Calcutta High Court
Kabari Pvt. Ltd vs Shrimati Ila Basu & Ors on 9 October, 2013
Author: Soumen Sen
Bench: Soumen Sen
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Jurisdiction
ORIGINAL SIDE
Present :
The Hon'ble Justice Soumen Sen
EOS 18 of 1991
KABARI PVT. LTD.
VS.
SHRIMATI ILA BASU & ORS.
For the plaintiff : Mr. R.N. Jhunjhunwala,
Mr. Debdutta Sen,
Mr. Sounak Mitra,
For the defendants : Mr. Sayantan Bose,
Heard on : 25.07.2013, 30.07.2013, 12.08.2013,
13.08.2013, 14.08.2013, 03.10.2013
Judgment on : 9th October, 2013
Soumen Sen, J.:- This suit has been instituted by the plaintiff,
Kabari Private Ltd, (hereinafter referred to as Kabari) against the
defendants (Smt. Ila Basu & Others) for, inter alia, recovery of possession
of premises No.8A, Burdwan Road, Alipore, Calcutta on expiry of the 30
years' period of lease dated 10th August 1951 (effective from 1st August,
1951) by efflux of time on 31st July, 1981, and for mesne profits and
damages, interest, costs and for other ancillary reliefs. Initially, the suit
was instituted in the Court of First Subordinate Judge at Alipore on 22nd
December 1981 (being Title Suit No.167 of 1981) and by consent of the
parties (at the instance and on the application of the Original Defendant
No.9, Shri Shiv Nath Sharoff, (hereinafter referred to as "OD- 9")
transferred to this Hon'ble Court under Cl. 13 of the Letters Patent to be
tried in its Extra Ordinary Civil Jurisdiction by an order dated 22.9.1982
passed in appeal by the Division Bench of Sabyasachi Mukherjee and
Suhas Chandra Sen, JJ.
The facts as would appear from the averments made in the plaint are stated hereinafter.
At all material times one Smt. Narayani Bajaj was the owner of the Premises No.8A, Burdwan Road, Alipore, Calcutta (hereinafter referred to as "suit Premises").
By a registered indenture of lease dated 10th August, 1951 the said Smt. Narayani Bajaj demised the suit premises to Smt. Ila Basu the defendant No.1 on lease for a period of 30 years commencing from 1st August 1951.
By a registered indenture of assignment dated 26th June, 1954 Smt. Ila Basu, the defendant No.1 assigned the said lease of the suit premises to one Amal Kumar Mukherjee and the defendant Nos. 2, 3, 4 and 5 for the remainder period.
After the said assignment, Amal Kumar Mukherjee died and his heirs being defendants Nos. 6 and 7 along with the defendants Nos. 2, 3, 4 and 5 continued to be assignees of the said lease.
In or about 9th February 1962 Smt. Narayani Bajaj (who was a Hindu governed by Mitakhara School of Hindu Law died intestate leaving her surviving one son and 5 daughters. Smt. Narayani Bajaj also had been pre-deceased by one son and one daughter. Ultimately and after taking into account the devolution of interest, Sm. Bhagwan Debi Lodha and 11 others became co-owners of the suit premises.
Since sometime in 1971 the OD-9 Shiv Nath Shroff became a tenant under the said Amal Kumar Mukherjee, since deceased and the defendants Nos. 2 to 5 in respect of the suit premises. Subsequently upon the death of said Amal Kumar Mukherjee, the said OD-9 became as tenant under them took possession of the suit premises..
By a registered indenture dated 21st April 1981 the defendant Nos. 2 to 7 further assigned the said lease of suit premises in favour of the defendant No.8, Viswanath Kapur for the remainder period and as such the OD-9 became and continued to be a tenant under the said assignee being the defendant no.8.
By four several diverse deeds of conveyance all dated 6th July 1981, the erstwhile owners of the suit property sold, transferred and conveyed all their right title and interest in the suit premises to the plaintiff herein Kabari for valuable consideration. Each of the said four conveyances have been duly registered in accordance with law. Thus Kabari became the absolute owner of the suit premises subject, of course, to the said lease dated 10th August, 1951.
The said lease dated 10th August, 1951 expired by efflux of time on 31st July, 1981.
Notwithstanding expiry of the said lease the defendants are and have been in occupation of the suit premises and hence this suit for recovery of possession, mesne profits and damages was filed by the owner Kabari on or about 22nd December 1981.
Although writ of summons have been duly served upon all the defendants save and except the defendant Nos.8 and 9, none had entered appearance. In the suit, the defendant No.9 had entered appearance in the suit on 26th June, 1992 and filed written statement on 4th December, 1996, upon payment of costs assessed at 100 gms. The defendant No.8 did not file any written statement and is not contesting the suit.
The facts narrated in the written statement are summarized hereinafter:-
On 15th December, 1952, the lease in favour of the defendant No.1 was determined by a notice issued by the lessor by forfeiture and, accordingly, the lease ceased to exist. In the absence of the lease Mukherjees became the monthly tenants under the owners with right to sublet and the original defendant No.9 became sub-tenant under Mukherjees. The original defendant No.9, accordingly, as such became monthly tenant and can not be evicted on the basis of expiry of the said lease which was forfeited on December 15, 1952.
By an agreement dated September 21, 1978, the original defendant No.9 had agreed to purchase the suit property from Bajaj family, the erstwhile owners. At the relevant time, the original defendant No.9 was in possession of the suit premises as tenant and continued to be in possession of the suit property in part performance of the said agreement for sale and as such his possession is protected under Section 53A of the Transfer of Property Act, 1882. The said defendant already in possession of the suit premises continued in possession of the said premises in part- performance of the said contract dated 21st September, 1978 and also acted in furtherance of the said contract:-
On 8th December, 1990 the defendant paid arrears of the rates and taxes pertaining to the subject premises to the Calcutta Municipal Corporation amounting to Rs.25,000/-.
On 1st June, 1993 the defendant paid arrears of the rates and taxes pertaining to the subject premises to the Calcutta Municipal Corporation amounting to Rs.12,500/-.
On 8th July, 1993 the defendant paid arrears of the rates and taxes pertaining to the subject premises to the Calcutta Municipal Corporation amounting to Rs.12,500/-.
On 26th August, 1992 the defendant paid arrears of the rates and taxes pertaining to the subject premises to the Calcutta Municipal Corporation amounting to Rs.25,000/-.
On 20th October, 1993 the defendant paid arrears of the rates and taxes pertaining to the subject premises to the Calcutta Municipal Corporation amounting to Rs.22,471.74p.
On 3rd November, 1993 the defendant paid arrears of rates and taxes pertaining to the subject premises to the Calcutta Municipal Corporation amount to Rs.30,510.08p.
In part performance of the said contract of sale the defendant reduced the liabilities of the owners in respect of the suit premises.
The Vendors have also acted on the basis of the agreement and also re-directed the Municipal Tax bill of the suit premises to this defendant.
The defendant repaired and maintained the suit property and had incurred substantial expenses on that account. On June 23, 1980, the vendors applied to the Urban Land Ceiling Authority for permission to sell the suit premises to the original defendant No.9 and execution of conveyance was delayed on the plea that the application for permission before the Urban Land Ceiling Authority was pending. While the said contract was subsisting, the plaintiff claimed to have purchased the said premises on July 6, 1981 from the said vendors. The plaintiff had due notice of the said contract. The defendant could ascertain that the vendors after entering into the agreement for sale with the plaintiff made another application to the Urban Land Ceiling Authority for permission to sell the said premises to the plaintiff and pursued only the other application made on May 12, 1980 and after surreptitiously obtaining permission to sell the premises in favour of the plaintiff, four several deed of conveyances were executed in favour of the plaintiff on July 6, 1981. The defendant until recently was not aware that no such permission from the Urban Land Ceiling authority was necessary inasmuch as the suit premises is comprised of building with land and there is no excess vacant land in view of the subsequent pronouncement of law by the Hon'ble Supreme Court and other Courts of law. The first application for permission dated 23rd June, 1980 seeking permission to sell the premises in favour of the original defendant No.9 was not pursued.
The letter dated 1st July, 1981 of M/s. Khaitan and Co. simply communicated the order of refusal without disclosing the real reason. The defendant was a tenant under Mukherjees and the last rent receipt issued by the said Mukherjees in favour of the defendant was dated 1st May, 1981. The original defendant had performed and/or at all material times was willing to perform his part of the contract dated 21st September, 1978. The original defendant had all along been ready and willing to pay agreed price and obtain the deed of conveyance of the suit property in his favour. The monthly tenancy of the original defendant has not yet been determined.
In short, the defence in the written statement appears to be the determination by forfeiture of lease in 1952 and protection under Section 53A of the Transfer of Property Act, 1882.
On the basis of the pleadings and the documents disclosed in this proceeding, the following issues were settled for trial:-
1. Was the lease dated 10th August, 1951 referred to in paragraph 2 of the plaint determined as alleged in paragraph 2 of the written statement?
2. Did the persons mentioned in paragraphs 4 of the plaint become co-owners of premises No.8A, Burdwan Road, Calcutta as alleged in paragraph 4 of the plaint?
3. Did the original defendant No.9 become a tenant under the defendant Nos. 2 to 7 as alleged in paragraph 5 of the plaint?
4. (a) Did the defendant Nos.2 to 7 assign the un-expired term of the lease dated 10 August, 1951 to the defendant No.8?
(b) Did the original defendant No.9 become a tenant under the defendant No.8 as alleged in paragraph 6 of the plaint?
5. (a) Did the original defendant No.9 enter into a contract in writing to purchase the premises as alleged in paragraphs 6(a) and (d) of the written statement?
(b) Did the original defendant No.9 continue in possession of the premises in part performance of the contract dated 21st September, 1978 and act in furtherance of the same as alleged in paragraphs 6(f) and (g) of the written statement?
(c) Had the original defendant No.9 and after him, have his substituted defendants always been and are ready and willing to perform their part of the said contract as alleged in paragraph 6 (q) of the written statement?
6. Did the plaintiff purchase the said premises with notice of the said contract dated 21st September, 1978 while the same was in force as alleged in paragraphs 6(i) and (j) of the written statement?
7. (a) Did the plaintiff become the absolute owner of the premises as alleged in paragraphs 7 to 11 of the plaint?
(b) Were the deeds of conveyance mentioned in paragraphs 7 to 10 of the plaint not validly executed as alleged in paragraph 6(i) of the written statement?
8. Is the plaintiff debarred from enforcing against the original defendant No.9 or the substituted defendants any right in respect of the premises under Section 53A of the Transfer of Property Act, 1882 as alleged in Paragraph 6 (r) of the written statement?
9. Did the lease dated 10th August, 1951 stand absolutely determined on 31st July 1981 as alleged in paragraph 12 of the plaint?
10. Whether the original defendant No.9 (Shivnath Saraf) and after his death the present defendant Nos. 10 and 11 claiming title under him could have had or have any right to continue to remain in occupation of the suit premises after expiry of the lease dated 10.8.1951?
11. Is the plaintiff entitled to recover possession of the suit property from the defendant Nos. 10 and 11?
12. Is the plaintiff entitled to any mesne profits or damages or compensation as alleged in paragraph 15 of the plaint?
13. To what relief is the plaintiff entitled?
Prior to the filing of the suit filed by the plaintiff, the original defendant No.9 had filed a suit for specific performance of the agreement for sale dated September 21, 1978. until filing of the written statement on December 4, 1996 certain things have happened which are of some relevance.
On 15th July, 1981, Shivnath Saraf, Smt. Triveni Devi Saraf, Indira Devi Saraf and Premlata Saraf instituted a suit for specific performance of the agreement dated September 4, 1978. In the said proceeding, the plaintiffs claimed that the plaintiff No.1 had entered into an agreement with the defendant Nos.1 to 8, 11 and 12 including Gangadhar Bajaj to purchase the suit premises having an area of 13 cottahas of land more or less free from all encumbrances but subject to the lease created by a deed of lease dated August 10, 1951 made by Smt. Narayani Devi Bajaj and Ila Basu for a total consideration of Rs.2 lacs.
