Calcutta High Court
Mrs Suprova Basu & Ors vs Col Mohit Mahalanobis (Retd.) & Anr on 15 June, 2009
Author: Jayanta Kumar Biswas
Bench: Jayanta Kumar Biswas
C.S. No.155 of 1995
In the High Court at Calcutta
Ordinary Original Civil Jurisdiction
Before
The Hon'ble Mr Justice Jayanta Kumar Biswas
Mrs Suprova Basu & Ors...........plaintiffs.
v.
Col Mohit Mahalanobis (Retd.) & Anr..........defendants.
Mr Surojit Nath Mitra, Mr Dhrubo Ghosh and Mr Kaushik Mondal, advocates, for
the plaintiffs. Mr Joy Saha, Mr Ritabrata Mitra, Mr Dwaipayan Mitra and Mr A.
Mitra, advocates, for the first defendant. None for the proforma defendant.
Heard on: 4.7.2008, 7.7.2008, 14.7.2008, 16.7.2008, 17.7.2008, 18.7.2008,
21.7.2008, 22.7.2008, & 11.6.2009.
Judgment on: June 15, 2009.
Jayanta Kumar Biswas, J: - Suprova and her two sons Himadri and Saumyendra instituted the suit on May 3, 1995 when the plaint was presented and admitted. They have made the following prayers:- "(a) Decree directing the defendant No.1 to deliver back peaceful and vacant possession of the said flat fully described in Annexure "A" hereto to the plaintiffs; (b) Decree directing the defendant No.1 to submit a true and faithful account of the incomes earned by the defendant No.1 by utilizing the said flat and/or portion thereof and a decree in favour of the plaintiffs and against the defendant No.1 for the amount which would be found to have been earned by the defendant No.1 by utilizing the said flat and/or portion thereof; (c) In the alternative, an enquiry be held to ascertain the amounts earned by the defendant No.1 by utilizing the said flat and/or portion thereof and a decree be passed against the defendant No.1 and in favour of the plaintiffs for the amounts which may be found due and payable by the defendant No.1 to the plaintiffs on such enquiry; (d) Perpetual injunction restraining the defendant No.1, his servants, agents and assigns from in any way dealing with and/or transferring and/or alienating and/or encumbering and/or creating any third party interest over and/or in respect of the said flat No.21B on the 21st floor of "Everest" No.46C, Jawharlal Nehru Road, Calcutta; (e) Temporary injunction; (f) Receiver; (g) Attachment; (h) Costs; (i) Further and/or other reliefs."
The schedule of the suit property appended to the plaint is as follows: -
"Flat No.B having an area more or less of 570 square meter along with open space on the Eastern, Southern and Western side as terrace, on the 21st floor of Everest being on premises No.46C, Chowringhee Road, Calcutta - 700 071 containing 4 (four) Rooms, Bathroom, block, partial entrance cum stair case landing lobby, along with all common facilities constituent in all the floors of the building, or that the facilities provided, Commonly to all/or individual flat owners of the said building, including the proportionate right of ownership over the undivided portion of the land in the premises 46C Chowringhee Road, Calcutta - 700 071 butted and bounded on the North by part of the parapet walls, flat 21A, partial entrance cum landing lobby of Flat 21A Staircase-well; on the East by brick wall common with the toilet block and stair case wells, and part of parapet wall at 21st floor level, on the South along entire length by the total parapet wall stretching from one corner to the other corner at 21st floor level; on the Western side along with its entire length by the total parapet wall stretching from one corner to the other corner."
Mohit, the first defendant, is the administrator of the multistoried building called "Everest" at premises no.46C, Chowringhee Road, aka Jawharlal Nehru Road, Kolkata - 700 071. He was appointed by an order of this court dated August 25, 1980 made in Suit No.343 of 1979 (Superintendence Company of India (Pvt.) Ltd. v. Western Building Corporation & Ors.). Originally, Western Building Corporation, a firm having its office at the same premises, was the other defendant. It was a proforma defendant. Mohit filed his written statement dated November 30, 1995 on December 1, 1995. The plaintiffs prayed for amendment of the plaint stating that in view of Western Building's dissolution it was necessary to add its former partner Manikrai Sujani Bharat (in short M.S. Bharat), because he was the person who played principal role in all the transactions between the parties. By an order dated April 11, 2002 the prayer was allowed. Consequently, M.S. Bharat was added and paras. 46A and 46B were inserted. M.S. Bharat filed his written statement dated November 7, 2002 on the same day. In February, 2003 he died. No step was taken for substitution. Mohit filed his additional written statement dated August 14, 2002 on May 13, 2004.
The case stated in the plaint, briefly, is this. Himadri, Saumyendra and their Late father Jyatindra Narayan Basu used to carry on business as building contractors under the firm name Basu-Mitra & Co. Western Building was the owner of the land at premises no.46C, Chowringhee Road. For building a multistoried construction thereon Western Building engaged Basu-Mitra as the contractor. During the last phase of work Basu-Mitra and Western Building entered into an agreement that Basu-Mitra would purchase the flat no.B on the 21st floor with terrace bounded by the parapet for Rs.1.55 lakh. After the agreement, Jyatindra nominated his wife Suprova to purchase his share of the flat. By a cheque dated December 29, 1973 Suprova paid Western Building Rs.5,000 as part payment of the purchase-money. On January 14, 1974 Western Building and the plaintiffs entered into an agreement in writing recording the terms and conditions of sale of the flat. On completion of the work and settlement of accounts it was found that Western Building was to pay Basu- Mitra Rs.1.5 lakh. Western Building proposed an adjustment. Basu-Mitra agreed, and wrote Western Building a letter dated April 15, 1980. Western Building issued a receipt dated May 25, 1980 showing payment by adjustment of the balance purchase-money Rs.1.5 lakh. On or about August 15, 1980 Western Building handed over possession of the flat to the plaintiffs, who were duly assessed, with respect to the flat, by the income tax authorities in the financial year 1979-80. In the meantime on or about May 7, 1979 one Superintendence Company of India (Pvt.) Ltd., an owner of a flat in the building, instituted the Suit No.343 of 1979 against Western Building & Ors. Leave under O.1, R.8 of the Code of Civil Procedure, 1908 was sought. Superintendence Company prayed for a decree directing Western Building to execute a proper conveyance in respect of its flat. By an order dated August 25, 1980, made in the suit, Mohit was appointed for administering the affairs of the building. By the order Western Building was directed to submit to the court a list of owners of flat or portion in the building. On September 9, 1980 Western Building submitted to court a list of owners of flat and portion in the building. The plaintiffs' names were mentioned in the list under no.145. By a letter dated September 10, 1980 the plaintiffs asked Mohit to send them current maintenance bill for the flat that was kept by them under lock and key. Mohit did not take any steps. On January 31, 1983 the plaintiffs applied to the Calcutta Municipal Corporation for mutation. By a letter dated May 9, 1983 they informed Mohit that by his conduct he was depriving them of the use and enjoyment of the flat. By a letter dated May 14, 1983 Mohit informed the plaintiffs that the flat was an unauthorised construction; that no copy of the sale agreement was handed over to him; and that copy of receipt of payment would not establish real payment by the plaintiffs to Western Building. Since their previous mutation application was reportedly not traceable, they submitted a fresh mutation application on May 14, 1986. The corporation never informed them that the flat was an unauthorised construction. Since the corporation did not take necessary action, on January 12, 1993 Himadri submitted a fresh mutation application. Since this application was not traceable as well, they submitted another application on August 25, 1994. In September, 1994 Himadri visited the suit flat and found that breaking the lock open Mohit entered upon it and established his officer and also inducted in a portion thereof one Asian Computer Consultancy Services Pvt. Ltd. Under the circumstances, they were compelled to file the suit.
