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Bhaskar Sardar v/s Samir Kumar Pal & Others

    C.O. No. 4173 of 2016

    Decided On, 06 June 2017

    At, High Court of Judicature at Calcutta

    By, THE HONOURABLE MR. JUSTICE HARISH TANDON

    For the Petitioner: S.P. Roy Chowdhury, Hiranmoy Bhattacharya, Sandip Das, Advocates. For the Opposite Parties: Sabyasachi Chowdhury, Rajarshi Dutta, Sayantan Bose, Advocates.



Judgment Text

1. This case has a checkered history. In fact, it is the third round of litigation before this Court. On both the earlier occasions the matter was remanded to the Trial Court to reconsider the matter in the light of the observations recorded in the aforesaid orders of remand.

2. A proceeding under Section 6 of the Specific Relief's Act is filed by the plaintiff/opposite party before the Court of Civil Judge (Senior Division), Baruipur for decree for declaration as to their lawful possession in the suit property together with the building standing thereupon and the defendant no. 1/petitioner has no right to dispossess them from the suit property without recourse to law. Consequently, the decree for recovery of possession of the suit property being Dag No. 3677 is also sought for therein.

3. The facts emerged from the plaint are that originally the suit property belonged to Sushila Bala Routh, who sold, transferred and conveyed the same to Ajit Kumar Biswas and Sanjit Kumar Biswas, by a dint of sale dated 08.07.1940, which was duly registered in the Sub-Registry Office of Matla and delivered possession thereof to the said purchasers. The properties involved in the said deed pertains to R.S. Dag Nos. 3677, 3678 and 3679 comprising of 56 decimals of land. The aforesaid owners after acquiring title into aforesaid properties and having put into exclusive possession, made an amicable arrangement between themselves with regard to the possession of the purchased properties and were exclusively enjoying their respective portions independently and to the exclusion of the other. One of the brothers, namely Sanjit Kumar Biswas raised and constructed one storied building on a portion of the plot of land comprised in R.S. Dag No. 3677 and started living with his family members which consists of two sons namely Rabindranath Biswas and Sukhendu Biswas.

4. Subsequently, the said Sanjit Kumar Biswas executed a Deed of Conveyance dated 02.04.1985 duly registered in the Sub-Registry Office of Matla in favour of his two sons. The aforesaid donees sold and transferred the properties gifted to them by their father to the plaintiffs/opposite parties by executing a Deed of Sale dated 12.10.2007 which was also registered in the office of District Sub Registrar IV, Alipore and delivered possession thereof to the plaintiffs/opposite parties and further issued a possession certificate to confirm the delivery of possession.

5. It is further alleged therein that the defendant no. 1/petitioner had approached the plaintiffs/opposite parties and threatened them to sale the said property to him as the aforesaid two brothers earlier agreed to sale the same to him. Since the plaintiff refused to accede to such offer, the said defendant became furious and threatened to take forcible possession of the suit property. It is stated in the plaint that taking advantage of the absence of the plaintiffs, the said defendant, with the help of some local people, drove out the other members of the petitioner's family from the suit house and took possession of the same. The plaint case further proceeds that because of such threat being perpetrated upon the petitioners, an application under Section 144(2) of the Code of Criminal Procedure was filed before the learned Executive Magistrate on 1st November, 2007 and an order was passed upon the Officer in Charge of the Canning Police Station and the Block Land and Land Reforms Officer, Canning to enquire and report by 3rd December, 2007. The report submitted by the aforesaid officials indicated that simultaneously with the purchase of the suit properties the possession was given by the said two brothers to the petitioners and they have been dispossessed by the opposite party no. 1 therefrom. It was further indicated therein that the R.S. Dag No. 3677 belongs to the Government and is a Khasmahal property.

6. A suit is filed before the Civil Court challenging the declaration of property to be a Government land, which is still pending. The petitioners further applied before the Land Department to grant the long term lease in the event the land comprised in R.S. Dag No. 3677 is declared as the Khasmahal land, which is pending.