In pursuance of such arrangement, the plaintiff No.1 duly forwarded an agreement for sale on or about 4th September, 1978 along with a cheque for Rs.5,001/- drawn by M/s. T. Banerjee & Co. Advocates for Shivnath Saraf in favour of M/s. Khaitan & Co. being the advocates representing the defendant Nos.1 to 8, 11 and 12 as also for Gangadhar Bajaj. Subsequently, the said agreement for sale duly executed by the defendant Nos. 1 to 8, 11 and 12 as also by Gangadhar was returned to the Advocate on record of the original defendant No.9. The defendants and the said Gangadhar Bajaj also appropriated the said sum of Rs.5,100/- towards earnest money on account of the sale transaction of the said premises. On January 16, 1979 at the request of Gangadhar Bajaj plaintiff No.1 paid a further sum of Rs.15,000/- to the defendant Nos.1 to 8, 11, 12 and Gangadhar since deceased by a cheque and such payments were duly received and appropriated by the erstwhile owners as and by way of part-payment. In or about 9/11th June, 1979, the original defendant was informed of the death of Gagadhar Bajaj. In or about July, 1979, Shivnath Saraf nominated Smt. Triveni Devi Saraf, Smt. Indira Devi Saraf and Smt. Premlata Saraf to complete aforesaid transaction with regard to the sale of the said suit premises. Subsequently, it was agreed by and between the parties that the said property would be sold to the nominees of Shivnath Saraf by three several conveyance deeds. Notwithstanding payment of the aforesaid sum of Rs.20,001/- and notwithstanding the demand made by Shivnath Saraf and his nominees to the owners of the said properties to specifically perform. The agreement entered into by and between the parties, the said owners have failed and neglected to complete the transaction and have wrongfully repudiated the said agreement by a letter dated July 1, 1981 and July 3, 1981. The said owners pretendly refunded the said sum of Rs.20,001/- paid by Shivnath Saraf as earnest money but the said cheque was duly returned by M/s. T Banerjee and Co. the advocate representing Saraf by a letter dated 10th July, 1981. Saraf and the other plaintiffs in the said suit at no point of time had abandoned any of their rights under the agreement.
In such facts and circumstances of the case Saraf and other three nominees of him filed a suit for specific performance being suit No.531 of 1981.
In the said suit Saraf and the other plaintiffs in the alternative had claimed for damage and/or compensation in lieu of specific performance for breach of the said agreement and such damages and compensation was assessed at Rs.10 lacs. Sarafs also claimed refund of Rs.20,001/- in addition to such damages with interest.
Mr. Arindam Sinha, learned Counsel appearing on behalf of the substituted defendants have raised four principal issues to resist the claim of the plaintiff.
Firstly, it is contended that as far as the defendants could ascertain Smt. Ila Basu, the defendant No.1 died on 23rd January, 1994. The witness of the plaintiff in answer to question No.21 put to him by the Hon'ble Court confirmed that the plaintiff was aware that the said defendant had died. The defendant No.2 to 10 are the assignees of the defendant No.1 and not the legal representatives of the said defendant. The plaintiff in spite of knowledge of such death did not take any steps to substitute the legal heirs and representatives of the said defendant No.1. The plaintiff also did not pray for exemption from the necessity of substituting the legal representatives of any such defendant who had failed, inter alia, to file written statement in the premises. The suit against the defendant No.1 has abated and consequently, the cause of the plaintiff against the defendant No.2 to 10 did not survive with the abatement of the suit against the deceased defendant No.1.
Secondly, the lease dated August 10, 1951 was determined on March 5, 1953 by forfeiture. In view thereof, the suit for eviction of the defendants or any of them including the present defendants for eviction on expiry of lease period is misconceived and not maintainable.
Thirdly, in any event, the plaintiff is not the owner of the suit property and, therefore, not entitled to seek eviction of this defendant.
Fourthly, if the plaintiff is held to be the owner of the property and is entitled to eviction then the defendant is protected under Section 53A of the Transfer of Property Act, 1882 and, accordingly, the possession of the said defendants could not be disturbed.
The determination of lease by forfeiture was principally argued by Mr. Surojit Nath Mitra, the learned Counsel representing the defendant No.9 in this proceeding.
Mr. Mitra has submitted that the property originally belonged to Ms. Narayani Devi Bajaj. On August 10, 1981, she had entered into a long term lease of 30 years with Smt. Ila Basu commencing from August 1, 1951. The said lease agreement contains a forfeiture clause which states:-
"If the said rent hereby reserved or any part thereof shall be unpaid for the period of three months--after the same shall have become due whether lawfully demanded or not or if default shall be made in performance or the observance of any of the covenants conditions and agreements on the part of the Lessee or any person or persons duly authorized by her in that behalf into and upon the said demised premises or any part thereof in the name of the whole to re- enter and being the same repossessed notwithstanding anything herein contained."
In view of non-payment of lease rent on March 5, 1953, Ms. Bajaj filed a suit before the First Court of the Sub-Judge at Alipore being T.S. No.21 of 1953 against Ila Basu for recovery of arrears rent and damages.
During the pendency of the aforesaid suit on 26th June, 1953, Smt. Ila Basu assigned her right, title and interest under the lease in favour of Amal Kr. Mukherjee, Amiya Kr. Mukherjee, Ajit Kr. Mukherjee, Ashoke Kr. Mukherjee, Ambuj Mukherjee and Amit Mukherjee, all sons of Swardendu Mukherjee. The said suit against Ila basu was decreed on contest on September 13, 1955.
Mr. Mitra refers to the extracts of the order sheets forming part of Exhibit 3 in this proceeding that on 18th May, 1961, the decree passed by the trial Court was modified by the Appeal Court. The relevant extracts of the said order sheets are stated hereinbelow: -
On 9th February, 1962, Ms. Narayani Devi Bajaj died intestate. In 1971, Shivnath Saraf, the original defendant No.9 was inducted in the suit property as monthly tenant by Amal Mukherjee at a rent of Rs.1201 per month.
The plaintiff claims that they have entered into an agreement of sale on 15th April, 1978 with the owners of the property.
The seed of the dispute was sown with the execution of the said agreement.
The issuance of the rent receipts by the estate of Amal Mukherjee in favour of the original defendant No.9 up to May, 1981, does not establish that the lease continued notwithstanding such determination. At the time of induction of the original defendant No.9 as a tenant in 1979, Mukherjees did not inform to original defendant No.9 about any determination of such lease nor the owners of the properties prior to 15th April, 1978 when the agreement for sale was prepared did inform the original defendant No.9 about the determination of such lease. The defendant No.9 came to learn about the existence of such lease only when the agreement for sale was entered into on April 15,1978 with the owners of the property. The original defendant No.9, however, continued to pay rent to the estate of Amal Mukherjee till May, 1981, since the said defendant No.9 is otherwise obliged to pay such rent to the estate of Mukherjees as the said original defendant No.9 was inducted as a monthly tenant by Mukherjees and remained as such tenant.
In view of the aforesaid facts, it is contended that the suit filed against the defendant No.9 for recovery of possession on expiry of the lease and treating the said original defendant No.9 as a trespasser is thoroughly misconceived and not maintainable in law.
On the first issue with regard to the abatement of the suit against the defendant No.1, in my view, in view of Order 22 Rule 4 the said argument is not sustainable. It is not in dispute that the defendant No.1 was served with the writ of summons and till she died on 23rd January, 1994, the said defendant No.1 did not enter appearance and contest the suit. This court feels that there is no necessity for substituting the legal representatives of the said defendant. In my view, the said issue was raised more in desperation. In fact, no such issue was raise at the time of framing of the issues.
On the third issue, Mr. Sinha has argued that the Court in deciding the said issue which is principally covered by issue Nos.6, 7 and 11, the Court is required to take into consideration the following facts as has come out from the evidence on record:-
(i) The plaintiff claims to be the nominee to an alleged agreement dated 15th April, 1978 between their vendors through Gangadhar Bajaj, since deceased, alleged to be their duly constituted attorney on that date and one Mr. O.P. Kejriwal who became associated with the plaintiff as its director on 20th May,1980.
(ii) The plaintiff witness tendered Exhibit 12 being an affidavit affirmed by O.P. Kejriwal alleging that there was a prior agreement for sale dated 15th April, 1978 entered into by the deponent and Gangadhar Bajaj on behalf of the vendors of the plaintiff (cross-examination Q.245 to 251 including Q.247, 248 and 250 to Court).
(i) The plaintiff witness admitted, inter alia, in question no.360 in cross-examination that Mr. Kejriwal knew better (about the transaction between the plaintiff and its vendors).
(ii) The plaintiff witness also admitted that he never knew Mr. R. N. Chatterjee, Advocate who is named as the witness in Exhibits G, H, I and J being the 4 purported deeds of conveyance all dated 6th July, 1981, in answer to question nos.393 to 395 in cross examination. The plaintiff witness further went on to say that the plaintiff will not be able to produce the alleged agreement of 15th April, 1978, in answer to question no.159 and 164 in cross-examination.
(iii) In the light of such evidence of its witness the plaintiff also chose not to produce Mr. O.P. Kejriwal for examination in the suit.
(iv) The suit property belonged to Smt. Narayani Devi Bajaj, since deceased, who had purchased it as far back as on 10th April, 1945. Exhibit 11 is the conveyance by which she purchased the suit property being represented therein by M/s. Khaitan & Co., Advocates who also paid Rs.1,10,999/-
on her behalf.
(v) This very reputed solicitor's firm upto 1st July, 1981 (Exhibit
19) was admittedly looking after the interest of the vendors of the plaintiff. The material on record would show that M/s. Khaitan & Co., Advocates purportedly resumed looking after the interest of the said vendors in successfully appealing against the order passed in review by this Hon'ble Court restoring the suit for specific performance of the original defendant no.9, to obtain confirmation by the Hon'ble Supreme Court of its earlier dismissal of the suit.
(vi) M/s. Khaitan & Co., Advocates is also representing the plaintiff in this suit.
(vii) In spite of specific averments made by the original defendant no.9 in his written statement, inter alia, in paragraph 6(i) therein and there being issue nos.7(a) and (b) framed in the suit, the plaintiff chose not to adduce any evidence regarding its negotiation, alleged execution of agreement dated 15th April, 1978 and steps taken thereafter culminating in the purported conveyances being executed in its favour. The plaintiff's witness further admitted the following:-
(a) He did not know how the plaintiff came in contact with Mr. O.P. Kejriwal (x.exam. Q.154-155).
(b) The witness' knowledge about Mr. O.P. Kejriwal's dealings with the vendors was from the recitals of the purported conveyances being exhibits G, H, I and J.
He does not know about earlier contract Mr. Kejriwal had (with the vendors) (x.exam.Q156).
(c) The witness was unable to say whether any requisition on title was given either by the plaintiff or by Mr. O.P. Kejriwal to the vendors mentioned in the purported conveyances being Exhibit G, H, I and J (x.exam. Q 170, 175).
(viii) The said Gangadhar Bajaj, since deceased, became the duly constituted attorney of the owners of the suit property by a Power of Attorney dated 13th September, 1978 (Exhibit 17) some time after 15th April, 1978. This Power of Attorney was prepared by M/s. Khaitan & Co., Advocates who had forwarded the same to the original defendant no.9, pursuant to which, the said Gangadhar Bajaj, since deceased, on behalf of the vendors executed the agreement dated 21st September, 1978 in favour of the original defendant no.9.
(ix) There is no evidence brought forth by the plaintiff to show how the said Gangadhar Bajaj, since deceased, could have executed an agreement on behalf of the vendors on 15th April, 1978. This defendant in answer to question nos.282 and 283 in examination-in-chief stated that some 2 or 3 persons of the vendors were residing in Kolkata and others residing in places like Sitamarhi, Purulia and Ranchi. They could not read or write English that is why M/s. Khaitan & Co. Advocates sent the power of attorney (dated 13th September, 1978/Exhibit-17) favouring Gangadhar Bajaj wherein there was an endorsement which stated that the matters were explained to them in Hindi. The plaintiff did not challenge such testimony in cross-examination.
(x) It is not expected that a reasonable and prudent person can believe that Mr. O.P. Kejriwal was introduced to the vendors or any of them. Such simple people as the vendors appear to be from their conduct as appearing from the evidence on record, cannot be believed to have had a parallel negotiation in respect of their property, having entrusted the matter to the reputed solicitors firm M/s. Khaitan & Co. Advocates. This defendant is entitled to an adverse inference against the plaintiff to the effect aforesaid. The alleged agreement of 15th April, 1978 does not exist, which goes to root of the validity of the purported exhibits G, H, I and J.
(xi) The vendors had agreed with the original defendant no.9 that they would sell their property to him for consideration of Rs.2.00 lacs (Agreement dated 21st September, 1978/Exhbit-
14). At that time the statutory requirements in the matter of sale of immoveable property situated in Kolkata were that -
(a) Person receiving consideration of Rs.50,000/- or more had to obtain income-tax clearance.
(b) The property to be sold required clearance from the urban land ceiling authority.
(xii) It will appear from the purported conveyances (Exhibits G, H, I and J) in their respective Memos of Consideration that alleged earnest money in support of the alleged agreement dated 15th April, 1978 was paid on the day when the documents were executed. Contrary allegations by the plaintiff's witness are to be disbelieved as such witness was not present at that time as evident from his admission of having never met nor known the witness to those purported deeds. In any event it would appear from such purported conveyances that the alleged agreement dated 15th April, 1978 is void for lack of consideration.
(xiii) The four purported conveyances were executed by Puroshattam Lal Chanani alleged to be the duly constituted attorney of the vendors of the plaintiff. The plaintiff could not produce the original Power of Attorney pursuant to which it says the conveyances were allegedly duly executed. At that time participation of the purchaser was not required as is now.
