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Shyamapada Bhattacharyya Vs. Ajit Kumar Basu Mallick and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKolkata High Court
Decided On
Case NumberSuit No. 780 of 1965
Judge
Reported inAIR1973Cal336
ActsCode of Civil Procedure (CPC) - Order 21, Rule 99
AppellantShyamapada Bhattacharyya
RespondentAjit Kumar Basu Mallick and ors.
Cases Referred(Munilal Kshetry v. Sri Bhusan Adhikary) and
Excerpt:
- .....that she is in occupation of three rooms, one kitchen and one bath room in the first floor. she claims tenancy since may 3, 1969 at a monthly rent of rs. 40/- per month. she claims to have deposited rs. 2000/-. in the affidavit she has annexed an agreement dated may 3, 1969 between herself and ajit kumarbasu mallick, the mortgagor-judgment-debtor by which ajit kumar basu mallick allowed her to occupy the said portions as tenant. she did not produce any rent receipt. 9. so far as the case of sm. sarmila sinha is concerned she claims tenancy long after official receiver was appointed receiver. after official receiver was appointed receiver, on january 28, 1966, ajit kumar basu mallick could not create any tenancy in respect of the said premises. only official receivercould create such.....
Judgment:
ORDER

Hazra, J.

1. This is an application by the purchasers at auction sale of premises No. 64 Karbala Tank Lane, Calcutta for an order, inter alia to put the petitioners in possession of the said premises.

2. The facts are shortly as follows:

3. Sometimes in the year 1965 this suit was instituted for enforcement of mortgage in respect of premises No. 64, Karbala Tank Lane. Calcutta (hereinafter referred to as the said premises). In the same year another suit being suit No. 2026 of 1965 was instituted against the same defendants by one Jatindra Nath Saha in respect of the saidpremises. On January 28, 1966 official receiver was appointed receiver over and in respect of the said premises in Suit No. 2026 of 1965. On September 1, 1967, preliminary mortgage decree was passed in this suit namely, Suit No. 780 of 1965. On April 7, 1971 final decree for sale of the said premises was passed in this suit. On August 21, 1971 auction sale was held by the Registrar. In execution of the decree the petitioners, namely, Narendra Nath Ghose and Bishnu Pada Ghose were declared as higest bidders and the petitioners purchased the said premises at a price of Rs. 17,770/-. The petitioners initially deposited a sum of Rs. 4443/- and, thereafter, the petitioners paid the balance of the purchase money. The sale was confirmed in favour of the petitioners and sale certificate was issued in favour of the petitioners on November 18, 1971 by an order passed by this Court.

4. Portion of the said premises was in occupation of tenants and portion of the said premises was in occupation of the judgment-debtor. On January 14, 1972, the official receiver who was appointed receiver in Suit No. 2026 of 1965 was discharged and the Official receiver was directed to make over the possession of the said premises to the petitioners as purchasers of the said premises. The official receiver made over possession of two rooms which were vacant at that time and one tenanted portion by letter of attornment. On April 20, 1972 on the application of the petitioner, order was made by this Court under Order 21, Rule 95 directing the Sheriff of Calcutta to put the petitioners in vacant possession of all other portions of the said premises. On April 26, 1972 the Sheriff's officer went to the said premises with the writ of possession and called upon all persons in occupation to vacate by the 2nd of May, 1972. On May 2, 1972 the persons in occupation of several portions did not vacate. Six persons continued to be in possession. On May 3, 1972 Sheriff's officer again called at the said premises and was resisted by six persons. The petitioners complained that the obstruction or resistance was caused by the agents of the mortgagor judgment-debtor Ajit Kumar Basu Mallick and wanted an investigation of the claims upon notice to the persons named in the petition. For the purpose of deciding the matter the respective claims of each of these six persons who resisted possession have to be investigated. I shall now deal with the case of each of the persons who resisted the Sheriff's officer to take possession.

5. One Gopal Chandra Roy who resisted possession states that he is in occupation of one bed-room, one kitchen and one bath room in the ground floor of the said premises. He claims to be a tenant since August 1, 1967. He claims to take the tenancy from Shri Ajit Kumar Basu Mallick and claims to have paid to Ajit Kumar Basu Mallick an advance of Rs. 400/-. Mr. K. L. Khan,learned Advocate for Gopal Chandra Roy did not produce any rent receipt before me.

6. With regard to the claim of tenancy by Gopal Chandra Roy, admittedly, the tenancy, if any, commenced according to him, after January 28, 1966 when official receiver was appointed receiver in respect of the said premises in Suit No. 2026 of 1965. Therefore, after official receiver took over possession as receiver, if any new tenancy was created, the same could be created only by the official receiver. Admittedly, the official receiver was in possession since January 28, 1966. Gopal Chandra Roy cannot claim to be a tenant unless the official receiver created the tenancy in his favour. The case of Gopal Chandra Roy is that he became tenant of Ajit Kumar Basu Mallick, the mortgagor-judgment-debtor.