The case stated in Mohit's written statement and additional written statement is this. Western Building was a necessary party. M.S. Bharat is not a necessary party. The suit is bad for non-joinder and misjoinder of parties. On November 29, 1972 Western Building entered into an agreement with one M/s. J.N. Basu for erection of eighth storeys over the then existing thirteen storeys of the multistoried building at the premises. The 21st floor and particularly flat no.21B was never sanctioned by the corporation. Under an agreement dated April 13, 1973 one Pushpa Rani Sethi purchased the 1000 square feet flat no.21A in the building. The agreement dated January 14, 1974 containing interpolations is an apparent forgery. It is related to a portion in the South of the ground floor that was sanctioned as an entrance. The portion was subsequently enclosed by the second defendant and sold to one Rehana Khatoon under an agreement dated May 22, 1979. The receipt relied on by the plaintiffs is bogus, sham and fabricated. Basu-Mitra was not the contractor of the floors. In September, 1980 when he took over the building the front of flat no.21B was incomplete, unfinished and vacant, and it was not in the possession of anyone. It had a leaking roof. It was uninhabitable, and in a state of disuse. At that time Pushpa was in possession of flat no.21A that was also in an unusable and incomplete condition. There was no power and water connection, since part of it was unauthorised. Pushpa instituted proceedings in court which were ultimately settled by an order dated November 10, 1989. The flat was thereafter renovated and she inducted therein one Asian Computer as a tenant. The entries showing that possession of the flat was handed over by Western Building to the plaintiffs on May 25, 1980 are false, fictitious and manipulated at the instance of Western Building and the plaintiffs. Since the flat was not in the possession of the plaintiffs, no bill was issued to them. The contents of the letter dated May 9, 1983 are false. No area in the building, except a temporary storeroom on the ground floor that they vacated, was in the possession of the plaintiffs. The administrator's office, after repairing the leaking roof, laying floors, plastering walls, installing doors and windows, and refurbishing, was set up in the flat in 1985. Though it was an unauthorised construction, at the time of assessment of final valuation, from 1991 it was recorded in the books of the corporation. The corporation did not allow the mutation application, since it came to a finding that the plaintiffs would not be the owner of the flat. Since there was no provision in the building for the administrator's office, initially he was compelled to function from the corridor on the 14th floor, thereafter from flat no.20F for three years, and then after carrying out the repairs he started functioning from flat no.21B. Having regard to the illegal nature of the flat, Western Building put the plaintiffs' names on the list submitted to this court, and it so did mala fide and with ulterior motives and object.
The case stated by M.S. Bharat in his written statement is this. He was a partner in Western Building that entered into a contract with the firm of the contractor to sell to the firm of the contractor flat no.21B on the 21st floor of the building for Rs.1.55 lakh. Flat no.21B included the terrace on the 21st floor, as described in the schedule to the plaint. As partner in Western Building he received the sum of Rs.5,000 part purchase-money from the purchasers. Western Building entered into an agreement in writing with the plaintiffs recording the terms and conditions for sale of the flat. He executed the agreement on behalf of Western Building. For works done Basu-Mitra was to receive Rs.1.5 lakh. By a letter dated April 15, 1980 Basu-Mitra proposed an adjustment. Balance purchase-money payable by the plaintiffs was Rs.1.5 lakh. Western Building accepted the offer. On behalf of Western Building he issued the receipt dated May 25, 1980 showing the adjustment of Rs.1.5 lakh by Western Building. As will appear from a letter of Basu-Mitra dated August 15, 1980 Western Building gave possession of the flat to the plaintiffs on or about August 15, 1980. By a circular dated May 8/9, 1980 issued by him on behalf of Western Building all owners and occupiers of the building were informed that Western Building had handed over management of the building to the owners' association. Flat no.21B was not an unauthorised construction. The administrator had no authority to keep any flat or establish his office in any flat or in flat no.21B or to induct anyone in flat no.21B without the consent and concurrence of the plaintiffs.
By an order dated July 19, 2004 the following eight issues were framed and recorded: "1.Whether the suit maintainable in its present form and in accordance with law? 2.Whether the plaintiffs have had any cause of action for the suit? 3.Whether the suit is bad for non joinder/mis joinder of parties?
4.Whether any agreement was entered into between the partners of M/s. Bose, Mitra & Co. and Western Building Corporation and/or its partners as alleged?
5.Whether defendant no1 was entitled to take possession of the flat in question?
6.Whether the plaintiffs have any right, title or interest in the flat in question?
7.Whether the plaintiffs are entitled to get the decree as prayed for? 8.Whether the plaintiffs are entitled to get any other relief?"
On behalf of the plaintiffs Himadri has testified as the sole witness. He started deposing on April 25, 1006, and he has said (qq.12-15) that under the agreement, Ex A, Western Building engaged Basu-Mitra to erect eight upper floors over the existing thirteen floors of the building at 46C, Jawharlal Nehru Road; (q.16) that the suit is concerned with flat no.B on the 21st floor of the building; (qq.29-36) that from Ex D, Suprova's bank passbook, it will appear that by a cheque, encashed on January 15, 1974, she paid Western Building Rs.5,000 part purchase-money for the flat; (qq.37-41) that Ex E, the agreement dated January 14, 1974, is the purchase document between Western Building and the plaintiffs; (qq.42-52) that Exs E1-E3 are the handwritings of M.S. Bharat who signed the agreement on behalf of Western Building; (qq.53-64) that from Ex F, his letter to Western Building dated April 15, 1980, it will appear that Western Building adjusted Rs.1.5 lakh, once Basu-Mitra agreed to the adjustment, because, while for the works done Basu-Mitra was to get from Western Building Rs.1.5 lakh, for the flat Western Building was to get from the plaintiffs balance purchase-money Rs.1.5 lakh; that Ex F1, M.S. Bharat's signature on Ex F, will show that the letter was received by M.S. Bharat; (qq.65-69) that Ex G is the original receipt dated May 25, 1980 issued by M.S. Bharat on behalf of Western Building for Rs.1.5 lakh; (qq.70-77) that Exs H and I, the income tax assessment orders for the assessment year 1980-81, will show that payment by adjustment of Rs.1.5 lakh for a flat to Western Building was duly shown by Basu-Mitra, and the second and third plaintiffs in their respective income tax returns; (q.78) that the plaintiffs took possession of the flat no.21B on August 15, 1980; (qq.81-83) that by Ex K, his letter dated September 10, 1980, he requested Mohit to issue the plaintiffs current maintenance bill; (qq.84-87) that in Ex L, the list of the flat- owners in the building submitted by Mohit to court, names of the plaintiffs were mentioned under no.145; (qq.98-101) that in Ex O, letter dated May 14, 1983, Mohit falsely alleged that the flat was an unauthorised construction and the plaintiffs did not pay Western Building the purchase-money; (qq.102-107) that Ex P will show that in the list of office areas in the building submitted by Mohit to the corporation a portion of flat no.21B was included for assessment of tax; (q.111-113) that in September, 1994 when he visited the flat he found that one Pacific Computers had occupied 3,00 sq. ft. of the flat; and that Pacific Computers supplied Ex R, a copy of the bill issued by Mohit to Pacific Computers.
