w w w . L a w y e r S e r v i c e s . i n



International Society for Krishna Consciousness v/s Ishwari Prasad Singh Roy & Others


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    A.P.D. No. 414 of 2014 with C.S. No. 927 of 1982

    Decided On, 20 September 2019

    At, High Court of Judicature at Calcutta

    By, THE HONOURABLE MR. JUSTICE SOUMEN SEN & THE HONOURABLE MR. JUSTICE RAVI KRISHAN KAPUR

    For the Appellant: Ahin Choudhury, Sr. Advocate, Pradip Kr. Ghosh, Debabrata Banerjee, Koushik Bhattacharyya, Advocates. For the Respondents: Arijit Chaudhuri, Sr. Advocate, Sayantan Basu, Kaushik Mandal, Madhur Meenakshi Bhattacharya, Advocate.



Judgment Text

Soumen Sen, J.

1. The battlefield of Kurukshetra has entered the arena of this civil litigation in a very small but significant way concerning "only" 250 sq. ft. allegedly in unauthorized possession of the appellant, a society, devoted to Lord Krishna.

The learned Single Judge found that the dharma is with the plaintiff and the appellant to be in wrongful possession of the area in question and accordingly passed a decree for eviction and mesne profits. The appellant was held to be a trespasser in respect of the suit schedule property.

Before we advert to the submissions made on behalf of the parties, we would like refer to relevant facts for proper appreciation of the dispute between the parties.

One Priyambada Devi was the original owner of 3 Albert Road. During her lifetime, she executed a will dated 6th April 1926, by which she bequeathed 'ka' and 'kha' Schedule property at 3 Albert Road, Kolkata in favour of Saileswar Singh Roy and Lila Mohan Singh Roy both since deceased. The premises of 3 Albert Road was eventually divided in 3A Albert Road and 3C Albert Road.

The Will gives description of the extent of properties bequeathed in favour of the beneficiaries with sufficient particulars.

The description of 'ka' Schedule properties bequeathed in favour of Lila Mohan Singh Roy is:-

"In the city of Calcutta, the three storied house called Raj Castle situate at No.3 Albert Road together with rent, free land lying there under, western portion of the main building, the (share) to the extent of 8/-(eight) ana and in the said premises, stable, house etc, and out house on the western side and the play ground on the western side, that is, the grassy field."

(emphasis supplied)

Similarly 'kha' schedule properties bequeathed in favour of Saileswar Singh Roy is described in the schedule to the Will as:-

"In the city of Calcutta, the three storied building called Raj Castle situate at No. 3 Albert Road, together with the rent free land lying thereunder, out of that the eastern portion of the main building (share) of the extent of 8 (anna) and of the eastern portion the out house as well the stable and coach house." (emphasis added) On 26th May, 1971 Lila Mohan and Sunil Kumar executed a deed of declaration to record their respective possession of the properties bequeathed in their favour under the will. At the relevant time Lila Mohan was in exclusive possession and enjoyment of the western portion of 3, Albert Road and Sunil Kumar Singh Roy was in possession and enjoyment of the eastern portion of 3, Albert Road. The relevant portion of the deed of declaration is stated below (pg. 93 of paperbook):-

"14. As the western portion of the premises No. 3, Albert Road, Calcutta as mentioned in Schedule "ka" of the will of the late Sm. Priyambada Devi was made over to Lila Mohan Singh Roy by the Executors and Executrix to the estate of the said late Sm. Priyambada Devi without executing any deed or documents and similarly the Eastern portion of the premises No. 3, Albert Road, Calcutta as mentioned in Schedule "Kha" of the will of late Sm. Priyambada Devi was made over to Late Saileswar Singh Roy by the said Executors and Executrix without executing any document, we have agreed that to avoid any misunderstanding between our respective heirs and legal representatives in future, we should clearly demarcate the said eastern portion as mentioned in schedule "Ka" and the western portion as mentioned in schedule "kha" to the will of the said late Sm. Priyambada Devi which vested on Lila Mohan Singh Roy and Saileswar Singh Roy and through him to Sunil Kumar Singh Roy.

15. We declare that we have demarcated the western and eastern portion of the premises No. 3, Albert Road as mentioned in Schedule "Ka" and "Kha" to the will of the said late Priyambada Devi by creating and construction boundary wall eight feet in height between the said western and eastern portions and running from north to south as shown by dotted yellow lines on the map or plan hereto annexed and marked as boundary pillars thereof."

(emphasis added)

The present plaintiff Ishwari Prasad Singh Roy is the son of Sunil Kumar Singh Roy who is the successor-in-interest of Saileswar Singh Roy.

Sunil Kumar Singh Roy, the original plaintiff filed the instant suit alleging that the defendant no. 1 had illegally and wrongfully encroached and trespassed into a portion of 3A Albert Road. The portion encroached is admeasuring 250 sq. ft. in the upper portion of the first floor, which consists of a verandah. The plaintiff states that the defendant no. 1 has unlawfully constructed a wooden mezzanine floor in the encroached portion and also put up a plastic shed on the covered area of the entire first floor verandah, the eastern portion of which is within the entitlement of the plaintiff as the owner of the premises.

Prior to the filing of the suit, the plaintiff issued two several notices dated 1st October, 1982 and 8th December, 1982 to the defendant no. 1, alleging that the appellant not only had trespassed into an area of 250 sq. ft. of premises no. 3A Albert Road but had also constructed a mezzanine floor and had put plastic sheds in the veranda. The said notices apparently were not replied to by the defendant. As the defendant no. 1 did not remove the unauthorized construction from the encroached portion of the verandah and had over the encroached portion to the plaintiff, the suit was filed on 20th December, 1982 for eviction of the defendant no. 1/appellant on the ground of trespass. A decree for mesne profits was also claimed in the suit.

The parties filed their pleadings. On the basis of the pleadings and the documents disclosed by the parties, the learned Single Judge had framed the following issues:-

"1. Did the first defendant encroach upon or trespass into any portion of any premises beyond what was originally let out to the defendant no.1?

2. Was the 1st Defendant inducted as a lessee under the Indenture of Lease dated 18th June 1971 in respect of the portion of the premises now occupied by the defendant no.1?

3. Was the defendant no.1 inducted as a tenant even before the said lease? If so when?

4. Prior to the demise in favour of the defendant no.1 was the premises clearly demarcated on both floors and only such demarcated upper portion was let out to the defendant no.1?

5. Is the defendant in unlawful occupation of any part of the premises now in possession of the defendant no.1?

6. Could the suit as originally framed be maintained in the absence of Kamala Prasad Singh Roy?

7. Is the claim of the plaintiff barred by law of limitation?

8. Is the suit barred estoppels, waiver and acquiescence and/or principles analogous thereto?

9. To what relief if any is the plaintiff entitled?"

The learned Single Judge on consideration of the pleadings and the evidence of the parties held that the plaintiff was able to prove trespass of 250 sq. ft. at 3A Albert Road by the defendant no.1 and accordingly passed a decree for eviction of the defendant no.1 together with mesne profits of @ Rs.50 sq. ft. per day for a period of three years prior to the institution of the suit, amounting to Rs. 54,750/-, at 12% interest per annum. The learned Single Judge also held that the plaintiff would be entitled to mesne profits for the period from which the plaint was filed till the plaintiff obtains vacant possession of the encroached portion, at a rate to be determined by a Special Referee, Mr. Sondwip Mukherjee, Advocate. Additionally, the learned Single Judge also imposed costs of Rs. 1,00,000/- payable to the plaintiff. This decree is under challenge before us.

The plaint case is that the plaintiff was and still is the sole and absolute owner of the land, building and premises at no. 3A, Albert Road. It states that a portion of the upper flat on the eastern side has been let out by the plaintiff to a third party but the said portion is not the subject matter of the instant suit but the portion of the upper flat which has not been let out is the subject matter of the suit. Lila Mohan Singh Roy and his son, Kamala Prosad Singh Roy were the joint owners of the adjacent premises no. 3C, Albert Road, which also consists of an upper flat. By an indenture dated 18th June 1971, Lila Mohan Singh Roy inducted defendant no. 1 as a lessee or tenant of the demarcated upper portion of the said premises No. 3C, Albert Road. Upon the death of Lila Mohan Singh Roy in 1974, premises no. 3C, Albert Road was bequeathed to Kamala Prosad Singh Roy and the defendant no. 1 continued as a lessee or tenant of the upper flat of the said premises. In or about 1982, Kamala Prosad Singh Roy sold and conveyed the premises No. 3C, Albert Road to the defendant no. 4, Premlata Chopra, and subsequently, the defendant no. 1 became a lessee or tenant under the defendant no. 4. At paragraph 8, it is stated that under the indenture dated 18th June 1971, the first defendant was entitled to occupy and it in fact occupied as lessee or tenant the "demarcated" upper flat of the said premises. Prior to the demise in favour of the first defendant the two adjacent premises "had been clearly demarcated on both floors". It is stated that at all material times prior to the demise in favour of the first defendant, "there was a separation of the said two premises by a clear line of demarcation and accordingly there was never any doubt or difficulty regarding the actual boundaries of the said two premises Nos. 3A and 3C, Albert Road". In paragraph 9 of the plaint, it stated that "notwithstanding the clear line of demarcation of the said two premises", after the grant of tenancy in their favour, the first defendant "wrongfully encroached upon and/or trespassed into a portion of the said upper flat owned by the plaintiff". It is stated that "by reason of such trespass and/or illegal encroachment the first defendant, its servants or agents, have been and still are wrongfully in possession of a portion of the said upper flat at the said premises no. 3A, Albert Road". In paragraph 10 of the plaint, it is stated that "after the said trespass and/or illegal encroachment the first defendant, its servants or agents have unlawfully erected or constructed a wooden mezzanine floor in the said encroached portion and the said defendant has also put up a plastic shed or cover on the entire first floor front verandah, the eastern half of which falls within the plaintiff's said upper flat at no. 3A, Albert Road, Calcutta". The approximate area of the said encroached portion including the mezzanine floor is 250 sq. ft. In paragraph 11, it is stated that the trespass and/or wrongful encroachment is "still continuing" and the defendant no. 1 is "still in illegal possession of the said portion of the said upper flat" of the plaintiff's premises. In paragraph 11A, it is specifically stated that the defendant no. 4 has sold and transferred her right, title and interest over the premises no. 3C, Albert Road to the defendant no. 5. It is also stated that the "defendant no. 1 and 5 are under common management and/or in control of the same persons" and that the defendant no. 1 is claiming to be a tenant under the defendant no. 5. On such facts, the plaintiff filed the suit for recovery of possession of the 250 sq. ft., along with claims for damages and mesne profits.

The defendant no. 1, 2 and 3 filed a written statement. In the written statement, the defendant stated that in June 1971, Lila Mohan Singh Roy and Kamala Prosad Singh Roy were the owners of the premises No. 3A, Albert Road or a part thereof and by an indenture dated 18th June 1971, they let out a portion of the said premises. The portion let out comprised of "one hall, two bed rooms, two bath rooms, one pantry and one verandah". It is further stated that the "one verandah on the first floor" included and still includes "the entire front and back portion of the said verandah". The first defendant is only in possession or occupation of the portion let out to it. However, it is also stated that "if the plaintiff has become the owner of any portion of the said premises the first defendant is ready and willing to pay such portion of the rent as may be apportioned as being due and payable to the plaintiff by the first defendant on account of such portion". Thereafter, there are mere denials of the fact that the defendant no. 1 has trespassed and/or wrongfully encroached on any portions of the premises owned by the plaintiff. In paragraph 7, it is stated, in the alternative, that "the plaintiff has remained silent and has permitted the first defendant to alter his legal position to its detriment and the plaintiff let the first defendant to believe as these defendant, in fact, believed that it was a valid and lawful tenant of the entire premises mentioned in the deed of indenture". Thereafter, in the following paragraphs, the claims on account of damages and mesne profits are denied. The defendant no. 1 was also permitted to file an additional written statement. In paragraph 5 of the additional written statement, the contentions of paragraph 3 of the written statement are reiterated. It is stated that the portion let out comprised of "one hall, two bed rooms, two bath rooms, one pantry and one verandah". It is stated that the "one verandah on the first floor" included and still includes "the entire front and back portion of the said verandah". It is further stated that the lease by indenture dated 18th June 1971 was made prior to the re-numbering of the premises into nos. 3A and 3C, Albert Road and that the defendant no. 1 was already and always in lawful possession and occupation of the tenanted portions, as would appear from the report of the Special Officer. In paragraph 6, it is reiterated that the tenancy covered "the entire verandah" and that this fact was known to the plaintiff. However, the said defendants did not deal with paragraph 11A of the amended plaint in which the plaintiff has alleged that the defendant no. 1 and 5 are under common management and/or in control of the same persons. Thereafter, there are denials of trespass and/or encroachment and denials on the liability to pay damages and/or mesne profits.

The defendant no. 5 was also permitted to file an additional written statement. In paragraph 1 of this additional written statement, it is stated that since the plaintiff has not claimed any reliefs against the defendant no. 4 in the original written statement, it could not claim any reliefs against the defendant no. 5. In paragraph 4, in dealing with paragraph 11A of the amended plaint, the defendant no. 5 "specifically denied that the defendant no.1 and the answering defendant are in the common management and/or in control of the same person as alleged or at all". It is stated that the defendant no. 5 is an "independent legal entity". Thereafter, there are denials of trespass and/or encroachment and denials on the liability to pay damages and/or mesne profits.