7. The mortgagor had no right to create tenancy at that point of time. Gopal Chandra Roy is claiming his right through the mortgagor at a time when mortgagor-judgment-debtor could not create the tenancy. No rent receipts were produced before me from any person who could grant any such receipt. Therefore, I hold that the resistance or obstruction by Gopal Chandra Roy is without any just cause.

8. Resistance was offered by Sm. Sarmila Sinha. She filed an affidavit stating that she is in occupation of three rooms, one kitchen and one bath room in the first floor. She claims tenancy since May 3, 1969 at a monthly rent of Rs. 40/- per month. She claims to have deposited Rs. 2000/-. In the affidavit she has annexed an agreement dated May 3, 1969 between herself and Ajit KumarBasu Mallick, the mortgagor-judgment-debtor by which Ajit Kumar Basu Mallick allowed her to occupy the said portions as tenant. She did not produce any rent receipt.

9. So far as the case of Sm. Sarmila Sinha is concerned she claims tenancy long after official receiver was appointed receiver. After official receiver was appointed receiver, on January 28, 1966, Ajit Kumar Basu Mallick could not create any tenancy in respect of the said premises. Only official receivercould create such tenancy. Therefore, resistance or obstruction by Sm. Sarmila Sinha was without any just cause. She has no right to stay in the said premises under an agreement of alleged tenancy created by the mortgagor judgment-debtor who took money from her at a time when he could not createsuch a tenancy.

10. Mr. Gopal Sett, the learned Advocate appearing for Sm. Sarmila Sinha stated that under Order 21, Rule 98 the Court must be satisfied that resistance or obstruction was occasioned without any just cause by the judgment-debtor or by some person at his instigation. He stated that his client was in possession bona fide. Mr. Sett relied on : AIR1959Cal621 , (Deokaran Agarwalla v. Satyendra Ghosal) and submitted that the Court has to see as to whether resistance occasioned by the objector can be said to have been by the person who claims in good faith to have a right to be in possession of the property on his own account or on account of some person other than the judgment-debtor. The matter has to be considered in the background of all the circumstances. It is not likely that the Court should allow its coercive process to be utilised by a decree-holder without considering seriously the nature of objection raised by the resister.

11. Sm. Sarmila Sinha the client of Mr. Sett admitted that her claim of tenancy is from May 3, 1969. That is, long after the offficial receiver took possession. She could not take the tenancy from the mortgagor judgment-debtor Ajit Kumar Basu Mallick on May 3. 1969. If she had paid any money to the mortgagor judgment-debtor that cannot be a bona fide claim on her part to be a tenant of the said premises. Therefore the case cited bv Mr. Sett does not help his client. Mr. Sett also cited another case reported in (1954) 93 Cal LJ 369 (Sudhamay Basu v. Raja Ram Ramsamaj Singh.) The head note of the judgment by B. K. Guha, J., is as follows:

'Where the execution of an ejectment decree was resisted by a stranger to the suit, and the decree-holder filed an application for relief under Order 21, Rule 97 of the Code of Civil Procedure, and where it was found that the stranger's claim of sub-tenancy was not maintainable but at the same time the stranger appeared to have been in possession since before the institution of the suit and carrying on business at the site: Held; That although the person offering resistance may not be held to be a subtenant, yet he is also not a person offering resistance on behalf of or at the instigation of the judgment-debtor. Moreover, his being in possession of and carrying on business at the premises clearly suggest that he is a person claiming in good faith to be in possession on his own account, and thus he should be permitted to defeat the claim of the decree-holder for relief under Order 21, Rule 99 of the Civil Procedure Code.'

12. I do not think that this judgment helps Mr. Sett's client. She could not bona fide claim any right of tenancy as her case is that she was inducted as tenant by the mortgagor judgment-debtor since May 3, 1969. Official Receiver was then in possession. No rent receipt was produced before me and I do not think that she has got any bona fide claim to be in possession.

13. One Nandan Das filed an affidavit stating that he is in possession of two rooms in the second floor. He claims tenancy since 1965 at a monthly rent of Rs. 40/- per month. No rent receipt was produced before me.

14. Mr. M. B. Sarkar learned Advocate for Nandan Das took the point that since his client Nandan Das is claiming tobe a tenant, I could not decide this case under Order 21, Rule 97. at all. The argument of Mr. Sarkar is that there cannot be any order for possession under Order 21, Rule 98 because his client was claiming to be a tenant and in view of Section 13 of the West Bengal Premises Tenancy Act, 1956 the Court cannot give any order or decree for possession against any tenant unless any of the grounds stated in Section 13 of the West Bengal Premises Tenancy Act is satisfied.

