Calcutta High Court
Fosie Chung Cheneova vs Mama Bendra Chander Roy And Ors. on 24 November, 1997
Equivalent citations: AIR1998CAL84, AIR 1998 CALCUTTA 84, (1998) 2 CAL WN 86
JUDGMENT
1. This is an application for staying the operation and implementation of the order dated 26th August, 1997 passed by the learned 4th Assistant District Judge at Alipore in Title Suit No. 81 of 1997 (Kamalesh Chandra Roy & Others, Plaintiffs v. Fosie Chang Chen & Others, Defendants). The brief facts leading to the filing of the appeal and the present application for stay accompanying the said appeal are that the respondents filed a suit before the Court below contending, inter alia, that, apart from 10 cottahs of land originally leased out to the respondents vide a written lease deed executed in 1986, the other piece measuring 20 cottahs of land, both forming pat of a single larger piece of land measuring in total 30 cottaks, was also leased out to the respondents by the plaintiffs through an oral agreement. The respondents' case before the court below was that even though the 10 cottahs of land, being a part of the whole 30 cottahs of land was earlier leased out to the respondents by the plaintiffs in 1986 through a written lease deed, the other piece measuring 20 cottahs was later on leased out by the force of an oral agreement between the parties entered into sometime in 1996. It was the case of the respondents that on 16-6-96, the appellants orally finalised the terms and conditions of leasing out of the disputed 20 cottahs of land and orally concluded a contract which was entered into by these parties on the same date i.e. 16-6-96. It was also the respondents' case before the court below that a sum of Rs. 2,00,001/- was paid by the respondents to the appellants and that the parties had mutually agreed that within one year from 16-6-96, a documented agreement would be concluded between them. Actually the specific case of the respondents was that the appellants had agreed to execute a written lease deed within the aforesaid period of one year on payment of Rs. 4000/- per month as the rental for the lease of 99 years. Various other averments made in the plaint in support of the plaintiff/ Respondents contention that the subject matter of property was actually agreed to be leased out by the appellants and that in pursuance of the said agreement, its terms and conditions, and the extended and assurance, the respondents came to occupy and possess the property in question, errected boundary walls around the same and posted night guards etc.
2. The appellants have controverted all the aforesaid allegations of the respondents and submitted before the court below that the appellants had only leased out in 1986, 10 cottahs of land and that the disputed property being 20 cottahsdid not ever form the subject mater of any lease or any agreement between the parties. It was the specific case of the appellants before the court below that no amount of money was ever received by them in any form from the respondents as any consideration of any type for the leasing of the property in question.
3. At the time of filing of the suit before the court below, an application for temporary injunction also came to be filed by the Respondents/Plaintiffs. The respondents also prayed to the court below for appointment of a local commissioner so as to ascertain the factual aspect relating to the actual physical possession of the respondents over the property in question. It is the undisputed case of the parties that the Court below by an ex parte order appointed an advocate as local commissioner. It is also the undisputed case of the parties that the local commissioner, pursuant to the aforesaid ex parte order went on to inspect the property in question, without serving any notice upon the appellants and in their absence, having inspected the property, gave a report to the court below. It was on the basis of this report that the court below passed an interim order or injunction restraining the appellants from interfering in the possession of the respondents on prima facie holding that the respondents were in possession of the property.
4. Aggrieved, the appellants approached this court. This court on 19th August, 1997, after observing that since the matter regarding the challenge to the legality of the commissioner's report and the question relating to the grant or otherwise of the temporary injunction was fixed before the court below the next day, expressed the opinion that there was no need at that stage to set aside the order impugned and that the best course of action would be to allow the court below to examine all the relevant questions, including the legality of the commissioner's report, and the question as to whether the injunction order should be confirmed or not. Undoubtedly, in that order passed on 19-6-97, this court did not express any opinion about the merits of the controversy.
5. Ultimately, the court below passed two orders -- one on 20th August, 1997 declining to set aside the report submitted by the Commissioner and the other on 26th August, 1997 confirming the earlier in interim injunction and holding that the respondents/plaintiffs were entitled to injunction on the ground that they were in possession of the property in question.
