Calcutta High Court (Appellete Side)
Smt. Roma Chatterjee & Anr vs Smt. Chabi Banerjee & Ors on 13 January, 2017
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Jyotirmay Bhattacharya
AND
The Hon'ble Justice Ishan Chandra Das
F.M.A. 1261 of 2015
with
CAN 959 of 2015
Smt. Roma Chatterjee & Anr.
versus
Smt. Chabi Banerjee & Ors.
For the Plaintiffs/Appellants : Mr. Sabyasachi Bhattacharya, Sr.Adv.,
Mr. Shamba Chakraborty,
Mr. Arun Kumar Das,
Mr. Triptimoy Talukder.
For the Defendant/Respondent : Mr. S. P. Sarkar, Sr.Adv.,
No.2 Mr. Asit Baran Raut,
Mr. Asit Kumar Chowdhury.
Heard On : 13-01-2017.
Judgement On : 13-01-2017.
Jyotirmay Bhattacharya, J. : This first miscellaneous appeal is directed against an order being No. 10 dated 22nd December, 2014 passed by the learned Judge, Xth Bench, City Civil Court at Calcutta in Title Suit No. 638 of 2014 at the instance of the plaintiffs/appellants.
By the impugned order, the ad interim order of injunction in the form of status quo, which was passed by the learned Trial Judge in a suit for declaration and injunction filed by the plaintiffs/appellants, was vacated on an application under Order 39 Rule 4 of the Civil Procedure Code filed by the defendant/respondent no.2 herein. The legality of the said order is under challenge in this appeal.
Let us now consider the merit of the instant appeal in the facts of the present case.
Plaintiffs are the sisters of the defendants. Plaintiffs claim that the suit property being premises No. 7/1B, Manmatha Bhattacharjee street was owned by their predecessor viz., Amiya Bhusan Chatterjee. According to them, Amiya Bhusan Chatterjee died intestate on 28th April, 1995 leaving behind him surviving the plaintiffs, defendants and their mother viz., Anima Chatterjee as his legal heirs and representatives. Subsequently, wife of the said Amiya Bhusan Chatterjee viz., Anima Chatterjee died on 26th April, 2006. Plaintiffs thus claimed that ultimately the plaintiffs and the defendants became the owner of the suit property having 1/6th share each therein. Plaintiffs further claimed that they are in occupation of two rooms in the ground floor of the eastern side of the suit premises and one room in the first floor of the southern side of the suit premises having right of common entrance through the common passage described in Schedule 'B' and Schedule 'C' of the plaint.
Since the plaintiffs' right of possession in the suit property was threatened by the defendant nos. 1 and 2, the instant suit was filed praying for declaration that the defendants have no right to disturb the plaintiffs' peaceful possession in the suit property. A decree for permanent injunction has also been prayed for restraining the defendant nos. 1 and 2 from disturbing the plaintiffs from enjoying the plaintiffs' peaceful possession in respect of the suit property.
After filing the said suit, the plaintiffs filed an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure Code praying for temporary injunction for restraining the defendants, their men and agents from putting obstruction or hindrance in enjoyment of the plaintiffs' possession in the suit property. An ad interim order of injunction in the similar term was also prayed for therein. Such relief was claimed on the basis of the averment which is almost the verbatim statement of the plaintiffs made out by them in the plaint.
On such an application being moved by the plaintiffs, an ad interim order of injunction was passed by the learned Trial Judge on 16th May, 2014 vide Order No. 3 whereby the parties were directed to maintain status quo with regard to their possession in the suit property till the disposal of the plaintiffs' application for temporary injunction.
Subsequently, an application under Order 39 Rule 4 of the Civil Procedure Code was filed by the defendant/respondent no.2 praying for vacating the said interim order of injunction on the ground that the plaintiffs have no title in the suit property. It is alleged in the said application that Amiya Bhusan Chatterjee, admitted owner of the suit property, died testate. During his lifetime, he published a Will on 5th July, 1993 bequeathing his property in favour of his son, the defendant/respondent no.2 and also by creating life-interest in favour of his wife and one of his daughters viz., defendant/respondent no.1. It is also alleged that after the death of the said Amiya Bhusan Chatterjee, Will left by him was duly probated by the court of competent jurisdiction and the life-interest holders ultimately gifted their life-interest in favour of the ultimate reversioner viz., the defendant/respondent no.2. Thus, the defendant/respondent no.2 became the absolute owner of the suit property. The said defendant, however, admitted in paragraph 19 of the said application that the plaintiffs have been in occupation of the said premises since the death of the testator and more particularly from the date of obtaining the probate only on the basis of leave and licence under the answering defendant.
