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2017 DIGILAW 834 (CAL)

Chitrita Dey v. Satyanarayan Tripathi

2017-11-02

SAHIDULLAH MUNSHI

body2017
JUDGMENT : 1. This is a suit praying, inter alia, for a decree for khas possession of the suit premises described in the Third Schedule of the plaint and perpetual injunction restraining the defendants and/or their men, agents, servants and/or assigns from alienating, creating third party interests, inducting outsiders, encroaching upon, using, utilizing or howsoever otherwise dealing with the suit premises and further for a mandatory injunction directing the defendants to deliver up vacant and peaceful possession of the suit premises to the plaintiffs. 2. The suit is of 2011. However, it has been recorded by an order dated 13th September, 2017 that despite summons being issued to defendants, save and except defendant nos.1, 2 and 3, no one entered appearance. Record reveals that defendant nos.1,2 and 3 entered appearance on 11th April, 2012 but no written statement has been filed since 2012. Despite the matter being adjourned, no one entered appearance on behalf of the defendants. No written statement has been filed and, therefore, the suit was directed to be taken up as an ‘undefended suit’. 3. Matter was directed to be listed as ‘undefended suit’ on 14th September, 2017 but no one entered appearance. Matter was finally heard on 18th September, 2017. During the pendency of the suit the plaintiff no.1, Arati Ghose, wife of Late Bibhuti Prasanna Ghosh, expired. An application being G.A. No.3142 of 2011 was taken out by the plaintiffs. The said application was disposed of by an order dated 16.11.2011 and on the strength of such order name of Arati Ghose was expunged. Name of Chitrita Dey, the plaintiff no.2 was numbered as plaintiff no.1 and plaintiff no.3, Swastik Projects Pvt. Ltd. Was renumbered as plaintiff no.2. Although, such amendment has been allowed to be carried out in the cause title of the plaint but corresponding amendment does not appear to have been carried out in the body of the plaint. However, in order to avoid any technical defect wherever in the plaint, Chitrita Dey’s name appears, she will be called as plaintiff no.1 and Swastik Projects Pvt. Ltd. Will be called as plaintiff no.2. 4. The plaint case in a nutshell is as follows : (a) One Bibhuti Prasanna Ghose (since deceased) was the sole and absolute owner of premises no.12, Shakespeare Sarani, Kolkata – 700071, measuring about 1 bigha, 6 cottahs, 11 chhitaks and 12 sq. ft. 4. The plaint case in a nutshell is as follows : (a) One Bibhuti Prasanna Ghose (since deceased) was the sole and absolute owner of premises no.12, Shakespeare Sarani, Kolkata – 700071, measuring about 1 bigha, 6 cottahs, 11 chhitaks and 12 sq. ft. with a two-storied old and dilapidated building and several out-houses thererat more fully and particularly mentioned and described in the First Schedule of the plaint. (b) The said Bibhuti Prasanna Ghose, since deceased, during his lifetime, constructed another three-storied building at the said premises on its rear side. (c) After the demise of Late Bibhuti Prasanna Ghose, the plaintiffs, Arati Ghose (now dead) and Chitrita Dey, respectively being the widow and daughter of said Bibhuti Prasanna Ghose, jointly became the absolute owners in respect of the said premises (save and except two flats of the aforementioned rear side building which had been conveyed by the said Bibhuti Prasanna Ghose to the proforma defendants). (d) Original plaintiff nos.1 and 2 along with the proforma defendants decided to develop the said premises by constructing a new multistoried building after negotiation with the existing tenants and/or occupiers in order to obtain vacant possession of the portions under their occupation and thereafter, demolishing the existing building and structures thereat. (e) In pursuance of an application made by the original plaintiff nos.1 and 2 sometime in July, 2002, Kolkata Municipal Corporation duly sanctioned a building plan for construction of G+4 storied building at the said premises. 5. At the request of the original plaintiff nos.1 and 2 and the proforma defendants, the plaintiff no.3 agreed to construct a new building at the said premises in accordance with the plan sanctioned by the Kolkata Municipal Corporation on condition, inter alia, that on completion of the said building plaintiff no.3 would become the lessee in respect of a demarcated portion thereof with the right to sub-lease its leasehold right and/or flats or units and a registered Deed of Lease dated 14th June, 2003 was signed and executed by the original plaintiff nos.1 and 2 and the proforma defendants as the lessors and the plaintiff no.3 as lessee. 