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2019 DIGILAW 205 (CAL)

Gopi Das Babaji v. Basudeb Das Gupta

2019-02-13

SABYASACHI BHATTACHARYYA

body2019
JUDGMENT : Sabyasachi Bhattacharyya, J. 1. The plaintiff in a suit for eviction in respect of Schedule B of the plaint on the ground of damage as envisaged in Section 108(m)(o)(p) of the Transfer of Property Act, 1882 has preferred the instant revisional application. By the impugned order, the trial court allowed an application filed by the defendant/petitioner, directing the plaintiff/petitioner to remove the blockage and/or closure of the access to the B Schedule suit property on the western side boundary wall of the same and to restore the same in its original condition within twenty working days from the date of passing of the order. 2. Learned counsel appearing for the petitioner submits that the trial court proceeded on the basis of a Commissioner's report dated April 20, 2017 to hold that there was a tin door on the western side boundary wall, which was blocked by the petitioner by raising a boundary wall, pursuant to an order of the trial court restraining the defendant from interfering in the repair work of the boundary wall by the plaintiff and granting permission to the petitioner to carry out repair work on the boundary wall. 3. It is submitted that the said Commissioner's report was filed in connection with an application of the opposite party for repair of the suit rooms and did not pertain to the boundary wall at all. As such, any finding in the said report and/or depiction in the sketch map annexed to such report could only be looked into for the purpose of the repair of the suit rooms. The said report and connected sketch map would not be of a valid indicator as far as the position of the boundary wall, or the existence of any gate thereon, on the relevant date was concerned. Hence, it is argued that the trial court acted without jurisdiction in relying solely on such report to ascertain the condition of the boundary wall and an alleged tin door on the said wall prior to the repair of the boundary wall by the petitioner. 4. Hence, it is argued that the trial court acted without jurisdiction in relying solely on such report to ascertain the condition of the boundary wall and an alleged tin door on the said wall prior to the repair of the boundary wall by the petitioner. 4. Learned counsel for the petitioner further argues that the plaintiff/petitioner, in his application for injunction restraining the defendant from interfering with and/or causing obstruction in the work of rebuilding the broken portion of the boundary wall, had specifically averred that the defendant/opposite party had been wilfully breaking down the boundary wall of the property of the plaintiff's Ashram with the mala-fide intention of creating a separate entrance, though he had entrance through the main gate of the property of the Ashram, which was otherwise in the occupation of the petitioner. Such averment was not specifically denied by the opposite party. 5. On the basis of the said application, the trail court had, vide order dated January 4, 2018, granted injunction in terms thereof, giving a further liberty to the plaintiff/ petitioner to repair the broken portion of the northern and western boundary wall. 6. Although the report dated April 20, 2017 was mentioned in the said order dated January 4, 2018, the same was an inadvertent error and could not be taken to be a guiding factor in ascertaining the position of the suit property as far as the boundary wall was concerned, immediately prior to its being rebuilt by the petitioner pursuant to the aforesaid order. 7. Learned counsel for the petitioner submits that the suit premises, pertaining to Schedule B of the plaint, was on the north-western side of the entire property which belonged to the Ashram of the petitioner. It is argued that there were several previous Commissioner's reports containing sketch maps, which did not reflect the existence of any door on the north-western side of the property, that is, the B Schedule property. In this context, the petitioner relied on a Commissioner's report and a sketch map annexed thereto dated April 2, 2003, held on various points including measurement of the length of the broken portion of the northern and western boundary wall of the property of the Ashram. In this context, the petitioner relied on a Commissioner's report and a sketch map annexed thereto dated April 2, 2003, held on various points including measurement of the length of the broken portion of the northern and western boundary wall of the property of the Ashram. It is shown from the said sketch map that, although an 'entrance' was shown on the south-western side of the said map, the same was not located on the western boundary wall of the B Schedule property but was further south. If the said map, taken in conjunction with a Commissioner's report dated March 28, 2018 and the connected sketch map, are looked into, it would be evident that the boundary wall was rebuilt as it was prior to the same being broken down. The sketch map annexed to the Commissioner's report dated March 28, 2018 showed that the main gate of the Ashram was the only entrance and exit point from the suit premises, also for the defendant/ opposite party. 8. It is submitted that several attempts of the opposite party to get an order of repair of the suit rooms, were turned down by the trial court on the ground that the plaintiff failed to establish before the court that the said rooms still existed. It is further submitted that the defendants have vacated the suit premises and are engaged in service elsewhere and as such, the application for opening an entrance gate was a vexatious attempt to harass the petitioner although there was no necessity for any entry or egress to the B Schedule property at present for the opposite party. 