execution in nature. As per provision of the Code, however order of this nature is
always subject to final result of the suit pending at the time of execution
proceedings, under Order 21 Rule 104 of Civil Procedure Code, hence pendency
of the suit without any order of injunction is not fetter for the executing Court to
pass appropriate order. The said Rule 104 of Order 21 of Code of Civil Procedure
is set out hereunder:-
13
“Order XXI R. 104. Order under rule 101 or
rule 103 to be subject to the result of pending suit.-
Every order made under rule 101 or rule 103 shall be
subject to the result of any suit that may be pending on
the date of commencement of the proceeding in which
such order is made, if in such suit the party against
whom the order under rule 101 or rule 103 is made has
sought to establish a right which he claims to the
present possession of the property.”
Therefore, order of eviction passed against the appellant by the learned
Single Judge on the facts and circumstances is perfectly justified and particularly
when as rightly pointed out, the appellant did not care to place justification of its
possession despite opportunity being given by the learned Trial Judge.
We are unable to grant any relief as such the appeal is dismissed.
We make it clear that this judgment is rendered only on the point that
taking of possession by the appellant in the suit premises is wholly illegal and we
have not decided any other points namely legality, validity of thika tenancy or
alleged right of bharatia.
14
Therefore this judgment will not prevent or prejudice the appellant from
taking lawful measure as may be advised.
(K. J. Sengupta, J.)
I agree.
(Asim Kumar Ray, J.)
APO 38 of 2011
APOT 169 of 2010
Smt. Poly Sarkar
v.
Zafar Ahmed.
This appeal is preferred against the judgment and order dated 25th
February 2010 passed by Hon’ble Justice Indira Banerjee, dismissing the above
appeal contending that the impugned judgment and order in this appeal affects
valuable right of the appellant in the suit premises adversely. He contends that it
would appear from paragraph 4 of the plaint that it is the case of the
plaintiff/Receiver that the defendant Nos. 2 to 8 were claiming their right through
the appellant. It is further case of the plaintiff/Receiver it is the appellant who
has allegedly inducted number of persons including the College Street
Publication Pvt. Ltd. in the suit property thereafter some of them left. It is alleged
that neither in the schedule of the plaint nor in the application of the
plaintiff/Receiver that portion of the suit property occupied by College Street
Publication Pvt. Ltd. and the defendants No. 2 to 8 has been demarcated
15
separately showing their respective occupation. It has been contended further
that since no portion of the suit premises is demarcated showing respective
possession and occupation, the decree cannot be executed in its present form.
Such eviction is not with due process of law. It is urged that right to evict those
persons being Bharatias under the law rest with applicant on lawful ground and
no third party can do so. The learned counsel further submits in the event suit
against this appellant is dismissed and claim of thika tenancy is established,
these persons, if removed would not be brought back, as third party’s right would
be created, thus the appellant’s right to induct Bharatia and to receive rent from
them is affected.
After considering submission we are of the view on plain reading of the
order of Justice Indira Banerjee we do not find any affectation of alleged right of
the appellant herein. It is apposite to record that Justice Indira Banerjee did not
pass any separate order nor adjudicated any issue. It has been merely observed
in view of the earlier order of Justice Sanjib Banerjee dated 23rd June 2008
subsequent application could not be maintained.
We have already discussed in great details as to acceptability and validity
of the order of Justice Sanjib Baerjee dated 23rd June, 2008 in the appeal of
College Street Publication Pvt. Ltd. hence we do not see any reason to maintain
this appeal. Hence this appeal is summarily dismissed.
16
There will be no order as to costs.
(K. J. Sengupta, J.)
I agree.
(Asim Kumar Ray, J.)