In his cross-examination Himadri has said (q.164) that in or about 1990 Western Building was dissolved and M.S. Bharat, who had signed all the documents, was the only person available to explain all the matters; (qq.188-189) that Western Building handed over possession of the flat to him on August 15, 1980; (q.192) that the letter dated April 15, 1980 will show that the possession was handed over; (q.193) that in the receipt dated May 25, 1980 Western Building wrote that they were handing over possession; (q.194) that it was stated in Ex L that possession was handed over on May 25, 1980; (q.195) that no deed of conveyance was executed in favour of the plaintiffs; (q.208) that the contents of Ex L are true and correct; (q.213) that the contents of Ex E are true and correct; (q.225) that he became a partner in Basu-Mitra in March, 1973; (q.228) that Suprova was never a partner in the firm; (q.236) that the plaintiffs took physical possession of the flat on August 15, 1980, not on August 25, 1980; (q.237) that Mohit was appointed administrator on August 25, 1980 and the plaintiffs informed him about their possession on September 10, 1980; (qq.245-246) that the flat was under lock and key and in September, 1994 he found that the administrator occupied the flat and had given a portion thereof to one East Data Computer Processing Pvt. Ltd; (q.247) that he wrote Mohit in 1983 and moved the court in 1995, because first, the flat in which there was no electricity and water was under lock and key; secondly, Mohit was appointed to administer; thirdly, M.S. Bharat was looking after benefits of all owners; and fourthly, he himself was busy building his own career; (qq.248-249) that from May, 1983 to September, 1994 he did not visit the building; (q.251) that he did not take any action in terms of the letter dated May 14, 1983; (qq.268-279) that when he found that possession of the flat was taken, he did not inform the police.
Mohit started deposing on November 17, 2006, and seventy-nine questions were put to him in examination-in-chief. He has said (qq.1-40) that copies of agreement concerning erection of eight storeys above the existing thirteen storeys in the building, a few blank agreement for sale forms used by Western Building for sale of premises in the building, agreement for sale between Western Building and Raksha Chadda, and agreement between Western Building and Pushpa Rani Sethi were supplied to him by M.S. Bharat in 1980; that the same form was used for almost all agreements except one; that almost all agreements were handed over to him by Western Building; (qq.41-47) that Ex 5 is the plan showing sanction of Kolkata Municipal Corporation for erection of the 21st floor and terrace in the building; that Ex 5 was obtained by him from the corporation under an order of this court; (qq.48-57) that Ex 6 is the receipt book for the period from September 29, 1973 to August 1, 1975 used by Western Building and handed over to him by M.S. Bharat; that Ex 6 shows what moneys were received by Western Building from the flat-owners; (qq.58-66) that Ex 7 is the receipt book used by Western Building for the period from June 19, 1972 to September 29, 1973, and handed over to him by M.S. Bharat; that Ex 7 also shows what moneys were received by Western Building from time to time; (qq.67-
71) that Ex 8 is the letter dated December 5, 1980 he wrote to the city architect building department of Kolkata Municipal Corporation requesting the authority to supply him a complete set of the plan on the basis whereof sanction had been granted; (qq.72-79) that contents of the written statement and additional written statement filed by him are correct.
In his cross-examination Mohit has said (q.80) that he is a consulting engineer; (q.83) that he assumed office as administrator of the building in September, 1980; (qq.84-89) that in September, 1980 the building had twenty- two storeys partly occupied and partly under construction; that on 21st first floor some work "was still unfinished, the windows were not there-profusely leaking and a part was constructed earlier that was in little better condition"; that further construction was stopped when he took charge; (q.114) that Ex AA is his letter dated July 6, 1981 to Basu-Mitra & Co., and not to J.N. Basu & Co.; (q.115) that he does not remember how many flats were vacant when he took possession of the building; (qq.117-118) that the order of the court dated August 25, 1980 from which he derived his authority to act did not authorize him to take actual physical possession of any portion of the building; (q.119) that the order of the court dated September 23, 1981 authorised him to take actual physical possession of any portion of the property; (qq.120-123) that in compliance with the order dated September 23, 1981 he did not ascertain from Western Building who was in actual possession of vacant portions of the premises; (qq.128-131) that he does not remember how many vacant spaces or flats were there in the premises in September, 1981, but it was more than one; that he is not sure whether there were more than ten vacant spaces or flats in the premises; and that it might be more than ten; (qq.132-134) that since he received agreements concerning all vacant portions except the 21st floor, he did not take possession of the other vacant portions; (qq.145-148) that Ex 9 is a copy of an affidavit-in- opposition affirmed by him in December, 1993 and filed in Suit No.343 of 1979 stating on p.34 thereof that when he assumed office Western Building intimated him that the rooms on the terrace of the building that he is occupying had been sold to the contractor who had built the construction against its outstanding bills, but upon enquiry the contractor failed to produce the relevant necessary agreement for sale or any evidence in respect thereto; (qq.149-175) that he wrote letters calling upon the contractor to produce agreement and other evidence, but he is unable to produce such letters, because they are not traceable, though all other documents are traceable; (q.176) that Western Building told him that the flat was sold to the contractor; (q.177) that the contractor was not in possession of the flat; (q.178) that the contractor was not entitled to possession, because the flat was not actually sold; (q.179) that he is not the owner of the property; (q.180) that at the time Western Building told him that the flat was sold, he did not have any competence or authority to challenge the settlement made by the owner; (q.181) that the order appointing him did not authorise him to decide who is the real owner of the flat; (q.182) that by order dated September 23, 1981 he was given liberty to find out who are the real owners, and thus he could give notice and take possession of any flat; (q.185) that the list of owners was submitted by Western Building in October, 1980 so it was known to him who were the owners of the flats; (q.192) that no order was made authorising him to determine the ownership of flats in the building, only order was to ask Western Building to submit a list giving the details of sale they made; (qq.193-196) that Western Building supplied him the list of owners of the flats and in that concerning flat no.21B name of owner was shown under no.145 as H.N. Basu & Ors.; (qq.197-
202) that nobody was in occupation of the space in question; (qq.203-208) that he has nothing to show that at the time he took possession of the building flat no.21 was incomplete; that he did not write any letter to the owner; that he did not think it fit to bring the matter to the notice of the court; (q.209) that the order dated September 23, 1981 authorised him to take occupation of the portion and accordingly he occupied it, since it was not occupied by anyone; (q.212) that no portion of flat no.21B is lying in incomplete condition; (qq.214-220) that he completely built the administrator's office of the building without obtaining any order form the court, because no order was necessary; (qq.221-222) that he has no record to show that the flat was incomplete or that there was no door; (qq.247-254) that in Ex 3, the agreement for sale dated April 13, 1973 between Western Building and Pushpa Rani Sethi for sale of A/1 top floor on 21st floor no area was mentioned; that in none of the agreements area was mentioned; that the agreement was given to him by Western Building; that the flat was incomplete and in bad condition; that he did not take possession of the flat because it was under lock and key; (q.258) that the property described in Annexure A to the plaint is known as 21B; (q.259) that the administrator officer of the building is in occupation of the flat; (q.281) that he took possession of flat no.21B "at the end of 1981"; (q.288) that he does not remember where from he got the funds to complete the flat; (q.289) that he does not remember how much he spent for the purpose; (q.290) that he maintains regular accounts for administration of the building; (q.291) that the expenses were not shown separately in the accounts; (q.293) that the statement made in his written statement that he took possession of the flat in 1985 is not correct, he was in possession from earlier and by 1985 he started using about 800 sq. ft. of it; (q.297) that he cannot say that the flat was an unauthorised construction; (q.303) that during 1981-1983 he put up a few doors and carried out small repairs to make the flat habitable; (q.307) that no order was made by court permitting him to open an administrative office in the building; (qq.310-311) that during 1988-1998 he was administrator of Poddar Point at 113, Park Street; (q.313) that he runs his personal business from 4, Shakespear Sarani; (qq.314-
340) that he personally does not own any flat in the building, but his wife, a professor, owns the flat no.2D that she purchased in 1982-83 when he was administering the building; that no conveyance was executed in her favour; that only a few occupants in the building got conveyance; (q.359) that he submitted last accounts in court in 1996-97; (q.361) that before 1993 he did not submit any accounts in court; (q.394) that according to the list submitted in court possession of her flat was given to Pushpa in October, 1980; (q.396) that he never raised any specific objection to the correctness of the contents of the list of flat-owners; (q.470) that Pacific Computers did not occupy any portion of flat no.21B; (q.471) that Ex R is the bill raised by his office; (q.478) that around 300 sq. ft. of Pushpa's flat was initially in his possession; (q.489) that he is aware of the fact that in the suit a commissioner was appointed; (q.492) that he did not take any exception to the commissioner's report; (qq.494-495) that M.S. Bharat's full signature on the written statement filed by him is not known to him; (q.499) that he did not disclose any document containing M.S. Bharat's full signature; (qq.500-511) that Ex BB is the letter dated October 21, 1980 under which Western Building submitted to him the list of flat-owners and their particulars; that the handwriting at the bottom of the letter is his; that in the accompanying list every page whereof was signed by M.S. Bharat it was stated that possession of flat no.21B had been given by Western Building to the plaintiffs on May 25, 1980, but in their letter they stated that they took possession in August, 1980; and that about the correctness of the contents of the list he raised dispute verbally, not in writing; (q.531) that he gave water and electricity connection to Pushpa after her office premises was done with and leaking roof and other things were repaired; (q.532) that he did not give water and electricity connection to the plaintiffs, since they were not in possession of flat no.21B; (q.548) that he is unable to say whether he gave any reply to Ex K, letter dated September 10, 1980; (qq.576-579) that Exs 6 and 7 were not the only receipt books, there were other receipt books as well; and that from Exs 6 and 7 it will not appear that Pushpa made final payment; (q.635) that Western Building did not say anything regarding the plaintiffs' ownership of flat no.21B, they submitted one list, but other documents do not "tally" with the plaintiffs' claim; (qq.637-639) that he did not let out any portion of the flat no.21B; (q.640) that the plaintiffs are not entitled to mesne profits or damages, since they are not the owners of flat no.21B; (q.667) that during his tenure as administrator nobody else has claimed ownership over flat no.21B; (q.669) that only the plaintiffs were consistently claiming ownership over the flat.
