Calcutta High Court
Salim Makkar vs N.K. Pansari And Ors. on 17 May, 2001
Equivalent citations: AIR2001CAL162, AIR 2001 CALCUTTA 162, (2001) 2 CAL HN 564
Author: D.K. Seth
Bench: D.K. Seth
ORDER D.K. Seth, J.
1. The petitioner have filed C.S. No. 108 of 2001 as plaintiff against N.K. Pansari and others for certain reliefs. The plaint case inter alia, was that the plaintiff is the lessee of premises No.25, Black Burn Lane, Calcutta for a period of 99 years through a registered deed of lease dated 5th December, 1984 obtained from Miss. Lily Tweena and Mrs. Rosalind Jacob who were possessing the said premises adversely and as of right for more than 12 years. Having returned from Dubai on 9th February, 2001 he found construction being carried on in the said premises. On enquiry he came to learn that the defendant No. 1. N. K. Pansari had been making construction. In connection with the said suit an affidavit-in-opposition was filed on behalf of the defendant No. 1 wherein the defendant No. 1 had disclosed the fact that such construction is being made on the basis of a plan sanctioned sometimes back since been revalidated in 1997. Since the relief with regard to the revalidation of the said plan could not be had in the suit and that the Corporation was not a party to it, therefore, the writ petition has since been filed in which an interim order is obtained from this Court. This interim order is sought to be extended on behalf of the petitioner which is being opposed on behalf of the defendant No.l. N.K. Pansari being the respondent in the writ petition.
2. Since the question involves certain matters which are inter-related to the suit as well as in the writ petition therefore, records of the suit have also been brought to this Court. The defendant No. 1 has filed an application for taking the plaint off the file and recalling of the order dated 26th February, 2001 passed in T. No. l60 of 2001 (C.S. No. 108 of 2001) and G.A. No. of 2001. By consent of parties the application for injunction and the prayer for vacating the interim order in the suit and the writ petition are being taken up. Both the counsel for the respective parties had addressed the Court on the question of grant of interim order of injunction and the maintainability of the writ petition as well as continuance or vacating of the interim order granted in the suit being the order dated 26th February. 2001 and in the writ petition being the order dated 23rd of March, 2001. Both of them had relied upon the records of the suit as well as the writ petition for the purpose of addressing the Court on the question before it.
3. At the outset it may be mentioned that Mithua Development (P) Ltd. and Ayush Niketan Pvt. Ltd. are not parties in the writ petition though they are parties in the suit. The main relief in the suit is against Mithua Developments Pvt. Ltd. and Ayush Niketan Pvt. Ltd. Therefore, this writ petition could not have been maintained in the absence of this two parties. In as any order passed in this writ petition would affect the rights of these two parties. On the other hand it may noted that for the same purpose involved in the suit the interim order is being asked in the writ petition. Thus the said two parties are not only necessary but are proper parties to the writ petition. These two parties had sought leave to intervene. In the facts and circumstances of the case they are permitted to intervene as respondents.
4. I have heard both the learned counsel at length. The primary question that is to be gone into at this stage is as to whether the Interim order so granted in the suit (C.S. No. 108 of 2001) and in the writ petition should be allowed to continue or not or in the other words should be extended or it should be vacated, and the writ petition should be allowed or dismissed.
5. In order to substantiate the question Mr. Pratap Chatterjee on behalf of the intervener respondents had taken a preliminary objection with regard to the maintainability of the writ petition in view of the pendency of the suit in respect of the self-same relief. He also contends that the petitioner has no locus standi to maintain the writ petition. Even if, assuming but not admitting, the writ petition is maintainable despite pendency of the suit, in the facts and circumstances of the case, the petitioner cannot maintain the writ petition on merit.
6. In order to elaborate his submission he had relied upon the decision in the case of Jasbhal Motibhai Desai v. Roshan Kumar, Hazi Basir Ahmed . Apart from the question of maintainability he had also addressed the Court on the question of merit and had led the Court through; different documents and materials in connection with the case as were available on record of the suit.
