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College Street Publications Pvt. Ltd. & Another v/s Zafar Ahmed & Others

    APO No. 389 of 2010 GA 746 of 2010 With CS 655 of 1983, APO 390 of 2010 With CS 655 of 1983, APO 38 of 2011, GA 955 of 2010 With CS 655 of 1983

    Decided On, 19 May 2011

    At, High Court of Judicature at Calcutta

    By, THE HONOURABLE MR. JUSTICE KALYAN JYOTI SENGUPTA & THE HONOURABLE MR. JUSTICE ASIM KUMAR RAY

    For the Petitioners: ------ For the Respondents: -----.



Judgment Text

K. J. Sengupta, J.


The above appeal of College Street Publications Pvt. Ltd. is directed against a judgment and order dated 23rd June, 2008, passed by learned Single Judge of this Court in G.A.3248 of 1998 in connection with Civil Suit No.655 of 1983. By the impugned order the appellant along with a number of persons were evicted from the suit premises. The first respondent is a Receiver appointed by this Court and on his application in connection with the decree passed in the aforesaid civil suit impugned judgment and order was passed. Admittedly, the appellant before us is not a party to the suit nor any decree has been passed against him specifically until the impugned judgment and order was passed. It appears from the records though chance was given by the learned trial Judge to justify its possession and occupation in the portion of suit premises on advise no such justification was placed filing affidavit when the application was heard. Hence technically order was passed without hearing the case and cause of the appellant. In this appeal apart from challenging the legality and validity of the aforesaid eviction order the appellant before us has tried to make out case to remain in possession and occupation in the manner as follows:-


The appellant is a private limited company. On or about 10th December, 1997 by a written agreement the appellant was inducted as Bharatia by the defendant No.1 in the above suit and the respondent No.2 herein, viz. Poly Sarkar (hereinafter referred to as Poly) in respect of three rooms, kitchen and bath in a partly tile shed and partly asbestos shed in respect of premises No.T/31/B/ College Row now known as 31, College Row, Kolkata 700 009 (hereinafter referred as the said premises). Poly claiming herself to be a thika tenant inducted the appellant as above at a rent of Rs.100/- per month payable month by month to her. At the time of induction it was represented that Poly being niece and heiress and legal representative of one Gour Hari Das who was the original owner of the structure on the said thika land was entitled to induct as a successor-in-interest in said thika tenancy right. Sometimes in 1982, the said premises was vested to the State Government and consequent upon vesting Poly became lawful tenant under the State and her name was also recorded in the Records of Thika Controller, Government of West Bengal. Thus the appellant has been lawfully inducted and has been in possession and occupation in the said premises. Poly has been paying rent to the Thika Controller and rent receipt is being issued by the Thika Controller to Poly who in her turn is also issuing rent receipt to Bharatia. The appellant had been in peaceful possession without any disturbance till 19th July 2008 when the appellant was found that some local police authorities came to the suit premises along with respondent No.1 and threatened appellant to oust and/or dispossess from the suit premises by virtue of the impugned judgment and order. Thereafter, an application was made before the learned Interlocutory Judge for declaration that the said decree in connection of which the aforesaid application was made was invalid and not binding on it.


The said application however was dismissed by Justice Indira Banerjee ultimately holding inter alia in view of the order impugned being subsisting no relief could be granted. It is also stated in the petition that no decree has been passed against Poly through whom the appellant is deriving right, title and interest on the strength of the said agreement and admittedly, the matter is still pending. Therefore, the appellant cannot be evicted by the said impugned order. It has also been alleged that the Receiver has not been in possession of the suit premises and moreover no leave was obtained to file the aforesaid eviction suit hence suit as well as application are not legally entertainable. It appears from the records the case of Receiver factually is as follows:-


In 1971 Receiver was appointed in partition suit No.75/70 in respect of amongst other 31, College Row, Calcutta and was put in possession thereof to preserve the same and to protect the rights of the parties. The name of the Receiver was mutated in the record of Calcutta Municipal Corporation (now Kolkata Municipal Corporation). One Gour Hari Das was a tenant in respect of a portion of suit property and he died in January 31, 1975 without leaving any heirs or legal representatives. After death of Gour trespasser including the defendant Nos.1 to 8 having taken possession entered into the said property interfering with possession of the Receiver. The Receiver thus instituted a Suit No.655 of 1983 for decree for possession of the suit property by evicting the defendant Nos. 1 to 2 and/or persons claiming through them and for declaration that Poly is stranger and trespasser. The defendant Nos.2 to 8 did not file written statement. On 28th March, 1984 an ex parte decree was passed against defendant Nos. 2 to 8. In March 1985 an execution application was filed and thereupon the Sheriff was directed by the Court to deliver possession of the suit property to the Receiver. In November, 1987 the Bailiff found the rooms in the possession of the defendant Nos. 2 and 8 keeping the same under lock and key.