Mr. Ahin Chowdhury, learned Senior Counsel appearing on behalf of the appellant, has submitted before us that the learned Single Judge has completely misdirected its mind in relying upon the schedule of the property as described in the will, disregarding the fact that there has been no partition made in accordance with the shares allotted to each of the parties under the will. Mr. Chowdhury emphatically submits that allotment of any shares in the property by the testatrix does not create any right, title and interest in the suit property as the Court in deciding a probate proceeding does not decide the question of title of the properties bequeathed in favour of the parties under the will. The grant of probate only entitles Saileswar and Lila Mohan to partition the properties by executing a deed of partition and so long as the properties are not divided by metes and bounds and the partition deed is executed and registered, both the beneficiaries under the will would remain as co-sharers of the entirety of the property. In fact, Lila Mohan Singha Roy at the time of execution of the lease deed in the recital has clearly stated that a partition would be effected in future. Mr. Chowdhury has relied upon the following portion of the recital of the lease agreement which reads:-

"(e) that the lessors shall arrange for fixing up some doors at the entrance of the main building when the same will be partitioned between the lessors and their co-sharer Sri Sunil Singha Ray the Schedule above referred to all that the western half of the upper flat comprising one hall two bed rooms two bath rooms one pantry and one verandah in the first floor and one room with attached small in the second floor of the premises No. 3A Albert Road together with one garage on the north western corner of the out house and two serv ant rooms on the east thereto in the out house being part of the said premises No. 3A Albert Road..."

(emphasis supplied)

Mr. Chowdhury submits that by a subsequent arrangement between the parties, the demise made in favour of the appellant at the time of execution of the lease could not be curtailed and/or varied. Mr. Chowdhury submits that under the lease dated 18th June, 1971, the demise was made in favour of the appellant/lessor in respect of the entirety of the western half of the upper floor comprising one hall, two bed rooms, two bathrooms, one pantry, one veranda in the first floor and accordingly, at this stage, the plaintiff cannot curtail the enjoyment of the veranda by subsequently agreeing to have a partition amongst themselves.

Mr. Chowdhury submits that although the learned Single Judge had relied upon the document of sale between Lila Mohan Singha Roy in favour of the defendant no. 4 (Premlata Chopra), by which Lila Mohan Singha Roy had stated that he never let out any portion of the premises no. 3A Albert Road to any of the defendants, the said exhibit would be irrelevant as at the time of execution of the lease deed by Lila Mohan Singh Roy in favour of the appellant, which happened prior to the execution of the sale deed, Lila Mohan had an interest in the entirety of the property as a co-sharer including the veranda. This is abundantly clear from the lease deed executed by Lila in favour of the appellant as the lease demises amongst others, "one veranda in the first floor" and forms part of the leasehold property demised in favour of the appellant. In this context, Mr. Chowdhury has also relied on paragraph 6 of the additional written statement filed by the appellant, which reads -

"The defendant no. 1 states that the first defendant obtained the tenancy from Singh Roys even before the original premises No. 3A, Albert Road, Calcutta was renumbered as 3A and 3C, Albert Road, Calcutta. There was only a solitary verandah which covered both new premises No. 3A and 3C, Albert Road and the tenancy covered the entire verandah. It is denied that only half the verandah was let out and the other half was retained. Although these facts are known to the plaintiff, the plaintiff is now pursuing the suit on the unfounded allegations of encroachment and trespass into an area of about 250 sq. ft., not for any bona fide reason but upon the plaintiff having entered upon an agreement for the purpose of developing the plaintiff's part of the property through promoters known as Belani Group of which Mr. Nandu Belani is the head."

(emphasis supplied)

Mr. Chowdhury submits that the plaintiff has not stated in the plaint as to when and how the appellant became a trespasser since the appellant had been enjoying the property demised in its favour by Lila Mohan Singh Roy since the inception of the lease agreement without any protest or demur. It is submitted that the lease was entered into on 18th June 1971 with effect from May 1971 whereas the suit, being Suit No. 927 of 1982, only came to be filed on 20th December 1982. Mr. Chowdhury submits that the properties allotted to the parties under the will would show that Saileshwar became the owner of the eastern half "8 annas share" of the dwelling house and Lila Mohan Roy became the owner of the western half of the said dwelling house to the extent of 8 annas.

Mr. Chowdhury submitted that the oral evidence adduced by the plaintiff's witness is far from satisfactory. There is no clear evidence of the date of alleged encroachment and the manner of encroachment. Although it was the case of the plaintiff that encroachment took place after the breaking of wall, the fact that induction of the appellant in the property was in May 1971 is admitted. There was no dispute that the appellant was lawfully inducted and in the deed of lease it is clearly mentioned that tenancy has commenced from May 1971. It is an admitted document. It is a registered lease and it was exhibited by plaintiff's witness himself. There is no controversy about the lawful induction into the premises. For almost 11 years, no contention was raised by any party that ISKCON was unlawfully encroached into any portion of the house in occupation or possession of the plaintiff. It is not evident from the evidence of plaintiff's witness as to when and how this alleged encroachment took place.

Mr. Chowdhury submits that there is no contemporaneous police complaint regarding encroachment. There is no correspondence to that effect. The first letter alleging encroachment is from Mr. N.C. Mallick, Advocate. The said letter is dated 1st October 1982. No date and time of the alleged breaking of wall was mentioned in the letter. In the second purported letter of Mr. N.C. Mallick dated 8th December, 1982 too, no date of encroachment was also mentioned although the allegation was that the encroachment was done after breaking of wall. Only one witness, that is, the plaintiff himself gave evidence on encroachment.

Mr. Chowdhury submits that the defendant no.1 produced Jay Pataka Swami as its witness who denied that there was any encroachment whatsoever. On the factual aspect, the evidence of alleged encroachment by the appellant is most unsatisfactory. In any event it is words of the plaintiff's witness as against words of the defendant's witness. So, if only the oral evidence of the parties are taken into account, it cannot possibly be held that the plaintiffs have established the case of illegal encroachment. The learned Judge chose not to attach importance to the oral evidence in this case but proceeded to decide whether the plaintiff's' version or defendant's version was more probable and acceptable on the basis of the learned Judge's understanding of the documents exhibited. The date of commencement of the lease, according to the lease deed was 1st May, 1971. At that time there was no partition of premises No.3A Albert Road. The first floor included one verandah, not half verandah or half of a verandah or portion of a verandah.

Mr. Chowdhury also submitted that originally the entire premises no.3 Albert Road was owned by Priyambada Debi. Priyambada Debi made a will in 1926 and she died in 1939. No.3 Albert Road was a three storied house known as Raj Castle. Under the will of Priyambada, in western portion of the main building, the share to the extent of 8 annas was included in 'ka' schedule. In the eastern portion share to the extent of 8 annas was included in 'kha' schedule was given to Saileshwar. Only 8 annas share was given to Saileswar Singh Roy and Lila Mohan Singh Roy and the properties were not divided by metes and bounds. It cannot be anybody's case that division and demarcation of No.3, Albert Road was made by reason of the said will. By the will, undivided 8 annas share was bequeathed - Saileswar got 8 annas and Lila Mohan got 8 annas. The said will was probated. The probate also confirms that there was no demarcation of the properties between the beneficiaries in the will.

Mr. Chowdhury submits that the plaintiffs produced an unregistered deed which is a deed of declaration. This document cannot be looked into as a document creating partition between co-sharers. It is stated the learned Single Judge accepted this proposition. The appellant was inducted by Lila Mohan. No.3 Albert Road was re-numbered as 3A Albert Road in the fourth quarter of 1972-73 by re-numbering the premises the existing tenancy would not be affected. By municipal renumbering, an already existing tenancy cannot be split up. When the tenancy was created in favour of the appellant by the document dated 18th June, 1971 commencing from 1st May, 1971, there was no partition of 3A Albert Road. The whole verandah was allowed under the lease document and not a part of the verandah. There was no mention of any porch in the lease deed. In the lease deed, it is specifically mentioned that the lessor would arrange for fixing up some doors at the entrance of the main building when the building will be partitioned between the lessor and his co-sharer. The impugned judgment is wholly erroneous inasmuch as it does not proceed to decide the case by deciding whether the plaintiff's case as made out in the pleadings has been established at the trial.

The learned senior Counsel has submitted that it is one thing to say that the appellant was never lawfully inducted in respect of that 250 sq. ft. which is the subject matter of this suit and it is quite another thing to say that demise was alright but in 1980-82 the appellant unlawfully encroached into that portion after demolishing a wall and, therefore, became a trespasser with regard to the encroached portion. The legal notice was the founding and basis of the plaintiff which he has failed to establish at the trial. The learned Judge overlooked this. The learned Judge proceeded on the footing that the case was one of unlawful induction which was not the case of the plaintiff.

At the time of the Will and the deed of declaration, there was no existence of premises 3A or 3C Albert Road, Calcutta. The learned Judge accepted the proposition that the deed of declaration could not be relied upon as the document of partition. The learned Judge observed that premises No.3C, Albert Road was divided into two exact halves by the Will of Priyambada Debi. 3C Albert Road came into existence in 1972. The Will was executed in 1926. Priyambada Debi died in 1939 and the probate was obtained in 1943. It is submitted that these documents would not have the effect of dividing the premises No.3 Albert Road into two exact halves. 3C Albert Road was not in existence at that time. It is submitted that the Trial Court judgment proceeded on the footing that Lila Mohan was entitled to grant a lease to the extent of the property vested upon him and conversely, could not grant a lease on property that was not vested on him. It is submitted that the will or the probate documents could not be relied on to establish what portion of the verandah Lila Mohan had vested on him.

Mr. Chowdhury submits that the learned Judge observed that it is nobody's case that Lila Mohan granted a lease of property not belonging to him. The learned Judge overlooked the main case of the defendant, evidence with regard thereto and entered into a discussion whether the disputed portion of 250 sq. ft. would form part of the tenancy granted by the lease deed. The learned Judge ignored the fact that the property was not partitioned by metes and bounds on the date of grant of lease. Lila Mohan had undivided share in the entire building. Therefore, it could not be said that Lila Mohan's induction of the appellant in the portion occupied under the lease was unlawful or unauthorized. That is why no such contention was raised on for more than 11 years before the suits was initiated. It is on record that a well known promoter was taking active interest in litigation.

It is argued that the report of the Special Officers appointed on interlocutory application is of no relevance so far is the question of encroachment is concerned. The inspection of the Special Officer took place in 2009 and 2010. They have no relevance on the question as to whether there was any encroachment as alleged by the plaintiff which took place either in 1980, 1981 or 1982.

Whether a co-sharer having an undivided 8 annas share in the building which was 3 Albert Road at the relevant time could lawfully let out a portion of the building was not the question in the suit or before the Court but the learned Judge proceeded to decide the issue on the learned Judge's own understanding of that question is the other ground on which Mr. Chowdhury has assailed the judgment. Mr. Ahin Chowdhury has submitted that at the time of creation of tenancy, both Lila Mohan Singh Roy as well as Sunil Kumar Singh Roy were the co-owners of the property in question and the premises was jointly owned by them. A co-owner cannot alone maintain a suit for eviction of tenant inducted on behalf of all the co-owners and he can do if pursuant to a partition by metes and bounds effects amongst all the co-owners, the said premises falls to his share. For this proposition, reliance has been placed on Karta Ram Rameshwar Dass v. Ram Bilas reported at (2006) 1 SCC 125 and Sk. Sattar Sk. Mohd. Choudhari v. Gundappa Amabadas Bukate reported at (1996) 6 SCC 373. It is submitted that the suit proceeded on one basis and the judgment is delivered on another basis. This makes the judgment erroneous. Moreover the learned Judge again observed without any evidence that the fifth defendant and the first defendant are under a common management of the same group of persons and as because the fifth defendant accepted the demarcation as in the conveyance, such demarcation is binding on the appellant and it is not for the appellant to question the demarcation made by the lessor subsequently to the grant of the lease. The learned Judge proceeded to hold that the date of the encroachment, manner and method of encroachment and acts subsequent to encroachment were irrelevant and those questions need not be gone into. On this basis, the learned Judge answered the first five issues in favour of the plaintiff which included the issue: "Did the first defendant encroach upon or trespass into any portion of the premises beyond what was originally let out to defendant no.1".

The learned Senior Counsel has also submitted that the decree with regard to mesne profits is manifestly erroneous. In the plaint, mesne profits are prayed at the rate of Rs.50/- per day or at such other rate which the Hon'ble Court may find to be fit and proper. This fifty rupees per day was claimed for the whole portion which, according to the plaintiff was under the unlawful occupation on ISKCON. The learned Judge read this as Rs.50/- per sq. ft. and it had the effect of multiplying the claim 250 times. This is also awarded without even ordering an inquiry or appointing a Commissioner to determine the reasonable letting out value.

Mr. Arijit Chowdhuri, the learned senior counsel appearing on behalf of the plaintiff/ respondent no.1, has supported the decree under appeal and submits that on proper and correct appreciation of law and facts, the decree has been passed in favour of the appellant.

Mr. Chowdhuri submits this is a suit for the recovery of possession of a portion of premises No. 3A Albert Road from the first defendant who has trespassed thereon from the adjacent premises, No. 3C Albert Road. 3A Albert Road consists of the Eastern half, and No. 3C Albert Road the Western half of the same dwelling house.