6. 6. The said premises comprised of land together with a dilapidated two-storied main building and another three-storied building on its rear side together with out-houses on the North and Eastern sides of the said premises which were partly of ground floor and partly of ground and first floor. 7. Defendant No.1 was a monthly tenant under the original plaintiff nos.1 and 2 in respect of only two rooms on the North-Eastern corner of the first floor of the out-houses of the said premises measuring of an aggregate area of about 225 sq.ft. 8. Defendant nos.2 and 3 are sons of defendant no.1. Save and except four rooms on the first floor on the Eastern side outhouses and five rooms and one toilet on the Northern and Eastern sides of the ground floor of the outhouses, other portions had already been demolished. The said rooms of the ground and first floors of the outhouses on the Northern and Eastern sides of the said premises, are described more fully and particularly in the Second Schedule of the plaint. 9. In or about 2004, original plaintiff nos.1 and 2 filed ejectment suit no.281 of 2004 in the Presidency Small Causes Court at Calcutta seeking recovery of khas possession of the said rooms situated on the North-Eastern corner of the first floor of the outhouses at the said premises under the possession of the defendant no.1. 10. Ejectment suit no.281 of 2004 was decreed by the Presidency Small Causes Court, Calcutta and the defendant no.1 was directed to quit, vacate and deliver up peaceful and vacant possession of the said two rooms under his possession in favour of the original plaintiffs nos.1 and 2 within thirty days of the decree. The proceedings initiated by the original plaintiff nos.1 and 2 against the defendants in respect of the said rooms on the North-Eastern corner of the first floor of the outhouses, ultimately, culminated into a proceeding before the Hon’ble Supreme Court being S.L.P. (Civil) No.16730 of 2008 initiated by the defendant no.1 from the judgment and order dated 17th April, 2008, passed by this Hon’ble Court in W.B.L.R.T. No.148 of 2007, affirming the judgment and decree dated 15th May, 2006, passed by the Presidency Small Causes Court at Calcutta, as mentioned hereinbefore. 11. 11. This Hon’ble Court, in the judgment and order dated 17th April, 2008, had, inter alia, directed the defendant no.1 to deliver vacant possession of the said rooms within a period of thirty days on condition that within two months thereafter the plaintiff nos.1 and 2 would deliver vacant possession of an equivalent area of 218.68 sq.ft. in the building constructed at the suit premises to the defendant no.1. 12. The said S.L.P. (Civil) No.16730 of 2008 was disposed of by an order dated 28th July, 2008. The Hon’ble Supreme Court, while disposing of the said Special Leave Petition, passed the following order : “The High Court had appointed a Local Commissioner to ascertain the exact measurement of the area under the occupation of the petitioner-tenant. The Local Commissioner opined that the total area under the occupation of the petitioner is 392.05 sq.ft. The High Court in the impugned order has found that the area under the occupation of the petitioner is 218.63 sq.ft. Learned Senior Counsel appearing on caveat makes a statement that the order of the High Court be modified to the extent that the area under the occupation of the petitioner be taken as 392.05 sq.ft. as opined by the Local Commissioner, and after reconstruction, as directed by the High Court, the petitioner shall be given the area measuring 392.05 sq.ft. We order accordingly …………………..”. 13. The defendant no.1 even thereafter did not deliver vacant and peaceful possession of the rooms and as a result thereof execution proceeding was filed by the original plaintiff nos.1 and 2 before the Presidency Small Causes Court at Calcutta for delivery of the modified area being 392.05 sq.ft. The defendant no.1 refused to deliver possession of the said four rooms and assailed the jurisdiction of the Presidency Small Causes Court at Calcutta to entertain matters arising out of the West Bengal Premises Tenancy Act, 1997. However, the matters culminated in a judgment and order dated 25th April, 2011, whereby a Special Bench of this Hon’ble Court directed the Presidency Small Causes Court, Calcutta, that is, the executing Court to proceed with the execution against the defendant no.1 in respect of the said rooms. 