{"id":228932,"date":"2004-08-11T00:00:00","date_gmt":"2004-08-10T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/sudhir-jaggi-another-vs-sunil-akash-sinha-choudhury-on-11-august-2004"},"modified":"2015-08-19T18:40:50","modified_gmt":"2015-08-19T13:10:50","slug":"sudhir-jaggi-another-vs-sunil-akash-sinha-choudhury-on-11-august-2004","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/sudhir-jaggi-another-vs-sunil-akash-sinha-choudhury-on-11-august-2004","title":{"rendered":"Sudhir Jaggi & Another vs Sunil Akash Sinha Choudhury & … on 11 August, 2004"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Sudhir Jaggi & Another vs Sunil Akash Sinha Choudhury & … on 11 August, 2004<\/div>\n
Author: Kapadia<\/div>\n
Bench: Ashok Bhan, S.H. Kapadia.<\/div>\n
           CASE NO.:\nAppeal (civil)  6408 of 2002\n\nPETITIONER:\nSudhir Jaggi & another\n\nRESPONDENT:\nSunil Akash Sinha Choudhury & others\n\nDATE OF JUDGMENT: 11\/08\/2004\n\nBENCH:\nASHOK BHAN & S.H. KAPADIA.\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T<\/p>\n
WITH<\/p>\n
CIVIL APPEAL No.2507 OF 2004.\n<\/p>\n
Shashi Properties & Industries Ltd.\t\t\tAppellant\t<\/p>\n
Versus<\/p>\n
Sunil Akash Sinha Choudhury & others\t\tRespondents<\/p>\n
KAPADIA, J.\n<\/p>\n
\tThese two civil appeals are filed by the defendants who
\nwere aggrieved by the judgment and decree passed by the
\nlearned Single Judge of Calcutta High Court dated 27.9.2001 in
\nSuit No.161 of 1979 ordering repossession in favour of the
\nplaintiffs and which judgment and decree is confirmed by the
\nimpugned judgment of the Division Bench of the Calcutta High
\nCourt dated 16.7.2002 in A.P.D. No.220 of 2002.\n<\/p>\n
\tBriefly, the facts giving rise to these appeals are as
\nfollows:
\n\tPlaintiffs are the two executors of the will of one P.K.
\nChowdhury (since deceased) who agreed, vide agreement dated
\n8.5.1965, to purchase two flats no.12C and 12D on the 12th
\nfloor of the building known as “Monalisa” situate at Camac
\nStreet, Calcutta along with two garages on the ground floor for
\nthe total consideration of Rs.2,34,168\/-, out of which the
\ndeceased P.K. Chowdhury paid Rs.2,22,168\/-. Originally, it
\nwas agreed that two flats would be allotted by the developer
\n(defendant no.1) to P.K. Chowdhury on 8th floor.  That
\nagreement was varied and it was agreed that the two other flats
\nwould be allotted on the 12th floor.  Similarly, the said two
\ngarages, as agreed upon, could not be allotted due to technical
\ndefect in the construction, so an alternative larger space was
\nallotted at an increased price.  Later on, P.K. Chowdhury
\nconstructed two complete locked up garages.  Apart from two
\nflats, P.K. Chowdhury purchased three rooms spaces in the
\nground floor.  In respect of flat nos.12C and 12D, it was
\noriginally agreed between the developer and P.K. Chowdhury
\nthat the developer would carry out all internal works in
\naccordance with the suggestions of P.K. Chowdhury.
\nSubsequently, that condition was varied and it was stipulated by
\nand between the parties that P.K. Chowdhury would himself
\nmake internal changes at his own costs, for which the developer
\nagreed to give a rebate.  In May, 1967, the developer gave
\npossession of the said two flats which then consisted of outer
\nwalls on four sides without any partition, doors and windows.
\nOn obtaining possession, P.K. Chowdhury erected walls,
\npartitions, doors, windows and collapsibles at his own costs.
\nThese works were of permanent nature.  On or about 10.1.1968,
\naccounts between P.K. Chowdhury and the developer were
\nsettled.  Rs.12000\/- was found due and payable by P.K.
\nChowdhury to the developer being balance amount in full
\nsettlement of the consideration for the flats and garages.  P.K.