It is submitted that the plaintiff (i.e. Sunil Kumar Singh Roy; and now on his death, Ishwari Prasad Singh Roy) at the trial is to establish that he had a better right to premises No. 3A Albert Road than the first defendant, and that the first defendant has trespassed upon the plaintiff's said premises.

The dwelling house comprising 3A and 3C Albert Road was originally owned by Priyambada Devi. It was then included in premises numbered 3 Albert Road. Priyambada died on March 25, 1939 leaving a Will. By the Will she bequeathed the Western half of the said dwelling house "to the extent of eight anna" to Lila Mohan Singh Roy and the Eastern half thereof "to the extent of eight anna" to Shaileshwar Singh Roy. Shaileswar Singh Roy died on January 25, 1950 leaving a Will. By his Will he bequeathed all his property to his wife Kanaklata for her life and thereafter to Sunil Kumar Singh Roy, the plaintiff. Kanaklata died on October 18, 1952. Thereupon, Sunil Kumar Singh Roy, the plaintiff, became the owner of the Easter half "eight annas share" of the dwelling house included in the then Premises No. 3, Albert Road. His right to this property was as the owner thereof and the Defendant No. 1 could not have a better right than his.

By a declaration made on May 26, 1971, Lila Mohan and the original plaintiff demarcated the halves of the then 3A Albert Road they had earlier inherited under the Wills of Priyambada Devi and Saileshwar Singh Roy respectively. Walls were put up on the ground and the first floors of the then 3A Albert Road in accordance with the demarcation.

By an indenture of Lease dated June 18, 1971 Lila Mohan let "all that the upper flat western half of the said premises No. 3A Albert Road consisting of one hall two bed rooms two bathrooms one pantry one veranda in the first floor". The said indenture recited that the lessor was "absolutely seized and possessed of Western half of the Premises No. 3A Albert Road in the town of Calcutta". The lease was to commence from May 1,1971.

From the 4th Quarter 1973/1974 premises no. 3A Albert Road was renumbered 3A and 3C Albert Road, 3A being the Eastern half belonging to the Plaintiff and 3C being the Western half belong to Lila Mohan.

It is submitted that the defendant no. 1 also admits that the portion in its occupation overlaps both premises which subsequently became 3A and 3C, Albert Road and admits the trespass by not denying the allegations in the letters of the Plaintiff's solicitor.

"Half" means one of two equal parts. Since the plaintiff was the owner of premises 3A Albert Road, the first Defendant's occupation of the said part thereof is wrongful and amounts to trespass. The said portion of the verandah was not and could not be included in the first defendant's lease, since the lessor had no right to let it.

In 1982 Lila Mohan sold premises no. 3C Albert Road to fourth Defendant. The learned senior Counsel has referred to the following recital of the agreement for sale (Exhibit K):-

"The Purchaser shall have no right whatsoever on the eastern portion of the 1st floor porch which forms a part of premises No. 3A Albert Road and is beyond the red bordered line and is shown in Blue colour in the Map or plan annexed hereto facing the 1st floor landing which belongs to Mr. Sunil Singh Roy of No. 5/1A, Hungerford Street, Calcutta but at present under illegal occupation of International Society for Krishna Consciousness a tenant of the 'said property' under the Vendor."

The Conveyance further states:-

"And also the vendor stipulates and clarifies unto the purchaser that be the vendor has neither any right whatsoever nor has ever created any tenancy on the eastern portion of the first floor porch which forms a part of premises No. 3A, Albert Road, Calcutta which at present belongs to one Sunil Singh Roy of 5/1A, Hungerford Street, Calcutta and which is beyond the Red Bordered line and is shown in Blue colour in the map or plan annexed to the abovementioned Agreement for Sale and also delineated in Blue colour in the plan annexed hereto".

From the above it is argued that it established (a) the plaintiff is the owner of the suit premises, (b) the first defendant has occupied a portion thereof, and (c) such occupation is wrongful and amounts to trespass. Hence, the plaintiff's claim is established and that he is entitled to the decree sought. It is clarified that mesne profits are claimed from the date of the suit.

In the present case, there was no doubt that the entirety of the eastern portion of the original premises, being No. 3 Albert Road, was given absolutely to Saileswar Singh Roy by the will and through him to the plaintiff. There is also no doubt that the defendant no. 1/appellant has intruded into a portion of it. This intrusion is clear from the oral evidence as well as the report of the Special Officer. The Report was put to the witness of the appellant who accepted it. The defendant no. 1's defence to this question was that it was validly let to it by the lease dated 18th June 1971. However, both the written statements prepared by the defendant no. 1 do not vitiate the fact that the plaintiff was in possession of the premises being No. 3A, Albert Road on the date of the filing of the suit. Since the will gave to Saileswar Singh Roy absolute ownership of the eastern portion of the original premises, this would naturally include the portion of the verandah that was situated in the eastern half of the premises.

On the aspect of trespass, the learned Senior Counsel for the respondent no. 1 has relied on two passages from Clerk & Lindsell on Torts (10th edition), which is reproduced below -

"The Nature of Trespass Trespass to land consists in any unjustifiable intrusion by one person coupon land in the possession of another.

"Every unwarrantable entry on another's soil the law entitles a trespass by breaking his close; the words of the writ of trespass commanding the defendant to show cause quare clausum querentis fregit. For every man's land is in the eye of the law enclosed and set apart from his neighbour's; and that either by a visible and material fence, as one field is divided from another by a hedge; or by an ideal invisible boundary, existing only in the contemplation of law, as when one man's; land adjoins to another's in the same field" (a). The slightest crossing of the boundary is sufficient. "If the defendant place a part of his foot on the plaintiff's land unlawfully, it is in law as much a trespass as if he had walked half a mile on it"" .... "Every continuance of a trespass is a fresh trespass, in respect of which a new cause of action arises from day to day as long as the trespass continues". (Page 505) "Trespass being an invasion of a legal right is independent of intention or negligence. It is no defence that the trespass was unintentional, provided the physical act of entry was voluntary;" (page 507)"

It is submitted that the respondent No. 1 has contended for the first time in the appeal stage that Saileswar Singh Roy and Lila Mohan Singh Roy were joint owners of the entire property. This plea, according to the learned Senior Counsel needs to be rejected for two reasons. The respondent submits that this case ought not to be- firstly, that if this were the case, then the lease to the defendant no. 1 could not have been granted by Lila Mohan Singh Roy without the consent of Saileswar Singh Roy who would be the co-sharer, and secondly, this line of argument had not been put to the witness of the plaintiff who would have been competent to answer this issue and therefore due to this failure, this line of argument must be rejected. For this proposition, reliance is placed in Muddasani Venkata Narsaiah (dead) through legal representatives vs. Muddasani Sarojana reported at (2016) 12 SCC 288.

In reply, Mr. Ahin Chowdhury submits that Lila Mohan Singh Roy's successor-in-interest Kamala Prosad Singh Roy sold Lila Mohan's share in the property to Premlata Chpora (defendant no.4) in 1982 and in 1985 Premlata sold the same to defendant no.5 Bhakti Vedanta Book Trust. In the agreement of sale between successors of Lila Mohan and Premlata Chopra, there is a reference of a portion illegally occupied by the appellant. The agreement refers to an illegal occupation of a portion by the appellant. It is submitted that, however, the recital in that document by the successors of Lila Mohan is not binding on the appellant.

The original premises is numbered as 3 Albert Road. This premises was the subject matter of bequeath in favour of Lila Mohan Roy and Saileshwar under the Will of Priyambada. In 1952 premises no. 3 Albert Road was trifurcated and was split into three premises being 5/1A Hunger Ford Street, 1/1A Upper Wood Street and 3A Albert Road. The said premises no. 3A Albert Road was bifurcated from fourth quarter of 1972-73. The part of 3 Albert Road became 3C Albert Road and part of it was 3A Albert Road. 3C Albert Road was in the western side and 3A Albert Road falls in the eastern side.

Priyambada Devi, by her will, allotted to the predecessors-in-interest of the plaintiff and the defendants, the eastern and western portions of the premises No. 3, Albert Road. These portions subsequently came to be numbered as No. 3A, Albert Road and No. 3C, Albert Road. Months prior to the re-numbering of the premises, the defendant no.1 was inducted as a lessee by Lila Mohan Singh Roy who enjoyed the western portion of the original premises. The lease deed spelt out the portions that the defendant no. 1 was allotted. The lease deed stipulated that the defendant no. 1 was to enjoy, among others, "one verandah".

The primary issue for adjudication in this appeal is whether this "one verandah" is to mean the entirety of the verandah on the premises of the erstwhile No. 3, Albert Road, or only the part of the verandah on the western portion. This is important since it is a fact that the defendant no. 1 has constructed a wooden mezzanine floor on the eastern portion of the verandah and has also put up a plastic shed over the entire verandah including a portion of the eastern portion of the verandah. The appellant's contention is that since the lease deed mentions "one verandah", this must mean the entirety of the verandah. The respondent replies to this by stating that since the premises had been demarcated equally into two halves, the logical extension of the demarcation would mean that the lessor did not have any rights over the portion of the verandah which was on the eastern portion of the premises; and since the lessor did not have any rights over the eastern portion of the verandah, he could not have passed on such right to the lessee. As such, the respondent contends, the phrase "one verandah" in the lease deed must necessarily be read to mean only the part of the verandah on the western premises of the original premises since the lessor could not lease out a portion that he had no rights over. Therefore, if the respondent's contention is accepted, this would mean that the appellant has encroached and trespassed on to the eastern portion of the verandah by construction of the wooden mezzanine floor and the plastic shed.

In order to answer the issue indicated in the previous paragraph, it is necessary to recall how the parties came to be in possession over their respective premises. Priyambada Devi, by her will dated 6th April 1926, bequeathed her interest in the premises No. 3, Albert Road to Saileshwar Singh Roy and Lila Mohan Singh Roy. Under the will, Lila Mohan Singh Roy got absolute right over the western portion of the premises and Saileswar Singh Roy got absolute right over the eastern portion of the premises. For the purposes of demarcation, the premises were to be divided equally.

Saileswar Singh Roy passed away soon thereafter. His successor-in- interest, Sushil Kumar Singh Roy, along with Lila Mohan Singh Roy, formally signed a deed of declaration dated 26th May 1971. Mr. Ahin Chowdhury, on behalf of the appellant, submitted that this deed could not have been relied on as evidence since it was not registered. Although the learned Singh Judge has occupied it but since registered, but the deed bear the signature of the parties and it is notarized. It can not be a sham document. This finding is being challenged.

This deed in the view of the learned Single Judge gives further credence to the fact that both parties understood the will to mean that the premises were divided between them in equal halves. This is not new information. This is merely corroboration of what the will of Priyambada Devi has itself stated and what the parties have, at all times, understood the will to mean and how the will was acted on by subsequent conduct. To that very limited extent, this deed is helpful. The learned Single Judge relied on Siromani v. Hemkumar AIR 1968 SC 1299 for the proposition that documents that are required to be registered under section 17(1)(b) of the Registration Act cannot be used as evidence if they are not registered. However, the same judgment also recognizes the well-established principle that such a document could however be relied on for the limited purpose of understanding the intention of the parties (See also: Nani Bai v. Gita Bai Kon Rama Gunge AIR 1958 SC 706 and Rukhmabai v. Lala Laxminarayan AIR 1960 SC 335). The will itself created division of the mother holding, namely the original premises No. 3, Albert Road, into two equal halves absolutely and the deed of declaration merely records and confirms the said division, conforming to the Schedule of the asset mentioned in the probate. The said deed by itself does not create any right over the properties in question. That the parties have acted upon the will and had taken possession of their respective positions allotted under the will prior to the execution to the deed of declaration is evident from record. It is also significant that the appellant was put to possession by the lease on 1st May 1971, prior to the deed of declaration dated 26th May 1971. This was only possible provided that Lila Mohan Singh Roy had taken actual physical possession of the western portion of the original premises No. 3, Albert Road. This explains that the deed of declaration did not create new rights, title and interest of the parties in question. It merely records that the division has already taken place in terms of allotment of premises in question and the parties have acted upon the will and are already in possession of their respective allotted portion of the premises. It also explains why Sunil Kumar Singh Roy's signature was not required for execution of the lease by Lila Mohan Singh Roy in favour of the appellant as evidently, Sunil Kumar Singh Roy's predecessor-in-interest, Saileswar Singh Roy, was allotted the eastern portion of the premises and the lease deed specifies that Lila Mohan Singh Roy is in "possession of the western portion of premises No. 3, Albert Road". The plaintiff in answer to question nos. 146 and 147 during his examination-in-chief has also clearly stated that paragraph 15 of the deed of declaration clearly records that partition had already taken place and the said deed is a mere declaration of what had already taken place.

Soon after the deed of the declaration was signed by the parties, Lila Mohan Singh Roy entered into a lease agreement dated 18th June 1971 with the defendant no. 1. In this lease deed, it is stated that the lessor, Lila Mohan Singh Roy, is in "possession of the western portion of premises No. 3, Albert Road". The deed further noted that the property was soon to be partitioned and that the lessor will arrange for fixing up doors at the entrance of the main building when the same would be partitioned. The lease deed also demised, among others, "one verandah on the first floor".