9. It is submitted that the opposite party, by the impugned order, got the permission to create an entrance on the boundary wall which was never there previously. It is submitted that previously the defendant/opposite party had filed an application for temporary injunction restraining the plaintiff and his men and agents from interfering with the peaceful possession of the suit premises mentioned therein and/or from changing the nature and character of the suit premises. In the schedule of such injunction application, the suit premises (tenanted premises) was described as two cottahs of land with R.T. shed with room attached with all easements thereon and covered the boundary wall around the suit premises. In the schedule of such injunction application, the suit premises (tenanted premises) was described as two cottahs of land with R.T. shed with room attached with all easements thereon and covered the boundary wall around the suit premises. This description of the tenanted premises of the defendant/opposite party, situated on the north-western side of the entire Ashram premises, did not mention about any gate at all. Rather, the opposite party specified that the opposite party was a tenant within the premises situated on the north-western corner of the entire property for carrying on coal business, subsequently converted into kerosene dealership. It is submitted that since the opposite party has now left the suit premises and there is no existence of the suit rooms comprising the tenancy-in-question, as would be evident from the previous orders of the trial court refusing repair to the opposite party, there arose no question of the existence of any entrance gate on the boundary wall of the north western tenanted premises. 10. Moreover, it is argued that the opposite party, in his injunction application, specifically mentioned the pucca brick built wall around the suit property with an entrance gate situated on the western side of the suit premises and not on the north western side, which comprised the tenanted premises. 11. In the written objection filed by the opposite party against the petitioner's injunction application in aid of repairing the boundary wall, the opposite party stated that the wall which bounded the suit premises was very old and had been damaged in natural course and some parts had already fallen and that the opposite party for safety and security of his tenanted portion tried to make repair, when the Ashram men of the petitioner objected and threatened the opposite party. Although the opposite party denied the allegation that the opposite party was wilfully breaking down the boundary wall of the property of the petitioner's Ashram with mala-fide intention of creating a separate entrance, the opposite party also stated that the adjacent main gate of the Ashram was all time crowded by the disciples and that besides the opposite party there were other tenants within the portion of the Ashram. This apart, it was stated by the opposite party in his said written objection that all the time, even at night, the Ashram area was crowded, in spite of that the security persons were deployed by the Ashram who always kept vigil over the area. 12. On the basis of such averments of the opposite party, learned counsel for the petitioner argues that despite having spent so many words on the condition of the boundary wall and the main gate of the Ashram, the opposite party had not specifically mentioned about any separate gate on the wall in the opposite party's tenanted portion. 13. Since none of the previous Commissioners' reports pertained to the boundary wall specifically, those could not be taken cognizance of, in particular the report dated April 17, 2017, in the context of the situation of the boundary wall and/or existence of gate thereon immediately prior to the said wall being rebuilt by the petitioner by virtue of the order of the trial court. 14. Thus, learned counsel for the petitioner submits that the trial court acted without jurisdiction in directing the petitioner to remove alleged blockage and/or closure of access to the B schedule suit property on the western boundary wall of the same and to restore the same in its original condition, since there was no existence of any gate on the western side boundary wall of the suit premises (north western boundary wall of the entire Ashram property) at any point of time. 15. Learned counsel for the opposite party argues in reply that the commissioner's report and map dated April 20, 2017 was the basis, in terms of which the petitioner was permitted to rebuild the boundary wall on the northern-western side of the entire premises, that is, the suit property at B Schedule of the plaint. The said map clearly depicts a tin door on the western side wall of the B Schedule suit premises, which was the tenanted premises of the opposite party. Since the petitioner himself obtained the permission to rebuild the boundary wall on the basis of the said report and map, the petitioner is bound by those and could not now resile from that position and deny the veracity of the map. 16. Since the petitioner himself obtained the permission to rebuild the boundary wall on the basis of the said report and map, the petitioner is bound by those and could not now resile from that position and deny the veracity of the map. 16. Since the commissioner's report and map, filed in connection with the opposite party's application for removal of blockage and/or closure of the access to the B Schedule suit property on the western side boundary wall, after the rebuilding of boundary wall was completed by the petitioner, shows that there was no entrance from the western side main road to the B Schedule tenancy of the petitioner, it was evident that such entrance, shown as a tin door in the map dated April 20, 2017, was covered up by the petitioner while rebuilding the wall, thereby blocking the access of the opposite party between his tenanted portion and the main road. 17. Moreover, learned counsel for the opposite party argues that it has been the consistent stand of the opposite party, in his own injunction application as well as his objection to the petitioner's injunction application, that there was a gate on the western side of the suit premises, meaning thereby the B Schedule tenancy of the opposite party. The mention of the main gate on the western side of the plaintiff/petitioner's portion had nothing to do with the existence of the opposite party's gate from the tenanted B Schedule premises. 