(xiv) After days of cross-examination of the plaintiff's witness in which he was repeatedly asked to produce the alleged Power of Attorney of the alleged constituted attorney of the vendors of the plaintiff, a photocopy of what he alleged to be of the original Power of Attorney (Exhibit-2) was produced by him. The photocopy of the power of attorney cannot be treated to be a true copy of the original. In any case Exhibit-2 only allowed the attorney appointed thereby to look after and manage the affairs of the suit property. It did not empower the said attorney to receive consideration for sale of the same on behalf of grantors (x.exam. Q.556, 557).
(xv) The Memos of Consideration in the purported conveyances being Exhibits G, H, I and J would show that the aggregate consideration thereunder (alleged earnest money paid on the day of execution in cash) and the balance paid by several drafts drawn in favour of the alleged constituted attorney the said Mr. Puroshattam Lal Chanani was Rs.1,75,000/- (Rupees one lac and seventy five thousand) only. (xvi) 4 conveyances in respect of suit the property were got executed in favour of the plaintiff which taken together would show the following -
(a) The aggregate consideration was less than Rs.2.00 lacs. No prudent person would be expected to resile from an agreement which would get him higher price, but instead sell the same at a lower price.
(b) Each purported conveyance was valued below Rs.50,000/- obviating the necessity of obtaining income-tax clearance by the vendors named therein and that is why even though all the 4 purported conveyances were executed by the same person, allegedly pursuant to exercise of power as attorney under the alleged Power of Attorney dated 9th July, 1979 (Exhibit-2), 4 conveyance deeds were required. The alleged Power of Attorney did not empower the attorney to act in respect of the suit property on behalf of a few of the grantors at a time whether simultaneously or otherwise.
(xvii) It will appear from collective Exhibit-6 being copies of balance sheet and directors report of the plaintiff for the years 1980-81 and 1981-82 that the plaintiff did not have the funds to make payment of the aggregate sum of Rs.1,75,000/- as appearing to have been paid to the alleged Constituted Attorney of the vendors of the plaintiff. In this regard questions 128 to 140 put in re-cross-examination by counsel on behalf of the substituted defendant no.9 to the plaintiff's witness may be referred to.
It is submitted that the aforesaid facts would establish that the purported conveyance being Exhibit G, H, I and J were not validly executed in favour of the plaintiff. The vendors were simple person and they did not understand the mechanism adopted by the plaintiff in order to get the said property at a much reduced price. The vendors themselves were under the impression that their property had been sold to the original defendant No.9. The original defendant No.9 was fraudulently deprived from being able to purchase the property agreed to be sold to him and has entitled to a protection under Section 53A of the Transfer of Property Act.
It is submitted that the following facts would establish that the possession of the original defendant No.9 is protected under Section 53A of the Transfer of Property Act, 1882:-
(i) Section 53A of the Transfer of Property Act, 1882 as applicable to this defendant's case would require the following:-
(a) That this defendant is claiming under a person who had from the vendors of the plaintiff, a contract to transfer for consideration the suit property by writing signed by them or on their behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty. Exhibit-14 being the agreement for sale dated 21st September, 1978 satisfies this condition.
(b) The transferee (the original defendant no.9) being already in possession of the suit property, continued in possession in part performance of the contract and had done something more in furtherance of the contract.
(c) The transferee (the original defendant no.9) was willing to perform his part of the contract.
(d) On fulfillment of the above two conditions by the transferee the transferors or the plaintiff claiming under the transferors shall be debarred from enforcing against the transferee and persons claiming under him (inter alia, this defendant) any right in respect of the property of which the transferee had taken or continued in possession.
(e) However, such defence would not be available against a transferee for consideration who had no notice of the contract or of the part performance thereof.
(ii) As aforesaid, the requirement or the condition as in (i) (a) above stands satisfied by the agreement dated 21st September, 1978 (Exhibit 14).
(iii) The requirement or the condition as in (i)(b) above also stands satisfied or fulfilled by the original defendant no.9.
(a) The original defendant no.9 was inducted into the suit property admittedly in 1971. The evidence will show the said defendant was inducted into the suit property by Amal Kumar Mukherjee (chief Q.53-54, 94) (X.exam. Q.317, 320, 322, 739, 753, 755, 758, 764, 767 and 773). This defendant further deposed in answer to question 324 in cross-examination that after shifting to the suit property his father wanted to buy a house. His father's friend Babulal Saraogi connected his father to the owners of the suit property, particularly Gangadhar Bajaj who then was the only surviving son of Narayani Devi Bajaj.
(b) Upon execution of his agreement dated 21st September, 1978 (Exhibit 14), the original defendant no.9 being already in possession of the suit property continued in possession in part performance thereof. This was admitted by the vendors of the plaintiff in answering requisition no.10 in the requisitions on title (Exhibit 16).
M/s. Khaitan & Co. Advocates on behalf of the vendors of the plaintiff had also answered requisition no.27(e) stating that there was no other agreement in respect of the suit property. In this connection reference can be made to answers to question nos.67 to 75 given by this defendant in examination-in-chief and there was no cross-examination regarding such evidence of this witness.
(c) Since the landlord of the original defendant no.9 and the owners of the suit property with whom the said defendant had had his agreement were different persons and the owners had continued to accept rent in respect of the suit property, to protect his possession, the original defendant no.9 had also continued to pay rent to the estate of Amal Kumar Mukherjee. This defendant had stated so in answer to question nos.172 to 176 in chief and question nos.582 to 538 in cross-examination.
(d) After May, 1981 rent was not demanded by the estate of Amal Kumar Mukherjee from the original defendant no.9 as deposed by this defendant in answer to question no.659 in cross examination. The original defendant no.9 thereafter undertook the perilous course of action in occupying the suit property without paying rent to or in favour of the plaintiff as that would have amounted to an act on his part contrary to his possession under the said agreement dated 21st September, 1978 (Exhibit
14). Several questions on why he continued in the suit property without making any payment therefor, were put to this defendant in cross-
examination by the plaintiff as well as the Hon'ble Court (question nos. 410,411,413 & 417 x.exam) (question nos.387,655,658,660,665 & 666 Hon'ble Court). The said conduct of the original defendant no.9 was of an intending purchaser of the property he was occupying.
(e) Having continued in possession of the suit
property in part performance, the original
defendant no.9 did several acts in furtherance of the contract.
(f) This defendant's unchallenged testimony in answers to question nos.279 and 280 in chief was that his father wanted to act upon the agreement (Exhibit 14) in letter and spirit. He had instructed his advocate to draw up requisition on title and draft conveyances (Exhibits 16 and 22-24). He had carried out repairs of the building which was in bad condition. He paid corporation taxes (Exhibits 8-
10 and 37). He had paid further earnest money under the said agreement and made payment by loan of Rs.20,001/- and Rs.30,000/-
respectively, the latter having been repaid. He got drawn up a sketch plan of the suit property to enable the vendors to apply for urban land ceiling clearance for them to sell the same to him (Exhibit 31). He also remained in visible uninterrupted occupation of the suit property upon keeping his name in the main gate so that people could see he was in occupation. This defendant also deposed that the plaintiff had notice of the agreement when they purported to purchase the said property (Exhibit 14). In the premises, the requirements or conditions of continuing in part performance and having done some act in furtherance of the contract were also satisfied or fulfilled by the original defendant no.9.
(iv) The requirement or condition that the original defendant no.9 had performed and was willing to perform his part of the contract was also satisfied or fulfilled as would appear from what has been stated immediately above as well as the following:-
(a) M/s. Khaitan & Co. Advocates on behalf of the owners sought and subsequently obtained a further sum of Rs.15,000/- as earnest money from the original defendant no.9. Such would appear as endorsed in the agreement itself (Exhibit 14) and letter dated 12th January, 1979 of M/s. Khaitan & Co.
Advocates, (Exhibit 46).
(b) On coming to learn of the death of Gangadhar
Bajaj, the original defendant no.9 obtained
information from M/s. Khaitan & Co.Advocates
that the legal heirs of Gangadhar Bajaj were willing to complete the transaction (Exhibit 7).
(c) The original defendant no.9 obtained approval of three draft conveyances drawn in favour of his nominees being his wife and two daughters-in-law (Exhibits 22, 23 and 24).
(d) On behalf of the owners a loan was sought of the sum of Rs.30,000/- from the original defendant no.9 for the purpose of redeeming mortgage created in respect of the suit property.
(e) On 26th December, 1979 M/s. T. Banerjee & Co.
Advocates sent a cheque for Rs.30,000/- to M/s.
Khaitan & Co. Advocates, in terms of their later letter dated 27th November, 1979. The sum was subsequently repaid (Exhibit 19). This defendant is entitled to and contends that the grant of such loan was conduct on the part of the original defendant no.9 establishing his readiness and willingness to purchase the suit property as agreed. There was no term in the agreement (Exhibit 14) that earnest money in addition to Rs.20,001/- provided for therein was required to be paid. That is why M/s.
Khaitan & Co. Advocates, obtained the said further sum of Rs.30,000/- as a loan from the original defendant no.9.
(f) On several requests by M/s. Khaitan & Co.
Advocates, inter alia, for a plan of the suit property as required to be filed with the urban land ceiling authority, lastly made on 20th March, 1980 (Exhibit
30), the original defendant no.9 got drawn up 15 copies of the plan of the suit property. Unknown to the said original defendant no.9, on 12th May, 1980 an application was made in the name of the owners of the suit property to the urban land ceiling authority for permission to sell the suit property to the plaintiff. That application was countersigned by the said Mr. O. P. Kejriwal alleging to be a director of the plaintiff (Exhibits 12 and 13). The said application was deliberately suppressed by the plaintiff (question nos.161 and 162 in cross examination of PW). By a notice to produce dated 19th March, 2012 issued on behalf of this defendant the plaintiff was required to produce such application for the purpose of demonstrating before this Hon'ble Court that the said application did not contain copies of the plan of the premises against which permission was sought to sell. This defendant is entitled to an adverse inference to that effect.
(g) 8 days after the said application was made, on 20th May, 1980 the said Mr. O.P. Kejriwal and one other were inducted into the Board of Directors of the plaintiff as would appear from the records of the Registrar of Companies, obtained by Form no.20B which is a public document under section 74(2) of the Evidence Act, 1872 upon which this Hon'ble Court can rely.
(h) On 14th June, 1980, 15 copies of the plan of the suit property were forwarded to M/s. Khaitan & Co. Advocates, by and on behalf of the original defendant no.9 (Exhibit 31).
(i) On 27th September, 1980 the nominees of the original defendant no.9 wrote to the urban land ceiling authority to grant permission to the vendors to sell the suit property to them (Exhibit 33).
(j) On 23rd April, 1981 on behalf of the original defendant no.9 income-tax clearance of the vendors was sought.
(k) Though on 2nd November, 1980 section 27(2) of the Urban Land (Ceiling and Regulation) Act, 1976 regarding obtaining permission in the matter of sale of urban property was struck down (Exhibit 13), but M/s. Khaitan & Co.
Advocates, on behalf of the vendors as late as on 1st July, 1981 informed the original defendant no.9 that the application for permission to sell the suit property pursuant to the agreement for sale dated 21st September, 1978 (Exhibit 14) had been rejected so there was no question of applying for income-tax clearance certificate (Exhibit 19). The original defendant no.9 did not accept tender purporting to refund the earnest money of Rs.20,001/- paid and not being aware that 4 purported conveyances had been got executed on 6th July, 1981, filed Suit no.531 of 1981 in this Hon'ble Court seeking specific performance of the said agreement (Exhibit 14).
(l) The original defendant no.9 in readiness to pay the balance consideration under his agreement (Exhibit 14) had kept in a fixed deposit the aggregate sum of Rs.4,50,000/-
(Rupees four lacs fifty thousand) only with his banker ABN Ambro Bank. By letter dated 29th June, 1994 (Exhibit 36) the original defendant no.9 had instructed his banker to renew the said fixed deposits upto 30th June, 1995. In the meantime, having been unsuccessful in getting extension of time to carry out the amendment effecting addition of the plaintiff as a party in his suit, as a consequence whereby his suit was dismissed, the original defendant no.9 took all steps possible to reverse the dismissal order of his suit. Unfortunately for the original defendant no.9, the dismissal of his suit was confirmed by the Hon'ble Supreme Court of India on 1st December, 1995 (Exhibit R).
Mr. Sinha on such facts submits that the dismissal of the special leave petition has caused a great distress to the original defendant No.9 and nominees of the original defendant No.9 who had agreed to purchase the said property from the vendors. The affidavit filed by the Solicitor acting on behalf of the original defendant No.9 in the earlier proceeding would clearly establish that the said original defendant No.9 was not responsible for not carrying out the order of amendment. The Counsel has remonstrated that the Hon'ble Supreme Court in dismissing the suit pre-judged the issues therein that would have arisen against the defendants therein which would have included the question of the validity and legality of the purported conveyances being Exhibit G, H, I and J.
