Kaberi Bhattacharyya v. Krishna Banerjee — 1997 DIGILAW 392 (CAL)

JUDGMENT TARUN CHATTERJEE, J. 1. This is an application for an appropriate order or direction upon the appellant Smt. Krishna Banerjee or her agents from interfering with the peaceful possession and/or user of Smt. Kaberi Bhattacharyya, the respondent herein in respect of the entire Premises No. 12 B, Beni Banerjee Avenue, Police Station Kasba, Calcutta including the portion occupied by the erstwhile tenant Sri Ajay Chakraborty and also for an order of injunction restraining the appellant, Smt. Krishna Banerjee from using any part or portion of the Premises No. 12 B, Beni Banerjee Avenue, Police Station Kasba, Calcutta and for a direction upon Smt. Krishna Banerjee to vacate the same immediately along with her African Dog and for other incidental reliefs. In the said application a prayer has also been made by the respondent Smt. Kaberi Bhattacharyya to clarify the earlier order dated 2nd August, 1995 passed by this Court in the pending appeal. 2. One Sri Jyan Ranjan Mukherjee (since deceased) the father of the parties was admittedly the owner of the Premises No. 12 B, Beni Banerjee Avenue, Police Station Kasba, Calcutta (hereinafter referred to as the said premises). There is no dispute that there was a tenant in the ground floor of the said premises and it is found from the finding of the Trial Court that the respondent Smt. Kaberi Bhattacharyya who has filed this application used to collect rent from the said tenant. It appears that the father of the parties Jyan Ranjan Mukherjee (since deceased) executed the deed of gift on 26th June, 1992 in favour of the present respondent by which he gifted the said premises in favour of the respondent. It also appears from the record that the name of the respondent has been duly mutated in the books of the Calcutta Municipal Corporation. Challenging the deed of gift executed by the father of the parties the present appellant, Smt. Krishna Banerjee as a plaintiff filed a suit in the 5th Court of the Assistant District Judge of Alipore against the present respondent. An application for injunction was filed in the said suit. Against an order passed on the said application for injunction, an appeal was taken in this Court which came to be registered as F.M.A.T. No. 1012 of 1993. An application for injunction was filed in the said suit. Against an order passed on the said application for injunction, an appeal was taken in this Court which came to be registered as F.M.A.T. No. 1012 of 1993. A Division Bench of this Court on 28th April, 1993 in the said appeal passed an order which is to the following effect – "Restraining the respondent/applicant from disturbing the peaceful possession and user of the first floor only of the said premises of the appellant." "That opinion of the parties would change the nature and character of the said premises without the leave of the Court." "We also grant issue to the respondent, Kaberi Bhattacharyya to file an appropriate suit which will abide by the suit of the Title Suit No. 66 of 1993." 3. The suit filed by the appellant Smt. Krishna Banerjee was dismissed by the judgment and decree dated 31st March, 1995 against which the present appeal has been preferred. In the appeal the appellant Smt. Krishna Banerjee filed an application for stay of operation of the judgment and decree of the Trial Court before a Division Bench of this Court. After hearing both the parties, the Division Bench by an order dated 2nd August, 1995 rejected the application for stay. However, in the said order their Lordships observed that proper course for the appellant Smt. Krishna Banerjee would be to file appropriate application in the ejectment suit pending against the appellant, Smt. Krishna Banerjee and the tenant Sri Ajay Chakraborty in respect of the said premises. It is of record that a title suit being title suit no.4 of 1994 has been filed by Smt. Kaberi Bhattacharyya, the respondent herein against the appellant and the tenant Ajay Chakraborty in the 5th Court of the Assistant District Judge at Alipore which is still now pending. In the present application for appropriate order and/or direction, the respondent had made complaint that although the appellant has failed to obtain any order either in the present appeal or in the eviction suit, she has been continuously creating distrubrances to the peaceful possession of the said premises by the respondent Smt. Kaberi Bhattacharyya either by committing nuisance or particularly by frightening the respondent and her family members to enter into the said premises and use the same by her pet African Dog. On, the above facts as alleged to the said application, the respondent Smt. Kaberi Bhattacharyya has prayed for the above reliefs which we have already stated hereinabove. An affidavit in opposition has been used by the appellant. In the said affidavit in opposition, however, the appellant denied the fact that the respondent ever collected rents from the ground floor of the tenant Sri Ajay Chakraborty and that she categorically denied the fact that the name of the respondent has been mutated in the register of the Calcutta Municipal Corporation in respect of the suit property. In Paragraph 6' of the affidavit in opposition, however, it was alleged by the appellant that the tenant of the ground floor, Sri Ajay Chakraborty has surrendered his tenancy in favour of the appellant, Smt. Krishna Banerjee on 5th of January, 1994 and since then she is in