Calcutta High Court
The Bengal Freemasons' Trust ... vs District Grand Lodge Of Mark Master ... on 30 August, 2024
Author: Sugato Majumdar
Bench: Sugato Majumdar
IN THE HIGH COURT AT CALCUTTA
ORDINARY ORIGINAL CIVIL JURISDICTION
ORIGINAL SIDE
Present:
The Hon'ble Justice Sugato Majumdar
CS/134/2014
THE BENGAL FREEMASONS' TRUST ASSOCIATION
VS
DISTRICT GRAND LODGE OF MARK MASTER MASONS OF BENGAL AND ANR
For the Plaintiff : Mr. Aniruddha Mitra, Adv.
Mr. R. L. Mitra, Adv.
Ms. Priyanka Dhar, Adv.
Hearing concluded on : 21/08/2024
Judgment on : 30/08/2024
Sugato Majumdar, J.:
This is a suit for declaration and permanent injunction. Sum and substance of the plaint case, necessary for present adjudication, can be summarized as follow:
a) English Freemasonry is an ancient Order spreaded over the world, having its' base in England. This is an unincorporated association of private lodges.
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b) For proper administration of private lodges, the Grand Lodge of England formed Provincial Grand Lodge in the European countries and district lodges overseas. In India, various District Grand Lodges (in short "DGL") were formed, one of which was Grand Lodge of Bengal.
c) In order that properties can be acquired for beneficial use for Masonry purposes by DGL, the Plaintiff company was formed in the year 1912 and was incorporated under Indian Companies' Act 1882.
d) Subsequently, the Plaintiff company acquired a piece and parcel of land measuring about 131 cottah, located at 19, Park Street, Kolkata in terms of a registered indenture dated 28.12.1912. This property, apart from a large lawn measuring about 10,000 sq. ft. also comprises two two storied buildings and two small one storied buildings. In one of the two storied buildings, DGL and the Plaintiff have their respective offices on the ground floor and residential accommodation of the officers of DGL on the first floor.
e) The other two storied building has two halls and accommodation for festive boards and one kitchen on the ground floor of the building. "The Temple" for the rituals is situated on the first floor of the building. The small building along the way consists of respective accommodation of a school, free poly clinic and office of one M/S S. Enterprises. The building in the rear portion and Page |3 other small buildings are used as staff quarters. Meeting of DGL and other lodges are held in rooms allocated in the main building.
f) A memorandum of understanding was signed and executed between the Plaintiff and one Susmita Dutta, the sole proprietor of M/s S. Enterprise, as aforesaid, to manage and maintain the lawn and the eastern hall on the ground floor of the main building. The memorandum of understanding was valid upto 31.03.2009. Despite expiry of the same, the said Susmita Dutta continued to commercially exploit the lawn and the eastern hall. This resulted in multiple litigations between the parties.
g) District Grand Lodge of Mark Master Masons of Bengal (in short "DGLMMM") was formed and constituted under Grand Lodge of Mark Master Masons of England and Wales.
h) The Defendant No.2 purporting to act as the District Grand Master of the Defendant No. 1 was in effective control of the organization. Earlier the Defendant No. 2 was also involved in administration and management of DGL and the Plaintiff and was instrumental in grant of licence, in terms of the memorandum of understanding, to Susmita Dutta. The Defendant No. 2 was subsequently removed from the Plaintiff and DGL.
i) The Plaintiff permitted DGLMMM to use two rooms on the ground floor of the main building for holding meetings. This Page |4 DGLMMM was unregistered body. Permission was given to DGLMMM on clear understanding and undertaking of that it would not permit any other body, organization, association or person to use the property. This part was used by DGLMMM for office use.
j) Disputes arose from the fact that the Defendant No. 2, at one point of time, when he held stewardship of DGLMMM, colluded with Susmita Dutta and authorized her, on behalf of the DGLMMM to act as its operating agent in the eastern hall of the building and the lawn.
k) The unregistered body DGLMMM filed a suit in the City Civil Court at Calcutta which was registered as TS 1618 of 2010. The present Defendant no. 2 represented the unregistered body, namely, DGLMMM. This suit was filed praying for declaration that the unregistered body DGLMMM had right to use the Eastern Hall and the adjoining lawn on a portion of the premises no. 19, Park Street, Kolkata. This suit was withdrawn with liberty to file a fresh suit with same cause of action. Subsequently, TS 3153 of 2010 was instituted by a registered body named DGLMMM, seeking for decree of declaration, inter alia, of right to use the hall along with lawn.
l) It is only on service of pleading of T.S. 3153 of 2010, the Plaintiff came to learn about the existence of a registered society named DGLMMM. This suit was in respect of the Eastern hall on the Page |5 ground floor of the building as well as the adjoining lawn, wherein the Defendant No. 1 claimed rights.