14. However, the matters culminated in a judgment and order dated 25th April, 2011, whereby a Special Bench of this Hon’ble Court directed the Presidency Small Causes Court, Calcutta, that is, the executing Court to proceed with the execution against the defendant no.1 in respect of the said rooms. 14. Defendant no.1 left no stone unturned to frustrate the decree passed by Court and in order to do so attempted to set up another tenant at whose instance a suit being Title Suit No.30 of 2007 came into existence before the City Civil Court, Calcutta, wherein such person set up by the defendant no.1 claimed to be a tenant of the second room in the ground floor outhouses. 15. The said suit being Title Suit No.30 of 2007 was, however, disposed of by a consent decree dated 6th March, 2009 and the tenant, in T.S. 30 of 2007, was supposed to hand over vacant and peaceful possession of the rooms alleged to be in her possession. 16. On the failure of the said plaintiff in Title Suit No.30 of 2007 to deliver vacant possession of the second room on the ground floor of the Eastern side outhouses, the original plaintiff nos.1 and 2 field Title Execution Case No.29 of 2009 in the learned City Civil Court, Calcutta. The plaintiffs also filed an application under Order XXI, Rule 97 of the Code of Civil Procedure seeking Police help for delivery of possession of the said second room. The same was registered as Misc. Case No.296 of 2010. Defendant no.2 filed an independent application under Order XXI, Rule 101 of the Code alleging, inter alia, that he was in possession of the said second room which was claimed to be occupied by the plaintiff in Title Suit No.30 of 2007. Application filed by the defendant no.2, registered as Misc. Case No.215 of 2010, was dismissed by the City Civil Court, Calcutta. Misc. Case No.296 of 2010 was allowed and, ultimately, on 10th March, 2011 physical possession of the said second room on the ground floor of the outhouses on the Eastern side was delivered by the Court Bailiff to the plaintiffs. 17. The defendant no.1 with his sons, the defendant nos.2 and 3, vacated the said second room on the ground floor of the outhouses and kept their chattels such as few tables, chairs etc. 17. The defendant no.1 with his sons, the defendant nos.2 and 3, vacated the said second room on the ground floor of the outhouses and kept their chattels such as few tables, chairs etc. in the covered car parking space on the ground floor of the new building. Despite the objections of the plaintiffs, the defendants refused to remove their personal belongings from the aforesaid car parking space. The plaintiff being apprehensive about the conduct of the defendant as a precursor to breaking into four remaining rooms on the ground floor of the outhouses in order to take illegal possession thereafter, immediately lodged a complaint with the local Police on 10th March, 2011. 18. The defendants refused to remove their belongings from the said car parking space despite repeated protests. 19. Defendants surreptitiously broke open the locks of the existing four rooms and the toilet on the ground floor of the outhouses and put some of their belongings which were lying in or about the car parking space. The defendants, after illegally and unauthorizedly putting their belongings in the said rooms put their own locks on the doors of the said four rooms and toilet. 20. The said four rooms and the toilet in which the defendants allegedly trespassed are the suit premises and the plaintiffs have more fully and particularly described in Third Schedule of their plaint. Men and Officers of the original plaintiff no.3 discovered the trespass into suit premises in the morning of 2nd June, 2011 and the plaintiffs on the same day, lodged a complaint with the local Police but with no effect. 21. According to the plaintiffs, they have been dispossessed, without their consent, of the suit premises being four rooms and a toilet as described in the Third Schedule of the plaint, otherwise than in due course of law and the plaintiffs are, therefore, entitled to be in possession of the suit premises both on the basis of their possessory and ownership rights as well. 22. It is in the case of the plaintiffs that defendants are trespassers in the suit premises; they have no right, title or interest whatsoever and howsoever in the suit premises; they have no right to put their belongings therein; they have no right to be in possession, occupation, control or enjoyment of the suit premises. 