7. Mr. Pradeep Ghosh, learned counsel for the petitioner on the other hand contended that the relief which is being sought for in the present writ petition cannot be had in the suit since the cause of action with regard to the reavalidation of the plan was not subject matter of the suit. That apart the Municipal Corporation is a necessary party in order to obtain such a relief. The Municipal Corporation not being a party to the suit such relief could not be had in the suit. He also contends that if these two reliefs are claimed in that event the same would be joinder of cause of action as well as joinder of parties. Such joinder cannot be coveniently made since it might embarrass the trial. The subject matter or cause of action involved in this writ petition is not a subject matter or cause of action involved in the suit. Therefore, the writ petition is maintainable.
8. On the question of locus standi of the petitioner he contends that, even assuming but not admitting, that the petitioner has no interest in the property still then he can complain if the action on the part of a public body is in relation to its public law function. Such locus standi cannot be questioned simply because the petitioner has no interest. He then contends that the petitioner is very much interested in the property and that he has filed a suit against the defendant No. 1 founded on the ground of his interest or right in the property and as such he has locus standi to maintain the writ petition. Relying on the merits of the case he contends that the petitioner had obtained a lease from the said two ladies in 1984 and as such prima facie he has interest in the property.
9. At this stage the said question cannot be gone into in case the same makes out a triable issue even though the same may not succeed ultimately. At this stage it is not the question as to whether the petitioner would succeed ultimately. It is only the question as to whether a prima facie case has been made out and that a triable issue is raised. 10. He had relied on various decisions in support of his contention to which we shall be referring to at appropriate stage. Relying on those decisions he had elaborated his submission with regard to the locus standi of the petitioner even though he might not have any interest in the property as well as with regard to the question that he having Interest in the property could very well maintain the petition and also having made out a case prima facie on the basis whereof the interim order has been granted, the same should be continued or extended.
11. In reply Mr. Chatterjee had contended that the distinction sought to be made by Mr. Ghosh with regard to private law and public law in the facts and circumstances of the case becomes wholly irrelevant. Inasmuch as the power exercised by the Municipal Corporation under Section 399 is not in the realm of public law but in the realm of private law. Thus the action of the corporation in respect of private law field cannot be questioned by a person who is unable to show that he has any legal right or interest in the property.
12. Both the learned counsel had also sought to contend that the petitioner has right in the property or the has no right in the property. Both the counsel had relied on different facts as well as records in order to support their respective contentions.
13. In order to appreciate the case and for deciding the question as to whether the interim order granted in the suit as well as in the writ petition should be extended or not or be vacated it may be necessary to briefly refer to the relevant facts, that are common in both the proceedings, particularly those which are not in dispute. The petitioner claims his title through a registered deed of lease dated 5th December, 1984, in respect of premises no. 25, Black Burn Lane, Calcutta. The lease was granted by Miss. Lily Tweena and Mrs. Rosalind Jacob. These two lessors claim to have been possessing the said property adversely for over 12 years. Therefore, the defendant No. 1 cannot make any construction over the said property. The defendant No. 1 claims top be one of the director of Ayush Niketan (P) Ltd. There were various suits in respect of the said property. Those are suit No.4359 of 1940 (Etharennassa Bibi & others v. J. Tweena & M. Tweena) in the Court of Small Causes, Calcutta; Suit No.3539 of 1951 between the society being Maghan Aboth & Yasheebath Jacob Benjamin Elias and Jacob Tweena. Joseph Tweena and Lily Tweena claiming through S. Tweena their father, in this Court; Title Suit No.97 of 1985 (Mithua Development (P) Ltd. v.SubhasMajumdar & others.) in the City Civil Court at Calcutta; Suit No. 10 of 1988 (Gautam Majumdar v. Mithua Development (P) Ltd. & others) and Suit No. 1036 of 1989 (Meghan Aboth & Yasheebath Jacob Benjamin Ellas & another) both before this Court. The plaintiffs one of the predecessors in interest Miss. Mily Tweena was party in those suits. Miss Rosalind Jacob was party to the last three suits. In suit No. 10 of 1998 and suit No. 1036 of 1989 it was held that the said two ladies did not acquire any right title and interest in the said property. The property is a subject matter of trust. The Official Trustee of Bengal was appointed trustee under the said trust Title Suit No.97 of 1985 between Mithua Developments (P) Ltd. and Subhas Majumdar were pending. In the said suit an order of status quo was granted on 5th June, 1986. Mithua Development obtained a plan sanctioned and wanted to make the construction in the premises after demolishing the existing structure. Ayush Niketan is claiming title through Mithua Developments (P) Ltd. The said title suit No.97 of 1985 has since been withdrawn on 3rd of August, 1996. The plan was thereafter revalidated in 1997. Admittedly the plan was sanctioned for the first time on 8th October, 1982. It was renewed on 8th October. 1987 for five years. Thereafter the plan was revalidated on 19th February. 1997. It is this revalidation which has since been challenged in this writ petition.
