Calcutta High Court (Appellete Side)
Dr. Pradip Kumar Paria vs Sri Tushar Kanti Bandopadhyay on 24 July, 2015
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya
Form No.J(1)
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Jyotirmay Bhattacharya
And
The Hon'ble Justice Debi Prosad Dey
F.A. 313 of 2011
With
CAN 3143 of 2012
With
CAN 3144 of 2012
Dr. Pradip Kumar Paria.......Appellant
Vs.
Sri Tushar Kanti Bandopadhyay.....Respondent
For the Appellant : Mr. Probal Kr. Mukherjee,
: Mr. Sukanta Chakraborty.
For the plaintiffs/
Respondents : Mr. Haradhan Banerjee,
: Mr. Amitava Pain,
: Mr. Partha Pratim Mukherjee.
Heard on : 27.04.15,28.04.15,19.06.15, 26.06.15,
17.07.15.
Judgment on : 24.07.2015
Debi Prosad Dey, J. :-
This first appeal is directed against the judgment and decree dated 31st May, 2010 passed by learned Civil Judge (Senior Division) 3rd Court, Howrah, District-Howrah in Title Suit No:08 of 2008 whereby and whereunder,the learned Civil Judge(Senior Division), 3rd Court, Howrah has decreed the suit against defendant No:2/appellant on contest and exparte against defendant No:1/respondent No:2(since deceased).
Being aggrieved by and dissatisfied with the judgment and decree, the defendant No:2/appellant has preferred this appeal on amongst other grounds that the suit is not maintainable in law and that learned Judge has failed to consider the true import of the provision of law and thereby came to an erroneous decision. Respondent No:1/plaintiff has contested this first appeal.
Respondent No:2/defendant No:1 did not contest the suit in the Court below. Defendant No:1/respondent No:2 died in the mean time and his heirs have been duly substituted. Since respondent No:2 was a non-contesting defendant in the Court below service of notices upon the heirs of respondent No:2 was dispensed with, by this Court.
In order to appreciate the case of the parties to this appeal it would not be out of place to mention in brief about the fact of the case, which runs as follows:
The respondent No:1 and 2 are two full brothers. Ashalata Devi since deceased is the mother respondent No:1 and 2. Ashalata Devi purchased 'A' schedule property on the strength of a registered sale deed being no.2443 of 1920 and thereby became absolute owner of the said property. Ashalata Devi died intestate on 29.10.1983 leaving behind her surviving husband, Shri Avaypada Banerjee along with 7 sons and 9 daughters. 'A' schedule property thus devolved upon the aforesaid 17 heirs and heiress of the said Ashalata Devi and they acquired 1/17th share each. For convenient use and enjoyment of 'A' schedule property, the heirs and heiress of Ashalata Devi including respondent No:1 and respondent No:2(since deceased) got the 'A' schedule property amicably partitioned by metes and bounds by a deed of partition with a partition plan attached to the said deed of partition and the deed of partition was duly registered in the office of the District Sub-Registrar, Howrah being deed no.4667 of 1987. The property of respondent No:1 has been described in schedule 'B' of the plaint and the property of respondent No:2(since deceased) has been described in 'C' schedule property of the plaint.
