Calcutta High Court (Appellete Side)
Arun Kumar Mohata vs Kaiser Parwez & Ors on 26 September, 2016
Author: Indrajit Chatterjee
Bench: Indrajit Chatterjee
IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
Present : The Hon'ble Justice Indrajit Chatterjee
C.O. 2676 of 2016
Arun Kumar Mohata
Vs.
Kaiser Parwez & Ors.
For the petitioner : Mr. P. K. Jhunjhunwala
Mrs. Alpana Chaudhuri
For the respondent No. 1 : Mr. Aniruddha Chatterjee
Mr. J. K. Sanwarwala Ms. F. Anjum Heard on : 15-09-2016 & 19-09-2016 Judgment on : 26-09-2016 Indrajit Chatterjee, J.:- This is an application under Article 227 of the Constitution of India wherein this petitioner/landlord has assailed the order no. 350 dated 18th June, 2016 passed by the learned Judge, 5th Bench, Small Causes Court at Calcutta passed in Misc. Case no. 300 of 2015 arising our of Ejectment Execution Case No. 666 of 2000 which arose out of Ejectment Suit No.501 of 1961.
The matter was heard on 05.09.2016 and the judgment is being delivered today. It may be mentioned that in the meantime an ordered has been passed waiving service of notice on the respondent Nos.2 to 6.
The fact relevant for the purpose of adjudication of this revisional application can be stated in brief thus:-
that the original owners of the suit property being Ratan Mohata (the father of the petitioner) and Brij Ratan Mohata were the joint owners in respect of the suit property located at 24, Mangoe Lane, Kolkata-700001 that Mangoe Lane is now known as Surendra Mohan Ghosh Sarani. The joint owners of the property let out the suit property to one Purna Chandra Chatterjee that is the father of the Opposite Party Nos.2 to 6 and said Purna Chandra Chatterjee wrongfully demolished various structures and made unauthorised construction in the suit property and therefore those joint owners filed a suit for ejectment against him being Ejectment Suit No.501 of 1961 before the City Civil Court at Calcutta. On 29th of July, 1964 that Court decreed the ejectment suit.
Due to some family disturbance the execution proceeding could not be drawn up before 1974 and the joint owners/decree holders initiated execution proceeding before that court being Ejectment Execution Case No.308 of 1974 which was later on transferred to the Small Causes Court at Calcutta and was numbered as Ejectment Execution Case No.666 of 2006 which is now pending before the 5th Judge, of that court. Meanwhile in the year 1991 the judgment-debtor, Purna Chandra Chatterjee, of that Ejectment Suit died and the present Opposite Party Nos.2 to 6 were substituted. Ratan Mohata that is the father of the petitioner died on 5th of February, 2000. After the death of the Ratan Mohata disputes arose between his legal heirs and the other decree holder Brij Ratan Mohata. The matter was referred to one Arbitrator. With the intervention of the family friends such disputes were settled and a memorandum of family settlement was made on 16th July, 2001 between the legal heirs of Ratan Mohata and as per that family settlement the suit property was extensively allotted to the present petitioner and his mother Sushila Devi Mohata (since deceased). The mother of the petitioner died on 16th July, 2007 and as per her last Will and Testament dated 10th November, 2003 this petitioner became the exclusive owner of the suit property by virtue of one probate issued as per that last Will left by that Sushila Devi Mohata. As per order dated 29th November, 2007 the executing court substituted the present petitioner as the decree holder in place of the original decree holders. The writ of execution was issued by the executing court but when the Bailiff went to the suit property he found one Indradeb Chatterjee was doing business from the shop room and the Bailiff was resisted for which possession could not be delivered. On 23rd November, 2015 this Opposite Party No.1 filed one petition under Order XXI Rule 97, 98, 99, 100 & 101 read with Section 151 of the Code of Civil Procedure in that execution proceeding and that petition was registered as Misc. Case No.300 of 2015 wherein this Opposite Party No.1 claimed that Sutanu Chatterjee was a tenant of the suit property under the original owners Ratan Mohata and Brij Ratan Mohata and that Sutanu Chatterjee was running a business of eating house under the name and style of "Food Front" in the suit property and during the continuance of the tenancy sometime in the year 2006 this Opposite Party No.1 entered into an understanding with that Sutanu Chatterjee (Opposite Party No.3) to continue the business jointly and at the request of the Opposite Party No.3 the decree holders started issuing rent bills in the joint names of Opposite Party Nos.1 and 3 since July 2012.