Mr. Sinha, thus, submits that the evidence on record would establish that the original defendant No.9 had performed his obligation in part and was all along ready and willing to perform the rests of his part of the contract under the agreement dated September 21, 1978. Mr. Sinha also made an endeavour to demonstrate that the plaintiff is being a transferee as notice of contract by agreement dated 21st September, 1978 (Exhibit 14) and part-performance thereof Mr. Sinha submitted that in deciding the said issue, the corporate veil of the plaintiff must be pierced and he would refer to Question Nos.406 to 408 in cross- examination of the plaintiffs' witness to show that Jhunjhunwalas were behind the purchase and the Jhunjhunwalas are in control of the plaintiff. It was submitted that O.P. Kejriwal as director of the plaintiff could not take any decision on the plaintiff without concurrence of the Jhunjhunwalas directors and the learned Counsel has referred to the question nos.188-191, 221-224, 291-92 (in chief) and question nos.442- 453 and 456-458 (in cross-examination).
The defendant had personal knowledge of the dealings and transactions between his father and the vendors and, in fact, the defendant in the course of such dealings had visited the office of Jhunjhunwalas who happens to be the owners, one of the directors of the plaintiff and a partner of M/s. Khaitan and Co.
The involvement of Ram Niranjan Jhunjhunwala in dealing with the matters on behalf of the owners both with the original defendant No.9 and the present plaintiff would in the submission of Mr. Sinha fulfill the requirement on conditions that would entitle a person to the defence under Section 53A of the Transfer of Property Act, 1882 as overwhelming, preponderance of probabilities is in favour of the plaintiff that the plaintiff had due notice to the contract being agreement dated 31st September, 1978 (Exhibit 14) and part-performance thereof at the time before several purported deeds of conveyance were executed in favour of the plaintiffs.
On the aspect of protection under Section 53A of the Transfer of Property Act, 1882, Mr. Sinha has relied upon the following two decisions:
(I) 2002 (3) SCC 676 (Shrimant Shamrao Suryavanshi & Anr. Vs. Pralhad Bhairoba Suryavanshi) (Paragraph 5,7,12,13,16);
(II) 2003 (4) SCC 705 (D.S. Parvathamma Vs. A. Srinivasan) (Para 6, 7 and 10) In Shrimant Shamrao (supra) the Hon'ble Supreme Court has relied upon the following paragraphs which are reproduced hereinbelow:-
"5. The first question that arises for consideration is whether the defendant-appellants are entitled to protect their possession of the suit property obtained in pursuance to part performance of agreement for sale even after the suit for specific performance of contract for sale is barred by limitation.
6. A perusal of Section 53-A shows that it does not forbid a defendant transferee from taking a plea in his defence to protect his possession over the suit property obtained in part performance of a contract even though the period of limitation for bringing a suit for specific performance has expired. It also does not expressly provide that a defendant transferee is not entitled to protect his possession over the suit property taken in part performance of the contract if the period of limitation to bring a suit for specific performance has expired. In absence of such a provision, we have to interpret the provisions of Section 53-A in a scientific manner. It means to look into the legislative history and structure of the provisions of Section 53- A of the Act.
12. In England, the provisions of the law of Property Act of the Statute of Fraud provided that no suit or action would be brought on agreement relating to a property which was not in writing signed by the parties. The aim and object of the statute was to protect a party against fraud. However, certain difficulties were experienced when it was found that under an oral agreement a party has performed his part of the contract, yet he was unable to bring any action or suit against other party viz., transferor for a specific performance of the agreement which was not in writing in view of the provisions contained in the Statute of Fraud. Under such situations, transferors managed to play fraud on innocent buyers who entered into an oral agreement and performed their part of the contract. In view of such prevailing circumstances in England, the Court of Equity intervened on the ground of equity and took action to enforce specific performance of a parole agreement. The view taken by the Court of Equity was that the object behind the Law of Property of the Statute of Fraud was to protect against a fraud, but the provisions of Law of Property of Statute of Fraud were being used as an instrument to help and protect fraud. Thus, the Court of Equity did not permit the Statute of Fraud to be used as an instrument to cover the fraud by the transferors where there was a part performance of a parole agreement.
13. When the Transfer of Property Act was enacted, Section 53-A did not find place in it. In the absence of Section 53-A, there arose difference of opinion between various courts in India as regards the application of English doctrine of part performance of contract as it was then prevailing in England. Since there was a difference of opinion on question of the application of English equitable doctrine of part performance in various courts of India, the Govt. of India resolved to set up a Special Committee for making recommendations amongst others whether the British equitable doctrine of part performance be extended in India also. The Special Committee was of the view that an illiterate or ignorant buyer who had partly performed his part of contract required statutory protection. The Committee was of the further view that where a transferee in good faith that lawful instrument i.e. a written contract would be executed by the transferor takes possession over the property, the equity demanded that the transferee should not be treated as trespasser by the transferor and subsequently evict him through process of law in the absence of lawful transfer instrument. The Special Committee also considered the question whether protection under the proposed Section 53-A to a transferee would also be available even if the period of limitation for bringing an action for specific performance of an agreement to sell has expired. On the said question, the Committee was of the view that even after expiry of period of limitation, the relationship between the transferor and transferee remains the same as it was within the period of limitation and, therefore, the possession over the property taken in part performance of an agreement is required to be protected even if the period of limitation for bringing an action for specific performance has expired.
16. But there are certain conditions which are required to be fulfilled if a transferee wants to defend or protect his possession under Section 53-A of the Act. The necessary conditions are:
1) there must be a contract to transfer for consideration any immovable property;
2) the contract must be in writing, signed by the transferor, or by someone on his behalf;
3) the writing must be in such words from which the terms necessary to construe the transfer can be ascertained;
4) the transferee must in part performance of the contract take possession of the property, or of any part thereof;
5) the transferee must have done some act in furtherance of the contract; and
6) the transferee must have performed or be willing to perform his part of the contract."
In D.S. Parvathamma (supra) the Hon'ble Supreme Court has relied upon the following paragraphs which are reproduced hereinbelow:-
"6. The essential features of the equitable doctrine of part-
performance as statutorily modified and incorporated in Section 53-A abovesaid, to the extent relevant for the purposes of this case, are: (i) that the transferee has, in part- performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part-performance of the contract and has done some act in furtherance of the contract, (ii) that the transferee has performed or is willing to perform his part of the contract, and (iii) that the plea of part-performance is not available to be raised against a transferee for consideration who has no notice of the contract or of the part-performance thereof.
7. In G.H.C. Ariff v. Jadunath Majumdar Bahadur (AIR 1931 PC 79) Their Lordships held that a prospective vendee already in possession of the property as lessee since before having allowed his right to enforce his contract to become barred can resist the claim to possession by seeking to establish a title, the acquisition of which is forbidden by the statute, he being a lessee. Though Ariff case deals with the English equitable doctrine and not with Section 53-A of the Transfer of Property Act, 1882, yet the basic principle remains the same. The transferee must have performed or be willing to perform his part of the contract. If a suit for specific performance of the contract filed by the transferee has been dismissed on merits and his disentitlement to seek enforcement of the contract has been adjudicated upon by a judicial verdict, it cannot be said that the transferee has performed or is willing to perform his part of the contract. It would be a contradiction in terms. On the suit for specific performance of contract having been dismissed, such a plea is not available to raise.
10. Thirdly, as already stated hereinabove, in view of his suit for specific performance having been dismissed, it cannot be said that he had performed or was willing to perform his part of the contract."
Mr. Sinha would submit that the said conveyances were obtained by fraudulent means in order to deny the original defendant No.9 the right to purchase and owned the property and if the Court satisfies that the plaintiff has adopted unfair means and committed fraud, such claim of the plaintiff shall be nipped in the bud.
In this regard, he has relied upon a decision reported in 1994(1) SCC 1 (S.P. Chengal Varaya Naidu (Dead) By Lrs. Vs. Jagannath (Dead) By Lrs. & Ors.). It is further submitted that the said claim of the plaintiff has not been decided on merits and, accordingly, all points raised in the suit for specific performance by way of defence can be raised in the written statement and should be taken into consideration. It is submitted that such issues are bound to overlap since deciding the present suit, the Court of necessity is required to find out the readiness and willingness of the original defendant No.9 which issue needs to be decided notwithstanding the dismissal of the special leave petition which had resulted the dismissal of the suit filed by the plaintiff for specific performance. In this regard, he has relied upon a decision rendered by me on July 17, 2013 in C.S.626 of 1990 (Green Distributors Vs. U.P. Seeds and Tarai Development Corporation Ltd.) in which I have held that a decision on merit, in my view, would mean a decision on substantive issues as opposed to technically collateral issues and the the word 'merit' should be understood to mean that the strict legal rights and purpose have been decided.
Mr. Gautam Chakravartii, the learned Senior Counsel and Mr. P.K. Das, learned Senior Counsel appearing on behalf of the plaintiff has apportioned their submission.
Mr. Chakravartii has dealt with the legal issues involved in the suit while Mr. P.K. Das has restricted his submission in analyzing the evidence.
Mr. Chakravartii submitted that the defence raised with regard to determination of lease in 1952 is totally imaginary, misconceived, unfounded and untenable. PW1 in the examination-in-chief has confirmed that the Lease dated 10 August 1951 was not terminated and that it had continued for its full term of 30 years and came to an end by efflux of time.
The defendants' witness in examination-in-chief has admitted that Amal Kumar Mukherjee was Assignee of Lease by Smt. Ila Basu in 1954. It is significant to note that the said Lease dated 10th August, 1951 was assigned by Sm. Ila Basu on 26.6.1954 to Amal Kumar Mukherjee and Ors by a Registered document, which was only possible, if the Lease was subsisting.
The agreement dated 21st September 1978 alleged to have been made between the erstwhile owners and the OD-9 is subject to the existing Lease dated 10th August, 1951 and assignment dated 26.6.1954 (DD-3) (Ext "14"). This is an admission on the part of the erstwhile owners and the OD-9 that on 21.9.1978, the Lease was subsisting.
It is of great significance that in the Specific Performance Suit Plaint (Ext-S) the OD-9 and 3 other plaintiffs have annexed 3 draft conveyances being Annexures 'F", "G" & "H" respectively thereto and they have sought decree directing the defendant nos.1 to 12 (being vendors) to execute and register the same in favour of the plaintiff nos. 2 to 4. All these 3 draft conveyances also contain identical provision that the same are subject to existing Lease dated 10th August 1951 and assignment dated 26.6.1954.
Similar admissions of the existence of the Lease dated 10th August 1951 have been made by the OD-9 in his S.L.P. Nos.8084 of 1993 and Nos.10339 of 1993 filed before the Supreme Court against dismissal of two appeals No.410 of 1992 and 619 of 1992 by the Division Bench of the Calcutta High Court.
The four original conveyances dated 6th July, 1981 (Exts.
"G","H","I"&"J") in favour of the plaintiff executed by erstwhile owners stipulate that the transfer is subject to existing Lease dated 10th August, 1951.
Thus, it is obvious that the Lease dated 10th August, 1951 continued to subsist for a full period 30 years. It is to be noted that Mohanlal Singhania who is alleged to have filed the affidavit (dated 1st August 1954) alleging determination of Lease in 1952 is one of the erstwhile owners and is a party to alleged "agreement for sale" dated 21st September, 1978 (Ext "14"). It is significant that the draft Agreement for Sale (Exbt.- 42)as prepared by the OD-9's (Sarafs) Advocates M/s. T. Banerjee & Co. was approved with alternations in red ink by Khaitan & Co. followed by those in green ink by T. Banerjee & Co. and finally in Blue ink by Khaitan & Co. The 3 draft conveyances (Exts "22", "23" & "24") in the Suit and the 3 draft conveyances being annexures "F", "G" and "H" to the Specific Performance Suit also admittedly contain identical stipulations at several places that the proposed sale are subject to existing Lease dated 10th August 1951 and assignment dated 26.6.1954. The 4 Deeds of Conveyances in this suit all dated 6th July, 1981 (Ext "G","H","I" & "J"), where he admits that the Lease continued to subsist.
The OD-9, having admitted as above and also on oath in various petitions and affidavits that he was a tenant under the assignee of lessee and that he purported to agree to purchase the suit premises subject to such Lease. OD-9 or the present defendants cannot now turn around and dispute continuance of Lease dated 10th August, 1951.The evidence of DW 1 is entirely hearsay. The answers to questions 589, 590,603 and 630 that his father came to know that the Lease (dated 10 August 1951) terminated in 1952 from the affidavit of Mohan Lal Singhania (dated 1st August 1954) sometime in November or December 1996 is totally false as will appear from (i) the affidavit in Reply (filed on 9th July 1982) of the OD-9 dated 7th June 1982 in his Specific Performance Suit No 531 of 1981 which has been produced (by the High Court's concerned Department on the requisition of the plaintiff's Advocate) and (ii) Paragraphs 4 of the two Revision Applications dated 9th August 1996 (of OD-9 filed before the Hon'ble Supreme Court (Exhbts. L & M).