The specific case of the plaintiff/respondent No:1 is that partition deed being no.4367 of 1987 contained a specific clause being clause No:11 giving preferential right of purchase to the erst-while co-sharers in case of sale of such property by any of the co-sharers having adjacent property to the property proposed to be sold by other co-sharer. The condition laid down in clause 11 is that the co-sharer is duty bound to inform his adjacent co-sharer about his intention of sale of such property by a written notice and if his adjacent land owner does not reply to such letter only in that event the intending seller may sell out such property to any stranger. The condition laid down in clause 11 thereby gives a preferential right of purchase to the adjoining land owner, who were erst- while co-sharers in respect of the entire suit plot. The further case of respondent No:1/plaintiff is that the plaintiff/respondent No:1 came to know from local people that respondent No:2 without giving any written notice to the plaintiff/respondent No:1 has sold out his share of property, described in schedule 'C' of the plaint, by 2 registered sale deeds to the appellant/defendant No:2. Accordingly the respondent No:1/plaintiff filed the suit under reference praying for implementation of his preferential right of purchase and prayed for a decree of pre-emption in respect of 'C' schedule property i.e. the property of respondent No:2(since deceased) which has been sold to the appellant/defendant No:2. Curiously enough respondent No:2 (since deceased) did not appear in the trial Court and did not contest the suit. That goes to show that respondent No:2 has virtually accepted the case of the plaintiff/respondent No:1 and accordingly the suit was decreed exparte against defendant No:1/respondent No:2. The appellant/defendant No:2 however contested the suit by filing written statement wherein the appellant/defendant No:2 has denied all the material allegations contained in the plaint. Specific case of the appellant/defendant No:2 is that the plaintiff/respondent no.1 had no intention to purchase the 'C' schedule property from respondent No:2 though verbal notice was given to him. Plaintiff/respondent No:1 expressed his in-ability to purchase 'C' schedule property on the ground that he has got a large paternal building and that he used to reside at Bhadreswar, Hoogly. The defendant No:2/appellant however sent a notice through his lawyer Shri Sanat Kumar Chatterjee but the plaintiff/respondent No:1 did not show his intention to purchase the suit property. The appellant/defendant No:2 is a Doctor by profession and he has been serving the local people for a long time. In order to serve the local people the appellant/defendant No:2 has after complying with all the formalities purchased 'C' schedule property after obtaining loan from Bank and other sources. The suit property has been demarcated with boundary wall and the respondent No:1/plaintiff has got his property demarcated by boundary wall and the suit property is not at all required for the personal use and occupation of the plaintiff/respondent No:1. The contesting parties to the suit have examined themselves as plaintiff's witness No:1 and defendant's No:1 respectively.
The entire case hinges upon the right of the plaintiff/respondent No:1 in terms of clause 11 of the deed of partition executed and registered by and between the heirs and heiress of Ashalata Devi. Therefore, the oral evidence of the parties to this case has had no bearing in appreciation of the case under reference. The registered deed of partition executed by and between the heirs and heiress of Ashalata Devi showing allotment of land and buildings to the respective heirs and heiress of Ashalata Devi has been marked as Exhibit 1. The sale deeds by which the defendant No:2/the appellant has purchased the share of respondent No:2 have been marked as Exhibit A and Exhibit B respectively. The alleged legal notice given by Sanat Kumar Chatterjee, Advocate, Howrah on behalf of the appellant/defendant No:2 has been marked as Exhibit C. After considering the materials on record as well as the submissions of learned Advocates, learned Civil Judge (Senior Division), Howrah has decreed the suit in favour of plaintiff/respondent No:1.
Legality of the said judgment and decree is under challenge before us.
Learned Senior Counsel, Prabal Mukherjee appearing on behalf of the appellant vehemently challenged the judgment and decree passed by learned Civil Judge (Senior Division), Howrah. Learned Senior Advocate Mr. Mukherjee appearing on behalf of the appellant has canvassed the following points in order to bring home his argument.
i)The decree passed by learned Trial Court is not in consonance with Order 20 Rule 14 of the Civil Procedure Code and on that ground alone the decree passed by learned Civil Judge(Senior Division), 3rd Court, Howrah should be set aside. Learned Trial Court has failed to pass appropriate decree in terms of Order 20 Rule 14 of the Civil Procedure Code.
ii)The suit itself is not maintainable in the present shape with the prayer appended with it in law since the plaintiff/respondent No:1 did not pray for cancellation of the deeds of the appellant by which the appellant had acquired exclusive and absolute title over the suit property.
iii)In compliance with clause 11 of the deed of partition, oral notice was duly given to the plaintiff/respondent No:1 at the relevant point of time but the plaintiff/ respondent No:1 did not respond to such notice and thereby the condition as stipulated in clause 11 of the registered deed of partition has duly been complied with by respondent No:2. Therefore, there was sufficient compliance of such condition as stipulated in the deed of partition and accordingly the plaintiff/respondent No:1 is not entitled to get any relief on the strength of such condition as stipulated in the registered deed of partition.
iv)The clause 11, as stipulated in the registered deed of partition, is against the rule of perpetuity and the said clause being void and illegal, cannot be given effect to. Learned Senior Advocate Mr. Mukherjee has relied on a decision reported in AIR 1943 Cal 417 in support of his contention that any sort of restrainment against future alienation of property being contrary to the rule of perpetuity is illegal and cannot be given effect to.
v)The suit has not been properly framed in terms of Specific Relief Act.