Thus the delivery of the possession could not be given. The defendant No.1, Poly filed an application for setting aside the decree, and it was dismissed. Thereafter a suit was filed by the defendant Nos. 2 to 8 challenging the said decree passed ex parte and it was also dismissed in 2005. In the meantime an application was filed by the defendant No.1 for obtaining leave to proceed against the Receiver but the same was also dismissed. On or about 19th November, 1987 the defendant Nos.2 to 8 filed a suit being No.1132 of 1987 praying for inter alia, declaration that the said decree dated March 28, 1984 is not binding on the defendant Nos.2 to 8. However, the said suit was dismissed for default on 21st March, 2005. In the meantime, Poly claiming to be a thika tenant in respect of the suit property sought to have her name entered in the Register of the Thika Controller and caused her name to be inserted in the record of Calcutta Municipal Corporation by deleting the name of the Receiver from the records. On appropriate legal action being taken by orders of this Court all those illegal action taken by Poly have been set aside and every thing is set right. In or about March 1998 defendant Nos. 1 to 8 in order to frustrate the decree, illegally and without any authority came into possession of the suit property, as the Receiver?s possession should not be disturbed and interfered with. The Receiver then filed G.A. No.3248 of 1998 on which the impugned order was passed for eviction of the persons mentioned in paragraph 11 of the said application. Joint Special Officers were appointed and they inspected the suit property and made inventory thereof reported to the court. The appellant duly appeared initially at the time of hearing of the said application however, it chose not to appear in the matter subsequently nor did contest the said application despite service of notice on repeated occasion. In the circumstances the impugned judgment and order was passed by Justice Sanjib Banerjee holding inter alia that the Receiver will be entitled to police help for removal of all the persons mentioned in paragraph 11 of the said application from the suit property.


Mr. S.N. Mitra, learned Senior Counsel for the appellant highlighting the factual aspect of his client submits that the said application on which the impugned order was passed was not maintainable as no decree has been passed against Poly being respondent No.2 herein through whom the appellants herein are claiming their rights. When no decree was passed against the respondent No.2, no order could have been passed directing any of the appellants to be removed from the suit premises for the reasons as stated above. The said application ought not to have been filed because admittedly on 17th February, 1988 an interim order of injunction was passed restraining the Receiver from dispossessing the defendants Nos. 2 to 8 and further execution application which was filed for removing the defendants Nos. 2 to 8 was also stayed. Since application was in nature of an execution and the same could not have been granted in view of the subsisting interim order passed in earlier suit. Moreover, prayers made in the said application were also in the nature of a final relief and the same could not have been granted in view of the fact that the said suit filed against the defendant No.1 was pending and all the persons who were sought to be removed from the suit premises were claiming their right through the defendant No.1. By the impugned order all persons named in paragraph 11 of the application were directed to be removed from the suit premises except one United Book Agency and its proprietor. The appellants? name does not appear in paragraph 11 of the said application and accordingly on the basis of such order the appellant cannot be removed from the suit premises. Moreover, the address of College Street Parika and appellant herein are different and their respective places of business are also different. Accordingly, the appellant cannot be removed from the suit premises. It is also submitted that from the record it does not appear any leave was obtained by the Receiver to institute the suit as such suit itself is not maintainable. He urges since the suit against the defendant No.1 is pending in view of averments made in the plaint no decree could have been passed against the defendant Nos.2 to 8 directing them to hand over vacant possession to the plaintiff/Receiver and the same itself was a nullity. Moreover, it will appear from the schedule of the plaint that entire property is undemarcated meaning thereby which portion is occupied by whom is not stated. In absence of specific demarcation the decree cannot be executed. It is also contended that without adjudicating right, title and interest of the defendant No.1(Poly) no order can be passed directing the appellant to be removed from the suit premises. Moreover, neither the Bharatia nor the thika tenant can be evicted in this manner as it has been done by the learned Trial Judge. The Receiver was never in actual possession and he was only in symbolic possession and possession always remained with the persons and still are in the suit property. He has submitted the legal proposition that mere appointment of Receiver cannot disturb the right of the third party. Hence the appeal should be allowed. He contends with support of the decision reported in AIR 1997 SC 173, that the right of the third party cannot be interfered by the Receiver.