7. The suit is contested by the opposite party no. 1 by filing the written statement. The salient features of the defence is that neither Sailabala Routh had any right, title and interest in respect of the suit properties nor she could divest her right, title and interest therein in favour of Biswas brothers and therefore all subsequent divestation of right, title and interest in respect thereof are illegal and void. It is further stated that at no point of time the possession was with those persons and therefore all the Sale Deeds are fictitious paper transaction. It is asserted that the father of the petitioner was in possession of the aforesaid properties all along and after his death the said defendant is in possession and therefore there is no question of alleged dispossession of the plaintiffs therefrom. As a corollary sequence it is stated that the petitioner were never in possession of the property and the allegations made in the plaint are untrue and engineered for the present suit.

8. In the backdrop of the aforesaid pleadings, the parties adduced evidence and after completion thereof the suit matured for final disposal. By a judgment and decree dated 31st March, 2010 the Trial Court dismissed the suit. The Trial Court held that it transpired from the evidence of the plaintiff's first witness that his nephew namely Satyam Baidya, who was physically present in the suit property had been ousted and despite of the categorical statement that he will depose, the said person was not cited as a witness and therefore the alleged claim of dispossession of the plaintiffs had not been proved properly.

9. The said judgment and decree was challenged before this Court under Article 227 under the Constitution of India in C.O. 1899 of 2010 because of the express embargo under Section 6(3) of the Act which expressly provides that the adjudication under the said provision and the order passed therein is not appealable. The revisional application was disposed of on 8th April, 2011 observing that the evidence on behalf of the petitioner is scanty and an opportunity should be given to the petitioners to cite the said Satyam Baidya, who is an important witness in the matter and granting such liberty directed the Trial Court to consider the matter afresh.

10. After the remand, the said Satyam Baidya was examined along with other witnesses and an opportunity was given to the defendants therein to adduce the witness on their behalf. The suit was again dismissed after remand. The Trial Court held that in absence of any specific, cogent or clear evidence indicating that the said Satyam Baidya is either the member of the family of the petitioners or their agent or caretaker, his dispossession cannot be equated with the dispossession of the petitioners from the suit property.

11. The said judgment was further challenged before this Court in C.O. No. 3838 OF 2011. While disposing of the said revisional application, this Court observed that from the evidence of the Satyam Baidya it is evident that he is the nephew (Sister's son) of the petitioners and there is no denial in the cross-examination. It was further observed that the Trial Court did not consider the evidence on record and the submissions advanced by the respective counsels in the proper manner and did not record the findings on the core issues required to be determined in a proceeding under Section 6 of the Act. The judgment was set aside and the matter was remanded to the Trial Court after framing the following issues:-

"(1) Whether the plaintiffs were in possession of the suit property;

(2) Whether there was an incident of dispossession in the relevant date;

(3) Whether Satyam Baidya was dispossessed from the suit property in view of said act of dispossession;

(4) Whether the dispossession of Satyam Baidya amounted to dispossession of the plaintiffs claiming to be owners of the suit property;

(5) Whether plaintiffs are entitled to get the relief or recovery of possession under Section 6 of the Specific Relief Act;"

12. The said order was challenged before the Supreme Court in Special Leave to Appeal (Civil No. 38039 of 2013) which listed on 18.03.2016. The Apex Court did not interfere with the said order and disposed of the Special Leave Petition directing the Trial Court to dispose of the matter within six months keeping all the points with regard to the aforesaid issues open.

13. The suit was again heard on different dates and by a judgment and order dated 30th June, 2016 was decreed, which is the subject matter of challenge in the instant revisional application. All the issues framed by this Court in an order of remand have been held in favour of the plaintiff and the Trial Court found that the petitioner has forcibly dispossessed the plaintiffs/opposite parties from the suit premises.

14. The learned Advocate for the petitioner submits that the plaintiffs/opposite parties have miserably failed to prove their possession in respect of the suit premises which would be evident from the oral and documentary evidences adduced on their behalf. It is streneously submitted that the first witness of the plaintiff categorically deposed that he has no material document to show either the possession of his vendors nor could prove that their names were duly recorded in the record of rights, it would be presumed that the plaintiffs/opposite parties were never in possession. It is further submitted that all the documents produced in support of their possession do not relate to the suit property as admittedly the plaintiffs/opposite parties are residing at their residence at Sonarpur. It is ardently submitted that the material witness namely Satyam Baidya could not prove his possession in the suit premises and his evidence is self-contradictory. The language in Section 6 of the Act used the expression "dispossess" necessarily implies an over-tact which directly support the person in actual possession and the right under the aforesaid provision is created in favour of such person and relies upon a judgment of the Co-ordinate Bench in case of Gurdeep Singh v. Chaturbhuj Pandey & Anr. reported in (2015) 2 CLJ 293 (Calcutta).