23. 22. It is in the case of the plaintiffs that defendants are trespassers in the suit premises; they have no right, title or interest whatsoever and howsoever in the suit premises; they have no right to put their belongings therein; they have no right to be in possession, occupation, control or enjoyment of the suit premises. 23. The defendants have invaded and/or threatened to further invade the plaintiffs’ right to and/or enjoyment of property and, therefore, the present suit has been filed with the prayers as indicated hereinbefore. 24. In respect of the case made out in the plaint, the plaintiff adduced evidence through the Director of the plaintiff no.2 (original plaintiff no.3, Swastik Projects Pvt. Ltd.) who is also constituted attorney of the plaintiff no.1 (original plaintiff no.2). 25. Witness on behalf of the plaintiff deposed that plaintiff no.1, that is, Chitrita Dey (original plaintiff no.2) is the owner of the suit premises and status of plaintiff no.2 (original plaintiff no.3) is a long-term lessee. Witness was shown a document which has been identified by him to be a certified copy of the Deed of Lease executed by the owners in favour of plaintiff no.2 (original plaintiff no.3). The lease deed has been tendered and marked as Exhibit ‘A’. The witness also identified the sanctioned building plan for construction of building at the premises in question. According to the witness, defendant no.1 was a tenant in respect of the rooms of the outhouses at first floor and defendant nos.2 and 3 are his sons. He deposed that ejectment suit was filed in the Presidency Small Causes Court in the year 2004 and the suit was decreed in pursuance whereof Court directed the defendants to vacate and deliver his peaceful possession. However, the defendant nos.1 filed an appeal from which Special Leaver Petition was filed in the Hon’ble Apex Court and the defendant was directed to vacate and give up possession of the portion under his occupation. The order passed by the Hon’ble Apex Court has been marked Exhibit ‘B’. 26. In this case, the plaintiff has prayed for a decree for khas possession of the suit premises described in the Third Schedule of the plaint delineated in red ink in the plan being Annexure ‘A’ to the plaint. The order passed by the Hon’ble Apex Court has been marked Exhibit ‘B’. 26. In this case, the plaintiff has prayed for a decree for khas possession of the suit premises described in the Third Schedule of the plaint delineated in red ink in the plan being Annexure ‘A’ to the plaint. Third Schedule contains four rooms and one toilet as has been clearly shown in the annexed plan being annexure ‘A’ to the plaint. The said rooms are room nos.1, 3, 4 and 5 and a toilet. In order to pass a decree for khas possession it is necessary to ascertain whether the plaintiff has any right of ownership over the suit premises and whether the plaintiffs were in possession in respect of those rooms before filing the suit and whether the defendant’s possession over the suit premises is illegal. Defendant in this case has not turned up. Plaint case remains uncontroverted. No issue has been framed. Therefore, in order to decide the rights of the parties I have to rely upon the documents admitted into evidence at the instance of the plaintiffs in support of their case. As held by the Hon’ble Supreme Court in the case of Ramesh Chand Ardawatiya Vs. Anil Panjwani, reported in (2003) 7 SCC 350 that “ in absence of denial of plaint averments the burden of proof on the plaintiff is not very heavy. A prima facie proof of the relevant facts constituted the cause of action would suffice and the Court would grant the plaintiff such relief as to which he may, in law, be then entitled. In a case which has proceeded ex parte the Court is not bound to frame issues under Order XIV and deliver the judgment on other issue as required by Order XX, Rule 5 of the Code of Civil Procedure. Yet the trial Court would scrutinize the available pleadings and documents, consider the evidence adduced and would do well to frame the point for determination and proceed to construct the ex parte judgment dealing with the points at issue one by one.” 27. Accordingly, I propose to first decide as to whether the plaintiff