This verandah is the bone of contention. It is well established as a legal principle that no person can give a better title than he himself has. This principle is captured in the legal maxim nemo dat quod non habet. The general rule of law is that no one can transfer a better title than he himself possesses (V. Chandrasekaran v. Administrative Officer (2012) 12 SCC 133). The principle is applicable to both movable and immovable property. In the context of movable property, this principle was re-affirmed in Nitin Gupta v. State of Meghalaya (2005) 13 SCC 686. In the context of transfer of shares, the English Court of Appeal held, in France v. Clark [L.R.] 26 Ch.D. 257, that where there is a defect in the antecedent transferor, the transferee gets no title. Lord Denning, in R.H. Willis & Son v British Car Auctions Ltd [1978] 1 WLR 438, held, at 441H -

"The question that arises is the usual one: which of the two innocent persons is to suffer? Is the loss to fall on the owners? ... Or on the auctioneers? ... In answering that question in cases such as this, the common law has always acted on the maxim nemo dat quod non habet. It has protected the property rights of the true owner. It has enforced them strictly as against anyone who deals with the goods inconsistently with the dominion of the true owner. Even though the true owner may have been very negligent and the defendant may have acted in complete innocence, nevertheless the common law held him liable in conversion. Both the 'innocent acquirer' and the 'innocent handler' have been hit hard. That state of the law has often been criticised. It has been proposed that the law should protect a person who buys goods or handles them in good faith without notice of any adverse title, at any rate where the claimant by his own negligence or otherwise has largely contributed to the outcome. Such proposals have however been effectively blocked by the decisions of the House of Lords in the last century of Hollins v Fowler (1875) L.R. 7 H.L. 757, and in this century of Moorgate Mercantile Co. Ltd v Twitchings [1977] A.C. 890, to which I may add the decision of this court in Central Newbury Car Auctions Ltd v Unity Finance Ltd [1957] 1 Q.B. 371."

In State of Punjab v. Surjit Kaur (2012) 12 SCC 155, where a widow had been granted land for her maintenance during her lifetime but had proceeded to sell the land to a third party, the court held that such a sale was not valid since the widow had limited rights over the land during her lifetime and on her death, the land would revert back to the State. In State of A.P. v. Star Bone Mill & Fertilizer Co. (2013) 9 SCC 319, the court was concerned with the buyer's claim to paramount ownership and title in respect of property purchased, where the seller concerned owned only a leasehold title but professed to sell paramount title. The court held that no person can grant a title better than he himself possesses (nemo dat quod non habet) and no one can grant or bestow a greater right or better title than he has himself (nemo plus juris tribuit quam ipse habet). In Narinder Singh Rao v. Air Vice-Marshall Mahinder Singh Rao (2013) 9 SCC 425, where a testator had bequeathed property in excess of her share, the court held that the will has to be treated as bequeathing property only to the extent of the share held by the testator. In Janata Dal Party v. Indian National Congress (2014) 16 SCC 731, in a situation where lease was purportedly granted by a person over a land over which it was found he had no title, the court held that such a lease executed by the person through various lease deeds cannot stand in the eye of law since the person had no right over the property in question. In Maya Devi v. Lalta Prasad (2015) 5 SCC 588, the Supreme Court refused specific performance of a deed of agreement in favour of the defendant since it found that the defendant was devoid of title.

Applying the principle to the present case, it can be seen from the lease deed itself that Lila Mohan Singh Roy, as the lessor, has clarified that he is in possession of "the western portion of premises No. 3, Albert Road". That he is only in possession of this portion is clear from the will of Priyambada Devi, through which he had only been given absolute rights over the western portion. Saileswar Singh Roy had been given absolute rights over the eastern portion.

In view of the division of the property between Saileswar and Lila Mohan by the Will of Priyambada Debi, Lila Mohan was not in a position to let out any portion of what is now known as 3C, Albert Road, Calcutta, as he was not in possession of the eastern portion of the original premises No. 3, Albert Road. The learned Single Judge accepted the contention of the plaintiff that Lila Mohan could not have granted a lease in respect of any part or portion of 3A Albert Road for the simple reason that Lila Mohan had no right, title and interest in respect of any part of premises no.3A Albert road, Calcutta at any point of time.

The appellant's contention to wriggle out of this conundrum was to plead that as on 1st May 1971 when the lessee got actual possession, the property was not demarcated. However, this argument cannot stand, for two reasons. Firstly, that although the renumbering of premises no. 3A, Albert Road had not happened by the date on which the lease deed was entered into (it happened a few months thereafter), the parties had clearly understood the will to have been the basis of demarcation of the western and eastern portion on each of the parties in absolute terms. This is evident from the lease deed itself since it specifically clarifies that the lessor, Lila Mohan Singh Roy, is only in "possession of the western portion of premises No. 3, Albert Road". Secondly, even if the property was not physically demarcated, Lila Mohan Singh Roy could not have granted lease over the part of the verandah which stood in the eastern portion of the premises No. 3, Albert Road. The appellant also made a belated contention in the appeal for the first time that as on 1st May 1971, Lila Mohan Singh Roy ought to have been seen as a co-sharer and joint owner of the entire property and thus it was possible for him to have leased out the entire verandah. But this argument is riddled with self-contradiction. If there was joint ownership of the premises, Lila Mohan Singh Roy could not have granted the lease without the signature and consent of the other joint owner, Sunil Kumar Singh Roy. Additionally, if Lila Mohan Singh Roy was a co-sharer and a joint owner of the property, the lease deed dated 18th June 1971 would not have stated that "the Lessors are absolutely seized and possessed of the western half of the premises No. 3A, Albert Road".

After the lease dated 18th June 1971 was entered into, the property was duly demarcated into premises No. 3A, Albert Road and premises No. 3C, Albert Road, around the fourth quarter of 1972-73. Subsequently, on 12th August 1981, the successor-in-interest of Lila Mohan Singh Roy, Kamala Prosad Singh Roy, entered into an agreement for sale with the defendant no. 4 (Premlata Chopra) for sale of the premises No. 3C, Albert Road and later a deed of conveyance dated 2nd January 1982. In the agreement for sale, it is stated -

"7. The purchaser shall have no right whatsoever on the eastern portion of the 1st floor porch which forms a part of the premises No. 3A, Albert Road and is beyond the red bordered line and is shown in Blue colour in the map or plan annexed hereto facing the 1st floor landing which belongs to Mr. Sunil Singh Roy of No. 5/1A, Hungerford Street, Calcutta but at present under illegal occupation of International Society for Krishna Consciousness a tenant of the "said property" under the Vendor."

(emphasis supplied)

In the deed of conveyance dated 2nd January 1982, it is stated -

"...also the vendor stipulates and clarifies unto the purchaser that he the vendor has neither any right whatsoever nor has ever created any tenancy on the eastern portion of the first floor porch which forms a part of premies No. 3A, Albert Road, Calcutta which at present belongs to one Sunil Singh Roy of 5/1A, Hungerford Street, Calcutta ..."

The "porch" mentioned in the agreement for sale dated 12th August 1981 is the portion of the verandah of about 250 sq. ft. that is the subject matter of dispute in the present case. Mr. Ahin Chowdhury, on behalf of the appellant/defendant no. 1 submits that this document would have no bearing on the initial lease granted. However, from the conveyance, it is clear that the successor-in-interest of Lila Mohan Singh Roy clearly understood the area in dispute herein as not being given to the defendant no. 1 under the lease deed since it is mentioned as being in "illegal occupation". This clinches the issue. It establishes how the lessor in the lease deed dated 18th June 1971 viewed the area in dispute herein and gives further credence to the principle aforementioned that no person can give better title than what he himself possesses. The agreement for sale and the conveyance indicates the intention of the lessor in so far as the lease deed is concerned and gives us a glimpse into the mind of the lessor and how he viewed the phrase "one verandah" in the lease deed. Therefore, it would not be open to the appellant/defendant no. 1 to contend that the reference to the "one verandah on the first floor" in the lease deed must be read to mean the entirety of the verandah. Moreover, the appellant did not challenge the said deed between Lila Mohan Singh and Premlata Devi as the said deed affects the right of the appellant although the said appellant was aware of the said deed. It is significant to mention that Premlata sold the said premises to the defendant no. 5. The defendant no.1 and 5 are closely connected.

There is some divergence as to the exact nomenclature of the area in dispute, being the 250 sq. ft., since it has been referred to by various names and phrases, without any controversy as to the existence of the area in dispute and its ownership. This has caused some confusion since the lease deed dated 18th June 1971 only mentioned the word "one verandah" whereas the agreement for sale dated 12th August 1981 mentioned a "porch" and the photographs exhibited at the trial without objection and form part of the record and the arguments led also speak of a "roof and landing". The plaintiff has deposed that sometimes in 1982, the appellant no.1 encroached the portion of the porch which was open to the air and situated on the side of the premises facing Albert Road and the appellant has trespassed into a portion of the landing on the first floor and built a temporary mezzanine floor thereon which was from the first floor one-storied roof and they have trespassed to the roof on the porch and built a temporary structure thereon made by wood, glass and covered the structure with a conical tower. The area alleged by encroached on is identified in Question no. 38 posed to the plaintiff's witness in his examination-in-chief, which is as here under -

"38. Which is that portion that has been encroached upon?/Some time in 1982 the defendant no. 1 encroached the portion of the porch which was open to the air which is on the southern side of the premises facing Albert Road and they have also trespassed into a portion of the landing and built a temporary mezzanine floor therein."

During the course of arguments, the learned senior counsel for the appellant and the respondent no. 1, at our request, produced better copies of the photographs of the disputed area which are annexed in the paper book. The learned senior counsel, at both sides very helpfully, took us through the photographs in some detail. The court had, by an order dated 21st December 2009, appointed a Special Officer to ascertain and demarcate in a map or like document, countersigned on behalf of the two warring parties, the extent of the first defendant's occupation of the premises that the plaintiff claimed was encroached on. The Special Officer's report was duly signed and accepted by both the parties, including the representative of the appellant. The sketch prepared by the Special Officer shows the portion that the appellant is in occupation of. This extends to a portion of the verandah that is in the eastern portion of the original premises No. 3, Albert Road. The photographs, and the explanations during arguments, clarified that the 250 sq. ft. area which is the area in dispute has alternatively been referred to as (i) portion of the verandah on the eastern portion of the original premises of No. 3, Albert Road; (ii) porch; and (iii) roof and landing. It is an admitted position that the appellant/defendant no. 1 is in possession of the portion which the plaintiff is presently claiming recovery of and is the area in dispute. This is evident from the answers given by the defendant's witness in cross examination (question 145 to 149) as well as paragraph 5 of the additional written statement of the defendant. Question 145 to 149 and the answer given to them is as follows -

"145. Look at page 23A of the said document - the third line from the top. Do you see the words, "the lessors do hereby grant and demise unto the said lessee all that the upper part of western half of the said premises at no.3 A, Albert Road?/ I see those words. We never saw what was in the eartern side. We only know what the lessors gave us. We assume what they gave us what they had right to do.

146. Look at Ext. M-1 again, being the sketch on the right hand side of the first floor of the premises?/Yes.

147. You see that half the verandah falls outside the western half of the premises and to the east of the western half of the premises. ?/ I see the drawing with the partition done on the stair case and to the western side of what ISKCON had possession of, and the eastern side is not in ISKCON's possession. What is this drawing between east and west - I do not know.

148. Look at the bottom right hand corner of the sketch. You see the compass directions are given there. North is indicated ?/ Yes. From this, I can make out which is the east and the west. But I do not know what the whole property is. I do not know what it signifies.

149. This exhibit is a sketch of amongst others the first floor of premises which you call no.3 Albert Road. It shows the part in ISKCON's possession it has been agreed to by both parties to the suit - now is it clear what this sketch implies ?/ This drawing is showing what ISKCON has the possession of. I accept that this is what we have the possession of and we always had since the Singh Roys gave us possession of."

In paragraph 3 of the written statement filed by the defendant no. 1, the defendant no. 1 stated that "the verandah on the first floor of the said premises comprised in the said indenture let out to the defendant no. 1 included and still includes the entire front and back portion of the said verandah and the defendant no. 1 in pursuance and in terms of the said indenture has been in possession and occupation of the properties comprised in the said indenture and particularly described hereinabove and is still in such possession and occupation". Additionally, in paragraph 5 of the amended written statement filed by the defendant no. 1, it is stated that "the verandah on the first floor of the premises let out to the defendant no. 1 included and still include the entire front and back portion of the said verandah".

The defendant no.1 in its additional written statement in paragraph 5 has admitted that in June, 1971 Lila Mohan Roy and Kamala Singha Roy were the owners of the western portion of the undivided premised no.3A Albert Road which was carved out from No. 3, Albert Road, Kolkata. The defendant has also admitted that the said premises no.3 Albert Road, Kolkata was subsequently re-numbered as 3A Albert Road, Kolkata, 1/1A Upper Wood Street, 5/1A Hunger Ford Street, Kolkata. It is also admitted that the premises no. 3A Albert Road, Kolkata was again sub-divided and the eastern portion was numbered 3A Albert Road and western portion numbered 3C Albert Road, Kolkata. However the defendant no.1 has claimed that at the time of such re-numbering and the coming into existence of No. 3C, Albert Road, which happened in the fourth quarter of 1972-73, the defendant no. 1 already was a tenant in the portion indicated in the lease deed dated 18th June, 1971 in respect of undivided premises no. 3A Albert road, Kolkata, which premises was carved out from the premises originally number as No. 3, Albert Road, Kolkata. It is also admitted that the area originally let out to the defendant no.1 overlapped both premises which subsequently became 3A and 3C Albert Road, Kolkata. The defendant no.1 in the same paragraph has relied upon the report of the Special Officer, Mr. Suman Dutta, in justification of its lawful possession and occupation of some tenanted portion and nothing beyond that. It was on the basis of such averment in the amended additional written statement the evidence of the defendant's witness becomes relevant. If one goes by the sketch map being Exbt. M1 and considers the said exhibit along with the evidence of the defendant's witness and what has been stated in paragraph 5 of the additional written statement, it shows that to the extent of 250 sq. ft., the occupation of the appellant / defendant no.1 is illegal as the said area exclusively belongs to the plaintiffs / decree holder under the Will of Priyambada Devi.