15. It is succinctly submitted that simultaneously with the institution of the instant suit, the plaintiffs/opposite parties had also filed a civil suit for declaration of their title and recovery of possession in respect of the suit premises against the petitioner knowing fully well that it is very difficult to prove his possession in respect thereof in the instant suit. He thus, concludes that when the title and possession are highly disputed the Trial Court erred in holding the possession of the plaintiffs/opposite parties in respect thereof in decreeing the suit.

16. On the other hand, it is submitted on behalf of the plaintiffs/opposite parties that their predecessor-in-title were also all along in possession of the suit plots and the entry in the record of rights would corroborate the same. It is further submitted that the building standing upon the Plot No. 3677 was all along known as the "Biswasbabur Bari" which infers that the property was all along in possession of the vendors and was never in possession of the petitioner or his predecessors.

17. It is further submitted that a notice was issued by the concerned Pradhan of the Panchayat calling upon both the petitioners and the plaintiffs/opposite parties pertaining to the repairs/constructions undertook at the suit plots by the plaintiffs/petitioners and therefore the Trial Court has not committed any error in holding that the plaintiffs/opposite parties were in possession. All the witnesses of the plaintiffs/opposite parties have uniformly deposed that they were put into the possession simultaneously with the execution and registration of the Sale Deed by the Biswas Brothers and a certificate of possession was also issued to confirm the same. Satyam Baidya, the informant categorically said that he was dispossessed and his possession being under the authority of the plaintiffs as a family member if disturbed or taken away would amount to dispossession of the plaintiffs themselves. In support of the contention that the word "possession" implies both a right and a fact and involves the power of control, the reliance is placed upon judgment of the Supreme Court in case of Sudhir Jaggi & Anr. v. Sunil Akash Sinha Choudhury & Ors. reported in (2004) 7 SCC 515.

18. The learned Advocate for the plaintiff/opposite parties further submits that a suit under Section 6 of the Specific Relief Act is not only maintainable at the instant of a person who is actually dispossessed but also by a person who under the law is entitled to possess and have an actual control over the suit properties and relies upon judgment of the Apex Court in case of Sadashiv Shyama Sawant (Dead) Through LRs. & Ors. v. Anita Anant Sawant reported in (2010) 3 SCC 385.

19. It is lastly submitted that the dispossession of a person who may not be in actual and physical possession but legally found to possess the same squarely comes within the purview of Section 6 of the Specific Relief Act, 1963. It is ardently submitted that there is clear and convincing materials on record in support of the stand that Satyam Baidya being the nephew was actually dispossessed from the suit property and the said nephew was not possessing the same independent to the exclusion of the plaintiff/opposite party and therefore the Trial Court rightly held that his dispossession tantamounts to dispossession of the plaintiff/opposite party.

20. From the aforesaid facts as narrated above, the point which hinges for consideration is whether the plaintiff/opposite party shall be deemed to have been dispossessed without due process of law even if he was not found physically present at the time of such dispossession.

21. It appears from the plaint case that originally one Sushila Bala Routh was the owner of the said property who sold, transferred and conveyed the same to Ajit Kumar Biswas and Sanjit Kumar Biswas on the basis of the Sale Deed dated 08.07.1940. It is further stated therein that the said owner delivered the physical possession of the demised properties to the aforesaid purchasers. The plaint case further proceeds that the aforesaid purchasers being the brothers amicably made an arrangement between themselves and started occupying the exclusive portions independently and to the exclusion of another. One of the brothers namely Sanjit executed a Deed of Gift on 2nd April, 1985 in favour of his two sons which was duly registered in the registry office. In turn the said two sons of Sanjit sold, transferred and conveyed the aforesaid properties by a dint of sale dated 12th October, 2007 to the plaintiff/opposite party. Initially the Sale Deed did not contain the statement that the house constructed by Sanjit is also sold, transferred and conveyed to the plaintiff/opposite party but the said deed was subsequently rectified by the registered instrument executed by the said two sons.