has any right of ownership over the suit property or not. Accordingly, I propose to first decide as to whether the plaintiff has any right of ownership over the suit property or not. From the pleadings in the plaint it appears that original plaintiff nos.1 and 2 being the widow and the only daughter of Late Bibhuti Prasanna Ghose, jointly became the absolute owners in respect of the entire property comprised in premises no.12, Shakespeare Sarani, Kolkata – 700071, measuring about 1 bigha, 6 cottahs, 11 chhitaks and 12 sq.ft, with an old and dilapidated building and several outhouses thereat. A registered Lease Deed was executed on 14th June, 2003 by the original plaintiff nos.1 and 2 and the proforma defendant as lessors wherein the plaintiff no.3 was described as a lessee. Such Lease Deed tendered by the witness on behalf of the plaintiffs and has been marked as Exhibit ‘A’. The plaintiffs also got building plan sanctioned by the Statutory Authority, the Kolkata Municipal Corporation, for construction of a building at the aforesaid property. The said building sanction plans have also been tendered by the witness and have been marked as Exhibit ‘B’ collectively. Plaintiff has relied on the judgment and decree dated 15th May, 2006, passed by the Judge, Fifth Bench, Presidency Small Causes Court, Calcutta, in Ejectment Suit No.281 of 2004. The said suit was filed by original plaintiff no.1, Arati Ghose and others. The suit was decreed on contest and it was ordered that the plaintiff would get decree for eviction and recovery of khas possession. It was also ordered that the defendants be directed to quit and vacate and deliver up peaceful vacant possession of the suit premises in favour of the plaintiffs within 30 days from the date of the said order, in default the plaintiffs were granted liberty to execute the decree. The said judgment and decree in the aforesaid Ejectment Suit No.281 of 2004 has been marked as Exhibit ‘C’ collectively. Plaintiff has also relied on a judgment and order in W.P.L.R.T. No.148 of 2017 which was filed by Smt. Arati Ghosh and Chitrita Dey as petitioners against these defendants. The said judgment and decree in the aforesaid Ejectment Suit No.281 of 2004 has been marked as Exhibit ‘C’ collectively. Plaintiff has also relied on a judgment and order in W.P.L.R.T. No.148 of 2017 which was filed by Smt. Arati Ghosh and Chitrita Dey as petitioners against these defendants. By a judgment and order dated 17th April, 2008 a Division Bench of this Hon’ble Court affirmed the judgment and decree dated 15th May, 2006 in Ejectment Suit No.281 of 2004, passed by the learned Judge, Fifth Bench, Presidency Small Causes Court and set aside the judgment and order dated 9th February, 2007, passed by the learned Tribunal in O.A. 2627 of 2006 (L.R.T.T.). 28. It was also held in the said judgment – “ if the respondent-defendant vacates and delivers peaceful vacant possession of the suit premises, the appellants/plaintiffs within time specified in the order, the appellants shall cause demolition of the suit premises within two months from the date of taking delivery of possession of the suit premises from the respondent-defendant and thereafter within two months the appellants shall deliver vacant possession of the room to the respondent-defendant in the building already constructed by them. The area of which shall be 218.63 sq.ft. In default, the respondent-defendant shall take effective step against the appellants/plaintiffs before the appropriate authority for restoration of possession in accordance with law.” Against the said order of the Hon’ble Division Bench as aforesaid, a Special Leave Petition being S.L.P. (Civil) No.16730 of 2008 was filed before the Hon’ble SupremeCourt by Satyanarayan Tripathi against Arati Ghose and others and the Hon’ble Supreme Court passed the following order :- “The High Court had appointed a Local Commissioner to ascertain the exact measurement of the area under the occupation of the petitioner-tenant. The Local Commissioner opined that the total area under the occupation of the petitioner is 392.05 sq.ft. The High Court in the impugned order has found that the area under the occupation of the petitioner is 218.63 sq.ft. Learned Senior Counsel appearing on caveat makes a statement that the order of the High Court be modified to the extent that the area under the occupation of the petitioner be taken as 392.05 sq.ft. as opined by the Local Commissioner, and after