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2011 DIGILAW 1036 (CAL)

Mayarani Chakraborty v. Mihir Kumar Bhattacharya

2011-08-03

JAPAN KUMAR DUTT

body2011
JUDGMENT 1. THIS Court has heard the learned Advocates for the respective parties on C.A.N. No. 1274 of 2008. 2. THE stay application has been filed with a prayer for stay of all further proceedings in Title Suit No. 2 of 1986 pending in the learned Second Court of Civil Judge (Junior Division), Baruipore during the pendency of the present second appeal. THE said T.S. No 2 of 1986 is an eviction suit in which the present respondent is the plaintiff and the present petitioners are the defendants. It appears that the predecessor of the present respondent, namely, one Kalyani Bhattacharya was the owner of the suit property and she had inducted the predecessor of the present petitioner No. (2) series, namely, one Prafullya Kumar Chakraborty, as a tenant in the suit premises. THE said Kalyani Bhattacharya filed the aforesaid eviction suit against the said Prafullya Kumar Chakraborty who was the husband of the present petitioner No.1, that is, Mayarani Chakraborty. On the death of the said Kalyani Bhattacharya the present respondent, that is, Mihir Kumar Bhattacharya was substituted in the said eviction suit. THE present respondent, during the pendency of the said eviction suit, allegedly sold the suit property to the said Mayarani Chakraborty by a registered sale deed dated 31.3.1992. But, subsequently, the present respondent filed a suit being Title Suit No. 59 of 1996 against the said Mayarani Chakraborty and her husband Prafullya Kumar Chakraborty for a declaration that the said sale deed dated 31.3.1992 was without consideration, void and it had no binding effect upon the present respondent, that is, Mihir Kumar Bhattacharya. THE said Title Suit No. 59 of 1996 was decreed by the learned Civil Judge (Junior Division), 2nd Court, Baruipore declaring in favour of the present respondent and an appeal was filed by the defendants in the said suit being Title Appeal No. 8 of 2001 but such title appeal was dismissed by the learned Lower Appellate Court. THE appellants/petitioners have preferred the present second appeal challenging the judgment and decree passed by the learned Lower Appellate Court. THE appeal has already been admitted by an Hon'ble Division Bench of this Court. THE application being C.A.N. No. 1274 of 2008 has come up for a final hearing after filing of affidavits by the respective parties. THE appellants/petitioners have preferred the present second appeal challenging the judgment and decree passed by the learned Lower Appellate Court. THE appeal has already been admitted by an Hon'ble Division Bench of this Court. THE application being C.A.N. No. 1274 of 2008 has come up for a final hearing after filing of affidavits by the respective parties. The learned Counsel appearing on behalf of the appellants/ petitioners submitted that since the appellant/petitioner No. 1 has purchased the suit property from the respondent and on the death of her husband (Prafullya) Prafullya's heirs including his wife and children have been substituted in place and stead of Prafullya in the aforesaid eviction suit there has been a merger of interest and in this connection the said learned Counsel referred to the provisions of Section 111(d) of the Transfer of Property Act. He submitted that in the present circumstances the respondent herein cannot proceed with the aforesaid eviction suit and the fate of the said eviction suit very much depends upon the final decision in the instant second appeal. He submitted that in case the appellants/petitioners succeed in the present second appeal and it is found that the sale of the suit property by the plaintiff/respondent in favour of the appellant/petitioner No.1 is valid then, in that event, the respondent herein cannot get a decree for eviction against the appellants/petitioners. He submitted that it is imperative that this Court should stay all further proceedings in the said eviction suit. He submitted that it would not be proper to allow the present respondent to proceed with the eviction suit after he has sold the suit property to the appellant/ petitioner No.1. He submitted that at present parties in both the proceedings, that is, in the said eviction suit and in the present second appeal, are the same and this Court should pass an order of stay as prayed for by the petitioners. 3. HE cited a decision reported at 61 Indian Appeals 388 (Pir Bakhsh v. Mohamed Tahar). He submitted that at present parties in both the proceedings, that is, in the said eviction suit and in the present second appeal, are the same and this Court should pass an order of stay as prayed for by the petitioners. 3. HE cited a decision reported at 61 Indian Appeals 388 (Pir Bakhsh v. Mohamed Tahar). The said learned Advocate relied on the said reports as it appears from the said reports the Hon'ble Court took the view that in a suit for ejectment by the registered proprietor of the land it is not a relevant defence that the plaintiff has agreed to sell the land in the suit to the defendant but if such contract for sale is still enforceable the defendant may found upon it to have the suit stayed and by suing for specific performance obtain a title which will protect him from ejectment. 