possession of the entire suit property. A copy of the said surrender letter has been made an annexure to the affidavit in opposition. According to the appellant, since she is in possession of the entire suit property and she is residing there with her family members, there is no question to create disturbance to the peaceful possession of the respondent by the appellant. By filing a supplementary affidavit in opposition, the appellant Smt. Krishna Banerjee stated that the electric meter which stands in the name of Smt. Shova Mukherjee (since deceased) relating to the ground floor of the said premises was being paid by the appellant since January, 1994 which would prove that since surrender of tenancy by Sri Ajay Chakraborty in her favour, she has been in possession of the ground floor of the suit property. From the affidavit in opposition and the supplementary affidavit in opposition filed by the appellant, it would be evident that the appellant has sought to make out a case that the tenant Ajay Chakraborty has surrendered his tenancy in her favour and since then she has been in possession of the ground floor as well. Against this affidavit in opposition as well as against the supplementary affidavit in opposition, an affidavit in reply has been filed by the respondent/applicant Smt. Kaberi Bhattacharyya. Against this affidavit in opposition as well as against the supplementary affidavit in opposition, an affidavit in reply has been filed by the respondent/applicant Smt. Kaberi Bhattacharyya. In the said affidavit in reply, the respondent Kaberi Bhattacharyya has categorically stated that the tenant Sri Ajay Chakraborty surrendered his tenancy and delivered possession of the ground floor of the said premises to her on 12th March, 1996 and the keys of the said ground floor flat were handed over by the tenant to her. Sri Ajay Chakraborty has also filed an affidavit supporting the case of the respondent/applicant. In paragraph 2 of the said affidavit Sri Chakraborty has categorically stated that on the death of the original owner Jyan Ranjan Mukherjee he used to pay rent to the respondent/applicant and some of rent receipts in support of that statement have been annexed by Sri Ajay Chakraborty in the said affidavit. He also stated in the said affidavit that by a letter dated 12th March, 1996 he delivered possession as well as the keys of the ground floor flat which was occupied by him in the said premises to Smt. Kaberi Bhattacharyya, the respondent no.1. So far as the possession of the appellant in respect of the first floor of the said premises is concerned, we are of the view that at this stage, when an eviction suit has already been filed against her by the respondent, Smt. Kaberi Bhattacharyya it would not be proper for us to pass any order in favour of the respondent in respect of the first floor of the said premises, as in our view that will amount to decreeing the suit for eviction filed against the appellant Smt. Krishna Banerjee. So far as the tenanted portion, that is the ground floor of the said premises in concerned, a dispute had arisen as to whether in fact, Sri Ajay Chakraborty has surrendered his tenancy of the said portion of the suit premises in the month of January, 1994 to the appellant and delivered possession to her or the said tenanted portion of the suit premises has been surrendered by Sri Ajay Chakraborty to the respondent/applicant on 12th March, 1996 and Sri Chakraborty delivered the keys of the said portion to her. To decide this dispute of fact we felt the necessity to direct the Trial Court to decide the following issues:- "Whether the tenant Ajay Chakraborty has surrendered the tenancy in respect of the ground floor of the said premises on 5th of January, 1994 and such possession to the appellant, and if such surrender has been made, whether the appellant is now in possession of the said ground floor, and whether the tenant in the ground floor of the said premises has surrendered his possession and delivered the same to the appellant on 12th March, 1996 and since then the respondent is in possession and the same by his keeping the said ground floor under lock & key." 4. This direction was made by us by an order dated 7th of January, 1997. After the aforesaid disputed question was referred to the Trial Court for taking evidence and also to come to a finding on such question of fact the parties adduced evidence in support of their respective cases. In the deposition Krishna Banerjee, who was PW 1 in the suit deposed that the tenant Ajay Chakraborty delivered vacant possession of the tenanted portion on 15.1.94 and since then she has been paying electricity charges in respect of the tenanted portion. She denied that possession in the ground floor of the suit premises was ever delivered by the erstwhile tenant Ajay Chakraborty in favour of the Respondent in the month of March, 1996. She has admitted in her deposition that she never realised rent from the tenant Ajay Chakraborty. She denied that she had taken forceful occupation of the ground floor of the suit premises. The erstwhile tenant Sri Ajay Kumar Chakraborty also deposed in the Trial Court. He has emphatically denied that he ever delivered possession of the suit premises in favour of the plaintiff/appellant Krishna Banerjee. In cross-examination he has admitted that he delivered possession of the tenanted premises in favour of the defendant/respondent. He also stated in his deposition that he got receipt from the defendant/respondent