Mr. Ahin Chowdhuri has strenuously argued that the plaintiff has not been able to prove trespass on to the land of the plaintiff and it has not come in the evidence as to why the demarcation on the upper flat has taken place. This submission is made in view of the averments made in paragraph 8 and 9 of the plaint. In order to appreciate that the said argument it is necessary to refer to the said two paragraphs as well as the relevant evidence available on record. Paragraph 8 and 9 set out:-

"8. At the time when the said upper flat of the said premises no.3C, Albert Road, Calcutta had been let out by the said Lila Mohan Singh Roy, since deceased, and his said son Kamala Prasad Singh Roy in favour of the first defendant by and under the said indenture dated 18th June, 1971, the first defendant was entitled to occupy and in fact occupied as lessee or tenant the demarcated upper flat of the sai premises no. 3C Albert Road, Calcutta which is situate on the Western side of the upper flat of the aid premises no. 3A Albert Road, Calcutta belonging to the plaintiff. Prior to the said demise in favour of the first defendant the said two adjacent premises had been clearly demarcated on both floors and only the demarcated upper portion of the said premises had been let out in favour of the defendant no.1 by and under the said indenture dated 18th June, 1971. At all material times prior to the said demise in favour of the defendant no.1 there was a separation of the said two premises by a clear line of demarcation and accordingly there was never any doubt or difficulty regarding the actual boundaries of the said two premises nos. 3A and 3 C Albert Road, Clacutta including the said four flats (two on each floor) located at the said two premises.

9. Notwithstanding the clear line of demarcation of the said two premises No.3A and 3C Albert Road, Calcutta and particularly the line of demarcation between the respective upper flats of the said two premises, the first defendant its servants and agents have after the grant of the said tenancy in their favour under the said document dated 18th June, 1971 wrongfully encroached upon and/or trespassed into a portion of the said upper flat owned by the plaintiff at his said premises no. 3A Albert Road, Calcutta. By reason of such trespass and/or illegal encroachment the first defendant its servants or agents have been and still are wrongfully in possession of a portion of the said upper flat at the said premises no. 3 A, Albert Road, Calcutta. The said portion into which the first defendant its servants and agents have trespassed and/or unlawfully encroached is shown in hatch marks in a sketch plan or map annexed hereto and marked with the letter 'B' and the plaintiff craves leave to treat the said annexure as part hereof."

The plaintiff in his evidence has stated that between June 1971 and 1980-81 the plaintiff or his tenant was in use an occupation of 250 sq. ft. area. The plaintiff had a tenant on the upstairs. During 1980-81 there were attempts of encroachment in which the plaintiff resided. The plaintiff however could not accurately state the date and time of such encroachment. The plaintiff said that there was existence of a wall which the appellant had broken sometimes in 1980-81. The witness refers to the legal notices issued contemporaneously to the happening of the incident and continued to maintain that such trespass continued. The plaintiff's witness has consistently maintained that with regard to No. 3A and 3C, Albert Road, partition had taken place before renumbering and prior to induction of the appellant as tenant by Lila Mohan. The witness has stated that there are two verandahs running through the entire land of the building from East and West interrupted by the landing between the house. The porch is open to the air. The plaintiff also stated that the portion encroached was not held by the appellant under the agreement of lease. On a specific question being put on Exbt. F, that is the photograph taken by the plaintiff and appearing at pages 124 and 125 of the supplementary informal paper book I, that the photograph would not show a verandah but the name of "Gobinda" is displayed and it only shows a hall being a part of the premises, the witness has categorically stated that it is very much part of the verandah. The witness further stated that the only thing is that they had enclosed the opening of the southern side.

There cannot be any doubt from the evidence on record that the subject matter of the suit that is 250 sq. ft. is the exclusive allotted area to the plaintiff.

However, the discussion on the description of the area in dispute is purely academic here. This is because the claim of the plaintiff is that they have identified the 250 sq. ft. which they believe that the appellant has encroached on. The appellant's core defense is not that it is not in occupation of that portion of the area. The appellant's rebuttal to the claim of the plaintiff is instead that the appellant is permitted to be in occupation of the area in dispute because of the rights it had acquired by virtue of the lease deed dated 18th June 1971. If it is found that the lease deed dated 18th June 1971 did not in fact permit the appellant to occupy the area in dispute, it has the effect of meaning that the appellant is in illegal occupation of the area in dispute.

From the above, it is clear that the verandah described in the lease deed dated 18th June 1971 must mean the extent of the verandah which Lila Mohan Singh Roy was legitimately entitled to. From the will of Priyambada Devi, it is clear that Lila Mohan was only entitled to the part which was on the western portion of the premises No. 3, Albert Road. This is supported by the manner in which the successors-in-interest of Priyambada Devi have read the contents of the will, which is evident from the equal division proposed in the deed of partition. This is further supported by the clear intention expressly declared by the successor-in-interest of Lila Mohan Singh Roy in the conveyance with the defendant no. 4, wherein he has made clear that the area in dispute herein was not being conveyed since he did not have any rights over it. It is clear from the discussion hereinabove that Lila Mohan Singh Roy could not have given the area in dispute to the defendant no. 1 under the lease deed since Lila Mohan Singh Roy did not have any right, title and interest in respect of that area.

Trespass to land is the name given to that form of trespass which is constituted by unjustifiable interference with the possession of land. [Weir, Casebook on Tort (6th Ed) Chapter 8, Section 5 - quoted in Winfield And Jolowicz on Tort, 13th Edition]. Trespass being an invasion of a legal right is independent of intention or negligence. It is no defence that the trespass was unintentional, provided the physical act of entry was voluntary; as where a person strays off a footpath in the dark, or where, the boundary between the plaintiff's and the defendant's land being ill - defined, the defendant in mowing his own grass by mistake mows some of the plaintiff's (t); but if the act be involuntary it is otherwise. "If a man, who is assaulted and in danger of his life, run through the close of another without keeping in a footpath, an action of trespass does not lie". Trespass is the unlawful instrusion by one person on land which is in the possession of another (See. 97 Halsbury's Laws Tort 562-591). Our law holds the property of every man so sacred, that no man can set his foot upon his neighbour's close without his leave; if he does it is a trespass though he does no damage at all; if he will tread upon his neighbour's ground, he must justify it by law (Entick v Carrington (1765) 2 Wils 275, 95 ER 807). Setting foot onto land which is in the possession of another constitute a trespass (Ellis v. Loftus (1874) LR 10 CP 10). The gist of the tort is the entry upon land, and any entry, no matter how trivial and irrespective of whether any damage is caused, will amount to a trespass unless justified.(Ellis v Loftus Iron Co (1874) LR 10 CP 10 at 12, per Coleridge CJ). For every man's land is in the eye of the law enclosed and set apart from his neighbour's; and that either by a visible and material fence, as one field is divided from another by a hedge; or by an ideal invisible boundary, existing only in the contemplation of law, as when one man's land adjoins to another's in the same field. The slightest crossing of the boundary is sufficient. If the defendant place a part of his foot on the plaintiff's land unlawfully, it is in law as much a trespass as if he had walked half a mile on it. Trespass is an actionable per se i.e. whether or not the plaintiff has suffered any damage. (Fowler v. Lanning (1959) 1 QB 426). If the consequences of an act which amounts to a trespass are ongoing, the act may amount to a continuing trespass. In Holmes v Wilson . (1839) 10 Ad & EI 503, 113 ER 190, the defendant placed buttresses on the plaintiff's land to support a road. The plaintiff sued in trespass almost immediately after the buttresses were constructed and was awarded damages. Shortly afterwards another action was brought, the buttresses remaining in place. It was held that the continued use of the buttresses was a fresh trespass. Nor does it matter if possession has been transferred since the original act; it remains a continuing trespass against the new possessor. (Hudson v Nicholson (1839) 5 M & W 437, 151 ER 185; Konskier v Goodman Ltd (1928) 1 KB 421). This appears to contradict the normal rule that trespass requires a positive act, (Shapcott v Mugford (1696) 1 RaymLd 187, 91 ER 1021) as the complaint of the new possession is that the defendant has failed to remove the trespass (Clearlite Holdings Ltd v Auckland City Corpn (1976) 2 NZLR 729). Every continuance of a trespass is a fresh trespass in respect of which a new cause of action arises from day to day as long as the trespass continues. Trespass, whether by way of personal entry or by placing things on the plaintiff's land, may be continuing and give use to actions de die in diem so long as it lasts. So one who built on the claimant's land some buttresses to support a road and paid damages in an action for trespass was held liable in damages in a second action for not removing the buttresses after notice. (Holmes v Wilson (1839) 10 A. & E.503).

Kamala Prosad Singh Roy, the successor-in-interest of Lila Mohan Singh Roy, sold premises no. 3C, Albert Road in favour of the defendant no. 4 Premlata Chopra by an agreement for sale dated 12th August 1981 and a deed of conveyance dated 2nd January 1982. Premlata Chopra subsequently sold the same property in favour of the defendant no. 5 Bhakti Vedanta Book Trust. Bhakti Vedanta Book Trust who is the present landlord of the appellant. I have already referred to the relevant recital, from the deed of sale executed by the successor-in-interest of Lila Mohan Singh Roy in favour of Premlata Chopra. The deed of sale by which Premlata Chopra has transferred her interest in the property in favour of Bhakti Vedanta Book Trust has not been brought on record by the defendant no.5 since discovery of the said deed would have adversely affected Iskcon. The recital in the deed of sale by the successor-in-interest of Lila Mohan Singh Roy in favour of Premlata Chopra would clearly show that the occupation of the appellant is illegal to the extent of 250 sq. ft. The plaintiff has categorically stated in paragraph 11A of the plaint (which was brought in by an amendment of plaint permitted by an order of court dated 19th January 2011) that the defendant no. 5 is in control of the appellant. The defendant no. 5, Bhakti Vedanta Book Trust, filed a written statement denying the allegation of the control and management of the appellant by the said trust but did not participate at the trial and come forward and adduce any evidence in that behalf. The defendant no. 1 however did not deal with paragraph 11A of the amended plaint in its amended written statement and thereby admitted the statement made in the plaint since there was no denial in the pleadings. The doctrine of non-traverse shall apply. In view of the defendant no. 5 failing to appear at the trial of the suit, the averments made by the defendant no. 5 in paragraph 4 of its written statement is not proved. The complicity of the defendant no. 1 and 5 is thus proved. Bhakti Vedanta Book Trust, in fact, acquired title to the property from Premlata Chopra but the deed by which Premlata Chopra acquired title categorically stated that the appellant is in illegal occupation of 250 sq. ft.. If Premlata Chopra did not acquire title over the area in dispute, it goes without saying that the subsequent purchaser, Bhakti Vedanta Book Trust, could not have acquired such title either, since it derives its title from Premlata Chopra only. It was possibly to save itself from embarrassment at the trial that the defendant no. 5 did not participate at the trial since they would have to face adverse questions and might have been required to have produced their title deed. The defendant's first witness in his examination-in-chief, after reading the agreement for sale and the deed of conveyance between Kamala Prosad Singh Roy and Premlata Chopra, has admitted that the appellant cannot occupy any area more than what the lessor has rights and title over.

"154. Now, look at page 48 of Ext.L. I am reading those words from the fourth line (Mr. Chudhuri reads out the relevant portion to the witness from Ext.L at P. 48 ".... And also the vendor stipulates ..... in the plan annexed hereto"- This conveyance was preceded by agreement for sale which is Ext.K beginning at page 84 of the Judge's Brief of Documents. I am drawing you particular attention to page.93A of that agreement for sale to the last four lines of that page (Mr. Chaudhuri reads out the relevant portion from page 93A) "the purchaser shall have not right ........... under the vendor" - do you see that ?/ Yes.