The plaintiff/respondent No:1 ought to have framed the suit in the form of Specific Performance of Contract. In absence of specific averment in terms of Section 16(c) of the Specific Relief Act, the suit is hit by Section 20, 21 and 22 of the Specific Relief Act and thus the suit becomes not maintainable in law. Learned Senior Advocate further contended that absence of any prayer for cancellation of such deeds of the appellant renders the suit not maintainable in law under Section 31 of the Specific Relief Act.
Learned Advocate Mr. Haradhan Banerjee appearing on behalf of respondent No:1 has however contended that the Appellate Court has had ample power to mould the prayer of the plaintiff/respondent by invoking Order 41 Rule 33 of the Code of Civil Procedure. Mr. Banerjee learned Advocate appearing on behalf of respondent No:1 fairly admitted that the order of learned Trial Court has not been passed in terms of Order 20 Rule 14 of the Civil Procedure Code and the said order is required to be modified by invoking the power of the Appellate Court as provided under Order 41 Rule 33 of the Civil Procedure Code. In support of his contention learned Advocate Mr. Banerjee has referred following decisions reported in AIR 1952 Supreme Court 47, AIR 2014 Supreme Court 2326, 2002(2) Supreme Court Cases 475, 1996(7) Supreme Court Cases 533. Mr. Banerjee, learned Senior Counsel appearing on behalf of respondent No:1 further contended that the Court must try to provide substantial justice ignoring the technicalities of law and for ends of Justice, it is necessary to stretch the power of the Court to adjust or modify the relief prayed for by the parties to the lis. While doing so the Court must be cautious enough to consider that by doing so, no prejudice should be caused to other side. Secondly, Mr. Banerjee contended that the deeds of the appellant/defendant No:2 are not required to be cancelled since the case of the plaintiff/respondent No:1 is covered by contractual pre-emption and therefore no prayer is required to be made for cancellation of the deeds of the appellants. Mr. Banerjee further contended that the right, title and interest of the plaintiff/respondent No:1 would simply vest in the property on the strength of the decree of the Civil Court and accordingly no formal prayer for cancellation of such deeds is required. Thirdly, Mr. Banerjee, learned Senior Counsel appearing on behalf of respondent No:1/plaintiff contended that the case of verbal notice, as stated by the appellant/defendant No:2 should not be accepted since defendant No:1/respondent No:2 never came forward before the Court of law to ascertain that any such verbal notice was ever given to the plaintiff/respondent No:1. The case of verbal notice is nothing but the result of a far - fetched imagination of the appellant and the same has been incorporated in order to nullify the impact of clause 11 of the deed of partition. In fact, verbal notice as per Mr. Banerjee is not the mandate of clause 11 of the deed of partition. On the contrary, Mr. Banerjee pointing out clause 11 of the deed of partition, contended that written notice was the requirement for complying with clause 11 of such deed of partition. Mr. Banerjee contended that no written notice was ever given by respondent No:2 prior to such sale of the suit property to the respondent No.1. Defendant No:1/respondent No:2 did not turn up and contest the suit in the trial Court and thereby he has virtually accepted that no written notice was ever sent to the plaintiff/appellant prior to sale of such properties to the appellant. Mr. Banerjee contended that qualified restrainment in matters of transfer has been imposed by clause 11 of the registered deed of partition and the same should not be interpreted to be a complete prohibition against transfer and accordingly the said clause is not hit by the rule of perpetuity. Mr. Banerjee contended that the ruling referred to by learned Advocate for the appellant reported in AIR 1929, Calcutta 263 is distinguishable on the ground that complete prohibition of sale was held to be against the rule of perpetuity. On the contrary Mr. Banerjee referred the following decisions in support of his contention reported in AIR 1943 Calcutta 417(Full Bench Decision), AIR 1961 Calcutta 152 and AIR 1967 SC 744. Mr. Banerjee has further contended that proposition of law enunciated by the full bench of the High Court at Calcutta (AIR 1943 Calcutta 417) has been subsequently confirmed by our High Court as well as by the Hon'ble Supreme Court in the decisions referred to herein above.