In support of his case Mohit has examined one Gopinath Pal, who deposed on May 14, 2007. Twenty-four questions were put to him in examination-in-chief and he has said (qq.8-23) that Ex 10 is his survey report dated May 4, 2007 that he prepared after surveying the 21st floor of the building under instructions received from Mohit. In his cross-examination he has said (q.26) that Mohit approached him in March, 2007; (q.29) that he conducted the survey for remuneration; (q.30) that he was not aware that the property he was going to survey was a litigious property; (q.37) that he measured only those portions which were shown to him by Mohit; (q.46) that he deposited the original report with Mohit.
The first issue is: "1.Whether the suit maintainable in its present form and in accordance with law?" Mr Joy Saha, counsel for Mohit, has not made any specific submission concerning this issue. Hence I do not find any reason to say that the suit is not maintainable in its present form and according to law.
I, therefore, hold that the suit is maintainable in its present form and according to law. The first issue is, accordingly, answered in the affirmative.
The second issue is: " 2.Whether the plaintiffs have had any cause of action for the suit?" As to this issue also, Mr Saha has not made any specific submission. The plaintiffs have claimed that from August 15, 1980 they were in possession of the suit property; that in September, 1994 Himadri visited the suit property and found that breaking the lock open Mohit entered upon it and established his office and inducted a third party in a portion thereof; and that they are entitled to the possession thereof. Hence according to the case stated in the plaint the plaintiffs' cause of action for institution of the suit is in their wrongful dispossession of the suit property by Mohit and his refusal to put them into possession thereof. In my opinion, the plaintiffs had a cause of action for instituting the suit.
I, therefore, hold that the plaintiffs had a cause of action for filing the suit. The second issue is, accordingly, answered in the affirmative.
The third issue is: " 3.Whether the suit is bad for non joinder/mis joinder of parties?" In his written statement Mohit has taken the plea that M.S. Bharat was not a necessary party, Western Building was. Mr Saha has referred me to paras. 46A and 46B of the plaint, and the proviso to O.1, R.9 of the Code of Civil Procedure, 1908. His submissions are that Western Building is a necessary party; that its erstwhile partners have not been made party; that though the plaintiffs knew that M.S. Bharat died, they chose not to take any step for substitution. According to him, as will appear from para.35, Asian Computer is also a necessary party, but it has not been made a party.
I do not find any merit in Mr Saha's argument. As a matter of fact, at the institution of the suit Western Building was a party. Step for amendment was taken stating that Western Building was dissolved. The prayer for amendment was allowed, and accordingly M.S. Bharat was added as a party and paras.46A and 46B were inserted. In para.46A it was specifically stated that in view of Western Building's dissolution, it was necessary to make M.S. Bharat a party, because M.S. Bharat was the person who participated in all the transactions on behalf of the firm. In the additional written statement Mohit did not dispute the correctness of the plaint case that in view of Western Building's dissolution it was necessary to make M.S. Bharat a party. Under the circumstances, I am unable to see how it can be contended at this stage that the suit is bad for non-joinder or misjoinder of parties. I find no reason to hold that Asian Computer is a necessary party. There was no scope to substitute anyone for M.S. Bharat. He was a proforma defendant, on his death the plaintiffs' right to sue survived only against Mohit.
I, therefore, hold that the suit is not bad for non-joinder or misjoinder of parties. Accordingly, the third issue is answered in the negative.
The fourth, fifth and sixth issues are: "4.Whether any agreement was entered into between the partners of M/s. Bose, Mitra & Co. and Western Building Corporation and/or its partners as alleged? 5.Whether defendant no1 was entitled to take possession of the flat in question? 6.Whether the plaintiffs have any right, title or interest in the flat in question?" Mr Saha has not argued these issues separately. In view of his arguments which virtually cover all these three issues, I think it will be appropriate to deal with them together.
According to Mr Saha, the plaintiffs not being the owners and in previous possession of the property cannot seek a decree for recovery thereof. He has pointed out that under q.195 Himadri has admitted that no conveyance with respect to the property has been executed in favour of the plaintiffs. His argument is that even if it is assumed that the plaintiffs were in previous possession of the property, they are not entitled to a decree for recovery thereof, unless they establish their ownership. Mr Surojit Nath Mitra, counsel for the plaintiffs, has made it clear that the plaintiffs are not seeking a decree for recovery of the property on the basis that they are owners thereof, but on the basis that they were wrongfully dispossessed thereof by Mohit. In view of Mr Mitra's such submission, Mr Saha has contended that if it is a case of recovery of possession based on dispossession, then the suit cannot be under any provision except under s.6 of the Specific Relief Act, 1963; and that if it is a mere case of recovery of the property based on previous possession, then ownership has to be established. According to Mitra, since the plaintiffs are seeking recovery of the property on the basis of their previous possession and subsequent wrongful dispossession thereof by Mohit, for relief they are not required to establish that they are the owners of the property, they are required to establish only their previous possession and subsequent dispossession.
While in support of his contentions Mr Saha has relied on Raj Krishna Parui v. Muktaram Das [1910] 12 CLJ 605; Rai Kiran Chandra Roy & Ors. v. Prosanna Kumar Chakravarti, AIR 1934 Cal 561; Neyveli Lignite Corporation Ltd. & Ors. v. K.S. Narayana Iyer, AIR 1965 Mad 122; East India Hotels Ltd. v. Syndicate Bank, 1992 Supp(2) SCC 29; Nagar Palika, Jind v. Jagat Singh, Advocate, (1995) 3 SCC 426; M/s. Indo Minerals & Anr. v. Sashi Kanta Ruiya & Ors., 1999 (1) CHN 393; Mahadkar Agency & Anr. v. Padmakar Achanna Shetty, AIR 2003 Bom 136; and Sukumar Saha v. Shyamal Kumar Saha & Ors., 2006(1) CHN 12; in support of his contentions Mr Mitra has relied on Rev. Father K.C. Alexander v. Nair Service Society Ltd., AIR 1966 Ker 286; Lallu Yeshwant Singh v. Rao Jagdish Singh & Ors., AIR 1968 SC 620; Nair Service Society Ltd. v. K.C. Alexander & Ors., AIR 1968 SC 1165; Somnath Berman v. Dr. S.P. Raju & Anr., AIR 1970 SC 846; and Sudhir Jaggi & Anr. v. Sunil Akash Sinha Choudhury & Ors., AIR 2005 SC 1243.