Learned counsel for the respondent No.2, Poly supports the contention of the appellant in addition thereto it is contended that no decree has been passed against this respondent and when the suit is still pending the area of occupation cannot be disturbed by any order. It is also said that admittedly appellant has been inducted by her under lawful and valid agreement, as Bharatia. It is urged that in view of the Thika Tenancy (Acquisition and Regulation Act) 1981 the State of West Bengal is only competent authority to evict and the Receiver has no authority to bring any action for eviction. These valid points require adjudication before passing any order of eviction. Mr. Sakya Sen, learned Counsel appearing for the Receiver submits that it would appear from the record admittedly the said purported agreement was executed in 1997 on the strength of which the appellant came into possession, after the Receiver was appointed, and thereafter the decree for eviction was passed against the defendant Nos. 2 to 8. It would appear from the plaint itself as well as the decree passed in the said suit the Receiver at all material times had and still has been possession and Poly having inducted the appellant with the execution of the said 1997 document has disturbed in and interfered with his possession. Admittedly, no leave of the Court was obtained to come in and occupy the said portion of the property.


After hearing the learned counsels for the parties and having examined the record point for decision is whether the said order of eviction passed by the learned Trial Judge can be operated against the appellant or not; in other words whether the appellant is entitled to remain in the possession on the strength of the said agreement of 1999 placed before the Court. The said tenancy agreement being the sheet-anchor of case of the appellant, was executed between the respondent No.2, Poly and the appellant in the year 1997 at the time when the Receiver had been in possession over the suit property.


We are unable to accept the contention going through the records that Receiver was not in physical possession of the property. It appears from the copy of the plaint filed in the aforesaid suit No.655 of 1983 in paragraph 1 it has been specifically stated by the plaintiff/Receiver that the Receiver duly took charge and possession of the said premises. Poly, respondent No.2 herein as the alleged landlady/thika tenant filed written-statement, therein factum of taking possession has not been denied and disputed at all. Moreover, on passing decree by the learned Trial Judge the Court is deemed to have accepted the fact that Receiver had been in possession otherwise decree for eviction in favour of the plaintiff could not have been passed. Decree for possession is granted to the plaintiff by the court only when it is proved to the satisfaction of the Court that plaintiffs had been in possession and dispossessed illegally. It appears from the copy of the decree the learned Trial Judge recorded that evidence was adduced in support of the case made out in the plaint and after being satisfied the decree for delivery of possession was granted. Hence the decisions of the Supreme Court (AIR 1997 SC 173) cited by Mr. Mitra has no application in this case as it is not a case of vesting of the property it is a question of taking of possession by the Court through Receiver. The Supreme Court explained legal principle that with appointment of Receiver of the Court, there cannot be vesting of title. This judgment rather supports the case of the Receiver/Respondent. In paragraph 28 of report it is stated:


?28.?????..where a receiver appointed by the Court is in actual physical possession of a property, no one, whoever he may be, can disturb the possession of the receiver and the Court may hold such person who disturbs receiver?s possession as guilty for committing contempt of Court. A man, who thinks he has a right paramount to that of receiver, must, before he takes any step of his own motion, apply to the Court for leave to assert his right???????


We do not find any force in the argument that the Receiver without leave of the Court filed the suit as in paragraph 7 of the plaint it has been specifically stated that Receiver on 25th April, 1983 had been authorized to institute the suit in his capacity as Receiver. Again in the written statement filed by Poly in paragraph 5 such statement and averment has not been denied and disputed. We thus conclude that the appellant came into possession of the suit property disturbing and interfering with the possession of the Receiver if not dispossessing him, as Receiver had been in possession of the suit property in its entirety. If any person entered into possession without prior leave of the Court such possession is amount to disturbing Court?s possession. We hold unhesitatingly without leave of the Court or for that matter without even informing the Receiver, and with the help of Poly the appellant took possession. Order of eviction of Poly in this case, in our view is not condition precedent for eviction of any person including the appellant even if being inducted and/or brought in by Poly, for it is the Court and Court alone can allow to take possession, none else.