The contesting defendant has raised belated contention for the first time in the written statement in December 1996 that the Lease was forfeited and has relied upon the certified copy of the Suit Register (Ext.
3) which does not show that the Lessor (Smt. Narayani Bajaj) executed the Decree and took khas possession. On the contrary Smt. Narayani Bajaj who although on the ground of default in payment of rent has claimed forfeiture did not act on the basis of the same from which the only conclusion that can be drawn is that Smt. Ila Basu obtained relief against forfeiture by making payment to the Lessor. The parties have all throughout proceeded on the basis that the Lease was subsisting and continuing and on the basis thereof the Mukherjees granted further assignment of the Lease as late as on 26 April 1981 in favour of defendant no.8 being Ext. "F". Apart from the above, there are countless admissions by all the concerned parties that the Lease was subsisting and had in fact subsisted till the full term. It is baseless to suggest that Smt. Narayani Bajaj who allegedly claimed termination, would in subsequent documents/transactions proceed on the basis that the Lease was still subsisting. Further, her heirs and legal representatives did not dispute and rather accepted the position that the Lease was subsisting.
It is argued that the plea of protection under Section 53A of the Transfer of Property Act, 1882 is misconceived, imaginary, untenable and not available to the defendant for several reasons:-
The Supreme Court in (2002) 3 SCC 676 and other judgments, has laid down, after analysing the provisions of Section 53A of the Transfer of Property Act, 1882, that the following conditions must be fulfilled before a party can invoke the provisions of Section 53A of the said Act. These conditions are as follows:-
(1) there must be a contract to transfer for consideration of any immovable property;
(2) the contract must be in writing, signed by the transferor, or by someone on his behalf;
(3) the writing must be in such words from which the terms necessary to construe the transfer can be ascertained; (4) the transferee must in part-performance of the contract take possession of the property, or of any part thereof; (5) the transferee must have done some act in furtherance of the contract, and (6) the transferee must have performed or be willing to perform his part of the contract.
The OD-9 instituted a suit being Suit No. 531 of 1981 against the erstwhile owners for specific performance of the alleged agreement dated 21st September, 1978. There is no pleading in the plaint filed in the said suit (Ext "S") that the OD-9 who was already in possession continued in possession of the suit premises in terms of the said agreement for sale dated 21st September 1978 and continued to be in possession in part performance of the said agreement. No such claim was made by the OD-9 till filing of the Written Statement in December 1996 after 15 years from the date of service of writ of summons and plaint.
On the contrary, the OD-9 in the plaint filed in the said Specific Performance Suit (Ext "S") prayed for (at pages 12 and 13), leave under Order 2 Rule 2 of the Code of Civil Procedure and also in original prayer (f) (being amended prayer (g) (at page 14) prayed for "Leave under Order 2 Rule 2 of the Code of Civil Procedure for claim for possession and other relief". It shows that the defendant did not continue in possession in part performance of the said alleged agreement. In fact the Agreement for Sale dated 21st September 1978 (Exbt. "14"), annexed to the plaint contained specific provision for giving possession as provided in Clause 6 of the said Agreement which reads as follows:-.
"Clause 6. Simultaneously with the payment of the purchase money and the execution of the Conveyance of the said property the Vendors shall deliver possession of the said property to the purchaser or his nominee or nominees as the case may be by issue and deliver of a formal letter of attornment addressed to the lessee of the said property".
The plaintiff herein Kabari Pvt. Ltd., who is now the absolute owner of the suit premises, by virtue of its purchase of the said property vide 4 Deeds of Conveyance all dated 6th July, 1981 (Exts "G","H","I" & "J") was not made a party to the said Specific Performance Suit and in this regard the Hon'ble Supreme Court in the judgment dated 1st December, 1995 (Exts "Q" [reported judgment)}, "R"& "R1" collectively [typed copy]) dismissing the Specific Performance Suit, has observed in paragraphs numbered 19 and 20-
"Paragraph 19: .................. It may be noted here that M/s. Kabari P. Ltd. instituted a suit for eviction of the plaintiffs in the Court of Learned Subordinate Judge at Alipore, because the plaintiffs were in possession of the disputed property as tenants..........."
"Paragraph 20: It is quite apparent, in the facts of the case, that the amendment which was sought for by the plaintiffs was required to be incorporated otherwise no effective relief could be given to the plaintiffs in the said Suit No.531 of 1981. For effective relief in the said suit, the transfer of the disputed property in favour of M/s. Kabari Pvt. Ltd. is required to be set aside. Otherwise, no decree for specific performance of contract for selling the said property in favour of the plaintiffs can be passed. In the aforesaid facts, the amendment of the plaint is essential for the maintainability of the suit. The contention that the suit was not required to be dismissed but the same may proceed without the amendment is misconceived and without any substance."
Thus there is no averment anywhere that the OD-9 continued to be in possession of the suit property in terms of and in part performance of the alleged Agreement for Sale dated 21st September, 1978 (Ext. "14") nor is there any evidence to show that the OD-9 continued in possession in part performance of the alleged agreement. On the contrary the agreement for sale (Ext. "14") in paragraph 6 at page 5 (quoted at sub-paragraph (b) of paragraph 2 at page 6 above) provides that possession shall be given simultaneously with the payment of the purchase money and the execution of the Conveyance of the said property when a formal letter of attornment would be issued. This was necessary as the Lease was subsisting and in existence.
Further the plaintiff had shown from documentary and oral evidence that OD9 was in possession under the Mukherjees. The onus was entirely on the defendant to rebut this fact and establish that he was in possession in terms of the Agreement dated 21st September 1978 and as such protected under Section 53A of the said Act. In fact the defence of Section 53A was raised for the first time by OD9 in the Written Statement filed in December 1996. The defendant failed to establish the same.
An attempt was made to implead Kabari in the said suit as co- defendant but the amendment was not carried out for nine years and a belated application for extension of time to incorporate amendments was also dismissed.
The Specific Performance Suit No.531 of 1981 was also dismissed under the provisions of Chapter X Rule 35 of the High Court Rules Original Side after the same appeared in Special List.
The OD-9 and others preferred two appeals, one from the refusal to grant extension to carry out amendments and the other from the dismissal of the suit for want of prosecution. The said Appeals were also summarily dismissed.
The OD-9 & Ors. preferred two SLPs being Nos.8084 and 10339 both of 1993 to the Supreme Court against dismissal of appeals which were later dismissed as withdrawn.
Two petitions made by the OD-9 before the Supreme Court for review of Order dismissing the SLPs noted above were also dismissed by the Supreme Court.
Suppressing the SLPs against dismissal of appeals and keeping the same pending by taking adjournments after adjournments, OD-9 made two petitions for review before the same Division Bench in this Hon'ble Court against the dismissal of the appeals, which were allowed by a Division Bench of this Hon'ble Court by an order dated 16 March 1994. After the said order was passed, the OD-9 quietly withdrew the said two SLPs, which ultimately were dismissed as withdrawn.
The erstwhile owners who were parties to said suit No.531 of 1981 and Kabari P. Ltd. each of them moved two S.L.Ps being Civil Nos.6913 & 6914 of 1994 and Civil Nos.6254 and 6912 of 1994 before the Supreme Court against the judgements of this Hon'ble Court allowing the application for Review filed by the Respondent No.9 and others and allowing the appeals against the orders of the Learned Single Judges refusing extension of time to carry out the amendments and dismissing the suit for special performance of the alleged agreement. The Hon'ble Supreme Court allowed the SLPs filed by erstwhile owners and Kabari Pvt. Ltd. heard the appeals and set aside the Order passed on review, confirmed the dismissal of appeals and dismissal of suit for specific performance filed by the OD-9.
Thus it is submitted that this case does not fall in the purview of the said Section and the OD-9 is not entitled to any protection under Sec. 53A of the Transfer of Property Act, 1882.
In dealing with the contention that the plaintiff having a notice of the contract dated 21st September, 1978 is bound by such contract and is bound to hold the suit premises for the original defendant No.9 and the plaintiff did not get any absolute interest in the said premises and in any event is bound to hold the same from the original defendant No.9, it was argued that such contention is completely unmeritorious. It was contended that firstly the plaintiff Kabari had no notice of the alleged contract of sale in favour of the OD-9 and secondly the prior agreement, if any, is not a covenant running with the land so as to give any right whatsoever. A covenant to sell does not confer any title to the proposed purchaser.
The OD-9 has exhausted all his remedies, if any by reason of dismissal of his suit No.531 of 1981 for specific performance and the said agreement cannot be relied upon and is no more of any help to the OD-9.
It is submitted that the contesting OD-9 and/or the substituted defendant nos. 9 and 10 have attempted to enlarge the scope of the suit and raised issues and led evidence and/or have been allowed to raise issues and to lead evidence, documentary as well as oral with regard to and touching their purported claim based on the purported Agreement for Sale dated 21st September 1978 and for specific performance thereof. This is not permissible in view of the dismissal of the Specific Performance Suit by the Supreme Court.
In view of the judgment of the Hon'ble Supreme Court dated 1st December 1995 finally dismissing the Specific Performance Suit No.531 of 1981 the claim and/or issues based on the said purported agreement for sale does not survive. Further it is well settled law that (i) no amount of evidence can be looked into upon a plea which was never put forward [AIR 1930 Privy Council 57(1)], (ii) the Court cannot travel beyond the pleadings and the issue cannot be framed unless there are pleadings to raise the controversy on a particular fact or law. It is, therefore, not permissible for the court to allow the party to lead evidence which is not in the line of the pleadings. Even if the evidence is led that is just to be ignored as the same cannot be taken into consideration [AIR 2011 SC 1127 at 1134 (Para 24)].
On the aspect of the readiness and willingness on behalf of the original defendant No.9 as urged by Mr. Sinha in his argument, Mr. Chakravartii submitted that apart from the condition, as laid down by the Supreme Court that the transferee must be put into possession in part performance of the contract, the other important condition laid down by the Supreme Court is that the transferee must have performed or be willing to perform his part of the contract.
In the instant case the defendant has not led any documentary or oral evidence showing that he was ready and willing to perform his part of the contract. On the contrary, after the dismissal of a suit for specific performance, the question of part performance of the contract or his readiness and willingness does not arise. Such a contention by the transferee would be incompatible after the dismissal of his suit for specific performance as it extinguishes the right of the transferee to compel the transferor to transfer the property. "Once the transferee loses his right under an agreement by dismissal of the suit, it would be inconsistent and incompatible that he has right to remain in possession under the contract." ((1996)1 SCC 639, Para 5).
The defendant's contention that an application was made before the Urban Land Ceiling Authority by the transferor may be construed as readiness and willingness on the part of the transferee. This contention is entirely erroneous as it is the transferor who is required to make an application under the Urban Land Ceiling Act.
A feeble attempt was made by the defendant that steps were taken under Section 230A of the Income Tax Act, 1961. This contention is also erroneous as a certificate under the said Act is to be obtained from the Assessing Officer to be produced at the time of registration. There is no evidence on record that any such steps were taken by either Bajaj family or the defendant.
It was seriously contended by the defendant in paragraph 6(f) of the Written Statement that in part performance of the said contract dated 21st September, 1978 and in further performance of the said contract he had paid arrears of municipal rates and taxes between the period 8th December, 1990 and 3rd November, 1993 to the Kolkata Municipal Corporation. This contention cannot also be accepted. Under the lease entered into between the Bajaj and Ila Basu dated 10th August, 1951, all rates and taxes were payable by the lessee. Further, by the registered Indenture of Lease dated 26th June, 1954, Smt. Ila Basu assigned all her right, title and interest in the suit premises for the unexpired remainder of the term to Amal Kumar Mukherjee. Under the said Deed of Assignment Amal Kumar Mukherjee was bound to pay all rates and taxes to the Kolkata Municipal Corporation. It is an admitted position that the defendant became a tenant under the assignee, namely Mukherjee. This admission will appear in paragraph 4 of the Written Statement where it states that the OD-9 became a sub-tenant under Amal Kumar Mukherjee. This would also be evident from the agreement for sale dated 21 September 1978 which provides inter alia that:
"7. All rates and taxes of the said property are payable by the lessee under the said Deed of Lease dated 10th August 1951 made between Sm. Narayani Debi Bajaj and Sm. Ila Basu and subsequently assigned by Sm. Ila Basu to Amal Kumar Mukherjee & Ors. By a Deed of Assignment dated 26th June 1954".
The plaintiff has, from the various documents disclosed and evidence led in the proceedings, shown that the OD-9 nor the added defendants did any acts to show their readiness and willingness. On the contrary, from the evidence it is obvious that the defendants were guilty of gross delay and laches, which is also pointed out by the Hon'ble Supreme Court inter alia in paragraphs 21 and 22 of the judgement of M/s. Kabari Pvt. Ltd. vs. Shibnath Shroff & Ors., reported in JT 1995 (8) SC 539 equal to (1996) 1 SCC 690.