On the question whether in a suit for possession of immovable property based on previous possession and not on title, when the plaintiff while in possession of the property has been dispossessed, for entitling him to a decree the plaintiff is required to establish his ownership over the property, Mr Saha and Mr Mitra together have cited to me as many as thirteen authorities. I hope I shall not be thought of disrespectful to the authorities and unappreciative of the arguments, if I say that in view of the principles laid down by the Supreme Court in two of them, for brevity's sake I may take the liberty of not dealing with all of them in detail. The two decisions are: Nair Service Society Ltd. v. K.C. Alexander & Ors., AIR 1968 SC 1165 and Somnath Berman v. Dr S.P. Raju & Anr., AIR 1970 SC 846.
In Nair Service Society Ltd. v. K.C. Alexander & Ors., AIR 1968 SC 1165, Nair Service's one of the contentions was (para.6): "..if a possessory suit analogous to S.9 of the Indian Specific Relief Act was not filed by the plaintiff's only remedy was to file a suit for ejectment pleading and proving his title to the suit land. A mere possessory suit after the expiry of 6 months was not possible." Turning down the contention, their Lordships first said (para.13): "..we cannot subscribe to the view that after the period of 6 months is over a suit based on prior possession alone, is not possible. Section 8 of the Specific Relief Act does not limit the kinds of suit but only lays down that the procedure laid down by the Code of Civil Procedure must be followed. This is very different from saying that a suit based on possession alone is incompetent after the expiry of 6 months. Under Section 9 of the Code of Civil Procedure itself all suits of a civil nature are triable excepting suits of which their cognizance is either expressly or impliedly barred." Their Lordships then said (para.14): "..Mr. Nambiar argues that there cannot be two periods of limitation, namely 6 months and 12 years for suits based on possession alone and that the longer period of limitation requires proof of title by the plaintiff. We do not agree. No doubt there are a few old cases in which this view was expressed but they have since been either overruled or dissented from. The uniform view of the courts is that if Section 9 of the Specific Relief Act is utilized the plaintiff need not prove title and the title of the defendant does not avail him. When, however, the period of 6 months has passed questions of title can be raised by the defendant and if he does so the plaintiff must establish a better title or fail. In other words, the right is only restricted to possession only in a suit under Section 9 of the Specific Relief Act but that does not bar a suit on prior possession within 12 years and title need not be proved unless the defendant can prove one. The present amended articles 64 and 65 bring out this difference. Article 64 enables a suit within 12 years from dispossession, for possession of immovable property based on possession and not on title, when the plaintiff while in possession of the property has been dispossessed. Article 65 is for possession of immovable property or any interest therein based on title. The amendment is not remedial but declaratory of the law." In Somnath Berman v. Dr S.P. Raju & Anr., AIR 1970 SC 846, Somnath, the first defendant in Raju's suit, contended before their Lordships (para.4): "..the plaintiff who based his suit on title and prior possession having failed to establish his title, his suit has to fail." Their Lordships said (para.9): "..According to the appellant, except in a suit under Section 9 of the Specific Relief Act, the plaintiff for succeeding in the suit, has to prove both existing title to the suit property and its possession within 12 years. We are unable to accept this contention as correct. In our opinion the possession of the plaintiff prior to 1945 is a good title against all but the true owner. The defendants who are mere trespassers cannot defeat the plaintiff's lawful possession by ousting him from the suit property. Possessory title is a good title as against everybody other than the lawful owner."
In view of the law declared by the Supreme Court in Nair Service, the authorities preceding it lose significance in so far as the question of law under consideration is concerned. In none of the decisions given after Somnath Berman the law has further been explained or any law contrary to the ones declared in Nair Service and Somnath Berman has been declared, a quick look at them will make it evident. In East India Hotels Ltd. v. Syndicate Bank, 1992 Supp(2) SCC 29, Syndicate Bank filed the suit under s.6 of the Specific Relief Act, 1963 against East India Hotels, the owner of the property. In the case nothing was decided that goes contrary to the propositions laid down in Nair Service and Somnath Berman. As a matter of fact, Nair Service was one of the cases considered in that case. In Nagar Palika, Jind v. Jagat Singh, Advocate, (1995) 3 SCC 426, Jagat Singh filed the suit for injunction restraining Nagar Palika from interfering with his possession. Jagat Singh also claimed that he was the owner of the land, and in possession thereof. According to Narar Palika, Jagat Singh had unauthorisedly encroached upon the land. In such context their Lordships said (para.8) that once Jagat Singh filed the suit claiming to be the owner and in possession of the land, the suit could not be treated as one based on possession and dispossession without reference to title; and hence the principle of s.6 of the Specific Relief Act, 1963 could not be applied to the case. In my opinion, nothing said in the decision can be used to say that the law declared in Nair Service and Somnath Berman was explained. In Sudhir Jaggi & Anr. v. Sunil Akash Sinha Choudhury & Ors., AIR 2005 SC 1243, the suit was filed under s.6 of the Specific Relief Act, 1963. I do not think anything said in the decision adds anything to the propositions laid down in Nair Service and Somnath Berman which were not considered therein.
In view of the law clearly stated by the Supreme Court in Nair Service and Somnath Berman there can be absolutely no doubt that for entitling them to a decree for recovery of the property the plaintiffs are not required to establish their ownership over it, because, admittedly, Mohit is not claiming that he is the owner thereof, rather he has admitted (q.179) that he is not the owner of the property. The firm owing the property, the original proforma defendant, is said to have been dissolved in 1990, and M.S. Bharat, its former partner, who had played the principal role in everything important and was added as a party, by filing written statement during his life time said that the property had been sold by the owner thereof to the plaintiffs. But, since Mohit is claiming that his right to possession of the property is derived from a title, they are required to prove a better title for entitling them to a decree for possession, if Mohit proves his title. Needless to say that under any circumstances they have to prove their previous possession of the property and subsequent wrongful dispossession thereof by Mohit. I am, therefore, of the view that, though they instituted the suit seeking a decree for recovery of the property based on ownership and previous possession, they will be entitled to a decree even without establishing their ownership, if they establish their previous possession of the property and wrongful dispossession thereof by Mohit, and also a title giving them a right to possession, better than the one proved by Mohit. Therefore, it is to be ascertained from the cases and evidence of the parties whether the plaintiffs have fulfilled these requirements.
Ex A is the agreement dated November 29, 1972 between Western Building and Basu-Mitra. While M.S. Bharat signed it for Western Building as a partner therein, J.N. Basu, Suprova's husband and Himadri and Saumyendra's father, signed it for Basu-Mitra as a partner therein. Under the agreement Western Building engaged Basu-Mitra, described therein as the contractor, for building eight floors over the existing thirteen floors of Everest Building for Western Building at 46C, Chowringhee Road, Calcutta. The agreement has been proved by Himadri. In proof of his case that the contractor engaged by Western Building was one J.N. Basu, and not Basu-Mitra & Co., Mohit has produced an agreement also dated November 29, 1972 stated to have been signed for Western Building by M.S. Bharat as a partner therein and for J.N. Basu & Co. by J.N. Basu as the proprietor thereof. This agreement is also for proposed construction of eight floors over the existing thirteen floors of Everest Building for Western Building at 46C, Chowringhee Road, Calcutta, and in this also J.N. Basu & Co. was described as the contractor. But then this agreement produced by Mohit has not been admitted in evidence. Its execution and contents have not been proved. Mohit has only said that it was supplied to him by M.S. Bharat of Western Building. He has, however, admitted (q.114) that his letter dated July 6, 1981, Ex AA, he wrote to Basu-Mitra & Co., and not to J.N. Basu. By the letter he called upon J.N. Basu of Basu-Mitra & Co. to remove his belongings from the ground floor storeroom of the building.