The said defendant/respondent no.2, however, prayed for vacating the said interim order of injunction as the plaintiffs suppressed the material facts relating to the publication of the Will by their father and subsequent grant of probate to the said Will after the death of their father. The said defendant, thus, claimed that by suppression of such material facts, the plaintiffs committed fraud upon the court while seeking injunction against the defendant/respondent no.2, He, thus, prayed for vacation of the said interim order of injunction.
The defendant/respondent no.1 also filed affidavit-in-opposition to the plaintiffs' application for temporary injunction wherein she also stated that the plaintiffs have been in occupation of the said premises since the death of the testator and more particularly from the date of obtaining the probate only on the basis of leave and licence under the answering defendant.
The plaintiffs contested the defendant's said application under Order 39 Rule 4 of the Civil Procedure Code by filing affidavit-in-opposition wherein they stated categorically that they came to know for the first time about the Will left by their father and grant of probate to the said Will by the court from the copy of the defendant's application under Order 39 Rule 4 of the Civil Procedure Code which was served upon them. It was also stated by them that they came to know that Asok Kumar Banerjee, being the son-in-law of the testator, was appointed as Executor in the said Will. He was a practicing lawyer and on his request, the plaintiffs signed some blank papers and blank Vakalatnama as they were told that those papers were immediately necessary for submission of an application before the Municipal authority for obtaining permission to repair the suit premises. The blank papers and the Vakalatnama which were signed by them were subsequently used in the probate proceeding by converting those papers into an application for consent to the grant of probate to the said Will. Immediately thereafter, they filed an application for revocation of grant of probate before the court. The application for revocation of grant of probate which was registered as Misc. (Revocation) Case No. 3874 of 2014 is pending for consideration before the court. The plaintiffs, thus, prayed for rejection of the defendant's said application under Order 39 Rule 4 of the Code of Civil Procedure claiming that they are in rightful possession of the suit property.
By the impugned order, defendant's said application was allowed and thereby the injunction, which was passed by the learned Trial Judge in the form of status quo, was vacated. Learned Trial Judge held that having regard to the fact that the Will left by the admitted owner was probated and the life-interest holders have gifted their limited interest in favour of the ultimate reversioner being the defendant/respondent no.2, the defendant/respondent no.2 will be treated as a rightful owner of the said property. Learned Trial Judge held that the plaintiffs having no right, title and interest over the suit property, are not entitled to get an order of injunction against the rightful owner. On the basis of such findings, learned Trial Judge vacated the ad interim order of injunction.
Mr. Bhattacharya, learned senior counsel appearing for the plaintiffs/appellants challenged the legality of such impugned order. He submits that vesting of right, title and interest on the parties will ultimately depend upon the fate of the revocation proceeding. It is contended by him that if ultimately the grant is revoked in the said proceeding, all the brother and sisters will get 1/6th share each in the suit property. He further contends that if ultimately the revocation proceeding fails on merit, then, of course, the exclusive right of the defendant/respondent no.2 will be established. He further contends that when the possession of the plaintiffs in the suit property was admitted by the defendants/respondent nos. 1 and 2 in their respective pleadings, plaintiffs' possession in the suit property cannot be disturbed otherwise in due process of law. He, thus, ultimately concludes by submitting that the plaintiffs' possession in the suit property should have been protected by the learned Trial Judge by continuing the ad interim order of injunction till the disposal of the suit.
Mr. Sarkar, learned senior counsel appearing for the defendant/respondent no.2 refuted such submission of Mr. Bhattacharya by submitting that the plaintiffs having no semblance of title over the suit property cannot seek any injunction against the rightful owner to protect their illegal possession in the suit property. In support of his submission he relied upon the following two decisions of the Hon'ble Supreme Court :-
(i) In the case of Puran Singh & Others Vs. The State of Punjab reported in (1975) 4 SCC 518 and
(ii) In the case of Sopan Sukhdeo Sable & Others Vs. Assistant Charity Commissioner & Others reported in (2004) 3 SCC 137.
Mr. Sarkar further contends that equitable principle demands that a party who has not come in clean hands should not be favoured with grant of an injunction. He points out that when factum of publication of the Will by their father and grant of probate thereto by the court of competent jurisdiction and bequeathing the suit property by the life-interest holders in favour of the defendant/respondent no.2 were suppressed by the plaintiffs in the plaint as well as in the injunction application, the learned court below was absolutely justified in vacating the said interim order of injunction which was obtained by the plaintiffs by committing fraud upon the court by not disclosing those facts which were material for the purpose of disposal of the injunction proceeding. He, thus, supports the impugned order and invites this Court not to interfere with the impugned order.
Let us now consider the substance of such contentions of the learned counsel appearing for the parties.