regarding delivery of possession of the tenanted premises. He however admitted that he served a notice both on the plaintiff and the defendant for vacating the ground floor of the said premises by 15.1.94, but he denied that he vacated the tenanted premises in terms of the said notice. He however admitted that he served a notice both on the plaintiff and the defendant for vacating the ground floor of the said premises by 15.1.94, but he denied that he vacated the tenanted premises in terms of the said notice. He also denied that the plaintiff is in possession of the suit premises. The receipt (Exhibit – H) signed by the defendant/respondent showing delivery of possession of the tenanted premises to her was also produced by the tenant. He categorically admitted in his deposition that the tenanted premises was vacated by him on 12th of March, 1996 and possession was delivered to the defendant respondent. Some other witnesses were also produced by the plaintiff and the defendant in order to prove the case made out by them regarding surrender and delivery of possession of the tenanted premises. The Trial Court by an order dated 22nd of May, 1997 came to a finding that the case of the plaintiff/appellant that the tenanted premises was vacated by Sri Ajay Chakraborty on 15th January, 1994 cannot be believed and it was found that the said erstwhile tenant Ajay Chakraborty had surrendered the tenancy in respect of the ground floor of the premises in question in favour of the defendant/respondent on 12th of March, 1996. The Trial Court also found in its order that in view of the admission of the defendant/respondent in her evidence that she was dispossessed by the plaintiff/appellant it was held that the tenanted premises in now under the occupation of the plaintiff. So far as the case of surrender of tenancy of the defendant is concerned, the Trial Court came to a finding that surrender was effected by Sri Ajay Chakraborty not in the month of January, 1994 but in the month of March, 1996 and possession was delivered to the defendant/respondent on 12th of March, 1996. The aforesaid findings along with the evidence taken in continuance with the order dated 7.1.1997 have been sent to this Court for consideration. 5. After the evidence and the findings of the Trial Court in compliance with the direction by this Court on 7th of January, 1996 were sent, the present interlocutory application is now being placed before us for final disposal. 6. We have heard Mr. Roy Chowdhury for the defendant/respondent and Mr. Sudhis Das Gupta for the plaintiff/appellant. 7. 5. After the evidence and the findings of the Trial Court in compliance with the direction by this Court on 7th of January, 1996 were sent, the present interlocutory application is now being placed before us for final disposal. 6. We have heard Mr. Roy Chowdhury for the defendant/respondent and Mr. Sudhis Das Gupta for the plaintiff/appellant. 7. Before we proceed further we may now deal with the question whether defendant/ respondent having been dispossessed by the plaintiff during the pendency of this appeal can be put into possession by directing the plaintiff/appellant to deliver possession to the defendant/respondent at this interlocutory stage. To deal with this question let us consider whether in an interlocutory application such a direction can be passed by the Court. In our view it cannot be said that no mandatory order of injunction can be granted by the court of an interlocutory application in any circumstances. There is no bar to the Court's granting interlocutory relief in mandatory form although in doing so the Court should act with greatest circumspection and such powers can be exercised only in rare and exceptional cases. It is not in doubt whether or not a case comes in the category of rare and exceptional one is to be judged according to the facts and circumstances involved in the same case. After considering various decisions of different High Courts of India including the decision rendered by this Court in Narendra Picture's Case, AIR 1985 Cal 428 and Indian Cable Co's Case, AIR 1985 Cal 248 , a single Bench of the Delhi High Court Came to a conclusion in the case of Mrs. Vijay Srivastava vs. Mirahul Enterprise, AIR 1988 Delhi 144, that in a rare and exceptional case the Court can exercise its power to grant mandatory order of injunction. In our view, in view of the recent decision of the Supreme Court in the case of Dorab Cawasji Warden vs. Cwmi Sorab Warden, AIR 1990 SC 867 , the principles laid down in the decision in the Delhi High Court must be accepted. In paragraph 14 of the aforesaid Supreme Court decision some guidelines have been given to the Courts to decide an application for grant of mandatory order of injunction at the interlocutory stage which are as follows:- 1. The plaintiff has a strong case for trial. In paragraph 14 of the aforesaid Supreme Court decision some guidelines have been given to the Courts to decide an application for grant of mandatory order of injunction at the interlocutory stage which are as follows:- 1. The plaintiff has a strong case for trial. That is, it shall be of a higher standard then a prima facie case that is normally required for a prohibitory injunction. 2. It is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money. 3. The balance of convenience is in favour of the one seeking such relief. 