4. HE cited another decision reported at AIR 1951 Cal. 561 [Atula Bala Dasi and Others v. Nirupama Devi and Another) and reference was made to Paragraph 7 of the said reports wherefrom it appears that on behalf of the opposite parties in the said case it was argued that every Court has got an inherent power to stay proceedings pending in other Courts. The Hon'ble Court found that :- "such inherent power has been exercised in the Original Side of this Court, it being held that such jurisdiction has been derived from the old Supreme Court. This has been the accepted view of this Court and the principle will be found enunciated in a series of decisions. Vide Mungle Chand v Gopal Ram,' 34 Cal 101, 'Jumna Das v. Haracharan Das', 38 Cal 405; 'Naskarpara Jute Mills Co. v. Nirmal Kumar Jain', ILR. 1941 (1) Cal 373 and in the Goods of Mrs. Lelian Singh, AIR (30) 1943 Cal 93. So far as mofussil Courts are concerned, such inherent power was exercised to stay proceedings pursuant to its own order in view of and intended appeal. Vide Brij Coomaree v. Ram Rik Das,' 5 CWN 781; Nandakishore v. Ram Golam' 40 Cal 955 at P.(961). The exercise of an inherent power no doubt, may if permissible be widened to aid administration of justice and not to restrict it unduly so as to cause needless headship to litigant, leading to a possible failure of justice. Vide Brij Coomaree v. Ram Rik Das,' 5 CWN 781; Nandakishore v. Ram Golam' 40 Cal 955 at P.(961). The exercise of an inherent power no doubt, may if permissible be widened to aid administration of justice and not to restrict it unduly so as to cause needless headship to litigant, leading to a possible failure of justice. Without considering finally whether such inherent power rests in the mofussil Courts as also in the Appellate Side of this Court, we may proceed to consider whether in the circumstances of this case, refusal to exercise such inherent power will lead to an apparent injustice or hardship. As we shall indicate hereafter, we do not think that it is necessary in the facts and circumstances of the present case to exercise such inherent power even if such power existed, as there are necessary and sufficient provisions in the Succession Act itself under which protection may be given pending the final decision of the probate proceedings." Thus, it appears from the said reports that the Hon'ble Court did not finally decide the question as to whether such inherent power, as indicated above, should be exercised in the Appellate Side of this Court and ultimately the Hon'ble Court in the facts of the said case refused to exercise such inherent power. The learned Advocate for the appellants/petitioners submitted that since the appellant No.1 Mayarani Chakraborty has already purchased the suit property from the respondent/opposite party and the said Mayarani Chakraborty has already been brought on record in the said title suit along with other heirs and legal representatives of the original tenant of the suit property, that is, Prafullya Kumar Chakraborty, it would not be proper at all to allow the respondent/ opposite party to proceed with the said eviction suit. The learned Advocate appearing on behalf of the respondent/ opposite party submitted that provisions of Section 111(d) of the Transfer of Property Act cannot be applied to the facts of the instant case as husband of the appellant/petitioner No.1 was the tenant in respect of the suit property but the said tenant did not purchase the suit property; it was the appellant/petitioner No.1 who is claiming to have purchased the suit property and even if the said appellant/petitioner No. 1 has been brought on record in place and stead of the original tenant as one of the heirs and legal representatives of the original tenant it cannot be said that the appellant/petitioner No.1 alone has got a tenancy right in respect of the whole of the suit property. 5. THE said learned Advocate cited a decision reported at 2004(3) SCC 178 (India Umbrella Manufacturing Co. and Others v. Bhagabandei Agarwalla by Lrs. Savitri Agarwalla (Smt.) and Others). In Paragraph 9 of the said reports the Hon'ble Court was pleased to observe that in order to bring the tenancy to an end the merger should be complete i.e. the interest of the landlord in its entirety must come to vest and merge into the interest of the tenant in the entirety. THE Hon'ble Court was further pleased to observe that when part of the interest of the landlord or the interest of one out of many co-landlords-cum-co-owners comes to vest in the tenant, there is no merger and the tenancy is not extinguished. He cited another decision reported at 1993 Supp (3) SCC 651 (Huchappa Yellappa Radder and Another v. Ningappa Bheemappa Talawar). THE Hon'ble Court was pleased to observe in Paragraph 8 of the said reports that for constituting merger under the provisions of Section 111(d) of the Transfer of Property Act the interests of the lessee and the interests of the lessor in the whole of the property had to vest at the same time in one person in the same right. 6. 6. THE said learned Advocate cited another decision reported at AIR 1986 Supreme Court 1952 (Bal Kishan v. Om Prakash and Another) in support of his contention that the heirs and legal representatives (including the appellant/petitioner No. 1) of the said Prafullya Kumar Chakraborty after being brought on record in place and stead of the said Prafullya Kumar Chakraborty in the said eviction suit can only raise a defence which the said Prafullya Kumar Chakraborty could have taken but the appellant/petitioner No.1 cannot establish her own independent right beyond the right which could have been exercised by the said Prafullya Kumar Chakraborty. THE said learned Advocate cited another decision reported at AIR 1995 Supreme Court 1653 (Vidyawati v. Man Mohan and Others) and referred to Paragraph 6 of the said reports in support of his submission that if the appellant/petitioner No.1 intends to exercise any independent right of hers then in that event she has to get herself impleaded in the said eviction suit in her independent capacity under Order 1 Rule 10 C.P.C. or bring an independent suit asserting her own alleged right. The said learned Advocate cited another decision reported at AIR 1990 Calcutta 1 (Usha Ranjan Roy Burman v. Smt. Sova Das) and referred to Paragraph 7 of the said reports in support of his submission