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2011 DIGILAW 107 (CAL)

Sushanta Roy v. Shyamal Kanti Bandopadhyay

2011-01-21

PRASENJIT MANDAL

body2011
JUDGMENT PRASENJIT MANDAL, J. 1. CHALLENGE is to the order dated December 17, 2009 passed by the learned Civil Judge (Junior Division), First Court, Sealdah in Title Suit No.259 of 2007 thereby allowing an application under Section 151 of the Code of Civil Procedure filed by the defendant no.1. By the said order, the plaintiff was directed to restore the possession of the A schedule property to the defendant no.1. 2. THE plaintiff/petitioner herein instituted a suit being the Title Suit No.259 of 2007 for permanent injunction praying for a decree for restraining the defendant no.1 from dispossessing and / or disturbing the peaceful physical possession of the plaintiff in the A schedule property, as described in the schedule to the plaint. At the time of filing the suit, the petitioner prayed for temporary injunction. He also prayed for ad interim injunction which was refused by the learned Trial Judge. Thereafter, the petitioner preferred a misc. appeal being Misc. Appeal No.88 of 2007 and the lower appellate Court granted an ad interim order of injunction by granting status quo on December 24, 2007. Ultimately, the said order of injunction was vacated at the time of disposal of the said misc. appeal. As per plaint, the defendant no.1/opposite party herein is in possession of the B schedule property comprising two rooms on the ground floor of the suit premises. The defendant contended that on taking opportunity of his absence from his tenanted premises, the plaintiff wrongfully dispossessed him from A schedule property which was also in his possession. So, he filed an application under Section 151 of the C.P.C. which was allowed by the impugned order. Being aggrieved, this application has been preferred. Now, the question is whether the impugned order should be sustained. 3. Upon hearing the learned counsel for the parties and on going into the materials on record, I find that the dispute between the parties is as to who is in possession of the A schedule property. As stated earlier, the plaintiff has filed the suit for permanent injunction against the defendant/opposite party no.1 herein and the landlord/opposite party no.2 herein with regard to A schedule property. The petitioner filed the said suit being Title Suit No.259 of 2007 as if he were in possession of the suit property. As stated earlier, the plaintiff has filed the suit for permanent injunction against the defendant/opposite party no.1 herein and the landlord/opposite party no.2 herein with regard to A schedule property. The petitioner filed the said suit being Title Suit No.259 of 2007 as if he were in possession of the suit property. Admittedly, the defendant is also a tenant with regard to the B schedule property under the opposite party no.2. As regards possession, both the plaintiff and the defendant no.1 have raised contradictory claims. In such a situation, the landlord is, prima facie, the best person to say as to who is the tenant in respect of the A schedule property. In the instant suit, the landlord filed a written statement as appearing at page no.43 A thereby admitting that the plaintiff is in possession of A schedule property and the defendant/opposite party no.1 is in possession of two rooms on the first floor of the said premises and he has clearly stated that the defendant no.1 has been trying to dispossess the plaintiff from his lawful possession and that he has no right, title and interest over the property in suit, that is, A schedule property. 4. IT may be noted herein that the landlord filed a title suit being Title Suit No.98 of 2005 for declaration, recovery of possession and permanent injunction against the defendant no.1 contending, inter alia, that the defendant no.1 has been possessing the rooms of the ground floor of the suit premises as trespasser. Admittedly, there are five rooms at the ground floor of the premises at 6, Yogipara Bye-lane, Kolkata 700 006. In the suit being Title Suit No.98 of 2005 particularly in paragraph no.8, the landlord has clearly stated that the defendant no.1 possesses one room on the ground floor, one Satyendra Nath Gan possesses two rooms and one Purnendu Bhusan Lahiri also possesses two rooms on the ground floor. He has described in the plaint that the father of the plaintiff of the instant suit, namely, Charan Roy possesses three rooms with privy and that common bath and privy and water facilities are available in the ground floor. He has not stated that the plaintiff of the instant suit is in possession of three rooms on the ground floor of the premises in his suit at all. 5. He has not stated that the plaintiff of the instant suit is in possession of three rooms on the ground floor of the premises in his suit at all. 5. THUS, from the plaint of Title Suit No.98 of 2005, it appears that the plaintiff has no possession with regard to the suit premises, as described in schedule A to the plaint. On the other hand, the defendant no.1/opposite party no.1 herein has contended that during his absence, the plaintiff has taken forcible possession of the three rooms of the ground floor at premises no.6, Yogipara Bye-lane, Kolkata 700 006, as described in schedule A to the plaint (Title Suit No.No.259 of 2007) and so he has filed the application under Section 151 of the C.P.C. for restoration of possession which was allowed by the learned Trial Judge. 