m) On 30.08.2012, the Plaintiff came to learn from the District Grand Master of the Mark District of Madras that the Mark District of Bengal had been dissolved by the parent body and all the lodges formerly under jurisdiction of Bengal, henceforth went under the auspices of the District of Madras. As a result, the office of the District Grand Master of DGLMMM became non- existent. The District Grand Master of the Grand Lodge of Mark Master Masons, having jurisdiction over Mark Lodges of the erstwhile District of Bengal requested the Plaintiff to allot some space in the suit property to keep office records and hold meetings.
n) The Defendant No. 2 formed a society and got the same registered under the West Bengal Societies Registration Act, 1961 bearing the same name of DGLMMM of Bengal. This is the Defendant No. 1. The Defendant No. 1 has no nexus or connection with the erstwhile DGLMMM. The Defendant No. 1 is now in unauthorized occupation and possession of the suit property through instrumentality of the Defendant No. 2 and his associates who were earlier members of the unregistered DGLMMM. The Plaintiff never allowed the Defendant No. 1 to use the suit property, and the Defendant No. 1 has no right to use, occupy, utilize or deal with the suit property. Although asked to Page |6 vacate the suit property, the Defendant refused to do the same. The Defendants are in wrongful occupation of the suit premises.
o) The Plaintiff also came to learn that the Defendant No. 1 is poised to create a third party interest in the suit property by letting it out and creating larger space by demolishing partition walls. The matter was informed to the police authorities. The Defendants are denying the right, title and interest of the Plaintiff in the suit property.
On being constrained, the Plaintiff instituted the instant suit, praying, inter alia, for declaration, permanent injunctions, mandatory injunction to hand over physical possession of the suit property, decree for khas possession, decree for mesne profit from 01.09.2012 along with other prayers.
The Defendant No. 2 contested the suit by filing written statement. The contentions of the written statement are summarized as follow:
i) The Freemasons are a secret society, established in England in early 18th Century. Apart from their secret rituals, they were also a major charitable organization having philanthropic projects all over the world.
ii) The Eastern Indian District Grand Lodge (in short, 'DGL') is called the DGL of Bengal. In 1912, the DGL of Bengal bought 120 cottah property at 19 Park Street, Calcutta and constructed two double storied buildings. The property was named as Freemasons' Hall. The ground floor of the rituals building had Page |7 two halls; one is Eastern Hall and other is Western Hall, used for Festive Boards (meaning cocktails and dining) which are held at night, after the rituals are completed. The Eastern hall is used by Mark while the Western hall is use by Craft. The office building had two offices of Craft and Mark on the ground floor and the upper floor was used as residential quarters for visiting Freemasons from other Districts. Subsequently, the Plaintiff company was formed without having share capital and the property was transferred to it.
iii) It is contended by the Defendant that instrument of transfer was defective and was challenged by Mark in Court.
iv) After independence of India, a portion of Freemasons no longer wanted to report to London and ultimately in the year 1962, they formed Regional Grand Lodge of Eastern India (in short 'RGLEI'). A resolution was passed giving them 1/3rd of the total space for FM Hall and keeping the 2/3rd for Craft and Mark.
v) In January 2010, Mark filed a suit in City Civil Court being Title Suit No. 1618 of 2010, asking for complete management of 1/3rd portion of Freemasons Hall which was under its occupation, namely, Eastern Hall and the adjoining lawn, measuring around 9000 sq. ft.
vi) The proof of ownership of the Plaintiff is 100 year old deed of transfer made in the month of June 1912. Since the deed is defective and disputed, Plaintiff's right cannot be based on the Page |8 deed and that the indenture has no bearing in the present suit.
The property was purchased by Bro FG Clarke on behalf of DGL which included both Mark and Craft, and it still belongs to DGL, as contended. The Plaintiff is not the owner of the property because the transfer deed was illegal. The property is in actual occupation of both Mark and Craft, in demarked zones for many years with separate electronic meters, telephones, offices, staff quarters, computers and furniture, all in their own separate names. Mark obtained an order of permanent injunction from the City Civil Court which was upheld by the Division Bench of this Court passing order of status quo. The question of ownership was adjudicated upon in case 3153 of 2010 by the Learned 5th Bench of the City Civil Court, Calcutta; as such, the dispute cannot be reopened as of now.
vii) M/S S. Enterprise is not a party to the present suit, nor Mark was a party to the suits and arbitration. The suit should be dismissed, as such, for non-joinder of necessary parties.
viii) It is contended that Mark is not a trespasser to the property. It has its own electric meter and substation, supplying 33 watt of commercial load in Marks own name from CESC along with other amenities. Mark has also several staff quarters on the premises, in one of which District Grand Secretary stays with his family for many years.