that in the present case in cannot be said that there was a merger as contemplated under Section 111(d) of the TP. Act. 7. THE said learned Advocate cited another decision reported at 2004 (1) WBLR (SC) 923 (Radha Devi v. Deep Narayan Mandar and Ors.). It appears from the said reports that the respondents in the said case filed a suit for declaration and partition and the appellant had filed a suit for eviction but subsequently in the eviction suit the respondents filed an application for staying the proceedings in the eviction suit till the disposal of the suit for declaration and partition. Thus, it appears that the facts of the said case were not similar to the facts of the instant case. In the instant case, the appellants/petitioners have filed an application for stay of further proceedings in another suit, that is, the eviction suit, out of which the present second appeal does not arise. Thus, it appears that the facts of the said case were not similar to the facts of the instant case. In the instant case, the appellants/petitioners have filed an application for stay of further proceedings in another suit, that is, the eviction suit, out of which the present second appeal does not arise. However, the Hon'ble Court in the said reports was pleased to observe that the Bihar Rent Act is a Special Act providing for speedy disposal of eviction suit on certain grounds enumerated therein and under the said Act eviction suit is required to be tried under summary procedure provided under the Bihar Rent Act and in such a suit the Rent Court is not required to go into the serious question of title and thus, there is no justification in staying proceedings in the eviction suit. 8. HAVING heard the learned Advocates for the respective parties and having considered the facts and circumstances of the case and the decisions cited at the Bar, this Court is of the view that it will not be proper for this Court to decide the question as to whether the proceedings in the said eviction suit should be stayed or not. The present second appeal has not arisen out of the said eviction suit. But, it has arisen out of the said suit for declaration that the aforesaid sale deed dated 31.3.1992 is void and it has no binding effect upon the respondent/opposite party. The dispute involved in the said eviction suit is not the subject-matter for consideration in the present second appeal but a decision in the present second appeal after it is finally heard may have an important bearing on the said eviction suit. The question is whether the application for stay filed by the appellant/ petitioners should be considered on merits by this Court or whether the appellants/petitioners should file an application for stay of further proceedings of the eviction suit in the eviction suit itself. The decision reported at AIR 1951 Cal 564 (Atul Bala Dasi and Others v. Pama Devi and Another) Paragraph 7 may be referred to. The decision reported at AIR 1951 Cal 564 (Atul Bala Dasi and Others v. Pama Devi and Another) Paragraph 7 may be referred to. In the said paragraph of the said reports the Hon'ble Court was ultimately pleased to hold that it did not finally decide whether the inherent power rests in the mofussil Courts as also in the Appellate Side of this Court and ultimately in the said reports the Hon'ble Court was pleased not to exercise the inherent power even if such power existed. In the present case, the appellants/ petitioners who are now also parties in the said eviction suit are not barred under any law to file an application for stay of further proceedings of the eviction suit in the eviction suit itself and the learned Trial Court before which the eviction suit is pending may, if it feels necessary, exercise its inherent power under Section 151 C.P.C. This Court is of the view that since the appellants/petitioners do have a right to make an application for stay of further proceedings of the eviction suit in the eviction suit itself, there is no necessity for this Court to decide such application for stay on its merits in a second appeal which arises out of a suit for declaration. Since this Court is not inclined to decide the application for stay on its merits it is not necessary for this Court to decide the question whether or not the provisions of Section 111(d) of the Transfer of Property Act can be applied to the facts and circumstances of this case. It may be for the learned Court which may have to consider a prayer for stay of further proceedings in the eviction suit to decide as to whether or not the provisions of Section 111(d) applies to the facts and circumstances of the case. It is made clear, in the above circumstances, that this Court has not decided the question whether the principle of merger as contemplated under Section 111(d) of the said Transfer of Property Act can be applied to the facts and circumstances prevailing between the parties. It is also, made clear that this order will not prevent the appellants/petitioners to file an appropriate application for stay of further proceedings of the said eviction suit in the aforesaid eviction suit itself. It is also, made clear that this order will not prevent the appellants/petitioners to file an appropriate application for stay of further proceedings of the said eviction suit in the aforesaid eviction suit itself. If such application for stay is filed by the appellants/petitioners in the aforesaid eviction suit the learned Trial Court before whom the said eviction suit is pending will have to decide the same in accordance with law. This Court is, thus, not inclined to grant any order of stay as prayed for by the appellants/petitioners in the present second appeal. The application is disposed of. Urgent certified xerox copy of this order, if applied for, shall be given to the parties as early as possible on compliance of usual formalities.