155. Now do yout still say that you are occupying only what the lessor let to you ?/ Yes. We occupied what they gave us.

156. And something more than that?/ Nothing more than."

Bhakti Vedanta Book Trust, further, did not disclose the lease agreement between it and the appellant, for the obvious reason that it would only establish that the occupation of the appellant to the extent of 250 sq. ft. is illegal and unauthorised. Bhakti Vedanta Book Trust cannot have better title than that of Premlata Chopra. The recital in the agreement for sale executed by Kamala Prosad Singh Roy in favour of Premlata Chopra dated 12th August 1981 binds Bhakti Vedanta Book Trust and any one claiming any right through Bhakti Vedanta Book Trust. It is significant that the appellant in the written statement has stated that they are willing to pay rent to the plaintiff for the area in dispute, which necessarily means that they are occupying a portion of the area of the plaintiff. The argument that the appellant becomes a tenant under the co-owners of the property also falls to ground as admittedly the deed of lease was executed by Lila Mohan Singh Roy in his individual capacity as owner of his portion of the premises in favour of the appellant and not jointly with Sunil Kumar Singh Roy in which case the plea of coownership by the appellant could have been accepted. The recital in the lease deed traced the title of Lila Mohan Singh Roy to his share of the property from the Will. The appellant had never contended that the appellant was a tenant under both Lila Mohan Singh Roy and Sunil Kumar Singh Roy. Rent was tendered only to Lila Mohan in respect of the tenancy granted by Lila Mohan in favour of the appellant. This is an admitted fact. The appellant has also proceeded on the aforesaid basis and treated Lila Mohan as its landlord. The division between the two properties in two equal halves is discernible and evident from the description of the properties mentioned in the schedule to the Will since probated and corroborated from the recitals in the deed of declaration, deed of lease executed by Lila Mohan Singh Roy in favour of the appellant and also the subsequent sale deed executed by Kamala Prosad Singh Roy in favour of Premlata Chopra. The lease of deed also specifically stated that the lessor is in "possession of the western portion of premises No. 3, Albert Road". The cumulative reading of all the documents as well as the conduct of the parties clearly establish beyond any reasonable doubt that the occupation of the appellant in respect of 250 sq.ft. in the eastern side of the original premises no. 3 Albert Road is unauthorised and illegal. Although the exact date and time of actual trespass has not been satisfactorily proved and there could be a minor variation in the evidence of the plaintiff as to trespass, but as rightly submitted by Mr. Arijit Chowdhury, the learned Senior Counsel, minor variations as to the actual acts of trespass would not disentitle the plaintiff to claim eviction of the defendant from 250 sq.ft. as the defendant could not establish its right, title and interest over the said area and could not justify continuation of its possession for the said area. The trial commenced after August 2013 and minor variations in the evidence of the plaintiff cannot be said to be fatal. I feel that the actual date of trespass may be relevant only for the purpose of determination of mesne profits, as even if it is accepted that the appellant may not be treated to be a trespasser until a notice of eviction is served upon the appellant but once such notice is served continuation in possession without any lawful justification would be unauthorized and would expose the appellant to a claim for mesne profits if the suit succeeds. Even otherwise the agreement for sale dated 12th August 1981 and the deed of conveyance dated 2nd January 1982 in favour of the defendant no. 4 created a fresh tenancy for the defendant no. 1, who is now a tenant of the defendant no. 5. The aforesaid agreements clearly stated that the area in dispute was not being conveyed at any point of time to ISKON since the owner had no title over it, it is clear that the fresh tenancy created under the defendant no. 4 did not include the area in dispute. Therefore, at the very least, the defendant no. 1 has trespassed onto the premises owned by the plaintiff from that date. Significantly the two several legal notices dated 12th October 1982 and 8th December 1982 were not replied.

Mr. Arijit Chowdhuri, the learned senior counsel appearing on behalf of the plaintiff, has submitted that since the defendant no. 1 treated its possession of 250 sq. ft. an insignificant area, the appellant should be gracious enough to accept the decree, especially since its first witness has stated that the space is being used for washing hands (question 71 at page 387 of vol II) and storing of books and accounts (question 91 at pg 390 of vol II).

This contention of the learned senior counsel raises an age old issue of conflict between law and morality. Mr. Chowdhuri has raised both a moral and legal issue in the context of what is perceived as dharma in ancient India. Land has always been a sore point and a cause of dispute, conflict and war. The epic battle of Kurukshetra is the greatest example of how war over land can lead to disaster. But what is important is that the battle has attempted to explain the concept of Dharma. The idea of dharma is all pervasive. It has various facets but, undoubtedly, it means righteousness. The Mimamsa, with its aim of establishing the self-validity of the Veda, regarded dharma as a desirable end reached by obeying Vidhi, the Vedic commands. In Shanti-Prava, verse 180.26, it is stated: "All the sayings of dharma are with a view of securing for all living beings freedom from violence, ahimsa. Therefore, whatever has the characteristic of not doing violence has the characteristic of dharma. This is certain." Furthermore, Adi-Parva says, in verse 85.13: "Whatever has its beginning in justice, that alone is called dharma: whatever is unjust and oppressive is adharma. This is the rule settled by those who can be respected." Whatever has the characteristics of depriving, starving, diminishing, separating, uprooting, doing violence, debasing and degrading is the negation of dharma. And Nyaya, justice, is dharma. Justice is that which has the characteristics of nurturing, cherishing, providing amply, enriching, increasing, enhancing, all living being: supporting, sustaining, bringing together and in their togetherness, upholding all living beings and securing for all living beings, freedom from violence and freedom from fear. In the voice of the sage Brishaspati, the Mahabharata says that not to be aggressive towards other beings is dharma in the eyes of the good and the saintly. It follows that "if one dharma is destructive of another dharma, then it is wickedness in the garb of dharma and not dharma". Only that is dharma, truly, that is established without denigrating and opposing another dharma. In case there is conflict between one dharma and another, one should reflect on their relative weight and act accordingly: what does not denigrate and obstruct the other is dharma. Lord Krishna, in the battlefield of Kurukshetra, supported the Pandavas because they were found to be righteous and deprived of their property by unfair means adopted by the Kauravas. The moral dilemmas in the Mahabharata are well known.

Late Professor Bimal Krishna Matilal, an eminent philosopher in his article on Moral Dilemmas: Insights from Indian Epics summarised it in his inimitable style:

"The nature of our practical wisdom has a sort of malleability, which is comparable to the ever-elusive nature of dharma-ethics to be found in our epic literature. It has been said that dharmasya tatvam nihitam guhayam (the truth of dharma lies in the dark cave). It cannot be completely known by us as universally fixed. But the acknowledgement of possible flexibility does not mean that the fixity and universality of ethical laws will be entirely negotiable. Situational constraints may require some bending, but by allowing genuine moral sentiments like remorse or guilt it makes up for occasional lapses. A moral agent exercises his practical wisdom, and also learns from the experiences he passes through during his life. He has an enriched practical wisdom when it is informed by his experiences of genuine moral dilemmas. A moral agent needs also a character which is nothing but a disposition to act and react appropriately with moral concerns. His later desires would be informed by the experiences he passes through, and he would, therefore react appropriately when confronted with further moral dilemmas. This is the kind of moral insight that can be derived from a scrutiny of the Krsna-ethics in the Mahabharata."

The learned author observed that he usually had come across two different types of moral persons as paradigmatic. One is the dutiful fulfiller of universal obligations for whom the nature of dharma is very rigid, it seldom bends, and the other can the described as an imaginative poet. He becomes a perspectivist and understands the contingency of human situation. "He looks at the particularity of the situation but also looks beyond it. He is our Krsna. So Krsna allows for flexibility in dharma. But this flexibility never means the 'anything goes' kind of morality. He is the poet who accepts the constraints of metres, verses, and metaphors. But he is also the strong poet who has absolute control over them. He uses metres, verses, and metaphors to produce the music which you cannot but admire. He governs from above but does not dictate."

Lon L. Fuller in his much acclaimed book on the Morality of Law has said: "For workable standards of judgment the law must turn to its blood cousin, the morality of duty."

Nitirasmi jigisatam, 'I am justice in those who seek victory', because there is a famous belief that justice alone can win. Injustice can win temporarily, but real victory belongs to dharma, justice. So, here it is said, Nitirasmi jigisatam, those who obtain victory do so because they follow dharma, righteousness. That is the belief of the best of thinkers in every country, though, very often, the world itself may show the opposite. The unjust sometime win. But we must take a long-range view. Therefore, it is that long-range view, yato dharmah tao jayah, 'where there is dharma, there is victory'. (Universal Message of the Bhagavad Gita, Vol. 2, Swami Ranganathananda, pg. 450) Bhagwat Gita brings out spirituality which may help in understanding Dharma. In Light from The Gita, compiled from The Writings of Sri Aurobindo by M.P. Pandit, Dharma is stated:

"Dharma is a word which has an ethical and practical, a natural and philosophical and a religious and spiritual significance, and it may be used in any of these senses exclusive of the others, in a purely ethical, a purely philosophical or a purely religious sense. Ethically it means the law of righteousness, the moral rule of conduct, or in a still more outward and practical significance social and political justice, or even simply the observation of the social law. In the religious sense it means a law of religious and spiritual life.

Dharma in the spiritual sense is not morality or ethics. Dharma is action governed by the Svabhava, the essential law of one's nature. And this Svabhava is at its core the pure quality of the spirit in its inherent power of conscious will and in its characteristic force of action.

Dharma is generally spoken of as something eternal and unchanging, and so it is in the fundamental principle, in the ideal, but in its forms it is continually changing and evolving, because man does not already possess the ideal or live in it, but aspires more or less perfectly towards it, is growing towards its knowledge and practice. And in this growth dharma is all that helps us to grow into the divine purity, largeness, light, freedom, power, strength, joy, love, good, unity, beauty, and against it stands its shadow and denial, all that resists its growth and has not undergone its law, all that has not yielded up and does not will to yield up its secret of divine values, but presents a front of perversion and contradiction, of impurity, narrowness, bondage, darkness, weakness, vileness, discord and suffering and division, and the hideous and the crude, all that man has to leave behind in his progress. This is the adharma, not-dharma, which strives with and seeks to overcome the dharma, to draw backward and downward, the reactionary force which makes for evil, ignorance and darkness.

Dharma, in the language of the Gita, means the innate law of the being and its works and an action proceeding from and determined by the inner nature."

Dharma is right action. In the Rg Veda, rta is the right order of the universe. It stands for both the satya or the truth of things as well as the dharma or the law of evolution. Dharma formed from the root dhr, to hold, means that which holds a thing and maintains it in being. Every form of life, every group of men has its dharma, which is the law of its being. Dharma or virtue is conformity with the truth of things; adharma or vice is opposition to it. Moral evil is disharmony with the truth which encompasses and controls the world. (The Hindu View of Life, S. Radhakrishnan, Blackie & Son (India) Ltd., Reprinted 1979, pg -56) Mr. Chowdhuri's appeal to the appellant to be gracious enough to accept the decree follows from the teachings of Lord Krishna to mankind that 'one should fight for the right cause and should be righteous' and appealed to the appellant society not to deprive the plaintiff to enjoy his own property. It addresses the issue of legal right of the plaintiff to occupy his own property and a corresponding moral duty of the appellant to peacefully deliver the encroached portion when the proof of encroachment is established.

The aforesaid discussion on dharma and adharma is relevant in returning an affirmative finding in favour of the plaintiff. I am aware that we are governed by the rule of law and there may be a conflict between morality and law. My findings in favour of the appellant is not solely based on the concept of dharma which is deeply penetrated in our judicial system but also on legal rights being established by the plaintiff over and in respect of 250 sq. ft. The concept of dharma is a necessary tool and guiding principle to support the legal rights established by the plaintiff.

In conclusion, under the will of Priyambada Devi, Lila Mohan Singh Roy got absolute right over the western portion of the premises and Saileswar Singh Roy got absolute right over the eastern portion of the premises. For the purposes of demarcation, the premises were to be divided equally. Applying the principle captured in the legal maxim nemo dat quod non habet to the present case, it is clear that no one can transfer a better title than he himself possesses; and so, if Lila Mohan Singh Roy did not have title over the 250 sq. ft. area that is in dispute here, he could not have passed it on to the appellant. Three instances confirm how Lila Mohan Singh Roy himself, and his successor-in-interest, understood the contents of the will and the devolution of interest that flowed from the will. Firstly, the deed of declaration, dated 26th May 1971, gives further credence to the fact that both parties understood the will to mean that the premises were divided between them in equal halves. For the reasons indicated earlier, the deed could be relied on to gather the intention of the parties. Secondly, in the lease deed dated 18th June 1971, by which "one verandah" was part of the area leased to the appellant, it is stated in categorical terms that the lessor (Lila Mohan Singh Roy) is in "possession of the western portion of premises No. 3, Albert Road". Thirdly, clauses in the agreement for sale dated 12th August 1981 and the deed of conveyance dated 2nd January 1982 between the successor-in-interest of Lila Mohan Singh Roy, Kamala Prosad Singh Roy, and the defendant no. 4 (Premlata Chopra) for sale of the premises No. 3C, Albert Road give us a clear indication of how the lessor in the lease deed dated 18th June 1971 (Lila Mohan Singh Roy) and his successor-in-interest viewed the area that is in dispute in the present matter. The area of encroachment has been ascertained. The ownership of the plaintiff is established. The appellant has not disputed the ownership but has instead made a claim on the said area in dispute on the basis of the lease deed dated 18th June 1971. Lila Mohan Singh Roy had no right over the encroached area and hence the appellant could not have made any claim on such area. Additionally, it must also be stated that it is manifestly clear that, in any event, after the deed of conveyance dated 2nd January 1982 was entered into between Kamala Prosad Singh Roy and Premlata Chopra, and new tenancies were created first under the defendant no. 4 and then under the defendant no. 5, the subsequent tenancies could not have created any rights in favour of the appellant in respect of the 250 sq. ft. area in dispute since rights over that specific area was expressly stated to not have been transferred by the deed of conveyance in terms of the clause that has been reproduced herein above.

