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2023 DIGILAW 1234 (CAL)

Md. Humayun Kabir v. Sk. Arif Ali

2023-07-26

KRISHNA RAO

body2023
JUDGMENT : Krishna Rao, J. 1. The plaintiff has filed the present application praying for injunction and for appointment of Receiver. The plaintiff has filed the suit against the defendants for declaration of the shares of the parties in the suit properties, partition, preliminary decree and other allied prayers. 2. The plaintiff is claiming the shares in the suit property in terms of the Deed of Conveyance dated 21st April, 2003. Initially the plaintiff has filed an application in the suit being GA No. 1 of 2021 praying for appointment of Special Officer to inspect the suit property, to ascertain the nature and extent of construction/ reconstruction/ addition/ alteration made in the suit property and also to ascertain the particulars of tenants at the suit property and the monthly rent and other expenses paid by the tenants. 3. By an order dated 14th January, 2021, this Court appointed Mr. Suman Sarkar Chatterjee, Advocate as Receiver in respect of the suit property for taking symbolic possession of the immovable property, making inventory of the immovable property, taking photographs of the repair that the defendant no. 1 is undertaking, taking photographs of the immovable property on completion of repair by the defendant no. 1, making inventory of the occupants of premises, tabulate the name of the occupants, the occupation charges such occupant is paying and the person to whom the occupation charges are being paid by such occupants. This Court also restrained the parties by an order of injunction from creating any third party interest over and in respect of the suit property. The defendant no. 1 is given liberty to carry on such repair as are permitted under the rules of the Kolkata Municipal Corporation. 4. By an order dated 26th February, 2022, the interim order of injunction passed by this Court dated 14th January, 2021 was made absolute till the disposal of the suit. 5. On 2nd March, 2021, the Special Officer has filed detailed report in terms of the order dated 14th January, 2021. After receipt of the report, the plaintiff has filed the present application. 6. Mr. Mainak Das, learned Advocate representing the plaintiff submits that as per report of the Special Officer, the suit property is not properly maintained and certain unauthorized occupiers are occupying several portions of the suit property and the occupational charges are very meager and the defendant no. After receipt of the report, the plaintiff has filed the present application. 6. Mr. Mainak Das, learned Advocate representing the plaintiff submits that as per report of the Special Officer, the suit property is not properly maintained and certain unauthorized occupiers are occupying several portions of the suit property and the occupational charges are very meager and the defendant no. 1 has neither taken any steps for eviction of the unauthorized occupier or for increase of the monthly occupational charges. He submitted that from the report, it is also reveals that two of the tenants, namely, Taher Abdul Hussain Petiwala and Mulla Mustafa have illegally created sub tenancies and the details are categorically mentioned in the report of the Special Officer. He also submits that as per report, none of the occupiers are paying the taxes to the Municipal Authorities. 7. Mr. Das submitted that the tenanted portion of the Gulam Hussain comprising of 2 (two) rooms, 1 (one) kitchen and 1 (one) bathroom being the Middle Suite Front has not been let after the said Gulam Hussain vacated the said premises and at present, the defendant no. 1 has occupied the said portion. He submits that the defendant no. 1 has also occupied 2 (two) rooms, 1 (one) covered verandah and 1 (one) room on the terrace as was originally occupied by Ahmed Hussain, the father of the defendant no. 1 and a shed on the northern portion of the suit property as was originally occupied by the mother of the defendant no. 1. 8. Mr. Das submitted that one of the occupiers namely Md. Sayeedur Rahman who is in illegal occupation of the premises has expressed his desire to vacate the said portion of the property which is under his occupation and the defendant no. 1 is trying to take possession of the said portion also. 9. Mr. Das submitted that by an order dated 14th January, 2021, this Court has given liberty to the defendant no. 1 to carry on such repair works as are permitted under the Rules of Kolkata Municipal Corporation but as per the representation submitted by the defendant no. 1 to the Municipal Authorities, it reveals that the defendant no. 1 in the name of the repair, making a new construction and it is admitted in the application submitted by the defendant no. 1 to the Municipal Authority dated 30th September, 2021. 10. 1 to the Municipal Authorities, it reveals that the defendant no. 1 in the name of the repair, making a new construction and it is admitted in the application submitted by the defendant no. 1 to the Municipal Authority dated 30th September, 2021. 