It is further case of the Opposite Party No.1 that in the middle of the year 2014 that Opposite Party No.3 asked the Opposite Party No.1 to surrender his tenancy but this Opposite Party refused to do so and Opposite Party No.3 might have surrendered the tenancy right in the suit property but such surrender cannot curtail or jeopardise the joint tenancy right of the first opposite party.
The order assailed was passed on 18.06.2016 wherein the learned trial court held that the petitioner (Opposite Party No.1) was claiming independent right, title and interest over the suit property and further observed and held whether a new tenancy was created or not would be considered at the time of trial.
The record shows that one rent receipt for Rs.180/- was issued in the name of the Opposite Party No.3 on 03.11.2006 showing payment of rent in respect of two shop rooms located at 24, Mangoe Lane, Calcutta for the months of September and October 2006 and the record also shows that some rent receipts were issued in the names of the Opposite Party Nos.1 and 3 on 03.01.2013 for the months of July to December 2012. The record further shows that another rent receipt dated 03.07.2013 was filed showing payment of rent for the months of January to June 2013, that another rent receipt dated 09.01.2014 shows payment of rent for the months of July to December 2013. There is one rent receipt dated 03.11.2014 showing receipt of rent from Opposite Party Nos.1 and 3 for the months of June to October 2014. Thereafter, the rent was deposited with the Rent Controller at least till January 2015.
It was the contention of Mr. Jhunjhunwala by taking me to Section 107 of the Transfer of Property Act to convince this court that the lease of immovable property from year to year, or for any term exceeding one year or reserving yearly rent, can be made only by a registered instrument and in case of all other leases of immovable property may be made either by a registered instrument or by oral agreement accompanied by delivery of possession. (emphasis supplied by me) Learned Advocate further contended that as this petitioner/landlord was not in possession of the suit property, there was no question of delivery of possession of the suit property in favour of the opposite party nos. 1 and
3. He contended that after the decree of eviction was passed on compromise, Sutanu Chatterjee was no longer a tenant in respect of the suit property. Thus, it was contended that this Misc. Case has been filed just to drag the proceeding.
On behalf of the opposite party no. 1, it was submitted by Mr. Sanwarwala, led by Mr. Chatterjee, learned Advocates, that a fresh tenancy was created in favour of the opposite party no. 3. He took me to the rent receipt dated 03/11/2006 which is Annexure-A of this revisional application and also he took me to the receipts granted by the Calcutta Municipal Corporation regarding the acceptance of fees for the period of 1990-1991 and 1997-1998 dated 18/11/2002. He also took me to the rent receipts, i.e. Annexure -D at pages 35 to 39, the rent receipts issued in the joint names for the months of January to June, 2013 paid on 03-07-2013, July to December, 2013 paid on 09-01-2014, January to May, 2014 received on 03/06/2014, June to October, 2014 received on 03/11/2014. By all these documents, Mr. Chatterjee learned Advocate appearing on behalf of the opposite party no. 1 tried to convince this court that a fresh tenancy was created in favour of the opposite party no. 3 and again a joint tenancy was created in favour of the opposite party nos. 1 and 3.
Mr. Chatterjee contended that the Misc. Case in question has been filed under Order 21 Rules 99 to 101 of the Code of Civil Procedure and there is no bar in filing such an application.
Learned Advocate also took me to the Order 21 Rules 99, 100, 101 and 103 of the Code of Civil Procedure to establish his claim that he has been armed with some rent receipts granted in his favour as joint tenant of the suit property and as such, his claim is to be adjudicated by the court and his claim cannot be set aside without adjudicating the matter on merit. In reply, learned Advocate appearing on behalf of the petitioner submitted by taking me to Order 21 Rule 102 of the Code of Civil Procedure that nothing in Rules 98 and 100 of the Code will apply as resistance and obstruction in execution of a decree for the possession of immovable property by a person to whom the judgement debtor has transferred the property after institution of the suit in which the decree was passed to dispossess any such person.
He took me to the application giving rise to Misc. Case No. 300 of 2015 to show that actually this opposite party no. 1 is claiming through the opposite party no. 3 and that he came into the possession of the suit property only in the year 2006 when the Ejectment Execution Case No. 666 of 2000 was already in force and, as such, Rule 102 of the Code of Civil Procedure is a bar to the claim of the opposite party no. 3. He further submitted that the maintainability of an application can very well be challenged before the court. He took me to illustration given to Order 7 Rule 11 of the Code of Civil Procedure. He also contended that the rent receipts in such a case cannot serve the purpose of the opposite party no.1 as in the instant case, the possession allegedly came through the opposite party no. 3 who was then already facing the execution proceeding. He further contended that the delivery of possession which is one essential ingredient of Section 107 of the T.P. Act being absent in this case as admittedly this petitioner was not in possession of the property and no lease can be created in view of that Section unless the delivery of possession is followed.