8. Keeping the aforesaid principles as enunciated by the Supreme Court and the other High Courts of India in mind let us now deal with the factual aspect of the matter so that a proper conclusion can be arrived at on the question whether the defendant/respondent by an interlocutory application would be entitled to restoration of possession of the tenanted premises. Before we proceed further we may note at this stage that the defendant/respondent has admitted in her deposition before the Trial Court after the questions referred to hereinabove, sent to the Trial Court for taking evidence that she has been dispossessed by the defendant/appellant from the tenanted premises. Keeping this tact in mind we are now to consider whether the defendant/respondent should be put into possession in respect of the tenanted premises or not. In our view, after considering the entire materials on record and after going through the evidence adduced by the parties during the pendency of the suit and also the evidence adduced by the parties after the matter was sent back to the Trial Court for taking evidence it is a fit case where an order of mandatory injunction at the interlocutory stage should be granted. We are also of the view that it is a rare and exceptional case where such relief should be given to the defendant respondent. 9. Admittedly, the suit property was owned by the father of the parties in this Appeal. The plaintiff and the defendant are two sisters. It is not in dispute there is no other heir and legal representative of the deceased father of the parties excepting the present parties in this Appeal. 9. Admittedly, the suit property was owned by the father of the parties in this Appeal. The plaintiff and the defendant are two sisters. It is not in dispute there is no other heir and legal representative of the deceased father of the parties excepting the present parties in this Appeal. Therefore there is no dispute, nor it has been disputed by the plaintiff/ appellant that the defendant/respondent has also acquired title of the property to the extent of 8 annas share. The suit property is a one-storeyed building. The ground floor was occupied by the tenant Ajay Kumar Chakraborty. Admittedly the plaintiff was and is in occupation of the first floor of the said premises. In view of the admitted position that on the death of the father of the parties both the parties must inherit the suit property in equal shares. Therefore, so far as the defendant/appellant is concerned she cannot own or possess more than the half-share of the suit property. Admittedly the defendant/appellant is already in possession of the half portion of the suit property. Therefore she has no right to remain in possession of the ground floor of the suit property. The suit, out of which the present Appeal arises, was filed by the plaintiff/appellant for a declaration that the deed of gift executed by the father of the parties in favour of the defendant/respondent was invalid, bad in law and defendant/respondent cannot acquire title to the extent of 16 annas of the suit property on the basis of such deed of gift alleged to have been executed by the father in favour of the defendant/respondent. The Trial Court on consideration of the evidence on record came to a conclusion that there is nothing from which it can be concluded that the deed of gift must be found to be invalid in law. Therefore in the Appeal the only question would be that whether by the deed of gift the defendant/ respondent has acquired 16 annas share in respect of the suit property or not. Therefore in the Appeal the only question would be that whether by the deed of gift the defendant/ respondent has acquired 16 annas share in respect of the suit property or not. Even assuming that at the final hearing of the appeal the contention of the plaintiff/appellant can be accepted and a declaration shall be made that the deed of gift executed by the father of the parties was invalid in law, even then right of the defendant/respondent to the extent of 8 annas share to the suit property by such declaration cannot be thrown out. That is to say, the right of the defendant respondent to the extent of 8 annas share in the suit property even in the event of success of the Appeal cannot be brushed aside. Therefore, in our view, the defendant/respondent has a strong prima facie case for which she is entitled even at this interlocutory stage for a direction upon the plaintiff/appellant to deliver possession of the ground floor of the suit premises during the pendency of this Appeal. Secondly, we are also of the view that it is necessary for the Court in the facts of this case to prevent irreparable loss and injury which cannot be compensated in terms of money, and balance of convenience is also in favour of the defendant respondent who has sought for such relief. In order to come to a proper conclusion on the aforesaid question, let us now deal with the question whether the tenant Ajay Kumar Chakraborty has surrendered the tenanted portion of the suit property to the plaintiff/appellant or to the defendant/respondent. It is not the case of the plaintiff/appellant that she has ever realised rent from the said tenant Ajay Kumar Chakraborty. On the other hand, it is the admission of the plaintiff/appellant which would appear from the materials on record that the defendant/respondent was realising rent from the said tenant till he surrendered his tenancy. Excepting showing payment of electric bills for some time by the plaintiff/ appellant which were issued in favour of the deceased mother of the parties Shova Rani