10. Mr. Uttam Kumar De, learned Advocate representing the defendant no. 1 submits that the plaintiff cannot claim equal share in the suit property as Deed of Conveyance was executed at the sale price of Rs. 22,00,000/-but the actual market value of the property was Rs. 1,39,03,437/-and thus the stamp duty for the market value of the property was paid by the defendant no. 1 only. 11. Mr. De submitted that since the purchase of the said property, the plaintiff and the other defendants have never contributed any amount or looked after the property as the income of the property was very meagre. The property was purchased along with tenancy. After the negotiation with the tenant, namely Gulam Hussain Sakir, in the year 2017, the defendant no. 1 paid Rs. 15,00,000/-to the said tenant as compensation and cost of fixture and furniture, the said tenant has surrendered his tenancy to the defendant no. 1 and he took possession of the said premises for the use of his family. 12. Mr. De submitted that the defendant no. 1 has not inducted any new tenant in the said premises and he admits that there are two unauthorized occupants and the same was also informed to the plaintiff and the defendant no. 2 and requested to take legal action but neither the plaintiff nor the defendant no. 2 came forward to take any action against the illegal occupier. 13. Mr. De submitted that the building is in dilapidated conditions and during the cyclone, the old big tree also uprooted and the building has been further damaged for which as per liberty given by this Court, the defendant no. 1 had applied for renovation of the damaged portion of the building but the plaintiff and the defendant no. 2 are not coming forward to obtain approval for renovation of the building. 14. Mr. De submitted that without disturbing the possession of the defendant no. 1, if any receiver is appointed, the defendant no. 1 has no objection but he prays that the possession of the defendant no. 1 shall not be disturbed. 15. 2 are not coming forward to obtain approval for renovation of the building. 14. Mr. De submitted that without disturbing the possession of the defendant no. 1, if any receiver is appointed, the defendant no. 1 has no objection but he prays that the possession of the defendant no. 1 shall not be disturbed. 15. Considered the rival submissions of the respective parties, perused the materials on record. As per the order passed by this Court dated 14th January, 2021, the Receiver has already submitted report and as per the report, the Receiver has already taken symbolic possession of the property and also submitted tabulated statement of the occupier and tenants in the said property. 16. In the present application, the plaintiff has prayed for injunction and for appointment of Receiver. By an order dated 14 January, 2021, this Court has granted injunction restraining the parties from creating any third party interest over and in respect of the suit property in any manner whatsoever and by an order dated 26th February, 2021, the interim order passed by this Court was made absolute till the disposal of the suit. Now, again the plaintiff has filed the present application praying the injunction and appointment of Receiver. As regards to injunction, this Court finds that already an order of injunction is in existence thus no further injunction can be passed. 17. As regard the appointment of receiver, by an order dated 14th January, 2021, this Court had appointed Receiver and the Receiver has submitted report. Now, the contention of the plaintiff is that the Receiver should be directed to manage and control all the affairs relating to the suit property by collecting rent and to get the rent increase and to induct tenant, if any of the occupier vacated or lying vacant. As per the report of the Receiver, the monthly rent is very meagre and some of the occupiers have not disclosed the amount of the occupational charges. The plaintiff is also in occupation of the premises. 18. Considering the above circumstances, this Court is of the view that this Court already appointed the Receiver by an order dated 14th January, 2021, the Receiver shall continue as Receiver in the instant case and shall collect rent from the occupiers/tenants of the said premises. The plaintiff is also in occupation of the premises. 18. Considering the above circumstances, this Court is of the view that this Court already appointed the Receiver by an order dated 14th January, 2021, the Receiver shall continue as Receiver in the instant case and shall collect rent from the occupiers/tenants of the said premises. If it is found that the monthly rent is meagre, the Receiver shall demand rent as per the present market rent of the said area and if any occupier/tenant vacates the premises, the Receiver shall induct new tenant as per the present market rent of the said area. On receipt of the monthly rent, the Receiver shall pay the dues of the Municipal Corporation of the suit premises other than the portion which is in occupation of the defendant no. 1. The Receiver shall not disturb the possession of the defendant no. 1 in which the defendant no. 1 along with his family members are occupying for their own use. 19. As per report of the Receiver and as per the contention of the Counsel for the defendant no. 1, the building in question is in dilapidated condition and if all the parties are ready and willing to repair the said premises, the same shall be informed to the Receiver and in presence of Receiver and after approval from the Municipal Corporation, the repair can be carried out by the parties out of their own expenditure as per approval. 20. The remuneration of the Receiver is fixed at Rs. 50,000/-at the first instance. The Receiver shall open a bank account in any nationalized bank and shall deposit the monthly rent in the said account and shall maintain proper account. The Receiver shall submit report before this Court within three months from date. 21. GA No. 5 of 2023 is thus disposed of.