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2008 DIGILAW 551 (CAL)

Dilip Alias Pramanik Das v. Alok Barman

2008-05-16

BHASKAR BHATTACHARYA, RUDRENDRA NATH BANERJEE

body2008
Judgment : BHASKAR BHATTACHARYA, J. (1). THIS first miscellaneous appeal is at the instance of the defendants in a suit for declaration and permanent injunction and is directed against the Order no. 12 dated 20th March, 2008 passed by the learned Civil Judge, Senior Division, second Court, Alipore, in Title Suit No. 497 of 2008 thereby disposing of an application under Order XXXIX Rule 2 of the Code of Civil Procedure by restraining the appellants from obstructing, interfering, or disturbing the peaceful progress of construction work of the proposed multi-storied building on the suit property till the disposal of the suit. (2). BEING dissatisfied, the defendants have come up with the present First miscellaneous Appeal. (3). THE plaintiff-respondent filed a suit being Title Suit No. 46 of 2008 in the seventh Court of Civil Judge, Senior Division, Alipore, which has since been transferred to the Second Court of Civil Judge, Senior Division and has been renumbered as Title Suit No. 497 of 2008. (4). IN the said suit, the plaintiff-respondent prayed for the following relief: "a) Agreement/memorandum of Understanding and Memo of declaration dated 30. 12. 2003 and 14. 01. (4). IN the said suit, the plaintiff-respondent prayed for the following relief: "a) Agreement/memorandum of Understanding and Memo of declaration dated 30. 12. 2003 and 14. 01. 2004 are all subsisting and binding upon the defendants to all effects and intents for the purpose of, in connection with and in relation to construction of ground plus five storied building on the schedule land; b) A Decree declaring that the lawful charge and/or lien and interest have been created by the Defendants on the schedule land by way of executing the said agreement pursuant to which the possession in respect of the schedule land and the original title documents in respect thereof have been handed over to the plaintiff and relying upon such documents and assurances the plaintiff has invested huge amount of money as aforesaid in connection with the proposed construction work on the schedule land; c) A decree declaring that the plaintiff in terms of the said agreements and subsequent act and conduct of the defendants and each of them is entitled to the "builder/developers Allotment" and the Defendants are entitled to "owners Allocation" in the proposed Multistoried Building as mutually and amicably agreed and settled by and between the parties herein by virtue of the said agreements as the executory consideration in lieu of the schedule land; d) A Decree declaring that in addition to the current cash consideration already received and to be received by the defendants and having been specifically agreed to the executory consideration by virtue of the said agreements, the Defendants are not entitled to demand for any extra amount, other than since agreed for, from the plaintiff both on account of the proposed construction and the schedule land; e) A Decree declaring that the plaintiff is entitled to all effects and intents and for all practical purposes to carry out and carry on the construction work of the Multistoried Building on the schedule land without any obstruction and interference and intervention by and from the end of the defendants in any manner whatsoever; f) Permanent injunction; g) Temporary injunction; h) Cost; i) Any other relief or relief as may be deemed fit and proper. " (5). THE case made out by the respondent may be summed up thus: (a) The respondent is a developer and the appellants who are joint owners of the suit property measuring about 12 cottahs 8 chittacks 30 sq. " (5). THE case made out by the respondent may be summed up thus: (a) The respondent is a developer and the appellants who are joint owners of the suit property measuring about 12 cottahs 8 chittacks 30 sq. ft. of land entered into an agreement for development of the said land by pucca construction for the respective residential flat on the land and in terms of the said agreement, the appellants put the respondent in the suit property on execution of a written agreement after taking a sum of Rs. 6,00,000/ from the respondent. (b) According to the terms of the agreement, it was for the respondent to demolish the entire existing structure after providing temporary accommodation to the tenants of the appellants and the appellants as well. It was also the duty of the respondent to bear the entire cost of taking new sanctioned plan from the Municipal Authority and of demolition of the building and payment of the Municipal dues. It was agreed that within the period of two years from the grant of sanction plan by the Corporation, the entire building should be constructed. (c) Pursuant to such agreement, the respondent paid arrear taxes and borne the expenses of getting the sanctioned plan and also demolished the then building which stood on the land and started making construction; but all of a sudden, the appellants started creating obstruction in the process of construction. Hence, the suit was filed with the relief mentioned above. (6). AFTER filing of the said suit, the respondent, on the basis of the selfsame allegations made in the plaint, came up with an application for temporary injunction restraining the appellants