THE WRIT PETITION
14. In order to decide this question it seems that the merit of the writ petition has to be gone into. Whether it is an answer to the question of locus standi or with regard to the question of validity of the revalidation of the sanction of the plan, it is the same question with regard to the merits that requires to be gone into. In the circumstance it was proposed that the counsel should address the Court with regard to the application for injunction in the suit and that of vacating the interim order in Suit as well as the writ petition on merits so as to decide the same finally. By consent of the parties the writ petition as well as the application for Injunction and that for vacating it in suit are treated as on day's list. Both the counsel had addressed the Court elaborately on the merits of the writ petition and on the question of injunction in the suit.
15. In the facts and circumstances of the case I, therefore, propose to find out first as to whether the sanction could at all be revalidated under the provisions of law.
16. The question of revalidation of such sanction is dealt with in Section 399 of the Calcutta Municipal Corporation Act, 1980. This Act came into force from 4th January, 1984. But however, so far as the rules for construction of building is concerned, were not framed. The Schedule 16 of the Calcutta Municipal Act, 1951 was permitted to continue by reason of Section 635(2)(f) of the 1980 Act. The Building Rules under the 1980 Act was framed in 1990. The said Rules came into effect from 12th December, 1990.
17. Admittedly the plan was originally sanctioned according to Schedule 16 of the 1951 Act in 1982, when the 1980 Act did not come into force. Whereas the revalidation in 1997 was made under the 1990 Rules. Under the 1990 Rules the FAR permissible for construction was reduced than that of which was available under Schedule 16 of the 1951 Act. Now it is to be seen whether by reason of revalidation it affects the provisions of the 1980 Act or the 1990 Rules; In other words whether such plan could be revalidated when such revalidation would be in conflict with the provisions of 1980 Act and /or the 1990 Rules; it is also to be seen whether after the sanction of the plan having lapsed in 1992 and there being no revalidation before the expiry of the period of validation, whether, after lapse of almost five years, the plan could be revalidated. It is also to be examined whether the plan could at all be revalidated under the 1990 Rules.
18. Section 399 of the 1980 Act provides that the Municipal Commissioner shall when sanctioning the erection of a building or the execution of a work specify a reasonable period within which the building or the work is to be completed. If the building or the work is not completed with the period so specified, it shall not be continued thereafter without fresh sanction obtained in the manner hereinbefore provided, unless the Municipal Commissioner on an application made in this behalf allows an extension of such period. Under the 1951 Act there was no such provision provided in the Act itself. However, such question used to be governed by rule 62A provided in Schedule 16 of the 1951 Act. Under the said rules the validity of sanction was for a period of five years which could be renewed for further period of five years.
19. Relying on rule 62A Mr. Ghosh had contended that the sanction was for a period of 5 years and could be renewed for a further period of five years. He stressed on the expression a further period of five years in Rule 62A and emphasised that there could be but only one extension and not more than that. Accordingly the extension expired in 1992 and there could be no further extension. Be that as it may according to him the plan having not been revalidated or renewed after 1992 the plan had automatically lapsed. It could not have been revived long after five years in 1997 when it is already dead.
