Research › Search › Judgment

Calcutta High Court · body

2007 DIGILAW 862 (CAL)

Rita Mitra v. Lata Kappor

2007-12-10

RUDRENDRA NATH BANERJEE

body2007
JUDGMENT:- (1). THIS revisional application under Article 227 of the Constitution of india is directed against the Order No.25 dated 15.9.07 passed in Title suit No. 28 of 2007 of the Court of Civil Judge, Junior Division, 3rd Court, aiipore allowing the petition under Section 151 of the Code of Civil procedure (in short the C.P.C.) directing the plaintiff to handover possession of the suit property in favour of the defendant. (2). THE said Title Suit No. 28 of 2007 was filed by the present plaintiff/ petitioner Smt. Rita Mitra, wife of Debasish Mitra against the defendant/ opposite party-Smt. Lata Kapoor for a decree of declaration of title and for permanent injunction in respect of the suit property which consists of covered area of 1369 sq. feet in the ground floor together with garage and mezzanine floor in the building at Premises No. 259, Lake Gardens. (3). IT is the case of the plaintiff that the suit land measuring about 2 cottah and 3 chittaks along with a three storied residential building thereon originally belonged to Gita Rani Mitra who died intestate on 22.11.83 living behind her husband Sri Barindra Nath Mitra and three sons namely, Pradip mitra, Debasish Mitra and Rajkumar Mitra and only daughter Smt. Roma ghosh as her legal heirs. Said Barindra Nath Mitra also died intestate on 31.5.02 living behind his aforesaid three sons and only daughter. (4). THE property was thereafter partitioned by metes and bounds under registered deed of partition dated 13.1.03 and out of such partition debasish Mitra was allotted the entire ground floor together with a garage and a mezzanine floor of the said building. The first floor of the building was allotted to another son Pradip Mitra and the other two floors were allotted to the two another son and the daughter of Gita Rani Mitra. The present suit is in relation to the entire ground floor together with the mezzanine floor and garage. (5). PRADIP Mitra to whom the first floor was allotted inducted the defendant as tenant in respect of the said first floor. Ultimately, the said pradip Mitra gifted the said property to his wife Rina Mitra who ultimately sold the entire first floor of the said building to the defendant under a registered deed of conveyance. (6). (5). PRADIP Mitra to whom the first floor was allotted inducted the defendant as tenant in respect of the said first floor. Ultimately, the said pradip Mitra gifted the said property to his wife Rina Mitra who ultimately sold the entire first floor of the said building to the defendant under a registered deed of conveyance. (6). DEBASISH Mitra, after being allotted with the ground floor with mezzanine floor and garage gifted the same to his wife Smt. Rina Mitra, the present plaintiff under a registered deed of gift dated 12.8.03 and since then she has been possessing the suit property in khas. The defendant having made an attempt to disturb the plaintiffs possession in respect of the mezzanine floor and the garage which was within the allotment of her husband, she has been compelled to bring this suit for declaration of her absolute right of enjoyment as owner in respect of the said suit property and for permanent injunction. (7). SUBSEQUENTLY, the plaintiff has added the story of surrender of the said mezzanine floor room and garage in the ground floor by the defendant. (8). IN the said suit the plaintiff got an order of the interim injunction restraining the defendant from interfering with her peaceful enjoyment of the suit property. But, subsequently such petition of injunction was rejected on contest. The defendant filed another petition under Order 39 Rule 4 of the C.P.C. which was allowed on contest by the self-same order of the court dated 15.5.07 restraining the plaintiff from parting with possession of the mezzanine floor and garage. On the petition of the defendant under section 151 of the C. P. C. the Court below passed the impugned order no. 25 dated 15.9. 07, directing the plaintiff to handover the possession of the mezzanine floor and the garage on or before 24.9.07. (9). THE defendants case is that her husband Suhas Chandra Kapoor was a tenant under Gita Rani Mitra is respect of the entire first floor and the said mezzanine floor and the garage in the ground floor of the said building. After the partition between the brothers and sisters of her husbands landlord Pradip Mitra who got the first floor only in partition transferred the same to the present defendant. After the partition between the brothers and sisters of her husbands landlord Pradip Mitra who got the first floor only in partition transferred the same to the present defendant. Thus, according to the defendant she became the owner of the first floor and continued to be a tenant in respect of the said mezzanine floor and garage and has been occupying the same on payment of rents and the plaintiff taking the advantage of her short absence from the suit house during her visit to her native place at Punjab has parctically took forcible occupation of the said mezzanine floor and garage which resulted in criminal cases between the parties. Accordingly, the defendant prayed for restoration of possession of the said mezzanine floor room and the garage in the ground floor wherefrom she was evicted forcibly during the pendency of the suit. (10). UNDISPUTEDLY, the suit building originally belonged to Gita Rani mitra and ultimately on her husbands death devolved upon her sons and daughter. There is also no dispute as to the partition between the husband of the plaintiff and her sister and brothers by a registered deed of partition dated January 13, 2003 which is silent about the tenancy of the defendant or her husband. But, it speaks of allotment of the entire ground floor including the mezzanine floor and garage to the husband of the present plaintiff and the entire first floor in favour of the said Pradip kumar Mitra who ultimately transferred the ownership of the first floor to the present