Ex E is an agreement dated January 14, 1974 between Western Building and the plaintiffs. For Western Building it was signed by M.S. Bharat, and all the three plaintiffs signed it for themselves. At the date of execution thereof Himadri and Saumyendra were partners in Basu-Mitra, and Suprova was the nominee of her husband J.N. Basu, the other partner in the firm. Under the agreement, in which Western Building and the plaintiffs were described as the seller and buyer respectively, Western Building agreed to sale and the plaintiffs agreed to buy the office no.B on the 21st floor with the terrace of the building for Rs.1.55 lakh. Himadri has proved the agreement. He has said that M.S. Bharat who overwrote on it duly initialed at the relevant place. Mohit has not taken any step to prove his case stated in the written statement that the agreement containing interpolations is an apparent forgery. It is to be noted that in his written statement M.S. Bharat did not dispute the genuineness and the correctness of the contents of both Exs A and E. On the contrary, he stated that on the terms and conditions of Ex E, duly signed by him for Western Building, Western Building had agreed to sell to the plaintiffs flat no.21B with the terrace on the 21st floor of the building for Rs.1.55 lakh.
Until he was appointed by the order dated August 25, 1980, Ex J, as the administrator of the building, admittedly, Mohit was not connected in any manner with the building. In his written statement he has not stated his title wherefrom he derived his right to possession of the suit property. He has only stated a case that in September, 1980 when he took over the building the front of flat no.21B was incomplete, unfinished and it was vacant and not in the possession of anyone; and that after completing it in every respect he set up his office therein in 1985. The case of the plaintiffs is that Mohit wrongfully took possession of the suit property that was in their possession from August 15, 1980, in view of delivery of possession thereof to them by Western Building that received full purchase-money for the property on May 25, 1980. Their case was fully supported by M.S. Bharat who stated in his written statement that Mohit had no authority to establish his office in the suit property or to induct anyone therein without consent and concurrence of the plaintiffs to whom possession of the property had been delivered on or about August 15, 1980. In his examination-in-chief Mohit has not given any evidence in proof of his title wherefrom he derived his right to possession of the suit property. This means that he has not taken any step to prove the title of his asserted right to possession of the suit property. He has not given any evidence for the obvious reason that in his written statement he did not indicate the title wherefrom he derived his right to possession of the suit property. But in cross-examination he has cited a title as the source of his right to possession of the suit property. In answer to qq.119,182 & 209 put to him in cross-examination he has said that the order of the court dated September 23, 1981 gave him liberty to find out who were the real owners, and thus he could give notice and take possession of any flat; and that on the strength of the order dated September 23, 1981 that authorised him to occupy the suit property, he occupied it, since nobody was in occupation thereof.
A copy of the order dated September 23, 1981 passed in Suit No.343 of 1979, not tendered in evidence, is Annexure B to his evidence on affidavit dated February 20, 2006. The relevant part of the order relied on by him reads: "After ascertaining the position from the defendant No.1 as to who is in actual occupation of the vacant portions of the premises the administrators will be at liberty take occupation of the said portion on two weeks notice to the occupants." In cross-examination he has categorically admitted (qq.120-123) that in compliance with the order dated September 23, 1981 he did not ascertain from Western Building who was in actual possession of the vacant portions of the premises; (qq.128-131) that in September, 1981 the number of vacant spaces or flats in the premises could be more that ten; (qq.132-134) that he took possession of only the suit property; (q.176) that Western Building told him that the flat had been sold to the contractor; (q.185) that since the list of flat-owners was submitted by Western Building in October, 1980, it was known to him who were the owners of the flats; (qq.500-511) that in the list of flat-owners submitted to him by Western Building, under cover of letter dated October 21, 1980, Ex BB, and signed by M.S. Bharat it was stated that possession of flat no.21B had been given by Western Building to the plaintiffs on May 25, 1980, but in their letter they stated that they took possession in August, l980; and that he raised dispute verbally, and not in writing, about the correctness of the contents of the list; (qq.149-175) that he wrote letters calling upon the contractors to produce agreement and other evidence, but he is unable to produce such letters, because they are not traceable, though all other documents are traceable; and (qq.145-
148) that on p.34 of Ex 9, a copy of his affidavit-in-opposition affirmed in December, 1983 and filed in Suit No.343 of 1979, he stated that when he assumed office Western Building intimated him that the rooms on the terrace of the building, that he is occupying, had been sold to the contractors who had built the construction, against their outstanding bills, but upon enquiry the contractors failed to produce the relevant necessary agreement for sale or any evidence thereof. There is absolutely no evidence in proof of his assertion that he made enquiry for ascertaining the plaintiffs' occupation or possession of the suit property. He has clearly admitted that he took possession of the suit property without complying with the order dated September 23, 1981. He has further admitted that he could take possession of any vacant flat only after giving notice in terms of the order dated September 23, 1981. He took possession of the suit property otherwise than according to the order dated September 23, 1981. It is evident that he just trespassed on the suit property inspite of his full knowledge that the owner thereof had sold it to the plaintiffs and delivered possession thereof to them as back as August 15, 1980. It is obvious that the case he sought to make out for the first time during his cross-examination that the order dated September 23, 1981 is the title of his right to possession of the suit property is an afterthought pressed into service in desperation to cover up his misdeeds. It is also to be noted that such case was not put or suggested to Himadri; and that except the plaintiffs, nobody else has ever claimed ownership over the property.
The next question that requires decision is whether the plaintiffs were in possession of the suit property. Their case stated in the plaint is that on the terms and conditions mentioned in the agreement dated January 14, 1974, Ex E, Western Building agreed to sell and they agreed to purchase the suit property for Rs.1.55 lakh; that part purchase-money amounting to Rs.5,000 was paid by Suprova by a cheque dated December 29, 1973; that the balance was to be treated as paid by adjustment of Rs.1.5 lakh, since for works done Western Building was found liable to pay Basu-Mitra a sum of Rs.1.5 lakh and the proposal for adjustment was accepted by both the parties; that in connection with payment of the balance purchase-money by adjustment they wrote Western Building Ex F, the letter dated April 15, 1980 and showing receipt of the balance purchase-money by adjustment M.S. Bharat of Western Building issued Ex G, the receipt dated May 25, 1980; that possession of the suit property was handed over to them by Western Building on or about August 15, 1980; that on September 9, 1980 Western Building submitted to court a list of flat-owners in the building mentioning therein under no.145 their names with respect to the suit property; and that by the letter dated September 10, 1980, Ex K, they requested Mohit to send them current maintenance bill for the flat that was kept by them under lock and key. It appears from Ex D, Suprova's bank passbook, that the cheque for Rs.5,000 issued by her was encashed by Western Building on January 15, 1974. The agreement dated January 14, 1974, Ex E, has been proved by Himadri. The entire case stated in the plaint was supported by M.S. Bharat who filed his written statement during his lifetime. Exs F and G, the plaintiffs' letter dated April 15, 1980 concerning adjustment of Rs.1.5 lakh owed to Basu-Mitra by Western Building and Western Building's receipt dated May 25, 1980 treating the balance purchase-money Rs.1.5 lakh as adjusted according to the letter dated April 15, 1980, clearly show that even in the absence of execution and registration of the requisite conveyance the plaintiffs could be put into possession of the suit property. On behalf of Basu-Mitra the letter dated April 15, 1980 was signed by Himadri who has proved it. He has also proved M.S. Bharat's signature on the letter with the remark that the original of the letter was received by M.S. Bharat.