20. This question of validity of a sanctioned plan having been provided in the rule and there being no substantive provision provided in the Act the rule making power could not take away the right of revalidating such plan beyond ten years. This question came up for consideration before this Court in Circular Properties (P) Ltd. v. Calcutta Municipal Corporation, . The Division Bench in the said case held that in a situation almost identical with this case the extension or validation could be made. In the said, case a plan was sanctioned according to Schedule 16 of 1951 Act in 1985 after the 1980 Act had come into force, but the construction could not be completed within the validity of the plan namely till 7th April, 1990. In the meantime the work was disrupted by reason of a notice under Section 269UD(1) of the Income-tax Act, 1961. In a writ petition challenging the said notice an injunction was granted by reason whereof no construction could be proceeded with. Subsequently the injunction was vacated. After the injunction was vacated revalidation was asked for. In the meantime the Calcutta Municipal Corporation Building Rules, 1990 had come it no force. Thus the question of reduced FAR was also involved in the said case. Having considered the different question the Division Bench has held as quoted below :--
"19. So on true and proper construction of the said (provision), it is clear to us that no time limit is fixed by the legislature. It has been left at the discretion of the Municipal Commissioner to fix the initial time for completion of the work and/or the building and when it could not be done within that period, in that event the work has to be completed on taking a fresh plan unless the Municipal Commissioner on an application made to it in this behalf allows an extension of such period. The Legislature had not provided any guidelines and/or any conditions and/or restrictions in this behalf with regard to the time which is to be granted initially or extension thereof. The fixed time limit that was there under the old Act, in which the provision was that initially a plan would be granted for a period of five years and the extension is only for another period of five years, so total time that the Municipal Authority will grant for completion of the construction was ten years in all, and there was no power to grant any further time in the matter. In the instant case, it appears that the Legislature had thought it fit that the hands of the Municipal Authority could not be tied by prescribing any time limit but should be left to the authority and the authority concerned would consider what would be the reasonable period which will be required to complete the construction and/or extension was necessary to complete the work.
It appears to us that no express power has been conferred upon the Municipal Commissioner to refuse to grant extension, as in the case of consideration of a plan for the first time under Section 396 of the said Act the Municipal Commissioner has been provided with the power to sanction a plan and also laid down the conditions and existence of grounds for which the sanction of a building or work may be refused on certain specified grounds, Under Section 396, plan may be sanctioned, if the grounds of refusal specified therein were absent. But in case of extension of time, under Section 399 of the said Act, for completion of work, no such grounds for refusal have been provided, and it is also appears that no discretion has also been left to the Municipal Commissioner to reject an application for extension of period."
21. In Circular Properties (supra) the plan was sanctioned after the 1980 Act had come into force but according to Schedule 16 of the 1951 Act. Whereas in the present case the plan was sanctioned before the 1980 Act, according to Schedule 16 of 1951 Act. As rightly contended by Mr. Ghosh Rule 62A of Schedule 16 provided for one extension of 5 years. The total period could not exceed 10 years. But if there is any injunction then the period during which injunction was operating is to be excluded for the purpose of calculating this 10 years. In the present case an order of status quo was granted in title suit No.97 of 1985 on 5th June, 1986 before the expiry of the initial 5 years. It was renewed for 5 years in 1987. Thus even if the validity is taken 10 years another 6 years out of 10 years was yet on the hand. By reason of the order of status quo this 6 years is to be counted from the date the order of status quo was vacated. It was vacated on 3rd August, 1996. Therefore, the revalidation in 1997 was made before the expiry of the balance of the said mandatory 10 years. Thus it cannot be said that a dead or lapsed plan was revived.