We are unable to accept this possession is lawful and valid rather it amounts to interference with the possession of the Court and so to say the interference with the administration of justice. We fail to comprehend how order dated 17 February 1988 as urged by Mr. Mitra is helpful to his client for the said order was passed in Suit No.1132 of 1987 (Kalyani Bhattacherjee ?vs.- Smt Poly Sarkar) wherein the appellant was not party, furthermore the said suit was dismissed by order dated March 31, 2005 and the same does not appear to have been restored. It is true that application in which impugned order is passed is execution in nature. As per provision of the Code, however order of this nature is always subject to final result of the suit pending at the time of execution proceedings, under Order 21 Rule 104 of Civil Procedure Code, hence pendency of the suit without any order of injunction is not fetter for the executing Court to pass appropriate order. The said Rule 104 of Order 21 of Code of Civil Procedure is set out hereunder:-


?Order XXI R. 104. Order under rule 101 or rule 103 to be subject to the result of pending suit.-


Every order made under rule 101 or rule 103 shall be subject to the result of any suit that may be pending on the date of commencement of the proceeding in which such order is made, if in such suit the party against whom the order under rule 101 or rule 103 is made has sought to establish a right which he claims to the present possession of the property.?


Therefore, order of eviction passed against the appellant by the learned Single Judge on the facts and circumstances is perfectly justified and particularly when as rightly pointed out, the appellant did not care to place justification of its possession despite opportunity being given by the learned Trial Judge. We are unable to grant any relief as such the appeal is dismissed. We make it clear that this judgment is rendered only on the point that taking of possession by the appellant in the suit premises is wholly illegal and we have not decided any other points namely legality, validity of thika tenancy or alleged right of bharatia.


Therefore this judgment will not prevent or prejudice the appellant from taking lawful measure as may be advised.


I agree.


APO 38 of 2011 APOT 169 of 2010 Smt. Poly Sarkar v. Zafar Ahmed.


This appeal is preferred against the judgment and order dated 25th February 2010 passed by Hon?ble Justice Indira Banerjee, dismissing the above appeal contending that the impugned judgment and order in this appeal affects valuable right of the appellant in the suit premises adversely. He contends that it would appear from paragraph 4 of the plaint that it is

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the case of the plaintiff/Receiver that the defendant Nos. 2 to 8 were claiming their right through the appellant. It is further case of the plaintiff/Receiver it is the appellant who has allegedly inducted number of persons including the College Street Publication Pvt. Ltd. in the suit property thereafter some of them left. It is alleged that neither in the schedule of the plaint nor in the application of the plaintiff/Receiver that portion of the suit property occupied by College Street Publication Pvt. Ltd. and the defendants No. 2 to 8 has been demarcated separately showing their respective occupation. It has been contended further that since no portion of the suit premises is demarcated showing respective possession and occupation, the decree cannot be executed in its present form. Such eviction is not with due process of law. It is urged that right to evict those persons being Bharatias under the law rest with applicant on lawful ground and no third party can do so. The learned counsel further submits in the event suit against this appellant is dismissed and claim of thika tenancy is established, these persons, if removed would not be brought back, as third party?s right would be created, thus the appellant?s right to induct Bharatia and to receive rent from them is affected. After considering submission we are of the view on plain reading of the order of Justice Indira Banerjee we do not find any affectation of alleged right of the appellant herein. It is apposite to record that Justice Indira Banerjee did not pass any separate order nor adjudicated any issue. It has been merely observed in view of the earlier order of Justice Sanjib Banerjee dated 23rd June 2008 subsequent application could not be maintained. We have already discussed in great details as to acceptability and validity of the order of Justice Sanjib Baerjee dated 23rd June, 2008 in the appeal of College Street Publication Pvt. Ltd. hence we do not see any reason to maintain this appeal. Hence this appeal is summarily dismissed. There will be no order as to costs.
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