Bhowal Vs. Satindra Mohan Deb  INSC 553 (16 April 1996)
Sujata V. (J) Manohar Sujata V. (J) Punchhi, M.M. Mrs.Sujata V.Manohar.J.
1996 AIR 1985 JT 1996 (4) 597 1996 SCALE (3)567
Civil Appeal Nos. 3052-3056 of 1995)
dispute relates to 3 Kathas 9 Chataks of land situated in a commercial ares of Silchar
in District Cachar.
land originally belonged to Surendra Nath Sen and his two other co-sharers.
Under a deed of settlement dated 25.3.1939 Surendra Nath Sen gave a settlement
of this land to Satindra Mohan Deb for a period of 27 years commencing from 14,4.1939
and expiring on 13.4.1965. The respondents in all these appeals are the heirs
and/or successors in title of Satindra Mohan Deb (hereinafter referred to as
the 'Debs'). According to the Debs, after obtaining this settlement they built
some permanent construction on a portion of this land.
Bhowal, the predecessor of the present appellants took settlement of 1 Katha 7 Chataks
of land out of the total land admeasuring 3 Kathas and 9 Chataks from Satindra
Mohan Deb on or about 17th of April 1953. He claims to have constructed a
single storey building on the land taken under this settlement. He started a
pharmacy business in this building which is known as Bhowal Medical Hall. The
business was being run by Bibekananda Bhowal with his two brothers. For the
sake of convenience the heirs and/or successors-in-interest of Bibekananda Bhowal
(since deceased) who are the appellants before us are hereinafter referred to
as the ' Bhowals'.
Debs filed Title Suit No. 41/1956 in the court of the Assistant District Judge,
Silchar against the Bhowals for possession of 1 katha and 7 Chataks of land and
the building thereon in the occupation of the Bhowals. The Assistant District
Judge decreed the suit by his judgment and order dated 13.7.59 in favour of the
Debs. In appeal, however, the parties arrived at a compromise. A decree in
terms of the compromise was passed by the appellate court on 10. 5 .1965. The
relevant terms of the compromise decree are as follows:- "A. That the
defendant-appellant will give up possession of an area of 7' x 7 ' more or less
in the south-western corner of the room in suit in his possession in favour of
the plaintiff within one month from the date of this compromise and will allow
the plaintiff within that period an access to that area.
said space will be walled up to the ceiling at the cost of the plaintiff and
within one month. In the event of noncompliance with the terms contained above
for his default the defendant appellant will be liable to ejectment in
execution of the decree passed in the suit in terms of the compromise.
That the plaintiff will be entitled to build the upper storey above the
building in suit at his expense and a stair case in the aforesaid south-western
portion given up by the appellant through the opening already in existence for
access to the said upper storey. The defendant appellant will have no manner of
right or claim for possession in the aforesaid upper storey after construction.
That on compliance of the terms mentioned in paragraph I the defendant
appellant shall remain in possession of the room in suit minus the area
mentioned in paragraph I as a monthly tenant according to English Calender
month for a period of 10 year from 1st May. 1995 till 30th April, 1975 and a rent of Rs. 225/- per month,
rent for each month being payable within the 14th day of the succeeding month.
The defendant appellant also undertakes to pay as he had been paying the
Municipal Tax in respect of the room in his possession.
That the defendant-appellant shall not sublet any portion of the said room in
his occupation nor transfer his tenancy right to any one else. The
defendant-appellant will vacate and deliver possession of the room in his
possession to the plaintiff or his assign or representative in interest on the
expiry of the said period of 10 years without any notice from the plaintiff'.
defendant-appellant will have also the right to vacate the room or surrender
the tenancy even before the expiry of the aforesaid period of 10 years on
giving one month's previous notice to the plaintiff.