22. On the question of continuation of the order of status quo it is contended by Mr. Ghosh that the Official Trustees was not a party in suit No. 97 of 1985 therefore the order of status quo did not bind the Official Trustee in whose name the plan was sanctioned. As such the Official Trustee was free to complete the construction therefore, no advantage of the order of status quo could be taken for the purpose of treating the plan valid for 10 years. But this contention appears to be devoid of any merit. The plan was sanctioned in the name of the Official Trustee for the purpose of making construction, by or through Mithua Development in terms of the agreement, in the property. The order of status quo related to the property. Mithua Development derived title from the Official Trustee. Therefore, by reason of order of status quo in spite of its not being a party to the suit, the Official Trustee could not make any construction. Be that as it may the job of construction having been assigned to Mithua Development by agreement since approved by the Official Trustee it was no more open to the Official Trustee to resile therefrom and claim that Official Trustee was not bound by the order of status quo.
23. Section 635 of the 1980 Act in Sub-section (2) Clause (f) provided for continuation of Schedule 16 until corresponding provision is made under the 1980 Act. In the 1951 Act nothing with regard to the validity of plan was provided for. It was under Rule 62A the 10 years period was provided for. In view of Section 635 until 1990 Rules were framed the 10 years period continued to be in force. Inasmuch as notwithstanding Section 399 of the 1980 Act, Rule 62A of Schedule 16 ruled the field with 10 years limit relating to validity of the plan. The Calcutta Municipal Corporation Building Rules, 1990 came into force with effect from 12th of December, 1990. By reason of Sub-rule (2) of Rule 1 the 1990 Rules apply to all building activities in Calcutta other than activities referred to in Section 450 of the 1980 Act. Admittedly the building activity concerning this application is not one under S.450 of the 1980 Act. Therefore, the 1990 Rules became applicable to the present building activities with the enforcement of the 1990 Rules. As soon Rule 117 of the 1990 Rules came into force, Schedule 16 of 1951 Act which remained valid by reason of Section 635(2)(f) ceased to continue to remain in force. Sub-rule (2) of Rule 117 provides that notwithstanding such cessation of the rules contained in Schedule 16 under the 1951 Act, building plans sanctioned under the former rules and remaining valid on the date immediately before 12th December, 1990 shall continue to remain valid till the expiry of the period of validity thereof.
24. By reason of this provision of repeal and savings, a plan remaining valid on the date of coming into operation of the 1990 Rules shall continue to remain valid till the date of its expiry. As observed earlier the 10 years period of validity of the plan continues till 2002. If it remains so valid in that event it can be revalidated under the 1990 Rules. With the coming into force of the 1990 Rules even in respect of such plan Section 399 of the 1980 Act would govern the field relating to validation of the plan with the cessation of Rule 62A of the former Rules. The cessation being clear and unambiguous and unqualified as is borne from a Sub-rule (1) of Rule 117 it cannot be conceived that both Schedule 16 being the former rules and the 1990 Rules could co-exist. The former rules becomes completely extinct as soon 1990 Rules took the field. Therefore, it is only the 1990 Rules which will be governing the field. Therefore, the plan as sanctioned remaining valid on 12th December, 1990 will remain valid as such and cannot be altered even if there is any change in the 1990 Rules by reason of Sub-rule (2) of Rule 117. Such plan is subject to the provisions now governing the field as it stood after 1990. As such the revalidation made in 1997 is permissible by reason of the provisions contained in Section 399. All contentions to the contrary cannot be sustained.
25. In a case where the plan was sanctioned after the 1980 Act had come into force but under the former rules similar question arose for consideration. It is to be seen whether same principal can be applied in a case where the plan was sanctioned before the 1980 Act under Schedule 16 after the coming into operation of the 1990 Rules and such plan could remain valid.
26. In view of the said decision in Circular Properties (supra) despite various arguments made by Mr. Ghosh it is no more open to hold otherwise. Inasmuch as the same principle, as discussed above, applies. The question is no more res integra. Therefore, it is well within the power of the Municipal Authority to revalidate the plan. In the circumstances, it is not necessary to go into the other questions raised by the respective counsel. The validity of the sanction is no more open to be questioned by anyone else even including persons who are interested in the property. The references made to various decisions by Mr, Ghosh in no way help us with tegard to the question of validity of the sanction. The majority of the decisions cited by Mr. Ghosh related to the question of locus standi and maintainability of the writ petition. In view of above it is no more necessary to deal with the other question of locus standi or maintainability or otherwise. Since it is competent for the Municipal Authority to grant extension or revalidation of the sanction and having been so given it is more necessary to go into the other questions raised.