reconstruction, as directed by the High Court, the petitioner shall be given the area measuring 392.05 sq.ft.” 29. The Special Leave Petition was disposed of. as opined by the Local Commissioner, and after reconstruction, as directed by the High Court, the petitioner shall be given the area measuring 392.05 sq.ft.” 29. The Special Leave Petition was disposed of. Taking note of the order passed by the Hon’ble Supreme Court with regard to the area mentioned in the order of the Hon’ble Supreme Court, a modification application was filed and the order passed by the Hon’ble Division Bench of this Court on 17th April, 2008, was modified by an order dated 3rd September, 2008. It has been contended by the plaintiff that one Khairunnesa was set up by the defendants to file a suit being Title Suit No.30 of 2007 before the Sixth Bench of the City Civil Court at Calcutta on 4th January, 2007. However, the said suit was decreed on compromise. An Execution Case No.29 of 2009 was filed by the plaintiffs herein against the said judgment-debtor and Court Bailiff delivered possession of the suit room in favour of the plaintiffs. A suit being C.S. No.127 of 2011 was filed by the present plaintiffs against the defendants and in that suit some orders were passed by this Court wherein the learned Special Officer was appointed to make a surprise visit and to inspect ground floor area. By an order dated 14th June, 2011, this Hon’ble Court directed the learned Special Officer to take physical possession of room nos.1, 3, 4 and 5 and the toilet on the ground floor of premises no.12, Shakespeare Sarani by breaking open the padlock or any other impediment. Learned Special Officer was converted into a Receiver and he was directed to remain in possession of all the rooms on the ground floor as indicated in the map save room no.2 which the plaintiffs claim in their possession. 30. The Receiver continued to possess the suit premises being room nos.1,3,4 and 5 and the toilet as more fully and particularly described in the Third Schedule of the plaint and he is still in possession of the suit premises. The plaintiffs have tendered all the above-referred orders and those have been marked as Exhibits ‘D’ to ‘G’. 31. From a portion of the Exhibit ‘G’ at page 109 of the Judges’ Brief of Document it appears that Receiver prepared a Minutes of the Meeting on 17th June, 2011 which reflects that he took possession of the suit premises. The plaintiffs have tendered all the above-referred orders and those have been marked as Exhibits ‘D’ to ‘G’. 31. From a portion of the Exhibit ‘G’ at page 109 of the Judges’ Brief of Document it appears that Receiver prepared a Minutes of the Meeting on 17th June, 2011 which reflects that he took possession of the suit premises. He sealed the rooms with ply wood and attached a notice which says that the Receiver took possession of the said rooms. It appears that the rooms are still in possession of the said Receiver. The witness, however, has deposed that the said outhouses are very old structure and in a dilapidated condition due to natural wear and tear. The same has also partly collapsed. 32. Considering the pleadings in the plaint and the supporting unchallenged testimony of the plaintiffs, I am of considered view that the plaintiffs have been able to prove that they have absolute ownership over the suit property and the defendants have no right and/or manner of possession over the suit premises. The plaintiffs are, therefore, entitled to a decree for khas possession of the suit premises described in the Third Schedule which has been delineated in red ink in the plan being Annexure ‘A’ to the plaint. Accordingly, it is ordered that the suit be decreed ex parte against the defendants and the plaintiff do get a decree for khas possession of the suit premises described in the Third Schedule herein and delineated in red ink in the plan annexed to the plaint being Annexure ‘A’. The plaintiffs do also get an order to the effect that the Receiver be directed to hand over vacant and peaceful physical possession of the suit premises to the plaintiffs forthwith and after such possession being handed over to the plaintiffs, the Receiver shall stand discharged. Suit is, accordingly, decreed. Department is directed to draw up and complete the decree as expeditiously as possible. Urgent Photostat certified copy of this judgment, if applied for, be delivered to the learned counsel for the parties, upon compliance of all usual formalities.