from obstructing, interfering, disturbing the peaceful progress of the construction work of the proposed multi-storied building on the schedule land and from disturbing and interfering with the uninterrupted peaceful possession of the respondent in the suit property obtained by virtue of the agreement between the parties. (7). THE said application for injunction was opposed by the appellants by filing written objection thereby denying the material allegations made in the application for injunction and the defence taken by the appellants may be summarised thus: (i) The appellants without knowing the contents of the agreement put their signatures in good faith and although, the respondent paid only rs. (7). THE said application for injunction was opposed by the appellants by filing written objection thereby denying the material allegations made in the application for injunction and the defence taken by the appellants may be summarised thus: (i) The appellants without knowing the contents of the agreement put their signatures in good faith and although, the respondent paid only rs. 1,00,000/-to the appellants, it was wrongly stated in the agreement that they were paid a sum of Rs. 6,00,000/ -. (ii) The agreements were illegal, invalid, inoperative and not binding upon the appellants and the respondent was not entitled to any relief prayed in the plaint. (iii) The respondent was not in possession of any portion of the suit property and the same is actually occupied in occupation of the tenants and the appellants. (8). AS indicated earlier, the learned Trial Judge, on consideration of the materials on record, came to the conclusion that the plaintiff had made out a strong prima facie case to have an order of injunction and at the same time, the balance of convenience and inconvenience was also in favour of granting such injunction. The learned Trial Judge, accordingly, granted the injunction, as mentioned earlier. (9). BEING dissatisfied, the defendants have come up with the present First miscellaneous Appeal. (10). MR. Roychowdhury, the learned senior advocate appearing on behalf of the appellants, strenuously contended before us that even if it is assumed for the same of argument that the agreement between the parties was a valid one, the respondent was not entitled to maintain a suit for enforcing his right of specific performance of development in view of specific bar created under Section 14 (3) (c)of the Specific Relief Act. Mr Roychowdhury submits that, as a suit for specific performance of contract of the development agreement is barred by law, the plaintiff has filed the suit in the form of declaration of title and permanent injunction in support of his alleged right of development arising out of the agreement. Mr Roychowdhury further submits that the suit is, prima facie, not maintainable and accordingly, the learned Trial Judge erred in law in granting injunction by permitting the respondent to continue with the construction. (11). MR. Mr Roychowdhury further submits that the suit is, prima facie, not maintainable and accordingly, the learned Trial Judge erred in law in granting injunction by permitting the respondent to continue with the construction. (11). MR. Roychowdhury further contends that his clients being still the lawful owners of the property, a mere agreement for development cannot invest the respondent with the right to go on with construction if the real owners are not willing to permit the developer to continue with the construction. He, therefore, submits that the learned Trial Judge totally overlooked the aforesaid aspect of the matter. Mr Roychowdhury, therefore, prays for setting aside the order impugned and for allowing the appeal. (12). MR. Dasgupta, the learned senior advocate appearing on behalf of the respondent, has, on the other hand, supported the order impugned and has contended that the execution of the written agreement between the parties is well established. Mr Dasgupta submits that his client, pursuant to the agreement, has not only paid Rs. 6,00,000/- to the appellants but also demolished the existing building and has made arrangement for shifting of the tenants and at the same time, spent more than Rs. 11,00,000/- for getting the sanction of the building plan as will appear from the annexure to the application for injunction filed before the learned Trial Judge. Mr Dasgupta further points out that even his client paid the arrear taxes of the Corporation amounting to Rs. 35,000/- and odd. Mr Dasgupta submits that in such circumstances if the order of injunction is vacated, his client will suffer irreparable loss and injury and the appellants will take advantage of their own wrong. Mr Dasgupta, therefore, prays for dismissal of the appeal. (13). AFTER hearing the learned counsel for the parties and after going through the materials on record, we find that the agreement between the parties is for development of the land and secondly, by another agreement the handing over of actual possession of the property in favour of the plaintiff has been admitted by the defendants. Such possession was handed over by executing a written document. The appellants have not disputed their signatures on those documents. Therefore, the plea of the appellants that the plaintiff-respondent was not in possession of the property is not correct. It further, prima facie, appears that a sum of Rs. Such possession was