27. The writ petition, therefore, cannot succeed and is liable to be dismissed.
THE SUIT
28. So far as the question of taking the plaint off the file is concerned the same may be decided separately.
THE APPLICATION FOR INJUNCTION IN SUIT
29. Now we may deal with the order dated 26th February, 2001. If sufficient ground is made out to show that the basis of the prima facie case is non est or that there are ground which leads the Court to form a prima facie opinion that the interim order granted should be vacated then the Court is free to pass such order having regard to the facts and circumstances of the case.
30. As contended by the respective counsel we may refer to the question as to how the plaintiff/petitioner is claiming title to the property. If the plaintiff is able to establish prima facie title to the property, even if it appears that the same may ultimately fail still then if a triable issue is raised, the interim order cannot be vacated.
31. As observed earlier the plaint case is based on title derived by the plaintiff from the said two ladies Miss Rosalind Jacob and Miss Lily Tweens by virtue of a deed of lease dated 5th December, 1984 for a period of 99 year (Annexure-A). Therefore, the plaintiff cannot claim a title better than his lessors, the said two ladies.
32. If it appears that the said two ladies can claim prima facie title then only the plaintiff can be said to have established his prima facie title. It is claimed in the Deed of Lease (Annexure-A, page 25) that the lessors, being the said two ladies, were "holding and possessing .....25 Black Burn Lane.....openly and adversely and as of right as owners thereof for much more than 12 years." This statement is being made on 5th December, 1984. Suit No. 10 of 1998 was based on an agreement for lease executed by the said two ladies in favour of the plaintiff Gautam Majumder and another on 27th January, 1983. In suit No. 1036 of 1989 against Gautam Majumder and others it was contended that the society had allowed the said two ladies as destitutes of the Jewish community to reside and occupy a small portion of the said premises.
33. These two suits were tried together and were disposed of by a judgment and decree of this Court passed on December 19th, 21st, 22nd, 1995 and January 4, 1996. Issue No. 4 was : whether the said two ladies were licencees of the premises? Issue No. 5 was : whether the said two ladies became owners by adverse possession? These issues were framed on 15th December, 1992. Issue Nos. 1 and 3 framed on 29th July, 1994 were : whether S. Tweena fater of Lily Tweena was owner of the premises since 1913? and whether the said two ladies have acquired indefeasible right title and interest in the said property respectively? Issue No. 5 of 15 December, 1992 and Issue Nos. land 3 of 29th July 1994 were taken up together. While deciding the said issue it was held that in suit No. 3539 of 1951, the heirs and legal representatives of S. Tweena were parties. This suit was decreed on 1st May, 1955. In the said decree it was declared that the official Trustee of West Bengal was the owner of the said property as trustee for the society Meghen Aboth and Yasheebath Jacob Bengamin Elias. A permanent injunction was also granted against the defendants therein which included Lily Tweena, Jacob Tweena and Joseph Tweena. This judgment and decree was affirmed by the Appeal Court wherein it was held that J. Tweena was appointed warden of the institution on remunerations, and he was allowed to stay in a portion of the premises, It was also held that S. Tweena had never claimed any right in respect of the property during his lifetime. Miss Rosalind Jacob stated to be adopted daughter of Miss Lily Tweena, was brought to the premises by Lily Tweena.
34. Relying on this findings this Court in the said judgment in suit Nos. 10 of 1988 and 1036 of 1989 had held (Page 31) that "in view of the Judgment in the previous litigation to which they were parties and in view of the injunction orders passed against Miss Lily Tweena neither Miss Lily Tweena nor Miss Rosalind Jacob were entitled to claim any right of ownership, by any adverse possession against the said property. Such act would have been in violation of the order of injunction passed by the Court which was in the nature of permanent injunction. Issue Nos. 1 and 3 dated 29th July, 1994 are answered in the negative. Issue No.5 dated 15th December, 1992 is also answered in the negative."