The crux of the dispute hinges on the right of contractual pre-emption as contended in clause 11 of the deed of partition executed by and between the heirs and heiresses of Ashalata Devi vide Exhibit 1. Admittedly, the 'A' schedule property, described fully in the schedule of the plaint was acquired by Ashalata Devi in the year 1920 on the strength of a registered deed of purchase. The said property was devolved upon the heirs and heiresses numbering 17 after the demise of Ashalata Devi. On the strength of Exhibit 1 i.e. registered deed of partition executed by and between the heirs and heiresses of Ashalata Devi, the plaintiff /respondent No:1 and defendant No:1/respondent No:2 had acquired title over 'B' schedule and 'C' schedule property respectively and fully described in the schedule of the plaint. Clause 11 of Exhibit 1 provides that in case of sale of any property by any of the stake holders, it is necessary to intimate to his adjacent land owners by written notice showing his intention to sale of such property as per the prevalent market value of such property. If the adjoining land owner does not show his interest for purchasing the said property, in that event only, such stake holder of the property can transfer his share of property to any other person. This right of contractual pre-emption is governed by Article 97 of the Indian Limitation Act. As per Article 97 of Indian Limitation Act the time limit for filing such suit is one year. The 'C' schedule property has been transferred on the strength of 2 registered sale deeds vide Exhibit A and Exhibit B. Both the deeds were executed and registered in the month of March, 2001 and the suit was filed on 29th January, 2002. That clearly reveals that the suit was filed well within the period of limitation as contemplated under Article 97 of the Indian Limitation Act.
Respondent No:2/defendant No:1 being full brother of respondent No:1/plaintiff, is alone competent to say whether any registered notice was given to the plaintiff/respondent No:1 prior to sell of such properties to the appellant/defendant No:2. Unfortunately respondent No:2/defendant No:1 did not contest the suit and as such defendant No:1/respondent No:2 never agitated about service of such notice upon plaintiff/respondent No:1. That also goes to show that the claim of the plaintiff/respondent No:1 regarding non-service of registered notice upon him has virtually been accepted by respondent No:2/defendant No:1.
The appellant/defendant No:2 also could not produce any clinching evidence to establish that verbal notice was given to the plaintiff/respondent No:1 by the respondent No: 2 about his intention to sale such property to the appellant/defendant No:2. Exhibit C reveals that a notice was published in the "Telegraph" Newspaper on 24th February, 2001 in the name of Sanat Kumar Chatterjee, Advocate, Howrah wherein learned Advocate has notified that his client Pradip Kumar Paria intended to purchase the property of Shri S. N. Banerjee of L.M.C. Sarani, Baxurah, Howrah shortly and if any person had had any objection towards purchase of such property, he should contact learned Advocate within 26th Day of February, 2001 otherwise the matter would be decided lawfully. The nature of notice does not conform to the mandate given in clause 11 of the deed of partition i.e. Exhibit 1. Such legal notice on behalf of the appellant can never be interpreted to be substantial compliance of clause 11 of the registered deed of partition i.e. Exhibit 1. Moreover, the plaintiff/respondent No:1 has categorically stated in his evidence that he was in the habit of reading only Bengali Newspapers and he had no knowledge about any such legal notice said to have been given by Mr. Sanat Kumar Chatterjee, Advocate, Howrah with regard to the property of respondent No:2. The said legal notice Exhibit C also does not bear any schedule of the property showing inter-alia that the respondent No:2/defendant No:1 was going to sell the property which he had acquired on the strength of Exhibit 1. In that view of this case, Exhibit C may safely be ignored. Learned Trial Court was justified in ignoring Exhibit C for the reasons stated herein above.
Clause 11 of the registered deed of partition provides for contractual pre- emption by the adjoining land owner and such right of contractual pre-emption has been provided in a limited manner. The adjoining land owner is only entitled to get a registered notice prior to sale of such property at market value by another adjoining land owner. If the intending purchaser i.e. adjoining land owner fails to reply to such registered notice, in that event, the adjoining land owner is at liberty to sell such property to any other person and that too at the market value prevailing at the relevant point of time. Absolute prohibition against alienation of the property is void in terms of decision cited by learned Advocate for the appellant reported in AIR 1929 Calcutta 263(Kala Chand Mukherjee and Anr. Vs. Jatindra Mohan Banerjee and Ors.) However qualified restrainment in respect of alienation of property is not hit by the rule of perpetuity. It has been observed by a full bench of our Hon'ble High Court in a decision reported in AIR (30) 1943 Cal 417(Moulvi Ali Hossain Mian and others vs. Rajkumar Haldar and others) that covenant pre-emption in respect of land unrestricted in point of time and expressed to be binding on the parties their heirs and successors did not create interest in land and did not offend the rule against perpetuities. The said Full Bench decision of our High Court has also been accepted in a subsequent decision reported in AIR 1961 Cal 152(Ram Baran Prosad and Anr. vs. Ram Mohit Hazra and Anr.) Hon'ble Supreme Court has accepted such proposition of law in the decision reported in AIR 1967 SC 744(Ram Baran Prosad Vs. Ram Mohit Hazra and Anr.). Therefore, the proposition of law as enunciated by our High Court as well as by Apex Court goes against the contention of learned Advocate for the appellant to the effect that the suit is hit by rule of perpetuity. We are unable to accept such contention of learned Senior Advocate appearing on behalf of the appellant in view of the settled position of law as stated hereinabove.