The plaintiff also drew the attention of this Hon'ble Court to the conduct of the defendant as far as specific performance suit is concerned. Sometime prior to July 1982 the defendant made an application for amendment of the plaint in their specific performance suit and an order was passed on 9 July 1982 allowing such amendment. In spite of the said order, no steps were taken till 1992 to incorporate the amendment and an application seeking extension of time to carry out the amendments was rejected.
On 13th March, 1992 the defendant filed an appeal therefrom which was dismissed by the Hon'ble Appeal Court on 16 February, 1993. Thereafter the said suit appeared in the special list and was dismissed by this Hon'ble Court from which an appeal was also dismissed on 16th February, 1993. OD-9 filed appeals before the Hon'ble Supreme Court suppressing the said fact he filed a review petition before the same Division Bench which had rejected his appeal. The Hon'ble Division Bench on alleged materials placed before it was pleased to allow the review petition without being informed by the OD-9 who did not disclose the Appeal Court that two Special Leave Petitions had been filed from the original judgment dated 16th February 1993, which were pending. From the said order dated 16th March 1994 allowing the review petition, the plaintiff filed an appeal before the Hon'ble Supreme Court, as mentioned hereinbefore. The order of the Hon'ble Supreme Court in concluding portion of paragraph 23 states that, "Paragraph 23 ......... Such review application based on false and fabricated premises deserves to be dismissed in limine. The impugned order allowing the review application has occasioned a grave failure of justice. We, therefore, feel no hesitation in setting aside the impugned order on merits by allowing the appeals." In an appeal (against an interlocutory order passed in the specific performance suit) filed by OD-9, at his instance and on his oral prayer and by consent of all appearing parties, a consent order was passed by the Division Bench of Suhas Chandra Sen and Sabyasachi Mukherji JJ on 22nd September, 1982 transferring the Title Suit No.167 of 1981 filed before the Alipore Court to this Hon'ble Court. The OD-9 having the carriage of proceedings in specific performance suit in spite of his undertaking in writing, did not furnish a copy of the said order before the Alipore Court and the said Alipore suit was adjourned at least 30 times during the period from 22nd September 1982 to 21st July, 1988 and the order of transfer passed by this Hon'ble Court eventually reached the Alipore Court on 13th December, 1990 and records were transferred to this Hon'ble Court. OD-9 failed to take steps in the specific performance suit and at the same time successfully delayed the hearing of the plaintiff's suit as well.
From the aforesaid conduct of the defendants, it shows that neither OD-9 nor the substituted defendants took any steps to show that they are ready and willing to perform their part of the contract to invoke the protection under Section 53A of the Transfer of Property Act, 1882. It is obvious that the defendants' sole intention is to remain in the property free of cost and without undertaking any liability.
Mr. P.K. Das, the learned Senior Counsel submitted that the entire evidence of DW1 being the substituted defendant No.10 has to be discarded in view of the inconsistencies and prevaricating statements. The said witness was unworthy and in order to impeach his credibility, Mr. Das has referred to various answers given by the said witness on the same subject giving different answers at different points of time. The witness had no personal knowledge about the transaction and the entire evidence of the said witness is hearsay.
The learned Counsel has submitted that the entire evidence starting from the involvement of the said witness of the defendants at the time of the filing of the suit till date are prevaricating and full of inconstancies. The learned Counsel has referred to some portions of the depositions during the Chief and Cross-examination of the said witness wherefrom it appears that the witness had said that he was not in the picture till his father expired as OD 9 did not want his sons to be actively involved in the suit or to participate in conference or to attend hearings in the Hon'ble Court. Mr. Das highlighted that the witness had specifically said that he was not involved in the case at the relevant point of time and at the relevant point of time, he was ignorant (Q & A Nos. 350 to 369). Such evidence would only show that the entire evidence is based on hearsay. It was also pointed out that the witness was not directly involved with the agreement which formed the basis of the specific performance suit and he did not know the details of the said agreement or its execution. It was his father who told him that he had signed the said agreement after its execution.
On the aspect of Exbt.13, it was pointed out that the witness admitted that he did not have any information with regard to any application filed with the office of the competent authority of the Urban Land Ceiling (Regulation) Authority and it was only after 3rd July, 2012, when he met some officials of the said Authority, he came to know about such application. Mr. Das referred to the deposition of the witness in relation to Exbts. 12, 34 and 35 and submitted that it would appear that although OD 9 knew that permission had already been granted by the Urban Land Authority for sale in favour of the plaintiff, Kabari, and had in his possession and record copy of the letter dated 27th June, 1980, yet OD9 tried to make out a case to create some ground of defence in his written statement dated 6th December, 1996, pretending to show ignorance and by way of pretence wrote two letters in 1996, namely, letters dated 7th October, 1996 and 9th October, 1996 to the competent authorities. Subsequently Saraf, the substituted defendant No.10 also in respect of his knowledge about the affidavit filed in 1982 (Exbt. 12) by way of pretence wrote a letter in 2011 under RTI Act to create evidence and some ground for extension of time to file additional written statement in the trial Court on 24th January, 2010, to delay the hearing of the suit, which prayer was disallowed and even the Division Bench did not permit filing of additional written statement. The Special Leave Petition being SLP (Civil) No.15140 of 2012 against the order of refusal to permit filing of additional written statement was dismissed by the Hon'ble Supreme Court.
Mr. Das submitted that His Lordship the Hon'ble Justice Maharaj Sinha in his judgment and order dated 24th July 2012 (Exbt. "CC") while dismissing the substituted defendant no.10's above application to leave to file additional written statement (being G.A. No.170 of 2012) with cost assessed at Rs.20,000/- came to the finding and held inter alia as follows:-
" I have considered the grounds made in the application, if they are called "grounds" in the first place, and I find that the application is devoid of any particulars and no grounds, far from any acceptable grounds, have been made out by the petitioner for extension of time to file the written statement. The statements made in paragraphs 10, 11 and 12 of the petition are enough to demonstrate that the petitioner has no ground for extension of time to file his written statement at this stage at all. On the contrary, the petitioner is trying hard to delay the hearing of the suit as much as he can."
Mr. Das has referred to the said Paragraphs 10, 11 and 12 of the petition which are reproduced hereinbelow:-
"10. After passing of the said order, your petitioner/ defendant No.10 duly held conferences with his Advocates to prepare the final hearing of the suit and it was discovered that even though leave had been granted to the petitioner/defendants to file an additional written statement, no such additional written statement had yet been filed on his behalf. Needless to say that the written statement of the original defendant no.9 (being the father of your petitioner) is already on record.
11. I state that I had always intended to file an independent written statement and am entitled to do so, especially after the death of the original defendant no.9 (my father) and subsequently after the death of my mother, Smt. Triveni Devi Saraf, however, due to inadvertence and oversight, the additional written statement had not been filed on my behalf.
12. I state that the above suit has been pending since 1981 and in the usual course, I had to engage different counsels from time to time. Further, there are many documents and papers which were required to be searched out which related to the events that are taken place many years ago. As such, it has taken considerable time to bring to the notice of my Learned Advocates such documents which are required for preparing the additional written statement in the suit."
The learned senior Counsel has also made further reference to certain observations made and the same is reproduced hereinbelow:-
"If the above grounds are to be treated as sufficient cause for not filing the written statement, which the petitioner, as I have said above, termed as "additional written statement", then the orders of this nature of the Court will be meaningless and a litigant such as the 10th defendant herein would be allowed to abuse the power and process of this Court to the fullest extent.
The defence that the deceased defendant had to contest the suit is already on record as the deceased defendant had filed his written statement to contest the suit after its institution.
I do not think that the petitioner has any defence to improve his case after the institution of the suit to any extent. If he had, then he would have come up before this Court much earlier with an application for extension of time to file the written statement or, as he calls, "the additional written statement". Mr. Sinha, learned counsel appearing in support of the petition, however, could not demonstrate as to how the written statement would improve the defence already contained in the written statement of the petitioner's deceased father, namely the 9th defendant in the suit.
Even when the plaintiff approached the Court for hearing of the suit and pressed the application for injunction, the petitioner appeared day in and day out but did not even mention that he wanted to file an additional written statement and for that needed extension of time which was granted to him way back in the year 1999.
No explanations have been given nor the defendant, to say it very mildly, has any explanation, valid or otherwise, for the inordinate delay of almost 13 years in making or moving this application for extension. Having regard to the merits of the application, I am also of the opinion that the application is not an honest one.
Since no grounds have been made out, far from any acceptable grounds, for any order as prayed for, the petition is dismissed.
Since I find that the petitioner is simply trying to abuse the power and process of Court, he should also pay costs to the plaintiff. However, having regard to the submissions of Mr. Sinha, I assess the costs only at Rs. 20,000/-. The petitioner will pay the costs to the plaintiff positively by 8 February 2012."
It is submitted that an appeal was preferred against the said judgment and the said appeal was dismissed by a judgment dated 21st February, 2012 (Exbt. "DD") and while dismissing the appeal filed by the substituted defendant no.10, the Hon'ble Division Bench observed that the application filed before the Hon'ble Division Bench contains statements which were consequently altered from the original stand taken in the application before the learned trial Judge. The Hon'ble Division Bench found various inconsistencies and has observed:-
"In this application the main case that the appellant has sought to make out is that he had discovered certain new facts and come across a provision of law which was not within his knowledge earlier. He has also referred to the stand of the plaintiff in this case or in an earlier case which, he says, amounted to playing fraud upon his predecessor-in-interest. In paragraph 12 of the present application, he says that such and other facts are required to be pleaded for proper additional issues to be framed and settled thereon. A very feeble effort has also been made in the present application saying that the discovery of all the facts had not been pleaded at the time of making the first application before the learned single Judge and, therefore, there was no reference to such facts as stated in paragraphs 11 and 12 of the present application.
Apart from the fact that these were not mentioned in the earlier application and the discovery of facts were not complete by then, a careful reading of this application also does not indicate that any fact has at all been pleaded or specifically contended in paragraphs 11 and 12, other than a knowledge of law regarding the absence of any requirement of clearance under section 27(2) of the Urban Land (Ceiling and Regulation) Act, 1976. All that he says is that the plaintiff and the vendors had deliberately misled the original defendant and different courts and in paragraph 12 he says that some important facts have also come to the notice of the appellant without specifying and/or indicating what these facts were and the appellant's claim of these important facts were described as "such facts" in paragraph 30 of the application. The appellant has thus come up with a very inconsistent and incomplete case for condonation of delay.
Mr. Sinha, the learned advocate for the appellant has submitted that his client has made an application under the Right to Information Act in the year 2011 before the appropriate authorities for obtaining certain documents which has not been fully supplied as yet. Apart from the fact that this was nowhere mentioned in the application, we do not think that this fact also helps the appellant in his endeavour to seek condonation of delay in filing the written statement. At the utmost, it may, if at all explain why he could not file it till that date from when he filed the application before the appropriate authority; but he was out of time long before that. The apparent stand taken before the Trial Court that while holding conference with his learned advocates for the final hearing of the suit, it was discovered that no written statement was, in fact, filed has not been anywhere mentioned in the present application.
It was quite possible that the contentions of the appellant made out in paragraphs 10 and 11 of the application are consistent that in course of conference with the learned advocates it was discovered that the written statement was not filed. In that case, the case sought to be made out in paragraph 12 cannot be accepted. If any inconsistent stand was taken in the application filed before the Trial Court, the application before us is an entirely different one - an elaboration of the contention made out in paragraph 12 of the application filed before the Trial Court. As an applicant cannot come up with inconsistent pleas at different stages his prayer cannot be allowed also on the ground that material particulars, as he says, was not in his possession before. They now have to be specified or at least indicated. On the other hand, the application before us is an improvement sought to be effected upon the application filed before the Trial Court."
Mr. Das has also pointed out that the witness had deposed that he is unable to say who is his landlord, but subsequently admits that the owner of the property, namely, Kabari at present is the landlord. The witness also had admitted that Amal Mukherjee was an assignee under Ila Basu. It was further contended that from the analysis of the evidence with regard to forfeiture of the lease, it would appear that the stand of the said defendants is inconsistent. The said witness previously claimed that the lease was forfeited and must have made the claim on some legal basis. He subsequently claims ignorance of the basis on which he made the own claim of forfeiture. He says that it was his contention. DW1 avoids the allegation of giving false evidence altogether, rather than attempting to exonerate himself by saying that Advocate can answer the question. Such submission was made on the basis of the evidence of DW1 in relation to Q & A Nos.59, 60, 61 and 62 in Chief and Q & A Nos. 529 to 531 in Cross.