18. Thus the opposite party supported the impugned order and argued that the trial court was justified in directing the petitioner to remove the blockage created by himself to the entrance of the tenanted premises of the opposite party while rebuilding the boundary wall. 19. Upon hearing both sides it appears that the Commissioner's report dated April 20, 2017 was the basis of the order dated January 4, 2018 giving the plaintiff/petitioner the liberty to repair the broken portion of the north and western boundary wall and to replace the broken materials with new materials of same nature and character. The defendant/ opposite party was also restrained by the same order from interfering with the repair work by the plaintiff in respect of the boundary wall of the suit premises. 20. The defendant/ opposite party was also restrained by the same order from interfering with the repair work by the plaintiff in respect of the boundary wall of the suit premises. 20. It is an admitted position that the suit premises, in respect of which the petitioner has prayed for khas possession by evicting the defendant, comprised of a portion of the total A schedule property in respect of which the opposite party was a monthly tenant, described in schedule B of the plaint. Admittedly, the said suit premise was situated on the north-western side of the total (A schedule) property. The sketch map annexed to and part of the report dated April 20, 2017, clearly indicates that there was a broken tin door on the western side of the suit premises, that is, the tenanted portion of the defendant/opposite party, which was the access point of the opposite party between the Dharsa G.I.P. Colony Road and the suit premises (B schedule). None of the parties, including the petitioner, took any objection to the said Commissioner's report at any point of time. In fact, the rebuilding of the boundary wall was completed by the petitioner on the strength of the order dated January 4, 2018 which contained the liberty to the petitioner to repair in the following terms: "Though the plaintiff has specifically not prayed for any repair work, this Court after considering the report of the Ld. Advocate commissioner dated 20.04.2017 gives liberty to the plaintiff to repair the broken portion of the northern and western boundary wall. This Court further directs the plaintiff to replace the broken materials with new materials of same nature and character." 21. By the same order dated January 4, 2018, the opposite party's prayer for repair of the tenanted room was refused, on the ground that on perusal of the Commissioner's report dated April 20, 2017 that actual suit rooms were not in existence with R.T. Shed, as per the schedule of the plaint. It was further held that any order in connection with repair of the suit room which was non-existent then would be meaningless because repair can be done only in connection with an existing structure. 22. As such, the report was the cardinal basis of the entire order which lent validity to the rebuilding of the boundary wall on the northern and western sides of the suit property by the plaintiff/petitioner. 22. As such, the report was the cardinal basis of the entire order which lent validity to the rebuilding of the boundary wall on the northern and western sides of the suit property by the plaintiff/petitioner. 23. As far as the argument of the petitioner, that the said Commissioner's report was confined to the scope of repair of the suit rooms and not the boundary wall, is concerned, the application for local inspection of the opposite party, pursuant to which the Commissioner was appointed, included the point of inspection of the then present nature and condition of the suit premises and also the nature and character of the boundary wall on the western side of the suit premises as well. It also included the drawing of a rough sketch map of the suit property, apart from local features as would be pointed out by the Advocate of the opposite party at time of inspection work. 24. As such, the scope of the commission, pursuant to which the report dated April 20, 2017 was passed, included an inspection of the boundary wall as well as drawing a sketch map of the suit property, even apart from local features to be pointed out by the Advocate for the opposite party. The said application was allowed in part vide order dated March 14, 2018 by directing the Advocate Commissioner to restrict his commission work to drawing a rough sketch map of the A Schedule suit property and B Schedule suit property and to note down whether there was any blockage at the entrance of the B Schedule suit property. The Commissioner was also directed to take photographs of the suit properties from different angles and annex them with his report, so as to enable the trial court to have a better understanding by comparing the photographs with the sketch map. 25. In the order dated March 14, 2018 appointing the Commissioner, the court below had observed that the defendant (present opposite party) had made an allegation that the plaintiff had blocked the entrance of the B Schedule suit property in the garb of repair; therefore, to ascertain the true picture at that stage, the court was inclined to allow the prayer of the defendant in part as per the point for inspection mentioned therein, as set out above. Therefore it is clear from the order dated March 14, 2018 that one of the reasons for holding commission was to ascertain whether the petitioner had blocked the entrance of the B Schedule property, thereby making the report filed pursuant thereto relevant also for deciding the said question. 