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1998 DIGILAW 60 (CAL)

VEGA TRADING CORPORATION v. SHANTILAL RAMPURIA

1998-02-16

SIDHESWAR NARAYAN

body1998
S. NARAYAN, J. ( 1 ) - After a protracted litigation for over 37 years in two spells the parties have now joined issue with regard to identity of the demised premises under section 47 of the Code of Civil Procedure in Miscellaneous Case No. 12 of 1989 arising out of an execution proceeding being Execution case No. 103 of 1990 which relates to Ejectment Suit No. 650 of 1972. After the first phase of litigation between the parties ended with disposal of Ejectment suit No. 103 of 1990, the next one started with Ejectment Suit No. 650 of 1972 which went up to the Supreme Court where the plaintiff/decree-holder was ultimately favoured with a decree of ejectment against the judgment-debtor/petitioner with respect to the demised premises. The judgment-debtor asserted that the decree was incapable of execution for want of proper and specific identity on the spot. ( 2 ) STRAIGHT-WAY coming to the legal proposition, I am to extract the provision contained in Order 20 Rule 9 of the CPC which is as follows:-"r. 9. Decree for recovery of immovable property:- Where the subject matter of the suit is immovable property, the decree shall contain a description of such property sufficient to identify the same, and where such property can be identified by boundaries or by numbers in a record of settlement or survey the decree shall specify such boundaries or numbers. " ( 3 ) EMPHASIS may be put of the legal requirement that the description of the immovable property must be given as such, which would be sufficient to identify the same. Added to it, if the property could be identified by boundaries, the decree was required to specify such boundaries as well. In this context, what is to be found in the instant case is that the demised premises has been described in the relevant decree in the manner as given below, which, of course, also records the boundaries of the property. "description of the premises 1. One office room being room No. 3 on the Second Floor of Premises No. 8/1, 8a, 8b, 8c Lal bazar St. Calcutta containing an area of about 3000 sq. ft. "description of the premises 1. One office room being room No. 3 on the Second Floor of Premises No. 8/1, 8a, 8b, 8c Lal bazar St. Calcutta containing an area of about 3000 sq. ft. and bounded on the north by Lal bazar Street on the south by a godown occupied by the Central Bank of India on the east by a passage in the said premises and on the west by passage and staircase in the said premises. 2. One Darwan's room on the roof of the Premises No. 8/1, 8a, 8b and 8c, Lal Bazar Street, calcutta containing an area of about 40 sq. f. bounded on the north by roof of the said building on the south by roof of the said building on the east by a Darwan's room and on the west by a darwan's room. " ( 4 ) THE description noted in the decree exactly tallies with that as given in the schedule of the plaint of the concerned Ejectment suit as also in the notice of ejectment served upon the judgment-debtor petitioner prior to the suit. ( 5 ) WITH reference to the description of the demised premises as noticed above, it would be worthwhile pointing out that when the dispute between the parties went before the Supreme Court in Civil Appeal No. 331 of 1978, (reported in AIR 1989 SC 1819 ) it was recorded in para 2 of the judgment as follows:-"the premises consists of a big room, described as room No. 3 along with a small room for the use of a Darwan (porter) staying there as guard. (emphasis put)thus, everywhere right from the beginning the catch point of the description of the demised premises was Room No. 3 along with a small room for the use of a Darwan. This much of description was no where in dispute. There was also no dispute raised that the room No. 3 situated on the second floor of the demised premises and the Darwan's room on the roof of the said premises. The boundaries of the portion in tenancy as also the area under the tenancy has not been contradicted. The area was about 3000 sq. ft. (room No. 3) and about 40 sq. ft. (Darwan's room) as given in the decree as also in the plaint of the suit-in-question. The boundaries of the portion in tenancy as also the area under the tenancy has not been contradicted. The area was about 3000 sq. ft. (room No. 3) and about 40 sq. ft. (Darwan's room) as given in the decree as also in the plaint of the suit-in-question. The boundaries also have been clearly mentioned at all relevant points of time, i. e. to say, in the ejectment notice, the plaint and the decree". ( 6 ) IN view of what has noted above, there can be no manner of doubt as to compliance of the requirement contained in Order 20 Rule 9 of the CPC, which has been referred to above. The judgment-debtor/petitioner has, however, come forward with a plea that the description as given either in the decree or the plaint or even in the ejectment notice was inaccurate and not specific, My attention was, however, drawn to the description of the demised premises given by the judgment-debtor/petitioner himself in his petition under section 47 of the CPC, which does record as one office room on the eastern side of the second floor with an area of 3000 sq. ft. with certain boundaries (disclosed therein ). The area as given by the judgment-debtor and also the boundaries of the demised premises mentioned in his petition under section 47 of the CPC if read with the Assessment Chart of the Calcutta Municipal Corporation would most certainly indicate that the tenanted portion as asserted by the judgment-debtor was the same as given by the decree-holder in the plaint and the decree. If the number, area and boundaries of the demised premises as given by the parties did tally with each other, there was, in my opinion no need going for some more details. ( 7 ) TO crown all, a question arises whether there was any such dispute earlier with regard to the identity of the demised premises by the judgment-debtor during the long pendency of the litigation for over 37 years. On looking to the pleadings of the parties, it can be said in no un-certain terms that the judgment-debtor/petitioner did never raise dispute as to the identity of the tenanted portion even up to the Supreme Court where as noted above, the demised premises has been described as room No. 3 along with small room for the use of Darwan. On looking to the pleadings of the parties, it can be said in no un-certain terms that the judgment-debtor/petitioner did never raise dispute as to the identity of the tenanted portion even up to the Supreme Court where as noted above, the demised premises has been described as room No. 3 along with small room for the use of Darwan. That being the position, it was not open for the judgment-debtor to agitate the matter afresh and, that too, without any sufficient ground. ( 8 ) THE only ground to dispute the identity taken up by or on behalf of the judgment-debtor was that the premises number as given in the decree or the plaint records as many as four premises Nos. 8/1, 8a, 8b and 8c, whereas according to the judgment-debtor the tenanted portion was situated only in premises No. 8b. In this context, it has been rightly appreciated by the executing court that the demised premise consisted of a solitary building known as Bikaner Buildings. While from the ejectment notice as also the Municipal Assessment Book, it can be safely gathered that whereas the buildings-in-question as was only one, there were four separate premises numbers given as 8/1, 8a, 8b and 8c because of the different holdings marked by the Municipal Corporation. It was, therefore, not quite un-usual for the decree-holder to have given all the holding numbers, which were provided to one and the same building i. e. Bikaner Buildings by the Municipal Corporation. The relevant point was whether the identity of the tenanted portion with the given room number with specifications of area, the floor and the boundaries was in-correct or not. From what has been noticed above there appears nothing wrong about those descriptions. ( 9 ) LASTLY, coming to the Bailiff's report, it would be found therein that there was absolutely no difficulty with regard to identification of the demised premises as per the description given in the decree. The Bailiff could very well locate the demised premises and in that view of the matter as well, I find the objection of the judgment-debtor to be quite baseless. The report of the Bailiff did not indicate that the decree was incapable of execution for want of proper identification. In the premises, there is no merit in the revision and, accordingly, it is dismissed. There shall be, however, no order as to costs. Petition dismissed