Therefore, in case of any transfer of land or property acquired by parties on the strength Exhibit 1, the parties are duty bound to intimate the adjoining land owner by a registered written notice about their intention of sale at the market value prevalent at the relevant point of time. On the strength of Clause 11 of Exhibit 1 the respective parties are therefore justified in applying before the Court of law for vesting their right, title and interest in the property so sold out by any of the parties in contravention of Clause 11 of Exhibit 1. Section 16(c) of Specific Relief Act relates to the readiness and willingness to perform the essential terms of the contract by a person, who is a party to an agreement. If he fails to show his readiness and willingness to perform the essential terms of the contract, in that event the agreement cannot be given effect to by the Court of Law. Learned Senior Advocate appearing on behalf of the appellant, vehemently argued on this point and submitted that the plaint did not bear any such readiness or willingness on the part of the plaintiff/respondent No:1 to perform his part of contract and therefore the entire claim of the plaintiff/respondent No:1 ought to have been rejected by the Trial Court.
Since no written notice was served by the defendant No:1 upon the plaintiff intimating his intention to sell the suit property in terms of the Provision contained in Clause 11 of Ext.1 before transferring the suit property in favour of the defendant No:2, the defendant No:2 purchased the said property subject to the plaintiff's inchoate right of pre-emption which flowed from Clause 11 of Ext.1. Thus the defendant No:2 cannot avoid vesting of his title in the suit property with the plaintiff, as the defendants failed to prove service of such notice upon the plaintiff by the defendant No:1, before effecting such transfer in favour of the defendant No:2.
Let us now consider the substance of the submission of Mr. Mukherjee as to the application of the Provision contained in Section 16(c) of the Specific Relief Act in the facts of the present case. Section 16(c) of the Specific Relief Act deals with the cases where decree for specific performance of contract cannot be granted. Section 16(c) of the said Act provides that relief for specific performance of contract cannot be granted unless the plaintiff avers in the pleading that he was all throughout and still is ready and willing to perform his part of the contract but also proves in course of trial of the suit that he was all throughout ready and still ready to perform the part of his contract. To appreciate the application of the said provision in the present case we must first of all understand the basic difference between a suit for specific performance of contract and a suit for pre-emption. Unlike in the suit for specific performance of contract, the rights between two contracting parties are not considered in a suit for pre-emption. In a suit for pre-emption the rights of the pre-emptor vis-à-vis rights of pre-emptee are considered. Of course, the cause of action for filing the application for pre-emption arises only when sale is effected by the transferor to a stranger in contravention of the pre-emptive clause contained in the agreement as it is done in the present case by non service of notice as per Clause 11 of Ext.1. In a suit for pre-emption normally transferor from whom the pre-emptee has purchased the property is not even required to be impleaded as in view of the provision contained in Order 21 Rule 14 of the Civil Procedure Code ultimately the interest of the pre-emptee which is acquired from his transferor vests with the pre-emptor in case the application for pre-emption is allowed.
In that view of this case we have no hesitation to say that the suit is neither hit by Section 20, 21, 22 of the Specific Relief Act nor hit by Section 31 of the Specific Relief Act.
In our considered view the case of the plaintiff/respondent No:1 is governed by contractual pre-emption and accordingly no prayer is required for cancellation of the deeds of the appellant. The right, title and interest of the appellant/defendant No:2, in case pre-emption is allowed, will simply vest upon the plaintiff/respondent No: 1 as per the provision of Order 20 Rule 4 of the Civil Procedure Code and while doing so the cancellation of the deeds of the appellant/defendant No:2 is not at all necessary.
In our considered view the suit has been properly framed. Learned Advocate for both the parties specifically contended that learned Trial Court has made some mistake while decreeing the suit in favour of plaintiff/respondent No:1. Learned Senior Advocate Mr. Mukherjee appearing on behalf of the appellant/defendant No:2 contended that the decree passed by learned Trial Judge ought to be set aside for the said reason. Learned Advocate Mr. Banerjee appearing on behalf of the contesting respondent No:1 on the other hand contended that by invoking the power as contemplated under Order 41 Rule 33 of the Civil Procedure Code, the Court should modify the said decree for adjusting the prayer of the plaintiff/respondent No:1.