handed over by executing a written document. The appellants have not disputed their signatures on those documents. Therefore, the plea of the appellants that the plaintiff-respondent was not in possession of the property is not correct. It further, prima facie, appears that a sum of Rs. 6,00,000/-was paid to the appellants at the time of execution, although, the appellants alleged that only a sum of Rs. 1,00,000/-was paid. We further find that admittedly more than Rs. 11,00,000/-were spent for getting the sanctioned plan and at the same time, the building existing at the time of agreement has been totally demolished at the instance of the plaintiff pursuant to the agreement. (14). AT the same time, we cannot lose sight of the fact that in view of the specific bar created under Section 14 (3) (c) of the Specific Relief Act, the specific performance of the agreement for development is not maintainable at the instance of the developer who is in possession of the property. The plaintiff-respondent realised this difficulty and that is why filed the suit in form of declaration in favour of his right of development arising out of such agreement and for permanent injunction. (15). WE find substance in the contention of Mr Roychowdhury that in view of the decision of this Court in the case of Vipin Bhimani and Anr. vs. Smt. Sunanda das and Anr. reported in 2006 (2) CHN 396 , the plaintiff-respondent, in the long run, even cannot, prima facie, get a decree for declaration in the form as prayed for in the plaint because what is barred under the law is the right to enforce the agreement for development and thus, if the prayer for specific performance of such contract is barred, even a declaration to that effect also cannot be granted with the consequential relief of injunction for protecting such right. (16). IT is, however, settled law that based on the materials on record, even if it appears that a plaintiff is not entitled to get the relief claimed in the suit, the court can mould the relief and can grant appropriate relief to the plaintiff, which is permissible under law on the basis of the materials on record. (16). IT is, however, settled law that based on the materials on record, even if it appears that a plaintiff is not entitled to get the relief claimed in the suit, the court can mould the relief and can grant appropriate relief to the plaintiff, which is permissible under law on the basis of the materials on record. After taking into consideration the fact that the appellants, the owners of the property, took substantial amount of money, put the respondent into possession and even forced him to pay more than Rs. 11,00,000/-to the Corporation for getting sanctioned plan and at the same time, the respondent having already demolished the entire building with the consent of the appellants and having shifted the tenants in terms of the agreement, he is at least entitled to get an order of injunction restraining the appellants from disturbing the possession of the appellants in the suit property, which was given to him by the appellants after taking money assuring assistance to implement the written agreement. We cannot ignore the position of law that a trespasser, who is in settled possession of the property, is entitled to get an order of injunction restraining even the lawful owner from disturbing his possession so long he is not dispossessed by way of due process of law. (See Rame Gowda (D) by L. Rs. vs. M. Varadappa Naidu (D) by L. Rs. and another reported in A. I. R. 2004 SC 4609 ). In the case before us, the plaintiff-respondent is on a better footing because he was put into possession by the owners after acceptance of money pursuant to a written agreement. We are, therefore, of the opinion that in the facts of the present case, although, the plaintiff is not entitled to get a decree for enforcement of the development agreement by permitting him to make construction without the consent of the owners, he should be at least permitted to maintain possession of the property, so long he is not dispossessed in execution of a decree for eviction filed by the lawful owners. Even if the plaintiff-respondent is unable to enforce the development agreement, he has right to get damages for wrongful termination of the agreement or for obstruction created by the appellants in performing his part of the contract. (17). Even if the plaintiff-respondent is unable to enforce the development agreement, he has right to get damages for wrongful termination of the agreement or for obstruction created by the appellants in performing his part of the contract. (17). WE, therefore, modify the order impugned by setting aside the same and passing a fresh order restraining the appellants from disturbing the existing possession of the plaintiff in the suit property till he is dispossessed by due process of law or till the disposal of the suit whichever is earlier. We, however, restrain the respondent from making any further construction over the suit property pursuant to the agreement between the parties. (18). AS desired by the learned counsel for the parties, the photographs produced by them showing the existing condition of the property be kept with the records. (19). THE order impugned is, thus, set aside and modified to the extent indicated above. The appeal, thus, is allowed. In the facts and circumstances, there will be, however, no order as to costs.