The witness, when confronted with the mentioning of "subject to the subsisting lease" in various conveyances as also in the pleadings filed by OD9 prior to 1996 and even thereafter, stated that while the agreement was made in September, 1978, this vital information that the lease was terminated in 1952 was concealed from his father it was revealed when his father was preparing the written statement sometimes in December, 1996, on the basis of an affidavit he had received from one of the erstwhile vendors, namely, Mohanlal Singhania. In this connection, Mr. Das has referred to paragraph 17 of Exbt. "II" being the Affidavit in Opposition affirmed on 6 August 1996 by Shivnath Saraf, OD-9 filed in Kabari's chapter 13A application for summary judgment in this present suit. where OD-9 says that:-
"Para 17. ...... I state that by a notice dated 15th December , 1952 the lease in favour of the Defendant No.1 was determined and forfeited on the expiry of December 1952. The question of any alleged assignment by the defendant no.1 in favour of Amal Kumar Mukherjee, since deceased and the defendants No.2, 3, 4 and 5 by the said defendant No.1 did not and could not arise. The lease had ceased to subsist on January 1, 1953. As far as this defendant has been able to ascertain Amal Kumar Mukherjee, since deceased and the defendant Nos.2, 3, 4 and 5 were monthly tenants with right to sublet".
Whereas in two review petitions being Review Petition (Civil) No.1762 and 1776 both of 1996 filed in Special Leave Petition No.8084 and 10339 both of 1993 affirmed on 9 August 1996 and filed on 20 August 1996 by OD-9 in the Hon'ble Supreme Court wherein (in both the Review Petitions) paragraph 4 (Exhibits "L & M") OD-9 on oath stated that "The petitioner was already in possession of the said Premises No.8A, Burdwan Road, Calcutta as a tenant of the assignee of the original Lessee under the Deed of Lease dated 10 August 1951". Note: Within the gap of 3 days two affidavits were filed by OD-9 giving contradictory statements. In the first affidavit filed in the Hon'ble High Court OD-9's main concern was defence to the claim for eviction and in Supreme Court this became the secondary point and OD-9 where in the natural way truth was stated by him which he tried to twist his defence through the above affidavit in opposition and in his evidence.
It is submitted that Exhibit JJ and particularly the averments made in the said letter would show that the defendants are making false statements and misusing the court proceedings and proceeding in a malafide manner, adopting dilatory, delaying and harrassive tactics etc. Accordingly, the defedants should be struck off, in this regard he has relied upon (2011) 8 SCC 249 (Ramrameshwari Devi & Ors. Vs. Nirmala Devi & Ors.).
Section 53A of the Transfer of Property Act was added by Section 16 of the Transfer of Property Amendment Act (XX of 1929). The said enactment is an attempt to lay down a standard with regard to the application of what has been known to English Law as "The doctrine of part performance adopted and followed by the Courts in India". Section 4 of the Statute of Frauds (1677) (29 CAR II, c iii) provides that no action or suit shall be maintained of an agreement relating to land which is not in writing signed by the party to be charged with it. The strict applicator of this provision led to create hardship in cases where a parol agreement relating to the land had been partly performed by one party and yet he could not sue the other party for specific performance. Thus the latter party was enabled to perpetrate a fraud upon the former. The object of inserting this new section was to alter the statue law by partial incorporation of the English doctrine on part performance and what is embodied in this Section is an equitable doctrine. The object of the section is to prevent transferor or his successor in interest from taking any advantage on account of the non registration of the document, provided the transferee has performed his part of the contract and in pursuance thereof has taken possession of the same immovable property. This section gives transferee only a right which is available to him as defence in order to protect his possession. It does not confer any title on the transferee who takes possession in pursuance of written but unregistered contract. He cannot also maintained a suit for declaration that the transferor or other person has no title to the property. The essentials of Section 53A are :
1. A contract to transfer immovable property;
2. The transfer should be for consideration;
3. The contract must be in writing;
4. It should be signed by or on behalf of the transferor;
5. The terms of the contract can be ascertained with reasonable certainty from the writing;
6. The transferee takes possession of the whole or part of the property or if already in possession continues in possession;
7. Such taking of or continuance in possession should be in part performance of the contract;
8. The transferee should do some act in furtherance of the contract;
and
9. He should have performed, or be willing to perform, his part of the contract. [See D.S. Parvathma v. A. Srinivasan (2003)4 SCC 705(709); Shrimant Shamrao Suryavanshi v. Prahlad Bhairoba Suryavanshi (2002)3 SCC 676].
In the instant case, in order to get the protection of Section 53A, the defendants are required to establish that the defendants had taken possession of the property on the basis of an agreement or that they were already in possession under such agreement and continued to be in possession in part performance of the said agreement or contract and has done some act in furtherance of the contract.
In the written statement as well as the evidence adduced on behalf of the defendants, it appears that the original defendant was inducted as sub-tenant by the estate of the Amal Mukherjee and at the time when such agreement was entered into by and between the original defendant no.9 and the owners of the property, the defendant no.9 was in possession of the suit premises as a tenant of Amal Mukherjee and thereafter he continued to remain so as such tenant and had paid rent to Amal Mukherjee upto May 1981 when there was a further assignment of leasehold interest by the Mukherjees in favour of Vishanath Kapur [D.S. Parvathma v. A. Srinivasan (2003)4 SCC 705(709); Shrimant Shamrao Suryavanshi v. Prahlad Bhairoba Suryavanshi (2002)3 SCC 676]. The defendant in order to succeed on a plea of part performance has to satisfy that at the time of entering into the contract he had disowned his character as a tenant and was holding the suit property on the basis of an agreement with the vendors. The defendant has failed to establish that the character of the defendant had changed consequent upon the alleged agreement entered into between the said original defendant no.9 and the vendors on September 21, 1978 There is no explanation as to why the rent was paid after the said agreement was entered into between the said original defendant no.9 and the vendors. The transferee in the instant case has failed to allege and prove that he was delivered possession in part performance of the contract or being already in possession as lessee continued in possession in part performance of the agreement to purchase i.e. by mutual agreement between the parties his possession as lessee ceased and commenced as that of a transferee under the contract.
In this regard, the court is inclined to accept the submission made by Mr. Gautam Chakravartii. The pleadings filed by OD9 would clearly show that such defendants accepted that they were in possession of the property as tenants even after 1978 and not under any other capacity.
In view of dismissal of the specific performance suit, it is no more open for the plaintiff to allege and canvas that the defendant was entitled to have specific performance of the suit and the plaintiff does not acquire any title. The defendants have to independently challenge the deeds on the basis of which the plaintiffs have acquired right, title and interest in the suit property. In the suit for specific performance, the plaintiff in fact had asked for amendment of the plaint and had specifically prayed for cancellation of the said several deeds of conveyance executed in favour of the plaintiffs by the owners. The said suit however was dismissed. The plaintiff in this proceeding cannot assail the said deeds on the basis of which the plaintiff already had acquired interest. The deeds, if not challenged specifically, are to be treated as sacrosanct and valid [2004 (4) CHN 585 para 10 : Ava Rani Sengupta and Ors. Vs. Laxmi Sengupta and Others]. The plaintiff in this proceeding is attempting to re-agitate and resurrect its rights and grievances which had already suffered a dismissal inasmuch as Section 53A of the Transfer of Property Act is not a sword but only a shield. Since this court is adopting the submission made by Mr. Chakravortii in this regard that the plaintiff is not entitled to protection under Section 53A of the Transfer of Property Act, such plea taken by the defendant is unmeritorious and not accepted.
The transferee must have taken possession of the property in part performance of the contract and not in any other capacity or for any other purpose. A plea of adverse possession is contrary to acquisition of possession lawfully by the transferee and therefore unavailable to the possessor of the property. It is not necessary that possession should be with respect to the whole of the property or must have been given by the vendor to the transferee. A mere continuation of possession by a person already in possession prior to the contract is not sufficient. Thus, a continuation of possession by a tenant after termination of lease under tan alleged contract or an agreement of sale or an alleged renewal or a mortgagee in possession after the expiry of lease or mortgage is nto an act done in furtherance of contract. Where a person is already in possession after the termination of lease or under the renewal clause but not independent of the old contract, he will be a trespasser after the expiry of lease or its renewal period and is not entitled to the benefit of part performance. Where the agreement provides that possession will be given to the tenant only at the time of the sale deed, mere retention is not sufficient.
It is submitted by Mr. Chakrborty that Court would expect something independent of the mere retention of possession to evidence part performance of some act done in furtherance of the contract. This Court is inclined to accept the said submission. In this connection it is significant to note that the original defendant no.9 had filed a suit for specific performance of the agreement for sale dated 21st September, 1978. In the said proceeding, the original defendant no.9 contended that the original defendant no.9 and Smt. Triveni Devi Sharaf, Indira Devi Sharaf and Premlata Sharaf had entered into an agreement with the owners of the property to purchase the suit premises but subject to the lease created by deed of lease dated 10th August, 1951 made by Smt. Narayani Devi Bajaj and Ila Basu for a total consideration of Rs.2 lakh. Section 111 of the Transfer of Property Act, 1882 (TP Act) provides the circumstances under which lease is determined. Sub-section (g) of Section 111 provides for determination of lease by forfeiture. The said sub-section is quoted hereunder:
"Section 111(g):- by forfeiture; that is to say, (1) in case the lessee breaks an express condition which provides that, on breach thereof, the lessor may re- enter [***]1; or (2) in case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself; 2[or (3) the lessee is adjudicated an insolvent and the lease provides that the lessor may re- enter on the happening of such event]; and in 3[any of these cases] the lessor or his transferee 4[ gives notice in writing to the lessee of] his intention to determine the lease:"
On perusal of Section 111(g) read with Section 105 of the TP Act, it would appear that the right of forfeiture is founded upon the existence of lease and the jural relationship of lessor and the lessee as contemplated under Section 105 of the TP Act. It is implicit that if in the lease is in operation the lessor has been given the right to 1 The words "or the lease shall become void" omitted by Act 20 of 1929, Section 57. 2 Ins. By Act 20 of 1929, Section 57.
3 Subs. By Act 20 of 1929, Section 57, for "either case". 4 Subs. By Act 20 of 1929, Section 57, for "does some act showing".
determine such lease for committing breach of a covenant or for disclaimer by the lessee or for insolvency of the lessee, the happening of any of the 3 specified events ipso facto does not put an end to the lease but it only exposes the lessee to the risk of forfeiting his lease and gives a right to the lessor, if he so elects, to determine the lease.
[Please refer relevant extract attached herewith - Sanjiva Row
- Transfer of Property Act - Volume 2 - Seventh Edition - Universal Law Publishing Company, New Delhi at Pg 1832, Section 111, Syn.9/ Marked as Annexure A -Pg Nos. 4 & 5]
4. Section 111(g) of the TP Act makes it clear that forfeiture of lease can be at the instant of the lessor (the Bajajs in the instant case). A lessee can only surrender the lease under the sub-sections (e) and (f) under Section 111 of the TP Act.
5. The right of forfeiture is penal in nature and can only be exercised by the lessor [Section 111(g) of the TP Act]. Forfeiture under section 111(g) of the TP Act is waived by acceptance of rent or any other act on the part of the lessor showing an intention to treat the lease as subsisting [Section 112 of the TP Act]. The lessee has the right to terminate or surrender the lease.
6. In the instant case, by reason of breach of condition of the lease by Ila Basu by failing to make payment of lease rents, it did not ipso facto put an end to the lease but exposed her to the risk of forfeiting the lease, if the lessor namely the Bajajs elected to determine the lease by giving notice in writing to the lessee of their intention to determine the lease.
7. The facts show that the Bajajs filed a suit on 5 March 1953 wherein the Bajajs prayed, inter alia, for forfeiture of lease for non payment of rent. In the said suit a decree for forfeiture of the lease and khas possession of the suit premises was passed in favour of the Bajajs on 13 September 1955.In the decree it was however provided that Ila Basu would be relieved of forfeiture under section 114 of the TP Act provided she deposited the unpaid rent of Rs 14,189/-.
8. In an appeal from the said decree the Appellate Court by an order dated 18 May 1961 upheld the conditional decree but reduced the amount to be paid by Ila Basu on account of unpaid rent to an amount of Rs 13,379/-.
9. In order to establish that there has been a determination of lease by forfeiture (which could be done by the Lessor only) it had to be shown by the defendants that the forfeiture was enforced by the Bajajs by putting the said decree to execution. It is not the defendants' case that the Decree was executed and the lessor took possession of the property.
10. In the instant case the defendants failed to produce records or to show that Ila Basu did not eventually pay the unpaid rent in terms of the decree or the decree was put to execution by the Bajajs. The onus is entirely on the defendants to show the same.
11. Bajajs by not putting the decree into execution also established the fact that they did not enforce their right, if any, of forfeiture and treated the Lease as subsisting, as would be evident from Section 112 of the TP Act, which is quoted hereunder:
"Section 112. Waiver of forfeiture A forfeiture under section 111, clause (g) is waived by acceptance of rent which has become due since the forfeiture, or by distress for such rent, or by any other act on the part of the lessor showing an intention to treat the lease as subsisting:
PROVIDED that the lessor is aware that the forfeiture has been incurred:
PROVIDED FURTHER that, where rent is accepted after the institution of a suit to eject the lessee on the ground of forfeiture, such acceptance is not a waiver."