The question now is whether the claim of the petitioner of Misc. Case No.300 of 2015 as filed by the opposite party No.1 can be quashed by exercising the discretionary power of this court granted under Article 227 of the Constitution of India.
I have mentioned earlier in what circumstance this opposite party No.1 filed that Misc. Case under Order 21 Rule 97 to 100 of the Code of Civil Procedure. The question now is whether this application is maintainable under Order 21 Rule 97 of the Code or whether such an application can be adjudicated by the said trial court.
This court can rely upon the decision of the Apex Court as reported in AIR 1998 SC 1827:(1998) 4SCC 543 (Shreenath Vs. Rajesh) wherein the Apex Court made it clear that a third party in possession of a property claiming independent right as a tenant not a party to a decree can resist such decree for possession and seek adjudication of his objection under Order 21 Rule 97 and he need not wait until his dispossession.
The Apex Court in another decision reported in AIR 1995 SC 358 (Bhanwar Lal Vs. Satyanarain) held that a third party need not wait until his dispossession to file objection against execution.
In other decision as reported in AIR 1998 SC 1754 (Silverline Forum Vs. Rajiv Trust) the Apex Court ruled that adjudication under Order 21 Rule 97(2) need not necessarily involve a detailed enquiry or collection of evidence and the court can make the adjudication on admitted facts or even on the averments made by the resistor. This court is not unmindful of the fact that the decision the Apex Court further held that the court can of course direct the parties to adduce evidence.
This court in its decision as reported in AIR 1992 Cal 219:Cal LT (1992) 1 HC 432 (Dilip Vs. Lilabati) held that despite authority to decide all questions of right, title and interest of the objector under Rule 101 the enquiry under Order 21 Rule 97 shall be summary. Procedure of a de novo suit need not be followed.
The Apex Court in its decision as reported in (2000) 10 SCC 405 (Anwarbi Vs. Pramod) held that the decree holder is to take appropriate steps for removal of obstruction and to have the rights of the parties including the obstructionist adjudicated under Order 21 Rule 100.
While discussing the fact and noting the argument this court duly noted that it is practically admitted that this Opposite party No.1 is in occupation of the suit property. It is in dispute as to whether such tenancy was created through the opposite party No.3. This court is not unmindful of the fact that the electric meter is in the name of the opposite party No.1 and he has been paying the electricity bill in respect of the suit premises located at 24, Mangoe Lane, Kolkata - 700 001.
The trade licence shows that this opposite party No.3 is holder of a trade licence to do business from the suit property. I may repeat that at present Mangoe lane is known as Surendra Mohan Ghosh Lane. The running page No.47 of this revisional application shows that this opposite party No.3 applied for new Certificate of Enlistment (trade licence) and the trade licence was issued on 07.03.2007 on payment of Rs.220 on 10.02.2007 and as per running page No.48 along with the said application Rs.4730 was deposited with the Kolkata Municipal Corporation as regards the fees for Certificate of Enlistment and also as regards arrear bill.
The trial court is to decide as to whether a fresh tenancy was created in favour of that opposite party No.1. The argument made by the learned Lawyer appearing on behalf of the petitioner by taking me to Section 107 of the Transfer of Property Act that to induct a tenant the landlord must be in possession of the property let out and that in the present case before the floor of this court this petitioner or their predecessor in interest were never in possession of the suit property at least since 1961. This matter is also to be considered by the learned trial court.
The claim of the petitioner that the rent receipts were issued at first in the name of the opposite party No.3 and thereafter in the joint names of the opposite party Nos.1 and 3 are created documents is also to be dealt with by the learned trial court.
Thus, I find no merit in this revisional application filed by decree holder to quash the proceeding being Misc. case No.300 of 2015. This court is also at one with the learned trial court that the opposite party No.1 (petitioner before that court) claimed his independent right, title and interest over the suit property and whether new tenancy has been created or not which will be considered by the learned trial court. Banking upon the decision of this court in Dilip (supra) and also the decision of the Apex Court in Silverline (supra) this court directs the learned trial court to decide that Misc. case in a summary way and it is further ordered that such Misc. case must be disposed of within a period of three months from the dated of communication of the order.
Thus, in view of the discussion so long made, I find no merit in this application to quash the proceeding, pending before the learned trial court, being Misc. Case No.300 of 2015.
The application under Article 227 of the Constitution of India is hereby answered in the negative. The application is dismissed on contest.
The office is directed to communicate to the learned court below at once.
Urgent photostat certified copy of this order be given to the parties, if applied for.
(Indrajit Chatterjee, J.)