In view thereof, the contention advanced by the plaintiff/respondent no. 1 is accepted and the phrase "one verandah in the first floor" mentioned in the lease deed dated 18th June 1971 must necessarily be read to mean only the part of the verandah on the western portion of the original premises No. 3, Albert Road, and not the entirety of the verandah, since the lessor could not lease out a portion that he had no rights over.

Mr. Ahin Chowdhury the learned senior Counsel on behalf of the appellant, has drawn our attention to paragraphs 12 and 13 of the plaint in what the plaintiff has claimed mesne profits at the rate of Rs. 50/- per diem for the entire area of 250 sq. ft. Mr. Chowdhury has submitted that in spite of this, the learned Single Judge has awarded mesne profits at the rate of Rs. 50/- per sq. ft. per day.

We find substance in the submission of Mr. Ahin Chowdhury. We feel that the awarding of mesne profits at the rate of Rs. 50/- per sq. ft.per day for every day for three years preceding the filing of the suit is without any basis or evidence. Moreover, the plaintiff has claimed Rs. 50/- per diem for the entire area as mesne profits. Under such circumstances, Mr. Sandip Mukherjee, appointed as the Special Referee, shall determine mesne profits from the date of notice dated 8th December 1982 till the plaintiff obtains vacant possession of the encroached portion from the contesting defendants.

Up to July 2019, the appellant has already paid Rs. 8,70,000/- to the plaintiff. An additional sum of Rs. 5,00,000/- has been deposited by the appellant with the Registrar (Original Side) in terms of the order dated 29th September, 2014. The Registrar (Original Side) shall keep the amount already deposited in a fixed deposit account with any nationalized bank yielding highest returns until the determination of the mesne profits. The plaintiff shall be entitled to realize the mesne profits out of the said amount deposited with the Registrar (Original Side) after determination of mesne profits and after adjustments of all amounts received in the meantime.

The appeal is allowed in part.

However, there shall be no order as to costs.

The department is directed to draw up and complete the decree as expeditiously as possible.

Ravi Krishan Kapur, J.

1. I have read the draft judgment of my learned Brother Justice Sen. With the utmost respect, I find myself unable to agree with the conclusions of my learned Brother and therefore, respectfully, I am writing this separate judgment.

2. This appeal is from a judgment and decree of eviction and mesne profits passed in the above suit on September 12, 2014, inter alia, directing eviction of the defendant from a portion of an upper floor flat at the re- numbered premises No.3A, Albert Road (suit premises) and for mesne profits.

3. The plaintiff's claim is principally based on the fact that he is owner of the suit premises. It is said that the suit premises including the land and premises No.3A, Albert Road, Kolkata is divided and demarcated from the adjoining premises No.3C, Albert Road which is located on the western side of the plaintiff's property.

4. The dispute is about a portion of the upper floor flat which as the plaintiff claims was not let out to the defendant.

5. The case in the plaint is that premises no.3A and 3C, Albert Road were carved out of the original larger premises No.3, Albert Road originally owned by one Smt. Priyamvada Debi. By her will dated 6 April, 1926 Priyamvada Debi bequeathed an eight anna share being the eastern portion of premises No.3, Albert Road to Saileshwar Singh Roy exclusively and absolutely and the remainder on the western portion to Lila Mohan Singh Roy exclusively and absolutely. In fact, until 1952 the entire premises as it originally stood was numbered premises 3, Albert Road. In 1952, premises No.3, Albert Road was trifurcated to premises No.3A, Albert Road (which was the residential house of the larger Singh Roy family), premises No.1/1A Upper Wood Street and 5/1A, Hungerford Street. It was only from the fourth quarter of 1972-73, that the original premises No.3A, Albert Road was bifurcated and re-numbered as premises No. 3A & 3C, Albert Road. It is significant, at this stage to highlight that, at the inception of the lease deed i.e. in 1971, there was only the original premises No.3A, Albert Road, Calcutta.

6. Saileshwar Singh Roy died on 25th January, 1950 leaving a will by which he left all his property to his wife Kanaklata Devi for life and thereafter to Sunil Kumar Singh Roy absolutely. Kanaklata died on 18th October, 1952 whereupon Sunil Kumar Singh Roy became the absolute owner of the eastern half, to the extent of an eight annas share in the residential house. In the above suit as originally filed, Sunil Kumar Singh Roy in fact was the original plaintiff.

7. It is further alleged that after the death of their predecessor Lila Mohan Singh Roy also since deceased and his son Kamla Prasad Singh Roy became the joint owners of the land and building at the re-numbered premises no.3C, Albert Road, Kolkata.

8. By an indenture dated 18 June, 1971, Lila Mohan Singh Roy and his son Kamla Prasad Singh Roy inducted the appellant being the International Society for Krishna Consciousness ("the Society") as a lessee/tenant of the demarcated upper portion of a portion of the original premises No.3A, Albert Road, Kolkata (subsequently re-numbered as premises No.3C, Albert Road).

9. Lila Mohan Singh Roy died in 1984 and by his last will and testament he bequeathed the re-numbered premises No.3C, Albert Road, Kolkata to Kamla Prasad Singh Roy.

10. It is alleged that under such circumstances, the Society became and continues to be a lessee/tenant of inter-alia the upper floor flat of the suit premises under Kamla Prasad Singh Roy.

11. In or around 1982, Kamla Prasad Singh Roy sold and conveyed the two storied building at premises No.3C, Albert Road, Kolkata in favour of the defendant no.4.

12. It is further alleged in the plaint that at the time of letting out of the upper flat at what is now re-numbered as premises no.3C, Albert Road there was a separation of the two premises by a line of demarcation or division. In fact, in paragraph 8 of the plaint it is specifically alleged that the Society was entitled to occupy only a demarcated portion of the upper floor flat at premises no.3C, Albert Road as lessee/tenant thereof.

13. The crux of the case of the plaintiff is to be found at paragraphs 9 and 10 of the plaint where the plaintiff has alleged that notwithstanding the clear demarcation of the two premises i.e. premises nos.3A and 3C Albert Road, Calcutta and the line of demarcation between the two portions of the upper floor flat, the Society through its servants and agents had after the grant of the said tenancy wrongfully encroached or trespassed into a portion of the upper floor flat being the suit premises owned by the plaintiff.

14. It is further alleged in the plaint that by reason of such trespass and/or illegal encroachment, the Society came to be in wrongful possession of a portion of the upper flat at the presently re-numbered premises no.3A, Albert Road belonging to the plaintiff and after such trespass and illegal encroachment the Society had unlawfully constructed a wooden mezzanine floor in the encroached portion and had put up a plastic shed in the entire verandah that included the plaintiff's portion.

15. It is also stated in the plaint, that the defendant no.5 subsequent to the lease dated 1971 had purchased the right, title and interest of the defendant no.4 being Mrs. Premlata Chopra at premises no.3C, Albert Road, Calcutta.

16. In this background, the core of the dispute between the parties clearly revolves around approximately 250 square feet of the upper portion of the re-numbered premises no.3A, Albert Road, Calcutta from which the plaintiff has claimed eviction against the defendant with further incidental reliefs.

17. The suit was contested by the Society which filed its written statement on behalf of the first and the second defendants. In the written statement the Society specifically claimed that the portion let out to the Society consisted of one hall, two bedrooms, two bathrooms, one pantry and one verandah on the first floor and one room with an attached small room in the second floor and one garage and two servant's quarters in the outhouse of the original premises no.3A, Albert Road, Kolkata. It was clearly alleged in the written statement that the verandah on the first floor at the original premises No. 3A, Albert Road consisted of the entire front and back portion of the verandah. The Society, therefore, contended that they had been in lawful possession and occupation of the entirety of the suit premises since June 18, 1971. Accordingly, there was no question of any trespass or encroachment upon any portion of the premises belonging to the plaintiff.

18. Admittedly, the plaint was amended on three occasions. By virtue of the first amendment dated 20 April, 2001, the present plaintiff namely Ishwari Prasad Singh Roy was substituted in place and stead of the original plaintiff being Sunil Kumar Singh Roy (who had died in the meantime). By virtue of the second amendment the defendant no.5, one Bhakti Vedanta Book Trust was added as a defendant to the suit and pleadings were amended to bring on record the fact that the defendant no.4 had sold and transferred her right, title and interest in the two storied building in premises No.3C, Albert Road, Kolkata in favour of the defendant no.5. It was also alleged that the same persons were in common management and control of the Society and the defendant no.5. The third amendment took place sometime in 2014, in paragraph 8 of the plaint to allege that there was a clear line of demarcation between both the re-numbered premises i.e. No.3A and 3C, Albert Road.

19. The following issues were framed by the Trial Judge:-

i) Did the first defendant encroach upon or trespass into any portion of any premises beyond what was originally let out to the defendant no.1?

ii) Was the 1st defendant inducted as a lessee under the indenture of Lease dated 18th June, 1971 in respect of the portion of the premises now occupied by the defendant no.1?

iii) Was the defendant no.1 inducted as a tenant even before the said lease? If so when?

iv) Prior to the demise in favour of the defendant no.1, was the premises clearly demarcated on both floors and only such demarcated upper portion was let out to the defendant no.1?

v) Is the defendant in unlawful occupation of any part of the premises now in possession of the defendant no.1?

vi) Could the suit as originally framed be maintained in the absence of Kamala Prasad Singh Roy?

vii) Is the claim of the plaintiff barred by the laws of limitation?

viii) Is the suit barred by principles of estoppel, waiver and acquiescence and/or principles analogous thereto?

ix) To what relief if any is the plaintiff entitled?

20. By the impugned judgment the Trial Judge, inter alia, held that the plaintiff was entitled to a decree for eviction of a portion of the upper flat at the re-numbered premises no.3A, Albert Road, Kolkata from the defendant. The Learned Judge construed inter alia, the will of Priyamvada Debi (Exhibit B), the unregistered deed of declaration dated 26 May, 1971 (Exhibit D) and the agreement of sale dated August 12, 1981 (Exhibit K) between Lila Mohan Singh Roy and the defendant no.4 and held that Lila Mohan Singh Roy could not have granted any lease or tenancy in respect of the re-numbered premises no.3A, Albert Road for the reason that Lila Mohan Singh Roy had no right, title or interest in respect of any portion of the same at any point of time. The Learned Judge examined the title of premises No.3, 3A and 3C, Albert Road and deduced the devolution of title on Lila Mohan Singh Roy only in respect of the re-numbered premises No.3C of Albert Road, Calcutta. The Learned Judge came to a specific finding that Lila Mohan Singh Roy had no lawful interest in the re-numbered premises No.3A, Albert Road, Calcutta and as such he could not have granted any portion of the same on lease to the Society. The Learned Judge held that the fact that the verandah had not been demarcated in the lease deed or in fact, was irrelevant and inconsequential. The Learned Judge specifically held that it was not necessary to establish the date of the alleged trespass or encroachment. On the contrary, the Learned Judge held that the Society was unable to show any lawful right to claim or occupy any portion of the re-numbered premises No.3A, Albert Road and as such the possession of the Society in any portion of the re-numbered premises No.3A, Albert Road was unlawful and illegal. The Learned Judge relied on a report filed by the Special Officer prepared during the course of the proceedings and held that the Society was in possession of the area which belonged to the plaintiff. In the absence of any defence of adverse possession, the Learned Judge came to a finding that the manner and method of encroachment of the Society was irrelevant. Consequently, the Learned Judge answered the first five issues in favour of the plaintiff. So far as the quantification of the mesne profits is concerned the Learned Judge came to a finding that the mesne profits was @ Rs.50/- per sq.ft. for every day from the 3 years preceding the commencement of the suit.

21. Mr. Ahin Chowdhury, Senior Advocate, appearing on behalf of the defendant (appellant), assailed the impugned decree primarily on the ground that the case which was made out in the plaint was inconsistent and irreconcilable with the evidence adduced on behalf of the plaintiff. He strongly denied the allegation that there was any encroachment by the Society at any point of time. He submitted that the Society was lawfully inducted in the premises and the entire case of the plaintiff of encroachment and trespass and wrongful construction of a wooden mezzanine was unfounded. He submitted that there was no evidence of the date of the alleged encroachment or the manner of encroachment. He submitted that there was no controversy as to the lawful induction of the Society in the premises. He submitted that for 11 years there was no challenge raised by the plaintiff against the possession of the Society in the suit premises. He submitted that the verandah was never divided or demarcated or partitioned. He submitted that it was specifically mentioned in the lease deed (Exhibit E) that the lessor would arrange to fix up doors at the entrance of the main building whenever the building was partitioned between the lessor and his co-sharers. According to him, this was a clear and unequivocal admission of the fact that the verandah and in fact the suit premises was undivided, unpartitioned and undemarcated. He further submitted that the Learned Judge ignored the evidence adduced by the plaintiff and proceeded to pass the impugned decree contrary to the case made out in the evidence. He submitted that the findings of the Learned Judge would not be borne out from the pleadings or from the evidence. Basically his contention was that, the Learned Judge had proceeded on the basis of surmise and conjecture and therefore the impugned decree was liable to be set aside and the suit of the plaintiff deserved to be dismissed.

22. Mr. Arijit Chaudhuri, appearing on behalf of the plaintiff supported the impugned judgment. According to him, it was clearly established by the evidence before the Learned Judge and the documentary evidence that;

a) The plaintiff was the owner of the suit premises;

b) The Society was and still is in occupation and possession of a portion thereof; and

c) Such occupation was wrongful and amounted to trespass.