\nChowdhury agreed to pay Rs.12000\/- to the developer upon
\nexecution of conveyance in his favour for the two flats. In
\nDecember, 1975, however, the developer instituted a suit in the
\nCity Civil Court, Calcutta being suit no.2180 of 1975 for
\npermanent injunction restraining P.K. Chowdhury from
\ninterfering with his alleged possession.  The said suit was
\ndismissed, as not maintainable.\n<\/p>\n
\tOn 10.2.1979, the appellants herein wrongfully and
\nillegally broke into the said two flats and obtained wrongful and
\nforcible possession of the two flats.  P.K. Chowdhury came to
\nknow of the dispossession on 12.2.1979.  On 12.3.1979, he
\nfiled the present suit.  In the present suit, the developer
\ncontended that P.K. Chowdhury was never given possession of
\nthe suit flats; that he was given access to execute certain
\nmasonry works in the said two flats; that P.K. Chowdhury did
\nnot pay the full consideration and consequently, he had sold
\nboth the suit flats to original defendants no.2 and 3 (appellants
\nin Civil Appeal No.6408 of 2002), who were put in possession
\nof the two flats on 3.1.1979 from which date defendants no.2
\nand 3 have continued to be in possession thereof.\n<\/p>\n
\tIn the present suit filed on the Original Side of the High
\nCourt, extensive evidence, both oral and documentary, was led.
\nOn behalf of the plaintiffs, PW1  the wife of P.K. Chowdhury
\nwas extensively examined.  PW1 in her evidence stated that
\npossession of the two incomplete flats was given to her husband
\nin terms of the modified agreement under which P.K.
\nChowdhury had agreed to execute the work of permanent
\nnature at his own costs subject to rebate from the developer.
\nThat when possession was given to her husband, the flats in
\nquestion were not habitable.  That P.K. Chowdhury had erected
\nthe walls, doors and windows.  That he had put the collapsibles
\nwhich were kept locked.  That the keys to the suit flats were
\nwith her husband.  PW1, in her evidence, further deposed that
\nP.K. Chowdhury had paid Rs.2,22,168\/- leaving a balance of
\nonly Rs.12000\/-, which was to be paid on the date when the
\ndeveloper executed the conveyance in favour of P.K.
\nChowdhury.\n<\/p>\n
\tIn the light of the above evidence, the learned Single
\nJudge came to the conclusion that dispossession had taken place
\non 10.2.1979 and, therefore, the suit filed on 12.3.1979 was
\nwithin the period of six months as prescribed by section 6 of the
\nSpecific Relief Act, 1963.  The learned Single Judge further
\nfound that there was no evidence of agreement between the
\ndeveloper and defendants no.2 and 3; that there was no
\nevidence of consideration having been received by the
\ndeveloper from defendants no.2 and 3; that there was no
\nevidence of delivery of possession by the developer to
\ndefendants no.2 and 3.  In the circumstances, the suit filed
\nunder section 6 of the Specific Relief Act, 1963 by the
\nexecutors of the will of P.K. Chowdhury was decreed in terms
\nof prayers ‘a’ and ‘b’.\n<\/p>\n
\tBeing aggrieved by the judgment and decree passed by
\nthe learned Single Judge dated 27.9.2001, the matter was
\ncarried in appeal to the Division Bench of the Calcutta High
\nCourt.  By the impugned judgment dated 16.7.2002, the appeals
\npreferred by the original defendants came to be dismissed.
\nConsequently, the developer (defendant no.1) has come by way
\nof Civil Appeal No.2507\/2004 whereas purported bonafide
\npurchasers (defendants no.2 and 3) have come to this Court by
\nway of Civil Appeal No.6408\/2002.\n<\/p>\n
\tSince, common question of fact is raised in these civil
\nappeals, the same are heard and disposed-of by this common
\njudgment.\n<\/p>\n
\tMr. N.S. Vasisht, learned counsel appearing on behalf of
\nthe developers submitted that P.K. Chowdhury was never put in
\npossession of the suit flats and that he was given only an access
\nto supervise the interiors. It was submitted that P.K.