Mukherjee, no other document could be produced by the plaintiff/appellant to satisfy the court's conscience that the plaintiff/appellant has ever exercised possession in respect of the ground floor after the surrender was made by the said tenant. On the other hand, on behalf of the defendant/respondent the said tenant Sri Ajay Kumar Chakraborty himself filed an Affidavit to this Court and deposed in the Trial Court in support of the case of the defendant/respondent by which he himself admitted that he has surrendered the tenanted premises to the defendant/respondent. The surrender letter has also been tiled in the Trial Court which was exhibited as exhibit 'H'. The Trial Court also on consideration of the evidence on record came to a finding that the tenanted premises was surrendered by Sri Chakraborty in favour of the defendant/respondent of 12th of March, 1996 when the Appeal was pending in this Court. From the above discussions it is therefore clear that the defendant/respondent was in possession of the tenanted portion of the suit property by keeping the same under lock & key. Taking advantage of the stay of the plaintiff/ appellant in the first floor of the suit premises and in view of the absence of the defendant/respondent in the suit premises the plaintiff/appellant has dispossessed the defendant/respondent by breaking open the lock of the defendant/respondent given in the tenanted portion of the suit property. In this connection one other fact needs to be stated. During the pendency of the suit which was filed by the plaintiff/appellant out of which the present appeal arises an application for injunction was made by the plaintiff/appellant in the Trial Court against as interlocutory order of injunction. An Appeal was taken to this Court which was registered as F.M.A.T. No. 1012 of 1993 and a Division Bench of this Court by an order dated 28th of April, 1993 passed in the aforesaid Appeal restrained the defendant/respondent from disturbing the user of the plaintiff/appellant in respect of the first floor only. Therefore prima facie no ground has been made out by the plaintiff/ appellant to remain in possession of the ground floor of the suit premises even during the pendency of this appeal. Accordingly we are of the view that in the facts and circumstances of this case the defendant/respondent is entitled to restoration of possession of the ground floor of the suit premises. Mr. Das Gupta appearing on behalf of the plaintiff/appellant has drawn our attention to the reliefs claimed in the present application for injunction. Accordingly we are of the view that in the facts and circumstances of this case the defendant/respondent is entitled to restoration of possession of the ground floor of the suit premises. Mr. Das Gupta appearing on behalf of the plaintiff/appellant has drawn our attention to the reliefs claimed in the present application for injunction. He has submitted that in view of the admission of the defendant/respondent in her deposition that she was dispossessed from the tenanted portion of the suit property by the plaintiff/appellant, the question of restoration of possession in favour of the defendant/respondent by the plaintiff/appellant in respect of the ground floor of the tenanted premises cannot arise at all without a relief being claimed in the application for injunction. It is true that in the prayer portion of the application for injunction no such, claim has been made by the defendant/respondent, but it is always open to the Court to mould the relicts in an appropriate case. In view of the fact that the defendant/respondent has been dispossessed by the plaintiff/appellant after 12th of March, 1996 direction must be given on the plaintiff/appellant to deliver possession to the defendant/respondent at an early date. 10. For the reasons aforesaid, the application for grant of interim relief during the pendency of this appeal is allowed. The plaintiff/appellant is directed to handover peaceful possession of the tenanted portion of the suit property within a fortnight after the Puja Vacation to the defendant/respondent. In the event the plaintiff/appellant tails to deliver possession to the defendant/respondent within the time specified here, it would be open to the defendant/respondent to approach the police authorities for the purpose of recovering possession of the tenanted portion of the suit property by police help. 11. It is submitted by the learned advocate for the respondent that the respondent may be directed to prepare and file the requisite number of paper books instead of giving direction to the appellant. Accordingly, on the prayer of the learned advocate for the respondent, the respondent is directed to prepare and file the requisite number of paper books-cyclostyled, type-written or printed within one month after puja vacation. Office is directed to serve notice of arrival of the lower court records upon the learned advocate for the respondent after the lower court records are received and found complete by it. 12. All other formalities be dispensed with. 13. Office is directed to serve notice of arrival of the lower court records upon the learned advocate for the respondent after the lower court records are received and found complete by it. 12. All other formalities be dispensed with. 13. Liberty is given to the parties to mention the appeal for early hearing after the same is made ready for hearing. 14. There will be no order as to costs. I agree. Application allowed.