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ix) It is denied that Mark was dissolved by London. According to the answering Defendant, no such correspondence was received by Mark from London. It is further contended that a society registered under the West Bengal Societies Registration Act, 1961 cannot be dissolved by an e-mail only. It has to be dissolved by a process as per its own constitution and memorandum of association, if at all has to be done.
x) All other allegations are denied by the Defendant. On the basis of rival pleadings, the following issues were framed:
a) Is the suit maintainable in its present form and in law?
b) Is the suit barred by the principles of res judicata as alleged in the written statement?
c) Is the suit bad for non-joinder of the necessary parties as alleged in the written statement?
d) Are the Defendants entitled to possess the suit property in accordance with law?
e) Is the Plaintiff entitled to get the decree for declaration and perpetual injunction as prayed for?
f) Is the Plaintiff entitled to mesne profit from the Defendants?
g) Is the Plaintiff entitled to get any other relief in the suit?
P a g e | 10 The Plaintiff adduced oral as well as documentary evidences. Oral evidence was adduced by one Shankar Lal Banerjee. Documentary evidences were marked as Ext. A to Ext. J. The Defendant did not adduce any oral evidence. However, one minutes of the proceedings of the quarterly meeting of Grand Lodge of Bengal was adduced in evidence on behalf of the Defendant which was marked as Ext. 1.
The crux of the plaint case is that the Plaintiff is the owner of the premises no. 19, Park Street, Kolkata and that the Defendants have no right, title or interest whatsoever to possess the suit property. Therefore, the Defendants should be evicted from the suit property.
The Plaintiff adduced in evidence the original registered deed dated 28.09.1912 (Ext. C) which proves the title of the Plaintiff over the suit property. Ext. G, establish the states of the Plaintiff as an incorporated body under the Indian Companies' Act 1912.
The Defendant no. 1 filed Title Suit No. 3153 of 2010 in the City Civil Court of Calcutta. The Plaint of the suit (Ext.I) is adduced as evidence. Para. 8 of the plaint shows that the Defendant no. 1 was registered under the West Bengal Societies Registration Act in the year 2010. The original body, namely, the District Grandmaster of DGLMMM was not registered. The Defendant no. 1 asserted in the plaint that the Eastern Hall is in enjoyment and occupation of the Defendant no. 1. The Defendant no. 1 sought to claim permanent injunction restraining the Defendants therein, the present Plaintiff being the Defendant no. 4 therein, from interfering with the administration, management, supervision and sole control of the suit property therein. The suit property therein was the Eastern Hall. The suit was dismissed as the Defendant no. 1, being the Plaintiff therein, failed to adduce P a g e | 11 any evidence. The Defendants, herein, did not have, therefore, adjudicated right of possession in respect of the Eastern Hall.
C. S. No. 171 of 2018 was filed by the Plaintiff herein in this Court against the Defendants. Plaint of the suit as well as the judgment passed in the suit is adduced in evidence. The suit was undefended by the Defendants. Certified copy of the judgment is adduced in evidence and marked as Ext. B. In that suit a Co- ordinate Bench of this Court held that no permission was ever granted to the Defendant no. 1, being a registered body to use or occupy any part or portion of the premises no. 19, Park Street, Kolkata. It was also held that permission to use the said portion of the premises was granted to an unregistered body, namely, the DGLMMM which was dissolved sometimes in the month of August 2012. There was further observation that the Defendant no. 1 is not a Masonic body and had nothing to do with Masonic activities and has no connection with the DGLMMM of England and Wales. Judgment was passed in the suit accordingly in favour of the Plaintiff and decree was drawn up. No appeal was preferred resulting in finality of the judgment in C. S. 171 of 2018.
Oral and documentary evidences adduced by the Plaintiff, unchallenged by the Defendants, establish that it has already been adjudicated upon by a Co-ordinate Bench of this Court that the Defendants have no right to occupy any portion of the premises no. 19, Park Street, Kolkata and that no permission was ever granted to the Defendant No. 1 being a registered body president DGLMMM of Bengal to occupy any portion of premises no. 19, Park Street, Kolkata. In view of this adjudication and judgment, it becomes inevitable conclusion that the defendants have no possessory right, title or interests and no right to occupy and used the suit premises. Permission to use the suit premises, namely, two rooms at the ground floor of the P a g e | 12 office building at the premises no. 19, Park Street, Kolkata were granted to the unregistered body of DGLMMM. Therefore, the Plaintiff is entitled to decree of recovery of khas possession of the suit premises.
In nutshell, the instant suit is allowed.
Hence, it is ordered that the Plaintiff is entitled to recover khas possession of the suit property described in Schedule G of the plaint.
Let the decree be drawn up.
Symbolic possession of the suit premises is with the Learned Receiver. The Learned Receiver shall hand over the symbolic possession of the suit premises to the Plaintiffs within 7 days from the date of the judgment and shall be discharged.
Fix 6th September, 2024 for enquiry into and consideration of mesne-profit.
(Sugato Majumdar, J.)