35. It was further held in the said judgment that (Page-39) ".....so far as Lily Tweena and persons claiming through her are concerned, they continue to be bound by the judgment and decree including injunction which was passed in the said suit No. 3539 of 1951 and/or the judgment and decree passed by the Appeal Court inter alia affirming the Judgment of the trial Court." ..... (Page 45) "In my opinion, the said Lily Tweena and Rosalind Tweena Jacob had no right to create any tenancy" ..... (P-49) "I am of the view that Miss Lily Tweena and Rosalind Jacob did not have any right title and Interest in the said premises nor did they have right to confer upon defendants No. 1 or 2 or any of them in respect of the premises....."
36. Ultimately suit No. 10 of 1988 was dismissed and suit No. 1036 of 1989 was decreed by the declaring (P-59) "that the plaintiff No. 1 (the society being Maghan Aboth and Yasheebath Jacob Benjamin Elias) is the sole beneficial owner of the said premises 25, Black Burn Lane, Calcutta .....that the plaintiff No.2 (Mithua Desolput).....has the right to use and utilise the said permises .....in terms of the agreement dated 23rd February, 1982 being annexure 'B' to the plaint to the total exclusion of defendant Nos. 1, 2 and 3 (Gautam Majurnder, Subhas Majumdar and (Lily Tweena having died in 1988) Rosalind Jacob) and the said defendant have no rights whatsoever to interfere with due implementation of the said agreement....."
37. Thus it is clear and unambiguous that no title in respect of the property could be derived by the plaintiff from the said two ladies by virtue of the alleged deed of lease dated 5th December, 1984. Mr. Ghosh however, contended that the adverse possession of the said two ladies in respect of the property as was involved in suit No. 10 of 1988 and suit No. 1036 of 1989 related to a period till 1983. Therefore, the said finding will not affect the question of adverse possession claimed on 5th December, 1984. Having regard to the findings quoted above, the contention of Mr. Ghosh appears to be devoid of substance. Inasmuch as the permanent injunction granted against the said Lily Tweena in suit No.3539 of 1951 was still effective and subsisting. If by reason of such injunction the two ladles (Rosalind Jacob claiming through Lily Tweena) could not acquire any title in 1983, they cannot acquire even in 1984 nor could they do so ever after.
38. In the facts and circumstances of the case the plaintiff having claimed interest through the said two ladies, both of whom were parties to suit. No. 10 of 1988 and suit No. 1036 of 1989, against the defendant herein the decision therein would operate as res judicata.
39. Mr. Pradeep Ghosh had relied on the decision in Benode Lal v. Secretary of State . According to him a judgment which is appealed against is non-admissible in evidence. In the said decision it was so held. The said ratio applies in this case in full force. Inasmuch as the decision in the suit Nos. 10 of 1988 and 1036 of 1989 has since been appealed against and the appeal is still pending. The proposition is no doubt a settled principle of law but it is so in relation to the finality of the judgment when it comes to the question of admissibility of the same as an evidence. But even if it may not be admissible in evidence, but still then for the purpose of finding out prima facie case the same can be relied upon. That apart so far as this case is concerned there is also a distinguishing feature. In the present case, for the purpose of coming to the conclusion in the judgment in suit No. 10 of 1988 and suit No. 1036 of 1989 the Court had relied upon the decision in suit No. 3539 of 1951, So far as that decision is concerned the same had reached its finality. The claim of adverse possession as set up to defence in suit No. 10 of 1988 and suit No. 1036 of 1989 was held to be not available because of the permanent injunction granted against Lily Tweena in Suit No. 3539 of 1951 which is an injunction of permanent nature continuing for ever. Even if we may not rely upon the judgment in suit Nos. 10 of 1988 and 1936 of 1989 even then relying on the decision in suit No.3539 of 1951 still it can be said that Lily Tweena could not have claim any title by adverse possession by reason of her occupation on account of the permanent injunction operating against her. So far as Mrs. Rosalind Jacob was concerned she was brought in by Miss. Lily Tweena as her adopted daughter. Therefore, Miss Jacob claiming title through Miss Tweena also cannot claim adverse possession. In the 1951 suit it was held that Jacob Tweena was permitted to reside in a portion of the premises and Joseph and Lily were members of the family of Jacob. Therefore, the occupation of Lily was all along that of a licensee. Therefore, she could not claim any title by adverse possession even by reason thereof. In the circumstances the decision in the case of Binod Lal (supra) does not help Mr. Ghosh in the facts and circumstances of the case. On similar grounds the decision in Jaspat Raiv. Khan Chand, AIR 1938 Lahore 232; Satya Narayan Prosad v. Diana Engineering Co., , Annamalay Chetty v. B.A. Thronhill, AIR 1931 P.C. 263; NanaTukaram Jaikar v. Sonabai, Annamalai Chetty (supra) also has no manner of application.