15. He also submitted that this Court has no jurisdiction to pass an order for possession.

16. Mr. M. B. Sarkar referred to (1961) 65 Cal WN 149 (Biswanath Roy v. Annapurna Roy) and stated that any kind of dispute including a dispute as to relationship between landlord and tenant will be a dispute in the contemplation of Section 17 (2) of West Bengal Premises Tenancy Act, 1956.

17. Mr. Sarkar further submitted that the issue as to whether defendant is a tenant of the plaintiff has to be decided first and it can be done only when the suit has been instituted under the provisions of West Bengal Premises Tenancy Act.

18. Mr. Sarkar relied on AIR 1927 Cal 339 (Munilal Kshetry v. Sri Bhusan Adhikary) and submitted that if a client under Order 21, Rule 100 of the Code of Civil Procedure was in possession though without a good title or even as a trespasser but on his own account or on account of some person other than the judgment-debtor, he is entitled to succeed under Rule 101.

19. Mr. Sarkar submitted that the scope of enquiry under Order 21, Rule 97 does not empower the court to determine the relationship of landlord and tenant.

20. I cannot accept the contention of Mr. Sarkar. This is not a case by the petitioner to eject a tenant. The petitioner is not making any claim as a landlord of the premises, but as a purchaser of an immovable property sold in occupancy of the mortgagor-judgment-debtor. Under Order 21, Rule 97 of the Code, where the purchaser of any property sold in execution of a decree is resisted or obstucted by any person in obtaining possession of the property, he may make an application to the Court complaining of such resistance or obstruction and the Court shall investigate the matter. Under Order 21, Rule 98 of the Code, where the Court is satisfied that the resistance or obstruction was occasioned without any just cause by the judgment-debtor or by some person at his instigation it shall direct the applicant to be put in possession of the property.

21. This is the scope of the application before me and unless Mr. Sarkar's client can show that he has been in possession of the property under some independent right or title of his own, the purchaser of the property which is sold in execution of the decree can claim that the resistance is made bythe judgment-debtor or some person at his instigation and such resistance is not made in good faith under any bona fide title. Opportunity was given to Mr. Sarkar's client to give evidence before me to prove that he has any independent right or title, but Mr. Sarkar's client did not do so. Mr. Sarkar did not bring his. client in the witness box nor tender any evidence to show that his client has any bona fide right or title.

22. Nandan Das claims tenancy since-1965. But he failed to prove the same before me. No rent receipt has either been, tendered or proved or produced before me, but Mr. Sarkar argued that in view of the provisions of West Bengal Premises Tenancy Act no order can be passed by me in this application. I cannot accept the contention of Mr. Sarkar. I am satisfied that the resistance or obstruction occasioned by Nandan-Das was without any just cause and this has. been done at the instigation of the mortgagor judgment-debtor or his son.

23. One Sudhanya Chandra Dey also resisted in giving possession. His case is that he is in occupation of one room in the second floor. He claims that his grandmother is a tenant on his behalf. Sudhanya Chandra Dey did not appear in the proceeding and did not contest the claim of the petitioners.

24. The other person who offered resistance is Sm. Asrukana Banerjee. She claims to be in possession of one room in the second floor. She claims to be a monthly tenant. She also did not appear in the proceeding at all.

25. In the premises, there will be order that the applicant be put in possession of the portion of the said premises which is in occupation of Gopal Chandra Roy, Sm. Sarmila Sinha, Nandan Das, Sudhanya Chandra Roy and Sm. Asrukana Banerjee.

26. Resistance was also made by one Sib Chandra Dhara. It appears that Sib Chandra Dhara claims tenancy at the rate of Rs. 55/- per month under the receiver. It appears that he paid rent to the receiver. Mr. M. R. Bosc attorney appeared for Sib Chandra Dhara and submitted that as his client claims to be a tenant under the receiver the petitioners did not press the claim against Sib Chandra Dhara. In the premises there will be no order against Sib Chandra Dhara.

27. With reference to prayer (d) I will not pass any order for police help now; but I shall allow the aforesaid 5 persons, namely, Gopal Chandra Roy, Sm. Sarmila Sinha, Nandan Das, Sm. Asrukana Banerjee and Sudhanya Chandra Roy three months' time from the date of this order to vacate and deliver peaceful possession to the petitioners. If after three months' time possession is not delivered Sheriff's officer may take help of police and/or lady police for removing the aforesaid five persons,namely Gopal Chandra Roy, Sm. Sarmila Sinha, Nandan Das, Sm. Asrukana Banerjee and Sudhanya Chandra Roy, their servants and agents and dependants; and to break-open the padlock of any room which may be found to be under their possession or under their lock and key. The costs of and incidental to this application and all other costs necessary for this application including costs of police help, if necessary should be borne and paid by the petitioners.

28. This order will not affect the right of respondents to take such steps as may be available to them under the law.


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