6. MR. S. Deb, learned Advocate appearing on behalf of the opposite party no.1, submits that whenever any fact is admitted by any person, no proof is required on that matter and appropriate orders may be passed on the basis of such admission. In support of his contention, MR. Deb has relied on the decision of AIR 1974 SC 471 particularly paragraph 26, AIR 1967 SC 341 particularly paragraph 15, AIR 1971 Orissa 267 para 5, 26 CWN 408, AIR 1978 Cal 499 and 2010 (2) CHN Cal 355 and thus he submits that whenever the landlord, that is, the opposite party no.2 admits that the opposite party no.1 possesses one room in the ground floor and the father of the plaintiff of the instant suit was in possession of three rooms on the first floor only and no room on the ground floor, such admission should be acted upon and so the contention of the opposite party no.1 that he has been dispossessed on December 27, 2007 should be accepted. It may be noted herein that order of injunction by way of status quo was passed by the learned appellate court on December 24, 2007. Thus, he supports the judgment. In the instant suit, there is no admission of the opposite party no.2 but in a previously instituted suit by the opposite party no.2 he admitted, and so he may be bound by the principle of estoppel as to his previous statement. Thus, he supports the judgment. In the instant suit, there is no admission of the opposite party no.2 but in a previously instituted suit by the opposite party no.2 he admitted, and so he may be bound by the principle of estoppel as to his previous statement. The opposite party no.2 has also been made a party in the instant suit and he has filed a written statement admitting that the plaintiff is in possession of the suit. This being the position, the earlier admission made by the opposite party no.2 may be considered as evidence at the time of trial of the suit and not before. Rather, in the instant suit before acceptance of the earlier admission by the landlord, Court must be of clear finding that admission has been made properly and that there is no doubt of ambiguity about the so-called admission. In coming to my decision, I have considered the decisions or AIR 1971 SC 1542 and AIR 1958 SC 419 paragraph 6. This being the position, it appears that there are claim and counter-claim over possession by the plaintiff and the defendant no.1 with regard to the schedule A property, as described in the plaint. Both parties have produced certain materials in support of their respective possession. On the basis of the claim and counter-claim, duly supported by affidavit and some materials, the learned Trial Judge has allowed the application under Section 151 of the C.P.C. directing the plaintiff to deliver possession of the A property to the defendant no.1. Since, the possession of the suit property is disputed and there is evidence to the effect that both the plaintiff (through his father) and the defendant no.1 have other accommodation at the said premises being numbered 6, Yogipara Bye-lane, Kolkata 700 006, it is not difficult for either of the parties to collect other materials in support of their possession. In such a situation, it may be not proper to come to a conclusion as to who is in possession unless the evidence is tendered by the parties and cross-examination is made by the adversary. In other words, without recording evidence, it is not possible to come to a specific finding as to who is in possession of the suit property. In other words, without recording evidence, it is not possible to come to a specific finding as to who is in possession of the suit property. The learned Trial Judge has, therefore, committed a grave wrong in deciding that the defendant no.1 was in possession of the suit property and the plaintiff has evicted him during his absence. So, the impugned order directing the plaintiff to delivery possession in favour of the defendant no.1 cannot be supported in the circumstances. If the order impugned is allowed to continue, it will be injustice towards the plaintiff/petitioner herein. 7. THE impugned order, therefore, cannot be sustained. So, the application succeeds. It is allowed. THE impugned order is hereby set aside. THE application under Section 151 of the C.P.C. dated 25.06.2008 filed by the defendant no.1 stands rejected. Considering the circumstances, there will be no order as to costs. 8. URGENT xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking. After passing of the above order, Mr. Deb, learned counsel for the opposite party no.1, prays for stay of the operation of the order. Since I have discussed everything in my order, the prayer for stay is rejected.