22. It is a specific case of the plaintiff/opposite party that said two sons delivered and handed over the physical possession of the entire demised properties including the building simultaneously with the execution of the Sale Deed and a document in this regard is also executed by them.

23. Curiously enough the petitioner is not only denying the right, title and interest of Sushila Bala Routh, the original owner, but has also said and those deeds are mere paper transactions. It is a specific case of the petitioner that his father was all along in possession of the properties including the building and after his death the petitioner continued in possession and recording in the record of rights in favour of those owners are erroneous. What is sought to be said by the petitioner is that neither the predecessor-in-title of the plaintiff/opposite party nor they were ever in possession of the demised properties and therefore the allegation that the dispossession took place on 1st November, 2007 is a pure myth.

24. It is no longer res integra that the Court should not venture to investigate the title of the persons in the disputed properties under Section 6 of the Specific Relief Act, 1963. In case of Sudhir Jaggi & Anr. (Supra) the Apex Court had an occasion to interpret the word "possession" and relied upon the earlier judgment of the said Court rendered in case of Supdt. & Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja reported in 1979 (4) SCC 274 as a polymorphers term capable of different meanings on the basis of a particular context. It essentially implies a right and a fact in the context of power of control and intention to control the same. The Court further noticed the word "dispossession" occurring in Section 6 of the said Act and gave a wider meaning to it and imbibed within itself the concept of constructive and/or symbolic possession in juxtaposition with a physical and actual possession. It would be profitable to quote such observations from the said judgment which runs thus:-

"10. In the case of Supdt. and Remembrancer of Legal Affairs, W.B. v. Anil Kumar Bhunja [(1979) 4 SCC 274 : 1979 SCC (Cri) 1038] this Court observed that the word "possession" is not purely a legal concept but a polymorphous term which may have different meanings in different contexts. That the word "possession" implies a right and a fact. It involves power of control and intention to control. That the test for determining whether a person is in possession is whether he is in general control of it. In the present case, as stated above, P.K. Chowdhury was given possession in May 1967 and it was agreed between the parties that the buyer could construct the walls, partitions, doors and windows, which show the intention to put P.K. Chowdhury in possession.

11. In the case of Kumar Kalyan Prasad v. Kulanand Vaidik [AIR 1985 Pat 374 : 1985 Pat LJR 462 : 1985 BBCJ 310] while discussing the scope of Section 6 of the Specific Relief Act, 1963, it has been held: (AIR pp. 375-76, para 9)

"9. In the first instance, a mere reference to the plain language of the provision aforesaid would indicate that the word 'dispossessed' has not been used in the narrowly constricted sense of the actual physical possession of immovable property. Indeed, it talks somewhat widely of dispossession of immovable property otherwise than in due course of law without the person's consent. If the legislature intended to narrowly limit the word 'dispossessed' there could have been no difficulty by specifying in terms the actuality of physical possession as its necessary and vital ingredient. The word employed is the ordinary word 'dispossess'. Plainly enough it would include within its sweep actual physical dispossession also but this is no warrant for holding that it necessarily excludes the violation of other forms of possession including a symbolical possession duly delivered by law and contumaciously violated by an aggressive trespasser. On principle I am not inclined to construe the word 'dispossessed' in Section 6 in any hypertechnical sense and to push it into the procrustean bed of actual physical possession only. Indeed the intent of the legislature in Section 6 to provide early and expeditious relief against the violation of possessory right, irrespective of title, would be equally, if not more, relevant where symbolical possession delivered by due process of law is sought to be set at naught forthwith."