40. The next question raised by Mr. Ghosh was that the plaintiff writ petitioner herein was not a party in suits Nos. 10 of 1988 and 1036 of 1989. Therefore, he cannot be bound by the said judgment in view of the decision in the case of Asrar Ahmed v. Durgah Committee AIR 1947 PC 1; and Korin v. Indian Cable Co. Ltd., . The principle enunciated are all settled principles of law, Unless one is a party to the proceedings the decision therein does not bind him. But this proposition has an exception namely if the predecessor in interest was a party there to involving the same property and such person claims through a person who was a party to the proceedings then the said decision binds him. In the present case in order to determine the claim of the plaintiff-petitioner it is to be found out whether the said two ladies as lessor of the plaintiff-petitioner had any right to create tenancy or in other words any transferable interest to create the lease on the basis whereof the plaintiff-petitioner is claiming. Thus the question comes squarely within the exception since the plaintiff-petitioner is claiming his title through the said two ladies who were parties suit; Nos. 10 of 1988 and 1036 of 1989 and that Mrs. Rosalind Jacob was claiming through Miss Lily Tweena who was a party in suit No. 3539 of 1951. As such the decisions in Asrar Ahmed (supra) and Korin (supra) has no manner of application in the facts and circumstances of this case.
41. Thus prima facie it appears that the plaintiff cannot claim to have established a prima facie case so as to claim continuance of the interim order- dated 26th February, 2001. On the other hand the defendants have been able to make out a prima facie case in their favour for vacating the interim order dated 26th February, 2001.
THE ORDER
42. The order dated 26th February, 2001 (passed in C.S. No. 108 of 2001) is therefore vacated and discharged. The application for injunction in C.S. No. 108 of 2001 is hereby dismissed, The prayer for vacating the interim order made in G.A. No. (sic) of 2001 is allowed. The prayer for taking the plaint off the file in G.A. No. (sic) of 2001 be listed 5 weeks hence. Affidavit thereto if not complete be completed with 3 weeks and 2 weeks respectively. The writ petition (T 203 of 2001) stands dismissed. The interim order dated 23rd March, 2001 granted therein stands discharged.
43. Cost be cost in the cause.
44. THE COURT 44 After the judgment is delivered the prayer is made by Mr. Roy appearing on behalf of the petitioner for stay of operation of the judgment and order in order to enable the petitioner, Salim Makkar, to test this judgment in Appeal. According to him, the petitioner will suffer great prejudice unless it is stayed. It is being vehemently opposed on behalf of the respondents.
45. Having regard to the facts and circumstances of the case and the points as discussed in the judgment, I am not inclined to grant any stay. At the same time, I do not think that in seven days the respondents can create such a situation which cannot be adequately met if an interim order is obtained from the Appeal Court.
46. However, at this stage, Mr. Roy prays that the respondents be restrained at least from creating third party interest.
47. Having regard to the situation, the only interim stay that can be granted is by restraining the respondents from creating third party interest in respect of the property in question till May 23, 2001 and such order is accordingly made. Such stay is confined only to that extent and is without prejudice to the rights and contentions of the parties.
48. All parties concerned are to act on a xeroxed signed copy of the operative portion of the Judgment and Order on the usual undertaking.