Order 41 Rule 33 gives ample jurisdiction to the Appellate Court to pass any decree and make any order which ought to have been passed or made and to pass or make such adjustment in decree or order as the case may require. It is immaterial whether any cross appeal has been preferred or not by the party aggrieved, seeking modification of such decree of the Trial Court in a pending appeal. The said power has been conferred upon the Appellate Court to adjust the rights of the parties according to justice, equity and good conscience. Hon'ble Supreme Court has even allowed the party to argue on all points even in case of rejection of cross objection being time barred and permitted to invoke Order 41 Rule 33(Mohonto Dhangir Vs. Madan Mohon AIR 1988 SC 54). The object of Order 41 Rule 33 of Civil Procedure Code is to avoid contradictory and in-consistent decisions on the same question in the same suit. Therefore, we do find it reasonable and justifiable to accept the contention of learned Advocate Mr. Banerjee in respect of invocation of the power under Order 41 Rule 33 of the Civil Procedure Code to adjust or modify the decree passed by learned Trial Court. Learned Senior Advocate Mr. Mukherjee contended that the appellant might be prejudiced by the invocation of power by this Court under Order 41 Rule 33 of the Civil Procedure Code. The Hon'ble Supreme Court in a decision reported in AIR 1952 SC 47 (Kedar Lal Seal & Anr. Vs. Hari Lal Seal) has categorically held that the Court would be slow to throw out a claim on a mere technicality of pleading when the substance of the thing is there and no prejudice is caused to the other side, however clumsily or inartistically the plaint may be worded. In any event, it is always open to a Court to give a plaintiff such general or other relief as it deems just to the same extent as if it had been asked for, provided that occasions no prejudice to the other side beyond what can be compensated for in costs.
In the case under reference the appellant/defendant No:2 has purchased C schedule property from defendant No:1 i.e. respondent No:2 by 2 registered sale deeds at a total consideration of Rupees 5.50 lakh. Appellant took possession of the property immediate after purchase and since then the appellant has been enjoying the suit property. Therefore, the property was sold at the prevalent market rate by the respondent No:2 to the appellant. The appellant/defendant No:2 is therefore entitled to get back his amount of consideration which he had paid for purchasing the 'C' schedule property. No prejudice will be caused to the appellant if we direct the respondent No:1/plaintiff to deposit such amount along with stamp duty and registration cost to the appellant. We find from the report of Pleader Commissioner that the suit property has not been developed (except one room) since purchase. Therefore, the appellant is entitled to be compensated for developing such room. Thus, we assess that further sum of Rs.50,000/- should be paid by the respondent No.1 to the appellant towards development of the property.
Therefore, the plaintiff/respondent No:1 will have to deposit Rs.6,55,000/- in total (Rs.5,50,000/-(amount of consideration) + Rs.55,000/- stamp duty and registration costs + Rs.50,000(towards development of the property) in favour of the appellant/defendant No:2 in the Trial Court within one month from date and thereby the right, title, interest of the 'C' schedule property shall vest upon the plaintiff/respondent No:1 and within one month thereafter the defendant No:1/appellant shall deliver Khas possession of 'C' schedule property to the plaintiff/respondent No.1 and thereafter the appellant/defendant No:2 shall be permitted to withdraw the said amount from the trial court, so deposited by the plaintiff/respondent No:1. In case the defendant/appellant fails to deliver vacant and khas possession of the suit premises to the plaintiff/respondent within the time fixed above the plaintiff/respondent will be at liberty to recover Khas possession of the suit premises by evicting the defendant/appellant therefrom, by executing the decree in accordance with law. If the plaintiff/respondent No:1 fails to deposit the amount as directed above, the appeal will be allowed resulting in dismissal of the suit. The order regarding the direction upon the District Magistrate for assessing valuation of the suit property, passed by Trial Court, is thus set aside. The impugned decree passed by Trial Judge is modified to the above extent. The appeal is thus disposed of. In view of disposal of the appeal, the CAN number 3144 of 2012 and 3143 of 2012 are deemed to be disposed of.
The appeal is thus disposed of.
Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible.
I agree
(Jyotirmay Bhattacharya , J.) (Debi Prosad Dey, J.)