12. To the same effect is the judgment of the Calcutta High Court in the case of Raj Krishna Parui v. Muktaram Das [(1910) 12 Cal LJ 605] in which while interpreting Section 9 of the Specific Relief Act, 1877 (Section 6 of the present Act, 1963) it has been held:

"In a suit commenced under Section 9 of the Specific Relief Act, the sole point for determination will be, whether the plaintiffs were in possession of the disputed property within six months previous to the institution of the suit and whether they had been deprived of such possession by the defendant otherwise than in due course of law. It is immaterial, if the plaintiffs were in possession, that such possession was without title. What the plaintiff has to prove is possession of the disputed property and not mere isolated acts of trespass over that property.

In order to entitle the plaintiff to succeed on the ground of possession, he must prove, firstly, that he exercised acts which amounted to acts of dominion; the nature of these acts of dominion varies with the nature of the property; secondly, that the act of dominion was exclusive. If the occupation by the plaintiff, as indicated by those acts, has been peaceable and uninterrupted and has extended over a sufficient length of time, the inference may properly be drawn that the plaintiff was in possession."

25. It would be worth noting a subsequent judgment of the Apex Court rendered in case of Sadashiv Shyam Sawant v. Anita Anant Sawant reported in (2010) 3 SCC 385 wherein a person who acquired the title in the property filed a suit under Section 6 of the said Act alleging that his tenant was dispossessed without due process of law. The Trial Court decreed the said suit holding that the said person had been forcibly dispossessed. However, before the High Court an argument was advanced that if the tenant of the said person has been dispossessed, such dispossession must be referable to the tenant and he is entitled to maintain the suit and therefore the suit by the persons, who were not found to be in actual and physical possession is not maintainable under Section 6 of the said Act. The High Court however did not accept such contentions and affirm the order of the Trial Court which was further challenged before the Supreme Court. In the backdrop of the above, it is held:-

"18. As noticed above, the views of the High Courts differ about maintainability of suit for possession by the landlord under Section 9 of the 1877 Act in respect of property let out to the tenant who has been dispossessed forcibly by a third party. That language of Section 6(1) of the Act and first paragraph of Section 9 of the 1877 Act is exactly identical admits of no doubt. The key words in Section 6(1) are "dispossessed" and "he or any person claiming through him". A person is said to have been dispossessed when he has been deprived of his possession; such deprivation may be of actual possession or legal possession. Possession in law follows right to possession. The right to possession, though distinct from possession, is treated as equivalent to possession itself for certain purposes."

26. In the said report, the Apex Court emphasized that if the landlord has let out the property to the tenant he does not loose possession but continued to remain in legal possession even if the actual and physical possession is with the tenant. The observations made in paragraph 21 of the said report is quoted under:-

"21. A landlord by letting out the property to a tenant does not lose possession as he continues to retain the legal possession although actual possession, user and control of that property is with the tenant. By retaining legal possession or in any case constructive possession, the landlord also retains all his legal remedies. As a matter of law, the dispossession of tenant by a third party is dispossession of the landlord. The word "dispossessed" in Section 6(1) must be read in this context and not in light of the actual possession alone. If a tenant is thrown out forcibly from the tenanted premises by a trespasser, the landlord has implied right of entry in order to recover possession (for himself and his tenant). Similarly, the expression "any person claiming through him" would bring within its fold the landlord as he continues in legal possession over the tenanted property through his tenant."

27. The Apex Court further noticed the language used in Section 6(1) of the said Act where the 'dispossession' was not confined to the dispossession of any person but includes a person claiming through him and interpreted the said provision in a manner that a person who is found in legal possession as distinct from actual and physical possession is entitled to maintain the said suit. Such observation is depicted as under:-

"22. As a matter of fact, on plain reading of Section 6(1), it is clear that besides the person who has been dispossessed, any person claiming through him can also file a suit seeking recovery of possession. Obviously, a landlord who holds the possession through his tenant is competent to maintain suit under Section 6 and recover possession from a trespasser who has forcibly dispossessed his tenant. A landlord when he lets out his property to the tenant is not deprived of his possession in the property in law. What is altered is mode in which the landlord held his possession in the property inasmuch as the tenant comes into physical possession while the landlord retains possession through his tenant."