Hence, according to the plaintiff the decree has been correctly and justifiably passed in favour of the plaintiff and did not call for any interference at all.

23. A trespass to land is an entry upon or any direct and immediate act of interference with the possession of land. It is commonly described by the terms "breaking and entering" and in principle is said to consist of any unjustifiable intrusion by one person upon the land in possession of another. The slightest crossing of the boundary is sufficient to constitute trespass and it is no defence to say that the trespass was due to mistake of fact or law provided the physical act of entry was voluntary. To support an action of trespass it is not necessary that they has to be any actual damage. Trespass is actionable per se (Clerk & Lindsell on Torts, 22nd Edition at Chapter 19, Pg.1331-1342).

24. The entire case of the plaintiff as alleged in the plaint and more particularly in paragraph 9 and 10 is one of trespass. The plaintiff has alleged that the defendant wrongfully and illegally trespassed into a portion of the upper floor flat at the re-numbered premises no.3A, Albert Road. In order to appreciate the case of trespass made out by the plaintiff, I have also examined the pleadings and the oral and the documentary evidence adduced at the trial.

25. The Society was occupying and enjoying a portion of the original premises No.3A, Albert Road since early 1971. The Society commenced enjoyment of the leased premises thereunder since May 1, 1971. This is evident from a number of documents being Exhibits-1, 2, 3, 4, 5 and Exhibit E all of which go to show that the Society was in actual physical possession of the suit premises since early 1971.

26. Significantly, the lease dated 18 June, 1971 categorically records that the original premises No.3 Albert Road had not been partitioned on the date of the lease agreement. At that point of time, there was only premises No.3A, Albert Road, Kolkata. In fact, it was only from the 4th quarter 1972-73 was premises No.3C Albert Road, carved out of the original premises No.3A, Albert Road. It is important to note, as I find that the case of alleged trespass was made out by the plaintiff for the very first time in a letter of his Advocate dated 1 October, 1982 (Exhibit I). By this letter, the plaintiff for the first time contended that the Society had illegally encroached into and trespassed into the suit premises and claimed that the Society was in wrongful possession of the suit premises and had erected a wooden mezzanine floor in the encroached portion and put up a plastic shed to cover the entire first floor verandah including the eastern half that belonged to the plaintiff (Exhibit-PD 4). This letter was followed by another letter of the Advocate dated 8 December, (with no year mentioned) and the Society contended that this letter was never received.

27. The plaintiff, in cross-examination, deposed that the encroachment took place sometime in 1981-82 (Q. 150). He deposed that the encroached portion comprised of 250 sq. ft. (Q. 151 and152). He deposed that the defendant was in physical occupation and enjoyment of the said 250 sq. ft. (Q. 153). He deposed that it was a fact that the Society had been physically occupying and enjoying the entire portion between 1971 and 1980/81 (Q.

154). He deposed that the encroached portion of approximately 250 sq. ft. had been occupied by his father (Q. 156). He deposed that there were ot

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her tenants in the property namely one Communication Consultant (Q. 158). He deposed that upto the year 1980-81, all attempts of encroachment by the Society had been resisted by the plaintiff (Q. 159). He deposed that mezzanine floor was constructed around the same time i.e.1980-81. He deposed that he could not give any exact date to the alleged encroachment but could roughly say that the encroachment had occurred in 1980-81 (Q. 160). He deposed that he had not made any contemporaneous complaint either with the police or with the municipal authorities (Q. 162-163). He deposed that there was a partition wall dividing the two properties which had been broken and trespassed by the Society (Q. 175-176). He deposed that the partition wall had been broken sometime in 1980-81. 28. It is settled law that in order for the plaintiff to succeed at trial he has to stand on his own legs and prove his own case (State of Madhya Pradesh vs. Nomi Singh & Anr. (2015) 14 SCC 450 at paragraph 11). A plaintiff cannot rely on infirmities, deficiencies or inconsistencies in the case of the defendant to succeed at trial. The burden of proof to succeed in a case of trespass is solely and exclusively on the plaintiff and it is undoubtedly the plaintiff's obligation to prove and substantiate his case of trespass in order to succeed. 29. I am of the view that because admittedly the Society came in actual physical possession of the premises since 1971 the entire case of the plaintiff in view of his deposition and the case pleaded in the plaint that, the Society had in the year 1980-81 broken a boundary wall and trespassed into the possession of the plaintiff is unbelievable and unsustainable. I find merit and substance in the case of the appellant that the entire undemarcated and undivided verandah in the premises (which includes the suit premises) was let out to the defendant and was in its possession throughout. The plaintiff was unable to establish that only half the verandah had been let out to the Society. Moreover, the plaintiff was silent and did nothing for more than a decade and permitted the Society to occupy and enjoy the suit premises. This conduct of the plaintiff for more than a decade, his silence, his acquiescence, the inordinate and unexplained delay demolishes the entire case of the plaintiff (both in the pleading and the evidence). The plaintiff has been unable to demonstrate as to how the initial entry or the subsequent possession of the Society became unlawful. I am also not inspired by the distinction which the plaintiff has sought to make out between "the porch" and "the verandah". There is nothing in the lease deed or otherwise which substantiates this case of the plaintiff. 30. I am also of the view that the finding of the Trial Judge that the manner and method of encroachment and the acts subsequent to encroachment having become irrelevant is an error. In a suit for trespass, it is the bounden duty of the plaintiff to prove that actual trespass and/or encroachment had taken place by the Society if not exactly then at least as clearly as possible. This is not a case where the principles of res ipsa loquitor can be made to apply and certainly not to entitle the plaintiff to a decree for eviction. I am of the view that it is not permissible for a Judge to ignore the case pleaded and the evidence adduced and make out a new case for the parties. Admittedly, the lease was granted in 1971 and admittedly mentioned the "verandah". It is not the case of the plaintiff and there is no evidence to hold that the verandah was divided or demarcated in 1971 i.e. at the time when the lease was granted or at any point of time subsequent thereto. All of the oral evidence of the plaintiff in this regard is also sketchy and unbelievable. The plaintiff contradicted himself when on the one hand he admitted that the Society had been in actual physical possession of the suit premises since 1971 (Q.154) and on the other hand he deposed that the father of the plaintiff and one Communications Consultant had been in physical possession of the suit premises till 1981 (Q.156 and Q.158). The entire evidence of there being a boundary wall (wooden or otherwise) demarcating the verandah which was allegedly broken by the Society is also unbelievable and unacceptable. Moreover, on a plain reading of the lease dated 1 May, 1971 to me it seems evident that the premises No.3 Albert Road had not been partitioned. The plaintiff's share was an undivided portion with no partition by metes and bounds. There is nothing which the plaintiff has been able to prove to show that the verandah or the premises were ever demarcated or partitioned at that time. I am of the view that the theory of an imaginary line of demarcation of the suit premises is a later idea to fill up the yawning gaps in the case of the plaintiff. This is evident also from a reading of the will of Priyambada Debi (Exhibit-P) that shows that there was no actual demarcation of the suit premises. This is also plain from a reading of "ka" schedule and "kha" schedule to the will. 31. For the forgoing reasons, I am of the view that the plaintiff has failed to factually prove the case of trespass as made out in the plaint and the evidence adduced on behalf of the plaintiff did not warrant a decree being passed for eviction or for mesne profits in the facts of the case and the evidence on record. 32. But there is another aspect of the matter, the Trial Court proceeded on the basis that the premises was originally partitioned and did not belong in the first place to Lila Mohan Singh Roy. Accordingly, Lila Mohan Singh Roy could not have granted a valid lease in respect of any part or portion of the suit premises for the reason that Lila Mohan Singh Roy had no right, title and interest in the suit premises at any point of time. Even if, I assume the finding of the Trial Court is true and correct, it does not per se in the facts and circumstances aforesaid warrant the passing of a decree of eviction in favour of the plaintiff on the ground of trespass. There was no actual physical partition of the two properties by metes and bounds. It could not be said that the suit premises became the definite, positive and identifiable share of the plaintiff or his predecessor in interest prior to the grant of the lease. It is an admitted position that in 1971 when the lease was granted in favour of the Society the presently re-numbered premises No.3A or 3C had neither been re-numbered nor carved out. There was only the original premise No.3A, Albert Road, Kolkata in 1971. On a reading of the will of Priyambada Debi (Exhibit-B) and the other documents being the deed of partition, the agreement of sale in favour of the defendant no.4 and the registered deed of conveyance (being Exhibit-L) it may be the case that Lila Mohan Singh Roy had no right, title and interest in the presently re- numbered premises no.3A, Albert Road but when the original lease was created in favour of the Society there was no partition or demarcation or division of the verandah. The suit premises remained physically undivided. This in my view, does not justify passing of the impugned decree or automatically prove a case for trespass in favour of the plaintiff. Admittedly, the suit premises i.e. the verandah was undivided, unpartitioned and undemarcated. On the basis of the evidence of the plaintiff's witness the trespass only occurred after a period of 10 or 11 years i.e. in 1982. There is no explanation as to what the plaintiff was doing for more than a decade. The evidence of the appellant's witness Jayapataka Swami (Q. 142) and (Q. 149) that there was no change in the area occupied by the Society is cogent and convincing. There is nothing that the plaintiff has been able to show that the plaintiff or his predecessors or any third party were in actual physical possession of the suit premises or any portion thereof since 1971. Quite obviously, the plaintiff or his predecessors in interest permitted the Society to occupy and enjoy the suit premises since 1971. I reiterate that, even if it is proved that Lila Mohan Singh Roy had no interest in the presently re-numbered premises No.3A, Albert Road it does not follow as a matter of logic that the Society demolished and broke any wall and trespassed into the portion of premises No.3A, Albert Road and thereafter constructed a mezzanine floor illegally. These are facts that the plaintiff was legally bound to prove as per the notice dated October 1, 1982 issued on his behalf and in my view hopelessly failed to prove in this case. There was no evidence whatsoever to prove that any boundary wall wooden or otherwise ever existed or that the suit premises was ever demarcated or partitioned or anything to evidence the case of trespass at all. With the greatest of respect to the Learned Single Judge, the suit and the evidence adduced by the plaintiff proceeded on one basis and the decree granted in favour of the plaintiff is on a totally different basis. This is the basic infirmity in the impugned judgment and decree. It is well settled that even a trespasser can only be evicted in accordance with law. This would necessarily mean that the plaintiff files a suit before a competent Court of law and obtains a decree on lawful grounds which he must necessarily plead and prove. In this case, I am of the view that the suit was filed on ground X, the evidence adduced was of ground Y and a decree has been passed on ground Z. I reiterate that the Trial Court erred in proceeding suo moto to pass a decree ignoring the case which had been pleaded and the evidence adduced. 33. I am of the view in the absence of the demarcation or segregation or partition by metes and bounds of the verandah i.e. the suit premises, it cannot be contended that since half of the property only belonged to the predecessor in interest of Lila Mohan Singh Roy, the Society must have trespassed or encroached into the suit premises by breaking/demolishing a wall. I am of the view that the plaintiff failed to prove paragraph 8 of the plaint i.e. that there was a clear line of demarcation and separation of the two premises which included the suit premises. I find merit in the contention made on behalf of the Society that there was no segregation or demarcation or partition by metes and bounds of the suit premises. 34. In so far as the decree for mesne profits is concerned, it is evident that the Learned Trial Judge erred in law and on facts in passing the same. Mesne profits pleaded in the plaint were for Rs.50 per diem for the entire area of 250 sq. ft. The Learned Trial Judge has awarded Rs.50 per day per sq. ft. which is about 250 times the claim made in the plaint. The Learned Judge has also allowed interest @ 12% per annum on the said amount from December 20, 1982 till realisation. The respondent did not try to support this portion of the decree and in fact fairly conceded that the decree for mesne profits passed by the Trial Court was unsustainable. Accordingly, the decree for mesne profits is set aside. 35. I reiterate that the plaintiff has failed to establish the case of wrongful trespass and encroachment made out in the plaint and on the basis of the oral evidence adduced before the Trial Judge. I am of the view that, with the utmost of respect, to the Learned Judge, the Learned Judge erred in not placing any reliance and in fact ignoring the entire oral evidence on behalf of the plaintiff. Moreover, the evidence of the witness on behalf of the plaintiffs on the aspect of trespass was unconvincing and unreliable. In such circumstances, the impugned decree is set aside and the claim of the plaintiff both on the aspect of eviction and on mesne profits is dismissed. 36. The respondent is directed to refund all the sums of money paid by the Society (i.e. Rs.15,000/- per month till date) to the plaintiffs in terms of the order of stay dated 29th September, 2014 passed by the Hon'ble Division Bench. Such payment should be made within a period of 8 weeks from the date of the passing of this order. In default, the appellants are entitled to recover all monies paid to plaintiff pursuant to the stay order along with interest @ 8% per annum from the date of payment till realisation. Liberty is also granted to the appellant to withdraw the sum of Rs.5,00,000/- alongwith accrued interest deposited pursuant to the order dated 29th September, 2014 with the Registrar, Original Side forthwith. 37. With the aforesaid directions, the appeal is allowed. APD 414 of 2014 stands disposed off. However, there shall be no order as to costs. Ravi Krishan Kapur, J. Later, the Court: In view of the difference of opinion on issue numbers 1 to 5 as formulated by the learned Single Judge, the matter shall be placed before the Hon'ble the Chief Justice under Clause 36 of the Letters Patent.
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