26. Thus, not only was the Commissioner's report dated April 20, 2017 the plinth of the legitimacy of the rebuilding of boundary wall done by the petitioner, the said report also squarely encompassed an inspection of the boundary wall, a sketch map being drawn of the entire property and, most importantly, to note down whether there was any blockage at the entrance of the B schedule suit property. 27. Seen in this context, the commissioner categorically observed that the western side boundary wall was in totally broken condition and there was a broken tin door for entering into the suit property, which was supported by depiction of the said tin door on the western side of the suit property, that is, the tenanted property of the opposite party, in the map annexed to the commissioner's report. 28. As far as the argument of the petitioner as to the opposite party having admitted in his applications and objections in the court below regarding the main gate, situated within the petitioner's portion, to be the only entrance, nothing of the sort is borne out by the records. In fact, the schedule of the opposite party's application for injunction restraining the petitioner and his men and agents from interfering with the peaceful possession of the suit premises and/or from changing the nature and character of the same, included all that piece and parcel of land measuring about two cottahs with R.T. Shed room attached "with all easements thereon" covered by the boundary wall around the suit premises, which was the north-western part of the A Schedule property. The opposite party had also denied in his applications and objections that he had attempted to dismantle the boundary wall and tried to create an entrance. On the contrary, in the injunction application by the opposite party, referred to immediately hereinabove, the opposite party asserted that he was in possession of the suit property which was bounded and/or protected by a pucca brick-built wall with an entrance gate situated on the western side of the suit premises just abutting the G.I.P. Road. On the contrary, in the injunction application by the opposite party, referred to immediately hereinabove, the opposite party asserted that he was in possession of the suit property which was bounded and/or protected by a pucca brick-built wall with an entrance gate situated on the western side of the suit premises just abutting the G.I.P. Road. As such, it has been the consistent case of the opposite party, as corroborated by the Commissioner's report dated April 20, 2017, that there was an entrance for ingress and egress to and from the B Schedule property, opening up on the G.I.P. Road. 29. In the other report relied on by the petitioner, dated April 2, 2003, the boundary walls on the north-western portion had been shown to be broken and there was an indication of an entrance from the western side G.I.P. Road to the B schedule property. The scope of the said commission was also to draw a rough sketch map of the B schedule property and to measure the length of the broken portion of the northern and western boundary walls of the suit property of the Ashram, as well as to note down the nature and character of the R.T. Shed standing on the suit premises, apart from local features. Thus, as opposed to the commission which culminated in the report dated April 20, 2017, the report dated April 2, 2003 was not specifically directed to ascertain the blockage at the entrance of the B schedule suit property. As such, despite the petitioner's efforts to discount the report dated April 20, 2017, the same should be the only touchstone to ascertain the allegation of abuse of the permission to repair by the petitioner by blocking the entrance of the opposite party from the G.I.P. Road by raising a wall covering the entire western side, leaving no entrance, in the garb of repair. 30. In such view of the matter, there cannot be any doubt that this was an exceptional case, where the petitioner had flouted the spirit of the court's order dated January 4, 2018 and abused the same by blocking access of the opposite party to the main road by walling up the opposite party within the confines of his tenanted premises without leaving any space for an entrance gate. It would be ridiculous to leave the opposite party at the mercy of the security guards and/or men and disciples of the petitioner to have their access to and from their tenanted premises, in respect of which no eviction order has been passed by the court as yet, through the main gate within the petitioner's occupation. 31. The said attempt of the petitioner was undoubtedly a violation of norms of justice and a ploy to evict the opposite party by applying pressure tactics without following the due process of law. Hence, the trial court was perfectly justified in passing the impugned order dated August 30, 2018 by placing reliance on the Commissioner's report dated April 20, 2017 and directing the plaintiff/petitioner to remove the blockage and/or closure of the access of the opposite party to the B schedule property on the western side boundary wall of the same and to restore the same in its original condition. 32. In such view of the matter, C.O. No. 3983 of 2018 is dismissed on contest, thereby affirming the order impugned therein. 33. There will be no order as to costs.