\nChowdhury was keen to have the interior dicor inside the flats
\nof his choice, for which access was provided for.  That such
\naccess cannot constitute control or dominion or possession of
\nthe suit flats.  It was further urged that P.K. Chowdhury was
\nentrusted with the work of completing the flats on behalf of the
\ndeveloper and, therefore, it was a case of permissive possession.
\nIn the circumstances, it cannot be said that P.K. Chowdhury
\nwas in possession of the suit flats.  It was further contended that
\nin May, 1967, the flats were not ready; that they were shell like
\nstructure, without doors, windows and P.K. Chowdhury was
\npermitted to execute the interiors.  In such circumstances, it was
\nurged that P.K. Chowdhury was given access to visit the flats
\nand give instructions to decorate the suit flats and, therefore,
\nP.K. Chowdhury was never put in possession as alleged.  It was
\nnext submitted that there is no evidence of dispossession of
\nP.K. Chowdhury by the developer or by defendants no.2 and 3.
\nThat defendants no.2 and 3 were bonafide purchasers who are
\nin possession since 3.1.1979.\n<\/p>\n
\tWe do not find any merit in these civil appeals.  Firstly,
\nthere is no substantial question of law arising in these civil
\nappeals.  Both the Courts below on consideration of the entire
\nevidence, both oral and documentary, on record have come to
\nthe conclusion that in May, 1967 two incomplete flats were
\nhanded over to P.K. Chowdhury; that under the modified terms
\nP.K. Chowdhury agreed as the purchaser to construct partition,
\nwalls, doors and windows inside the flats; that even collapsibles
\nwere put by P.K. Chowdhury and that the keys to the suit flats
\nwere with P.K. Chowdhury.  In the circumstances, both the
\nCourts below have concluded that the dominion\/control over
\nthe suit flats was with P.K. Chowdhury.  We do not see any
\nreason to disturb these findings of fact.  Secondly, there is no
\nevidence on record to show that P.K. Chowdhury was allowed
\nto execute the work on behalf of the developer.  Thirdly, on
\nevidence, it is established that P.K. Chowdhury was allowed to
\ndo the work of permanent nature and that even the keys of the
\nflats were with him which proved beyond doubt that P.K.
\nChowdhury was in complete control of the suit flats.  Fourthly,
\nthere is no term in the agreement between the parties under
\nwhich P.K. Chowdhury was obliged to return the possession of
\nthe flats on completion of the work.  Hence, the developer has
\nfailed to prove “permissive” possession as alleged.  Lastly, as
\nheld by the Courts below, there is no evidence of transfer of the
\nsuit flats by the developer to alleged bonafide purchasers i.e.
\ndefendants no.2 and 3.  In the circumstances, both the Courts
\nbelow were right in decreeing the suit under section 6 of the
\nSpecific Relief Act, 1963.\n<\/p>\n
\tIn the case of Supdt. And Remembrancer of Legal
\nAffairs, West Bengal v. Anil Kumar Bhunja and others<\/a>
\nreported in [(1979) 4 SCC 274], this Court observed that the
\nword “possession” is not purely a legal concept but a
\npolymorphous term which may have different meanings in
\ndifferent contexts.  That the word “possession” implies a right
\nand a fact.  It involves power of control and intention to control.
\nThat the test for determining  whether a person is in
\npossession is : whether he is in general control of it.  In the
\npresent case, as stated above, P.K. Chowdhury was given
\npossession in May, 1967 and it was agreed between the parties
\nthat the buyer could construct the walls, partition, doors and
\nwindows, which show the intention to put P.K. Chowdhury in
\npossession.\n<\/p>\n
\tIn the case of Kumar Kalyan Prasad & another v.
\nKulanand Vaidik & others  reported in [AIR 1985 Patna 374]
\nwhile discussing the scope of section 6 of the Specific Relief
\nAct, 1963, it has been held:
\n“9.\tIn the first instance, a mere reference to the
\nplain language of the provision aforesaid would
\nindicate that the word “dispossessed” has not been
\nused in the narrowly constricted sense of the actual
\nphysical possession of immoveable property.