In the letter it was clearly stated that the parties had entered into an agreement on January 14, 1974 for sale of flat no.21B on the 21st floor of the building; that Rs.5.000 part purchase-money was paid on December 29, 1973; that the balance purchase-money should be adjusted from Basu-Mitra's bill for works done by the firm. It is to be noted that this letter came into existence long before August 25, 1980 when order was made in C.S. No.343 of 1979 appointing Mohit as the administrator of the building; and that in that suit the plaintiffs were not party. Therefore, there is no reason to think that the plaintiffs and Western Building reached the settlement as to payment of full purchase-money for the suit property with some ulterior motive. It is also important to note that, as will appear from Ex H, an assessment order of the Income-tax Officer for the assessment year 1980-81, payment of Rs.1.5 lakh balance purchase-money for the flat to Western Building by adjustment was shown by Basu-Mitra in its income tax return filed on August 16, 1908, i.e. before August 25, 1980 when order was made appointing Mohit. In Ex G issued by M.S. Bharat on behalf of Western Building it was clearly stated that for office no.B on the 21st floor Western Building received from the plaintiffs Rs.1.5 lakh by way of "ADJUSTMENT AGAINST PAYMENT OF BILLS OF BASU-MITRA & CO. AS PER THEIR LETTER." M.S. Bharat who was the only person to dispute the genuineness of the receipt, categorically affirmed the correctness of the contents thereof. This receipt had also come into existence before the order dated August 25, 1980 appointing Mohit as administrator was made. After Mohit took charge of the building as administrator thereof the plaintiffs wrote Ex K, the letter dated September 10, 1980. The fact of receipt of Ex K has not been disputed by Mohit who, however, has said (q.548) that he is unable to say whether he gave any reply to the letter. The contents of the letter are: "All our dues for the purchase price of Office B at 21st floor of Everest House have been paid off as per receipt No.663 dated 25.5.80 and we have taken possession of the office from the 15.8.80. We therefore request you to send your current maintenance bill to the above address." The letter delivered by hand was signed by all the three plaintiffs and from the seal and signature, Ex K1, of the person receiving it on September 12, 1980 it is evident that it was actually received by Mohit. He chose not to say anything with respect to delivery of possession of the suit property to the plaintiffs on August 15, 1980.
The contents of Ex BB, Western Building's letter dated October 21, 1980 signed by M.S. Bharat and addressed to Mohit are: "With reference to your letter dated 14th October, 1980 I am enclosing herein the list of the Owners along with the date of Final payment and date of handing over/occupation. The approximate area which you can ascertain from the bills raised against the Owners by the Association. Regarding the sanction plan the same is not available. The upto date accounts have already given to you with the cheque of the Balance Amount. The audited Balance Sheet from 1st April, 1980 will be sent you as soon as the same is received from the Auditors which I hope will be ready in three weeks." The letter was received by Mohit, who has said (qq.500-511) that the handwriting at the bottom thereof is his, the writing dated October 27, 1980 is: "Please sign on each page of the list as I want to use it as an authentic document for all billings to the owners. Any amendments required at a letter date can be incorporated." Accordingly M.S. Bharat singed on all the seven pages of the enclosed list wherein under no.145 and with respect to office no.21B on the 21st floor name and address of the owners were recorded as: "Mr H.N. Basu & Ors. C/o., Mr J.N. Basu." It was further mentioned that the sale price of the flat was Rs.1.5 lakh; and that possession was handed over on May 25, 1980.
Relying on Pradip Kumar Roy v. Smt Bimala Banerjee & Anr., 1999(2) Cal LT 599 (HC), Mr Saha has argued that since the author of Ex L, the list of flat- owners in the building, has not been examined, it cannot be said that the contents thereof have been proved. He relies on the proposition that contents of a document are not automatically proved once the signatures are proved. The proposition is unexceptionable, and it is supported by the decision. But I do not think the proposition is of any assistance in this case. True it is that M.S. Bharat, the author of Ex L, has not been examined. As a matter fact, he having died during pendency of the suit, and before the recording of evidence commenced, there was no scope to examine him. But then, Ex L is a xerox of the list that is part of Ex BB. Ex BB has two parts. The first part is M.S. Bharat's letter dated October 21, 1980 addressed to Mohit, and the second part is the list of flat-owners in the building, enclosed with the letter. Both are original documents and they have been disclosed by Mohit under DD-9, and he has proved them. Under the circumstances, I am unable to see how Mr Saha can contend that Himadri proving only M.S. Bharat's signatures on Ex L and not the contents thereof, nothing stated in the list of flat-owners, Ex L and also Ex BB, can be taken into consideration.
Ex M is a receipt dated January 31, 1983 issued by the Corporation of Calcutta stating that with respect to 46C, Chowringhee Road (Everest Building) the corporation received an application from Suprova and others for assessment; and that xerox of agreement, money receipt, and plan for flat no.B on the 21st floor were received. Mohit admittedly received the plaintiffs' letter dated May 9, 1983, Ex N. It was again stated in the letter that having purchased the flat, the plaintiffs were in possession thereof from the date mentioned in their letter dated September 10, 1980, and hence there was no reason why Mohit should not permit them to have water and electricity connections. It was also mentioned that Mohit was not sending them maintenance bill. The contents of his reply dated May 14, 1983, Ex O, are as follows: "Please refer to your letter dated 9th May'83 in connection with the possession of construction on the roof of 'EVEREST - BUILDING'. We have received the copy of sanctioned plan from the Corporation of Calcutta. No sanction exists for construction of any office premises on the roof of Everest Building. The unfinished structure with leaking roof, without window panes, electric wairing etc. is an unauthorised construction. The Corporation of Calcutta is now being requested to let us know what will be the fate of this structure. However no sale agreement on the unauthorised structure has been handedover to us. The photocopy of the receipt of payment send to me does not show any real payment made by you to the Western Building Corporation but shows certain other consideration which cannot be verified. The Hon'ble Mr. Justice T.K. Basu appointed me as the Administrator of Everest Building to Administrate the authorised structure only and I am unable to provide new electrical & water connections to the unauthorised construction nor I can allow anyone to complete the unauthorised structure. You are at liberty to take the case to High Court, Calcutta for further direction."
It is evident from Ex O that the plaintiffs' claim that they were in possession of the suit property from August 15, 1980 was not disputed by Mohit; that at the date he was writing the letter the plaintiffs were in possession of the suit property; that he did not say that the flat having no door was lying open; or that after repairing it he had taken possession thereof in 1981; or that at the time he was writing the letter the flat was in his possession. He only said that the construction was an unauthorised one and hence there was no question of administering it by him and providing electricity and water connections to it. In his written statement Mohit stated that after making the flat complete in every respect he set up his office therein in 1985. In his cross-examination he wanted to make out new cases (qq.281-307) that he took possession of the flat "at the end of 1981"; that he cannot say that the flat was an unauthorised construction; and (q.532) further that he did not give water and electricity connection to the plaintiffs, since they were not in possession. His evidence noted hereinbefore read as a whole leads to an irresistible conclusion that he is not a truthful witness. I do not think it will be an exaggeration if it is said that by grossly abusing his position conferred on him by this court he has indulged in a blatant illegality. He stated a case that he completed the incomplete flat in every respect. The exposing cross-examination has laid his totally untrue claim bare. He did not have the courage to put to Himadri his case stated in his written statement that in September, 1980 when he took over the building the front of flat no.21B was incomplete and unfinished, it was vacant and not in the possession of anyone, it had a leaking roof, it was uninhabitable, and in a state of disuse; and that after repairing the leaking roof, laying floors, plastering walls, installing doors and windows, and refurbishing, he set up his office in the flat in 1985. Nor has he, in his examination-in-chief, given any evidence in proof of all these facts. As will appear from (qq.288-290, 359-361) he could not give the amount that he allegedly spent for completing the flat or the source wherefrom he got the funds; he could not produce any accounts showing that he spent any amount for completing the flat in every respect; though he was appointed on August 25, 1980, before 1993 he did not submit any accounts in court; and he last submitted accounts in court in 1996-97. He admitted (qq.314-340) that after he assumed office as administrator his wife acquired flat no.2D in the building. He has given evidence only of receipt of copies and originals of certain agreements and a few receipt books from M.S. Bharat. He has not taken any steps to prove his case stated in his pleading. His case has remained not proved.