It is well settled that a trespasser having no semblance of title in the property cannot seek any injunction against a rightful owner. A trespasser can seek prohibitory relief to maintain his possession against the whole world excepting the rightful owner. No one can join issue on the fundamental principles of law. In this context, we will have to consider as to whether the possession of a licensee can be equated with the possession of a trespasser. If we hold that the possession of a licensee can be equated with the possession of a trespasser, then, of course, the line of decisions which were cited by Mr. Sarkar can be applied in the facts of the present case. However, if we hold that right of the permissive occupier and/or the licensee cannot be equated with the possession of a trespasser, then, certainly the line of decisions which were cited by Mr. Sarkar will have no application in the facts of the present case.
Though Indian Easements Act, 1882 does not apply to West Bengal, but the principles analogous thereto are applicable to the State. Section 52 of Indian Easements Act, 1882 defines "License" in the following manner :-
"52. "License" defined. - Where one person grants to another, or to a definite number of other persons, a right to do, or continue to do, in or upon the immovable property of the grantor, something which would, in the absence of such right, be unlawful, and such right does not amount to an easement or an interest in the property, the right is called a license."
Section 60 of the said Act provides as to when license is revocable. The said Section runs as follows :-
"60. License when revocable. - A license may be revoked by grantor, unless -
(a) it is coupled with a transfer of property and such transfer is in force;
(b) the licensee, acting upon the licence, has executed a work of a permanent character are incurred expenses in the execution."
Section 61 of the said Act provides that revocation of a license may be express or implied.
Section 62 of the said Act provides various circumstances under which license can be deemed to have been revoked.
Section 63 of the said Act provides the licensee's rights on revocation. The said Section runs as follows :-
"63. Licensee's rights on revocation. - Where a license is revoked, the licensee is entitled to a reasonable time to leave the property affected thereby and to remove any goods which he has been allowed to place on such property."
The grant of licence and/or permission to the plaintiffs to occupy the suit premises is not disputed, rather it is admitted by both the defendants/respondent nos. 1 and 2. The defendants do not claim that permission under which the plaintiffs are occupying the suit premises has been revoked by them. As such, possession of the plaintiffs cannot be held to be unlawful. They are not rank trespassers. They are admittedly in settled possession for a substantial period of time. Even they are not trespassers also, because their initial entry is with authority and that authority has not yet been revoked. As such, possession of the plaintiffs cannot be equated with the possession of the trespasser. Even if, we accept the contention of Mr. Sarkar that licence granted in favour of the plaintiffs has been impliedly revoked, still then they cannot be evicted without due process of law. As such, we hold that the learned Trial Judge was not justified in vacating the order of status quo.
That apart, fact remains that the plaintiffs' application for revocation of grant of probate is still awaiting consideration before the court of competent jurisdiction. The fate of such proceeding is yet to be ascertained by this Court. If ultimately, the plaintiffs succeed in the said proceeding, then the plaintiffs will be adjudged as the co-owners of the suit property. Of course, it is equally true that in the event, the revocation proceeding fails, then they will not acquire any title in the suit property. As such, their claim for right over the said property as co- owners thereof depends upon the ultimate fate of the revocation proceeding.
The plaintiffs claim that they were not aware of the Will published by their father during his lifetime. They also claim that they were unaware of the grant of probate of the said Will by the court and the execution of the deed of gift by the life-interest holders for bequeathing their life-interest in favour of the defendant/respondent no.2. Plaintiffs claim that they came to know about those facts only after a copy of the application, under Order 39 Rule 4 of the Civil Procedure Code taken out by the defendant/respondent no.2, was served upon them. Plaintiffs, thus, claim that since those facts were not within their knowledge, they could not disclose those facts in their pleadings.
Fact remains that the defendants did not file any counter-objection denying the aforesaid claim of the plaintiffs. Nothing has been produced before this Court to show that the plaintiffs had their knowledge about the execution of the Will by their father and grant of probate to the said Will by the court and the execution of the deed of gift by the life-interest holders in favour of the defendant/respondent no.2. As such, we hold that the plaintiffs cannot be held to be guilty for suppression of material facts while praying for injunction in the court below.
We, thus, conclude by holding that since the plaintiffs are in possession of the suit property and their possession is authorised, the learned Trial Judge was not justified in vacating the ad interim order of injunction passed in the said suit, particularly when the right to the property, as claimed by the plaintiffs, depends upon the fate of the revocation proceeding which still is awaiting consideration before the competent court. Under such circumstances, we set aside the impugned order passed by the learned Trial Judge and restrain the defendants/respondents from disturbing the plaintiffs' peaceful possession in the suit property otherwise than in due process of law during the pendency of the suit.
The appeal, thus, stands disposed of.
Re: CAN 959 of 2015 (Injunction) In view of disposal of the appeal in the manner as aforesaid, no further order need be passed on the injunction application. The said application being CAN 959 of 2015 is, thus, deemed to be disposed of.
Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible.
(JYOTIRMAY BHATTACHARYA, J.) ( ISHAN CHANDRA DAS, J. ) dc.