12. The fact that the Bajajs had treated the lease as subsisting would be evident from numerous documents which have been disclosed in this proceedings both of the plaintiff and the defendant containing countless admissions regarding the subsistence of the lease and such documents (which have been marked as Exhibits) have not and could not have been disputed by the defendants. In particular the defendants' Exhibit No. 42 [Draft agreement (of Sale) to OD-9] which was approved by both the Solicitors of Bajaj and Saraf with changes in different inks which included the words "Subject to the existing Lease dated 10 August 1951 between Smt. Narayani Bajaj and Smt. Ila Basu". In his evidence DW1 has asserted that this provision "Subject to the existing Lease........" was included by the Bajajs. In the circumstances such act on the part of the Bajajs fully constitutes waiver of forfeiture "by any other act on the part of the lessor showing an intention to treat the lease as subsisting" in terms of the provisions of Section 112 of the TP Act and thus the same puts the matter beyond any doubt, that the said lease was subsisting and existing till its full term expired on 31 July 1991. This constitutes an act of waiver on the part of the Lessor as contemplated in section 112 of the TP Act and accordingly in view of the statutory provisions in section 114 of the TP Act the lessee has continued as if the forfeiture had not occurred, as would be evident from section 114 of the TP Act, which is quoted hereunder:
"Section 114. Relief against forfeiture for non- payment of rent Where a lease of immoveable property has determined by forfeiture for non- payment of rent, and the lessor sues to eject the lessee, if, at the hearing of the suit, the lessee pays or tenders to the lessor the rent in arrear, together with interest thereon and his full costs of the suit, or gives such security as the Court thinks sufficient for making such payment within fifteen days, the Court may, in lieu of making a decree for ejectment, pass an order relieving the lessee against the forfeiture; and thereupon the lessee shall hold the property leased as if the forfeiture had not occurred."
In addition to the aforesaid, it can be seen from Exbt.-K being a judgment of the Hon'ble Division Bench reported in 59 CWN 102 that Bajaj did not have the right to terminate the lease. In any event, it is not in dispute that till the written statement was filed in December 1986,the parties had proceeded on the basis of the lease executed by Narayani Devi Bajaj in favour of Ila Basu in 1951. The affidavit of Mohonlal was filed in connection with a Civil Revisional Application filed by Ila Basu challenging an order passed by the trial Court in a proceeding arising out of Section 14(4) of the Rent Act. The principal plea taken was that at the time when the property was taken on lease, it was in a dilapidated condition and Ila Basu expanded approximately Rs.20,000/- from her own private funds for thoroughly repairing and/or renovating the said premises and there was a verbal agreement between the parties concerned that all such expenses incurred by Ila Basu regarding repairing of the premises would be adjusted against future rent. Accordingly, it was contended that without adjustment of the said amount no rent is due and payable. The learned Subordinate Judge, however, allowed the application filed Narayani Devi Bajaj under Section 14(4) of the West Bengal Premises Rent Control Act, 1950. This was challenged by way of a revision. In that proceeding, Mohonlal had filed an affidavit on behalf of the owners affirmed on 4th August, 1954, in which in Paragraph 2 he stated that the plaintiff instituted the suit, inter alia, for ejectment on the ground of forfeiture for default of payment in rent and for arrears of rent and mesne profits. Thereafter, the suit appears to have been decreed on contest. Exbt.3 on which reliance was placed by the defendants would show that relief against forfeiture was granted to Ila Basu and although execution proceeding was instituted sometime in 1955, it appears that pursuant to the order passed the Appellate Court modifying the order of the trial Court in 1961, no eviction of Ila had, in fact, taken place. The contention that by reason of such termination of lease Ila became a monthly tenant and Amal Mukherjee became a sub-tenant with a right to sublet as made out in the written statement appears to be fanciful. In any event, burden of proof lies on the part of OD 9 to establish that, in fact, a monthly tenancy was created after 1961 which permits Ila Basu to sublet the property to Amal Mukherjee with the right to create further tenancy. Ordinarily, subletting can only be done with the permission of the landlord. Even if this argument that Ila became a monthly tenant is accepted, Amal and OD 9 were to establish that Ila had the authority to create sub-tenancy; otherwise Amal does not get the protection of Rent Act and if Amal could not get such protection, then OD 9 would also not be protected under the Rent Legislation. In order to accept the argument, too many suppositions are to be accepted as correct.
The original owners were consistent with their stand as would be evident from the several documents disclosed in this proceeding that there was a subsisting lease between the original owners and Ila Basu and that lease continued and subsisted. The contents of the said documents, contemporaneous evidence and the course of dealings and transactions between the parties as well as their conduct establish that the lease continued.
Mr. Arindam Sinha still then would argue that the point that was canvassed by the Sharafs in their suit for specific performance which ultimately met with the dismissal by the Hon'ble Supreme Court would not deter the plaintiff from raising the plea of specific performance in this proceedings as a defence. Mr. Sinha has strenuously urged that the plaintiff is not the owner of the premises who could seek eviction of the defendants in particular the substituted defendants. The alleged agreement dated 15th April, 1978 between the owners and one Mr. O. P. Kejriwal who became associated with the plaintiff as director on 20th May, 1980 cannot be relied upon and should be declared void. The learned counsel would painstakingly referred to the deeds executed by the vendors in favour of the plaintiff and the evidence of plaintiff in this regard. Learned counsel submitted that in the light of the evidence of the witness of the plaintiff it cannot be said that there is a valid execution of the said four several deeds of conveyance by the vendors in favour of the plaintiff. The vendors, according to the learned counsel, were simple persons and while executing the said documents they presumed that they were in fact executing the agreements that they had entered into with the original defendant no.9 in 1978. Mr.Sinha submitted that in deciding the defence of the defendants reference and reminiscence of the specific performance suit would rest its heads and it is inevitable. In view of Section 53A of the Transfer of Property Act and the said Section as worded the Court cannot ignore the steps taken by the substituted defendants to perform their obligation under the agreement for sale dated 4th September, 1978. Learned counsel would draw sustenance from the observation of the Hon'ble Supreme Court that the Hon'ble Supreme Court in Shrimant Shamrao Suryavanshi that a defendant in a suit can put forward any defence though such defence may not be enforceable in a Court of law being barred by limitation. Mr. Sinha has specifically relied upon the observation made by the Hon'ble Supreme Court in paragraph 20 of the report where it has been specifically stated that since the period of limitation bars a suit for specific performance of a contract, if brought after the period of limitation, it is open to a defendant in a suit for recovery of possession brought by a transferor to take a plea in defence of a part performance of the contract to protect his possession, though he may not be able to enforce that right in a suit or action.
The vendors have not come forward to impeach the documents. The four several deeds of conveyance executed by the vendors in favour of Kabari on July 6, 1981, record an agreement dated April 15, 1978 which were prior in point of time than that of the original defendant no.9. The said four several agreements for sale ultimately culminated in the execution of four several deeds of conveyance which normally mentions the consideration amount and the mode of payment. Interestingly Mohanlal was also a party to the said transaction. The name of Mohanlal assumes significance since the original defendant no.9 wanted to retrieve the lost ground by desperately referring to the affidavit of Mohanlal affirmed on 4th August, 1954 in connection with the suit filed by Narayani Devi Bajaj against Ila Basu being Title Suit No.21 of 1953 for eviction on the ground of forfeiture for default of payment in rent. This aspect of the matter I would dispose later when I would consider the issue of forfeiture of lease by the defendant as a defence in this proceeding.
The position of the defendants as well as the plaintiff in relation to the execution of the agreement in 1978 appears to be on the same footing save and except the plaintiffs were prior agreement holders in respect of the said properties. The status of the defendants continued to be as tenants till the determination of the lease by efflux of time.
The said rent up to May 1981 produced in evidence would only establish that notwithstanding any such agreement on 4th September, 1978 as alleged by the original defendant no.9, the said defendants continued to pay rent to the estate of Amiya Mukhjerjee and till the filing of the suit for specific performance. The character of the said defendants continued to remain as tenants. This character of the original and substituted defendants is important factors in deciding the defence of the said defendants. It is not open for the said defendants to question the validity, legality and existence of the four several conveyances as defence in this proceeding. The defendants did not ask for cancellation of the said documents in this proceeding. The defendants possibly could not ask for said relief. In view of the fact that in the suit for specific performance by way of amendment such prayer was included and the said suit was dismissed. The said order of dismissal of the suit completely bars the plaintiff to raise the issued by way of defence in this proceeding. In a decision reported in 2004 (3) CHN 585 (para 10) (Ava Rani Sengupta & ors. vs. Laxmi Sengupta) a Division Bench of our High Court held that a specific prayer has to be made for cancellation of such instruction and without a declaration being asked for, such document could not be impeached.
The defence as to the determination of the lease on account of forfeiture of the lease is based upon Exhibit 3 and the affidavit of Mohanlal affirmed on 4th August, 1954. There is no dispute that Narayani Debi Bajaj instituted a suit for eviction of Ila Basu on the ground for forfeiture for default of payment in rent. However, it appears from exhibit 3 that an order was passed relieving the defendant as leassee against the forfeiture. The said Exhibit-3 also records that an appeal was preferred in which the amount required to be paid which would relieve the lessee against the forfeiture was reduced. Sometime in 1955 an execution was levied. However, from Exhibit-3 it cannot be said that Ila Basu was evicted from the said premises in connection with the Title Suit No. 21 of 1953. On the contrary, the evidence on record would show that the deed of assignment executed by Ila Basu in favour of Mukherjees continued and the Mukherjees in 1971 had inducted the original defendant no.9 as a sub-tenant. The creation of such tenancy is traceable to the deed of assignment executed by Ila Basu in favour of Mukherjees in 1954. Even in the deeds, documents and pleadings disclosed by the parties prior to filing of the written statement in 1996 by the original defendant no.9 would show that all the concerned parities had proceeded with that the lease between Bajaj and Ila Basu was subsisting and on that basis the parties had proceeded and conducted themselves. It was only in December, 1996, when the written statement was filed the original defendant No.9 after realizing that his chance of owning the property had become a fait accompli relied upon an affidavit filed by one of the original owners, namely, Mohonlal in the eviction proceeding being Title Suit No. 21 of 1953 to establish that the original defendant no.9 become a monthly tenant and the suit for eviction on the ground of efflux of time is not maintainable. The contention it appears that since the lease was determined in 1952 the relationship of the parties after the decree for eviction would be that of a monthly tenant and such monthly tenancy are protected under the Rent Control Act and not guided by the provisions of the Transfer of Property Act. The defendant, however, would not venture to argue and would be altruistic in contending that the consequence of such determination of lease would make Mukherjees and thereby the original defendant no.9 as rank trespassers and the benefit of rent protection statute would not be extended to such persons. The defendants would rather presume and contend that consequent upon such determination of lease a monthly tenancy was created between Bajaj and Ila Basu and the continuation of Mukherjees till the determination of the lease was that of a sub-tenant under Ila Basu. Such attempted twisting of facts and introducing too many supposed fact and presumed intention would be extremely perilous for the defendants as such contention would expose the weakness of the defence and their frivolity. The defendants are in occupation of a huge property situated at prime location for more than 22 years without paying a farthing. The said original defendant no.9 made all attempts to grab the property and held on to the property on pleas lacking bona fide. The frivolity of the defence is manifested and the only conclusion that can be reached is that the defendant was so far successful in enjoying such a huge valuable property on assertions which are like a pack of cards but surviving so long due to prolongation of the proceeding by the defendants. Surprisingly Mohanlal was not produced as a witness in this proceeding. Mohanlal possibly did not want to face the trial. In fact, the defendants did not file any affidavit of Mohanlal to show that Ila Basu became a monthly tenant and Mukherjees became a sub-tenant under Ila Basu with an authority to sublet. The document being Exhibit- 3 and the affidavit of Mohanlal do not establish that Ila Basu or Mukherjees became monthly tenants under Narayani Devi Bajaj and the lease did not continue. There are indications in Exhibit-3 that relief against forfeiture was granted and Ila Basu continued to remain as a lessee. There is nothing on record to show that the Ila Basu was evicted from the premises or a monthly tenancy was created between Narayani Devi Bajaj and Ila Basu. The burden is on the defendants to establish such monthly tenancy since all the documents and pleadings between the parties recognize the existence of lease.
This burden, however, has not been discharged and this Court is of the view that the lease subsisted notwithstanding filing of the said suit.
After considering the evidence and the findings arrived at by me, there shall be a decree in favour of the plaintiff for recovery of khas possession of the premises being land and premises No.8A, Burdwan Road, P.S. Alipore, Kolkata as more fully described in Schedule-A to the plaint. There shall also be a decree for Rs. 24,000/- against the defendant Nos. 8, 9 and 10 as pleaded in paragraph 17 of the plaint.
The suit is decreed accordingly.
Mr. Sandip Mukherjee is appointed as a Special Referee to determine the mesne profits on and from December 1981 till the date of decree.
Department and all parties are to act on a signed copy of the minute of the operative part of this judgment on usual undertaking.
A signed copy of the operative portion of the judgment be provided to the parties.
(Soumen Sen, J.)