The decisions in A.E.G. Carapiet v. A.Y. Derderian, AIR 1961 Cal 359 and Traders Syndicate v. Union of India, AIR 1983 Cal 337, have been relied by Mr Mitra to show what is the effect of absence of cross-examination and suggestion. He has said that Himadri has not been cross-examined on the question of possession, nor has any suggestion been given to him on the question; and that, on the contrary, q.246 was put asking him when did he lose possession of the suit property. Traders Syndicate was decided relying on A.E.G. Carapiet and in A.E.G. Carapiet their Lordships held (para.10): "The law is clear on the subject. Wherever the opponent has declined to avail himself of the opportunity to put his essential and material case in cross-examination, it must follow that he believed that the testimony given could not be disputed at all. It is wrong to think that this is merely a technical rule of evidence. It is a rule of essential justice. It serves to prevent surprise at trial and miscarriage of justice, because it given notice to the other side of the actual case that is going to be made when the turn of the party on whose behalf the cross-examination is being made comes to give and lead evidence by producing witnesses. It has been stated on high authority of the House of Lords that this much a counsel is bound to do when cross- examining that he must put to each of his opponent's witnesses in turn, so much of his own case as concerns that particular witness or in which that witness had any share. If he asks no question with regard to this, then he must be taken to accept the plaintiff's account in its entirety. Such failure leads to miscarriage of justice, first by springing surprise upon the party when he has finished the evidence of his witnesses and when he has no further chance to meet the new case made which was never put and secondly, because such subsequent testimony has no chance of being tested and corroborated."
In my considered view the evidence adduced by the parties leave no room to doubt that Western Building, the owner of the suit property, having delivered possession thereof to the plaintiffs, the plaintiffs were in actual possession thereof on and from August 15, 1980; and that Mohit wrongfully entered thereupon in 1985. His own case is that initially he was running his office from the corridor on the 14th floor, thereafter for three years from flat no.20F, and then after carrying out repairs he started functioning from flat no.20B, the suit flat. It is, therefore, evident that he wrongfully took possession of the suit property in 1985 and thus dispossessed the plaintiffs thereof. I am unable to see how the decision in Gurucharan Singh v. Kamla Singh & Ors., (1976) 2 SCC 152 relied on by Mr Saha can be used to hold that in view of the meaning of the expression "khas possession" explained therein, on the facts it cannot be said that the plaintiffs were in actual physical possession of the suit property at any point of time. In Gurucharan the expression "khas possession" was examined by their Lordships in the context of the provisions of the Bihar Land Reforms Act, 1950. In my opinion, nothing said in the decision is applicable to the present case. Mr Saha has repeatedly said that Himadri has failed to give the exact date of delivery of possession by Western Building. I do not find any substance in the point. The confusion has arisen because of the date of delivery mentioned by M.S. Bharat in Ex BB, the list of flat-owners. In the list it was mentioned that possession was delivered by Western Building on May 25, 1980. Actually this was the date of the receipt issued by Western Building showing payment of Rs.1.5 lakh by adjustment. In his written statement M.S. Bharat stated that possession was delivered on August 15, 1980. Himadri has clarified (q.236) the position by saying that the plaintiffs took actual possession on August 15, 1980, not on May 25, 1980. For showing what is meant by the word "dispossession", Mr Mitra has relied on Black's Law Dictionary (8th ed.). The meaning of the word given therein is: "Deprivation of, or eviction from, rightful possession of property; the wrongful taking or withholding of possession of land from the person lawfully entitled to it." Mr Saha has said that in any case there is nothing to show that the plaintiffs were ever in possession of any portion of the terrace that, as is evident from the agreements, could not be sold to anyone by the owner of the property. I do not think there is any reason to disbelieve what Himadri has said. As to the plaintiffs' possession of a part of the terrace on the 21st floor, suffice it to say that Mohit himself has said (q.258) that the property described in Annexure A to the plaint is known as 21B; and that the plaintiffs are claiming a right to recovery of the property described in Annexure A to the plaint.
I, therefore, hold that the agreement dated November 29, 1972, Ex A, was entered into between the partners in Basu-Mitra and Western Building; that the agreement dated January 14, 1974, Ex E, was entered into between the partners in Western Building and two partners and the nominee of the other partner in Basu-Mitra; that Mohit had no right to take possession of the suit flat; that he had or has no title wherefrom he could or can derive any right to possession of the suit property; that the plaintiffs, having received possession of the suit property from Western Building on August 15, 1980, are entitled to possession thereof. Accordingly, I answer the fourth issue in the affirmative, the fifth issue in the negative, and the sixth issue in the affirmative.
The seventh and eighth issues are: "7. Whether the plaintiffs are entitled to get the decree as prayed for? 8. Whether the plaintiffs are entitled to get any other relief?" Mr Saha has argued that, in view of the provisions of s.24 of the Indian Contract Act, 1872, the agreement for sale, Ex E, is void, because the construction in question is an unauthorised one. In support of his contention that the court should not grant relief for perpetuating an illegality, he has relied on the provisions of ss.392 and 393 of the Kolkata Municipal Corporation Act, 1980; Rr.3 and 4 of the Building Rules; and Mannalal Khetan & Ors. v. Kedar Nath Khetan & Ors., (1977)2SCC 424. As I have already pointed out Mohit himself has said that he cannot say that the construction in question is an unauthorised one. In any case, I do not find any merit in the argument. Questions that require decision in this case are whether the plaintiffs were in possession of the suit property, whether they were wrongfully dispossessed by Mohit, and whether they are entitled to a decree for recovery of the suit property. Since it is a case based on the plaintiffs' previous possession and not on their ownership over the property, they are required to prove, if at all, a title better than the one proved by Mohit, and not their ownership. In my opinion, they are fully justified in claiming that the agreement for sale, payment of whole of the purchase-money for the flat, and delivery of possession of the suit property to them by the owner thereof - these facts are their title of the right to possession of the property. Even if it is held that the order dated September 23, 1981 made in Suit No.343 of 1979 is Mohit's title of a power to take possession of the suit property, that, however, cannot be considered a title of a right to possession of the suit property, better than the one of the plaintiffs. They were in possession of the property and have been wrongfully dispossessed by Mohit in 1985. Hence it is not necessary to decide whether Ex E is void. I find no merit in Mr Saha's argument that the suit was instituted after the period of limitation prescribed by the Schedule, art.64, to the Limitation Act, 1963. The suit was instituted on May 3, 1995, i.e. long before expiration of twelve years from 1985. In my judgment, the plaintiffs are entitled to a decree for recovery of the suit property. They have made a prayer for mesne profits. In my opinion, on the basis of the evidence adduced it is not possible to determine the amount that may be payable by way of mesne profits. I think it will be appropriate to make an order directing an enquiry as to mesne profits.
For these reasons, the suit is allowed on contest and with costs. There shall be a decree for recovery of the suit property described in the schedule to the plaint. There shall be a preliminary decree for past and future mesne profits. The final decree will be passed in accordance with the result of the enquiry according to the provisions of O.20, R.12 of the Code of Civil Procedure, 1908. The decrees shall be drawn up, prepared and completed within a fortnight.
Urgent certifies xerox of this judgment, if applied for, shall be supplied to the parties within three days from the date of receipt of the file by the section concerned.
(Jayanta Kumar Biswas, J.)