28. Section 6 of the Act postulates that a person is entitled to recover the possession if he is dispossessed without due process of law provided such suit is filed within six months from the date of the alleged dispossession. From meaningful reading of the said provision the point required for determination in the suit of such description is whether the plaintiff/opposite party were in possession of the disputed property within six months previous to the institution of said suit and whether they have been deprived of such possession otherwise than in due process of law.

29. It further implies that such possession may not be supported by any title but a distinction must be drawn between the juridical possession and the act of trespass. Though it is somewhat difficult to frame in comprehensive formula to distinguish an act of possession from an act of trespass but generally in former case the plaintiff must prove that he exercised the act which amounted to Act of Dominion. The nature of the Acts of Dominion may obviously vary with the nature of the property and a particular act may be sufficient to indicate the control offering the said property apart from the mere Act of Dominion. The plaintiff must also prove that such Act is exclusive. The aforesaid observation can be fortified from the example that if two persons have committed an act of trespass one who has a better title over the other in that event the act of such title holder may not amount to an act of trespass where in case of a wrong doer such act would probably be deemed to be nothing more than an act of trespass. If the occupation is peaceful, uninterrupted and extended over a long period of time an inference may probably be drawn in favour of the possession of the said person.

30. It is in this context it may be said that the possession means the possession of that character of which the thing is capable. All that is necessary to show is that some acts were done and were done in exercise of the right of ownership and the shelter can be taken to a doctrine that "possession follows title".

31. In the instant case the matter was remanded twice by the High Court. On the first occasion the Court found that the evidence is too scanty and an opportunity should be given to the parties to give better evidence in support of their respective stands. On the second occasion the Court remanded the matter by framing four issues which are essentially on the possession of the plaintiff in the suit property and its dispossession on a relevant date and whether the possession of the nephew would be deemed to be a possession of the plaintiff and therefore his dispossession would be treated to be a dispossession of the plaintiff for the purpose of Section 6 of the said Act.

32. Admittedly, the record of rights stands in the name of the predecessor-in-title of the plaintiff/op

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posite party, which is corroborated from the specific defence taken in the written statement by the petitioner that such recording is erroneous. The petitioner relied upon various documents to show that his father and after his death he is in possession thereof but none of the documents could relate to the identity of the disputed property. Even the electric meter which was there in existence was in the name of the predecessor and the petitioner could obtain the electric meter at the property only after the date of the alleged dispossession and if I am nor wrong during the pendency of the instant suit. 33. There is a startling fact which is admitted by both the parties that a notice dated 26.10.2007 was issued by the Pradhan of the Gram Panchayat, which contains a very important word i.e. "Biswas Barir Bastu Jomi". In a common parlance the residential house or the property is known by the name of the owner and sometimes by his title. 34. Admittedly, the plaintiff/opposite party purchased the property previously owned by the Biswas and if the property was known in such fashion a strong presumption lies that the property belonged to them. Admittedly it is residential house and the petitioners have not claimed their possession through Biswas. Strangely enough though they asserted their long possession in the said residential house but they also claimed title by way of adverse possession as a defence in the written statement. It is a settled law that the Court should consider the pleadings as well as the depositions of the witnesses in its entirety and one stray fact which is negligible cannot act as a deterrent in negetiving the claim. The entire evidence of Biswas from a meaningful reading goes to say that their predecessor was in possession and after the death they obtained the possession and handed over the possession to the plaintiff/opposite party. 35. Though the actual and physical possession appears to be for a short time yet such possession must be relatable to the possession of the predecessor if the predecessor was found to be in settled possession. If it is a specific stand that the possession was also delivered and handed over simultaneously with the execution of the Sale Deed, the possession of the vendors of the said deed would be a relevant factor and be deemed to have passed on by an act of handing over the same. 36. It is a positive evidence of the nephew that he was permitted and allowed by the plaintiff/opposite party to take control of the suit property and he was dispossessed without due process of law by the petitioner. 37. In view the exposition of law as indicated hereinbefore such dispossession would tantamount to the dispossession of the plaintiff/opposite party and this Court does not find any fetter on their part to maintain a suit under Section 6 of the said Act. 38. This Court, therefore does not find any infirmity and/or illegality in the judgment and order impugned in the instant revisional application. 39. The revisional application is thus dismissed. 40. However, there shall be no order as to costs.
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