6. We have perused the order of the court below. According to us broadly and generally speaking two points arose for consideration before the court below, first was whether the respondents/-plaintiffs had any prima facie case and the second whether the balance of convenience was in their favour or not. The question relating to "prima facie" is wholly dependant upon the right of the respondents to claim whether any obligation was cast upon the property to them and whether any agreement, admittedly oral, had actually been entered into between the parties. In so far as this is concerned, the court below clearly found that on perusal of the materials on record, no agreement, as was alleged by the respondents, was entered into between them and the appellants. The court below clearly found that it was not possible to hold that any agreement containing as many as nine clauses governing the relationship between the parties could be entered into orally. The court was clearly of the opinion that such an agreement ought to have been reduced into writing and that since no such written agreement was executed by the parties, the court was of the opinion that the averments made by the respondents/plaintiffs were not correct. The court below therefore clearly held against the respondent on the question of execution of any oral agreement and thus any right that they might claim consequentially. Having thus found that no agreement was entered into between the parties and that the stand of the respondents about such oral agreement was false and incorrect, the court below went on to consider the question about the possession of the respondents over the disputed property. This consideration was based upon the report of the Commissioner, Undoubtedly and admittedly the consideration about the possession of the respondents over the disputed property was not based on any other materials excepting the report of the commissioner. Relying upon the report of the commissioner, the court prima facie came to the conclusion that the respondents were in possession of the disputed property and since they had succeeded in establishing their possession, the balance of convenience was in their favour and thus they were entitled to the grant of temporary injunction.
7. We are of the opinion that the court below fell into an error by relying upon the report of the commissioner and, based on this sole material, found the respondents to be in possession. Our view is that the court should not have relied upon the report of the Commissioner. The view is based on a reading of Order 39 Rule 7 read with Rule 8 of the Code of Civil Procedure. Here is a case where the court below appointed a commissioner to ascertain the factum of possession of aproperty admittedly belonging to the defendants without so much as issuing any notice to the defendants in the suit about appointment of the Commissioner. It was the admitted case of the plaintiffs that the defendants were the owners of the property. Yet the court did not think it proper to issue any notice to the defendants about the appointment of commissioner. Here is a case where a plaintiff was claiming possession over the disputed property on the basis of some right which according to them flowed from the oral agreement to lease. In spite of having found that no such agreement ever came into being, the court below omitted to consider whether it could at all appoint a commissioner to determine the question of possession in this case. Can the court consider the question of possession in a case like this in this manner, there, on the own finding of the court below the plaintiffs had no right to occupy or possesses. This is one angle of the controversy. The other, more serious one is the manner of appointment of the commissioner. The law clearly enjoined upon the court below and cast a duty upon it to. issue notice to a defendant before it would decide the question relating to the appointment of the commissioner. The only exception was to be found in Order 39 Rule 8 CPC. Even the plaintiffs/respondents did not plead in their application or make out any case by or with the help of any material as to why an exception to Order 39 Rule 8 be made in this case. Unfortunately the court below itself did not record any reason to say or suggest as to why the issuance of notice was dispensed within this case. Thus a fate accompli was created whereby a report of a commissioner came to be brought before the court which created some sort of evidence about the possession of the plaintiffs over the disputed property. The owners of the property had no occasion or opportunity or even knowledge about any such happening. They were not associated in any manner with the execution of the commission. All this was done behind their back. Even the Commissioner did not choose or deem it fit or proper to issue any notice to the defendants about his intention to execute the commission or to impact property in question. And in this entire background, the Commissioner's report was made the sole basis, the only basis for holding that the plaintiffs were in possession of the property in question. In our view, therefore such report of the Commissioner should not have been relied upon and made the basis of the finding by the court below that the respondents were in possession of the property in dispute.
8. We are, therefore, inclined to stay the operation of the order under appeal. We therefore direct that till the disposal of the appeal, the operation and implementation of the order impugned dated 26th August, 1997 shall stay.
9. The application for stay is thus disposed of. Order accordingly.