\nIndeed, it talks somewhat widely of dispossession
\nof immoveable property otherwise than in due
\ncourse of law without the person’s consent.  If the
\nLegislature intended to narrowly limit the word
\n“dispossessed” there could have been no difficulty
\nby specifying in terms the actuality of physical
\npossession as its necessary and vital ingredient.
\nThe word employed is the ordinary word
\n“dispossess”.  Plainly enough it would include
\nwithin its sweep actual physical dispossession also
\nbut this is no warrant for holding that it necessarily
\nexcludes the violation of other forms of possession
\nincluding a symbolical possession duly delivered
\nby law and contumaciously violated by an
\naggressive trespasser.  On principle I am not
\ninclined to construe the word “dispossessed” in S.6
\nin any hypertechnical sense and to push it into the
\nprocrustean bed of actual physical possession only.
\nIndeed the intent of the Legislature in S.6 to
\nprovide early and expeditious  relief against the
\nviolation of possessory right, irrespective of title,
\nwould be equally, if not more, relevant where
\nsymbolical possession delivered by due process of
\nlaw is sought to be set at naught forthwith.”\n<\/p>\n
\tTo the same effect is the judgment of the Calcutta High
\nCourt in the case of Raj Krishna Parui v. Muktaram Das
\nreported in [(1910) 12 Calcutta Law Journal 605] in which
\nwhile interpreting section 9 of the Specific Relief Act, 1877
\n(section 6 of the present Act, 1963) it has been held:
\n\t“In a suit commenced under section 9 of the
\nSpecific Relief Act, the sole point for
\ndetermination will be, whether the plaintiffs were
\nin possession of the disputed property within six
\nmonths previous to the institution of the suit and
\nwhether they had been deprived of such possession
\nby the defendant otherwise than in due course of
\nlaw.  It is immaterial, if the plaintiffs were in
\npossession, that such possession was without title.
\nWhat the plaintiff has to prove is possession of the
\ndisputed property and not mere isolated acts of
\ntrespass over that property.\n<\/p>\n
\tIn order to entitle the plaintiff to succeed on
\nthe ground of possession, he must prove, firstly,
\nthat he exercised acts which amounted to acts of
\ndominion; the nature of these acts of dominion
\nvaries with the nature of the property; secondly,
\nthat the act of dominion was exclusive.  If the
\noccupation by the plaintiff, as indicated by those
\nacts, has been peaceable and uninterrupted and has
\nextended over a sufficient length of time, the
\ninference may properly be drawn that the plaintiff
\nwas in possession.”\n<\/p>\n
\tApplying the above judgments to the facts of the present
\ncase, we are of the view that both the Courts below were right
\nin coming to the conclusion that P.K. Chowdhury was put in
\npossession of the suit flats in May, 1967 and that he was
\nwrongly dispossessed on 10.2.1979 by the defendants without
\nfollowing due process of law.  Hence, there is no merit in the
\ncivil appeals.\n<\/p>\n
\tBefore concluding, we wish to clarify that since the
\nimpugned decree is passed in a summary suit under section 6 of
\nthe Special Relief Act, 1963, none of our observations herein
\nshall preclude the parties herein from raising contention(s) in
\nthe substantive suit to establish title and for recovery of
\npossession which the defendants herein may file in accordance
\nwith law, if so advised.\n<\/p>\n
\tFor the foregoing reasons, we do not find any merit in
\nthese civil appeals and the same are accordingly dismissed,
\nwith no order as to costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Sudhir Jaggi & Another vs Sunil Akash Sinha Choudhury & … on 11 August, 2004 Author: Kapadia Bench: Ashok Bhan, S.H. Kapadia. CASE NO.: Appeal (civil) 6408 of 2002 PETITIONER: Sudhir Jaggi & another RESPONDENT: Sunil Akash Sinha Choudhury & others DATE OF JUDGMENT: 11\/08\/2004 BENCH: ASHOK BHAN & S.H. KAPADIA. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-228932","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nSudhir Jaggi & Another vs Sunil Akash Sinha Choudhury & ... on 11 August, 2004 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/sudhir-jaggi-another-vs-sunil-akash-sinha-choudhury-on-11-august-2004\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Sudhir Jaggi & Another vs Sunil Akash Sinha Choudhury & ... on 11 August, 2004 - 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