defendant. There is practically no dispute as to the ownership of the first floor belonging to the present defendant and also the ownership of the ground floor including the mezzanine floor and the garage belonging to the present plaintiff. It has already been mentioned that the partition deed does not speak of any tenancy or occupation by the defendant in the said garage and the mezzanine floor. But, at the same time it is true that no document like rent receipt issued by Gita rani Mitra or her son Debasish Mitra or his wife the present plaintiff namely, Rita Mitra showing the extent of tenancy covering the said mezzanine floor and garage within such tenancy nor is there any deed of agreement showing such extent of tenancy forthcoming. (11). (11). LEARNED Court below on the basis of the entry in the suit register in the prior suit i.e. Title Suit No. 28 of 2007 which was the suit for eviction of the husband of the present defendant filed by the Gita Rani Mitra, held that the mezzanine floor and the garage was included in the tenancy. Learned Court has also been convinced by the letter of complaint dated 27.9.04 by the husband of the plaintiff at the local police station that such mezzanine floor and garage were included in the tenancy. Learned Court below also. . . on the basis of the defendants FIR dated 26.2.07 before the local police station for her forcible dispossession etc. Ultimately, learned court below upon such documentary evidence was of the view that the defendant was evicted forcibly during the pendency of the suit and she should be restored to her possession as tenant. (12). SURPRISINGLY, when the ownership of the said mezzanine floor and garage of the ground floor is not disputed there is no document forthcoming to show that the defendant ever paid rent to the present plaintiff the undisputed owner in respect of such garage and mezzanine floor. (13). SIMPLY because the plaintiff could not produce any documentary evidence as to the defendants surrender of tenancy in respect of the said garage and mezzanine floor learned Court below has practically disbelieved the planitiffs case of surrender of tenancy before the institution of the suit. There may be claim of higher rate of rent in respect of such mezzanine floor and ground floor under the new Act of tenancy, but all these do not go to brush aside the very documentary evidence that there was no mention of tenancy in the said partition deed. It might be that at the time of partition or at the time of gift to the present plaintiff there was a mutual understanding between the parties for defendants surrender of the tenancy after vacating the said garage and the mezzanine floor. Whatever might that case be learned Court below has practically disposed of the suit itself by passing the impugned order upon a petition under section 151 of the C. P. C. (14). LEARNED Lawyer for the respondent Mr. Whatever might that case be learned Court below has practically disposed of the suit itself by passing the impugned order upon a petition under section 151 of the C. P. C. (14). LEARNED Lawyer for the respondent Mr. Nishit Adhikary has strenuously contended that there was practically an abuse of the Courts process and learned Court below by restoring the possession of the defendant in the suit premises rightly applied his discretion under Section 151 of the C. P. C. to avoid the abuse of such proces of law. But, the documents on record does not go to show definitely that the defendant has been evicted forcibly from the suit property taking the advantage of an interim order of injunction in her favour. In such a case in the name of mandatory injunction the entire relief of the suit is claimed. The possession of the parties. . . . of so called tenancy is quite doubtful. Learned Court below ought to have passed an order of status quo in respect of the nature and character of the suit property and possession thereof. Instead of doing so, learned Court below has disposed of the entire suit by passing the order of mandatory injunction upon a petition under Section 151 of the C. P. C. (15). IN support of such proposition the decision reported in 2006 (3) CHN 560 (Ranjan Kumar Sinha v. Prabir Kumar Sinha and Ors.) may be relied upon. In the said decision the concerned suit was filed by the plaintiff for a declaration that he was the sole tenant in respect of the suit premises. The prayer for temporary injunction was also made for restraining the landlord defendant from changing the nature and character of the suit premises and also from disturbing the possession of the plaintiff learned Trial Judge allowed the prayer. But this High Court by the judgment of the Divison Bench in the above referred case held at para 23 that the rights and interest of the parties in respect of the suit premises should be decided exclusively after full-fledged trial. The claims of the plaintiff cannot be decided even prima facie on the basis of the materials available on record at that stage and unless evidences are adduced by the parties such issues involved in this case cannot be finally decided. The claims of the plaintiff cannot be decided even prima facie on the basis of the materials available on record at that stage and unless evidences are adduced by the parties such issues involved in this case cannot be finally decided. It has been further observed at para 24 of the said judgment that in the guise of the tentative finding learned Court below has virtually expressed his final opinion with regard to the possession in respect of the suit premises as well as the tenancy in question which cannot be sustained. Accordingly, an order of status quo in respect of possession was passed in the said decision of the Division Bench. (16). ACCORDINGLY, the impugned order should be and hereby is set aside. The parties are directed to maintain status quo in respect of the nature, character and possession of the suit property till the disposal of the suit. (17). BE it made clear that the aforesaid order will not precluded parties to get their reliefs in other forum like Criminal Court. There shall be no order as to costs.