the event of any breach of any condition mentioned above the defendant
appellant will be liable to ejectment by appropriate action in a Court of
law." Pursuant to the compromise decree the Bhowals handed over possession
of an area of 7' x 7' as described in Clause A of the compromise decree. This
was disputed by the Debs who took out Execution Application No. 18/65 for
obtaining possession of this area of 7' X 7'. In this application which was
decided by the Assistant District Judge on 7.2.1972 he has recorded the
contention of the Bhowals that as far back as in 1965 they had already
apportioned the area and delivered possession of that area to the Debs. The
District Judge, however, passed an order for handing over possession of the
said area to the Debs and Execution Application No. 18/65 was disposed of
accordingly. The Debs also filed an Execution Application No.15/66 for an
amendment of their execution application to get possession of the entire land
and building in the occupation of Bhowals. This application, however, does not
appear to have been pursued. It was allowed to be dismissed on 12.4.1972.
of 3 Kathas 9 Chataks of land which was executed by Sen in favour of Satindra
Mohan Deb in 1939 expired on 13.4.1965. We are not here concerned with the
question whether this leave was renewed in favour of Deb or not. On the expiry
of the period of the lease Bibekananda Bhowal the original sub-lessee and his
two brothers purchased from the original owner Satindra Nath Sen the entire 3 Kathas
and 9 Chataks of land by a registered sale- deed dated 24.6.1966.
purchasing the entire land Bhowals filed Title Suit No.41/1966 subsequently
re-numbered as Title Suit No.5/1972 against Satindra Mohan Deb for a
declaration (1) that they were the owners of the entire 3 kathas and 9 Chataks
of land, (2) for confirmation of their possession over 1 Katha and 7 Chataks of
land i.e. the land which they had taken on sub-lease from the Debs. (3) for
recovery of possession of the portion of Debs by evicting the Debs.
suit was decreed on 31.7.1973. In appeal, however, (First Appeal No.458/1973)
the Gauhati High Court partly allowed the appeal filed by the Debs. It held,
modifying the decree of the trial court, that the Bhowals were not entitled to
the possession of the land occupied by the Debs by evicting the Debs. The High
Court also set aside the decree awarding compensation of Rs.200/- per month
against the Debs for illegal occupation of the said land. The High Court also
set aside the order of injunction passed by the trial court restraining the
Debs from realizing the rent.
High Court confirmed the decree of the trial court to the extent that it
declared the title of the Bhowals over the entire land consisting of 3 Kathas 9
Chataks. as also insofar as it declared the possession of 1 Katha and 7 Chataks
of land out of this land and the building thereon, by the Bhowals. In Execution
Application No.1/1987 taken out by the Bhowals in that suit, the Bhowals
deposited a sum of Rs.9,000/- in court being the value of the structure
standing on 1 Katha and 7 Chatkas of land in their possession as per the
directions given by the trial court and became the owners of the said structure
in execution of that portion of the decree of the trial court which had been
upheld by the High Court.
1972 the Debs also filed Title Suit No.133/72 against the Bhowals for eviction
of the Bhowals from 1 Katha 7 Chataks of land and the building thereon on the
ground, inter alia, that the Bhowals had not handed over possession of the said
land and building on the expiry of ten years as set out in the compromise
decree dated 10.5.1965. This suit is still pending.
come to the litigation giving rise to the present appeals. In 1975 the Debs
took out another execution application being Title Execution No.4/75 in The
Title Suit No.41/56 for execution of the compromise decree of 10.5.1965. The
Debs sought possession of l Katha 7 Chataks of land and building from the Bhowals
in execution of the compromise decree. The Bhowals filed objections under
section 47 of the Civil Procedure Code to this execution application being
Misc. Case No. 27/1975. It was contended by the Bhowals that under the terms of
the compromise decree the relationship of landlord and tenant was created
afresh between the parties and the Debs were not entitled to obtain possession
of the said land and building in execution of the compromise decree. It was
also contended by the Bhowals that by reason of the decree obtained by them in
their Title Suit no.41/1966 as modified by the High Court in first appeal
458/73, they could not be evicted from the said land and the building standing
thereon in execution of the earlier compromise decree of 10.5.1965, as they
were protected by the subsequent decree between the same parties. These
objection was allowed and the Execution Application No.4/75 was dismissed.
Debs filled Misc. Appeal Nos. 13 and 14/1976 from the above decision. The
appeals were allowed by the District Judge on 10.6.1981. The Bhowals filed two
second appeals being Second Appeal Nos.9 and 10 of 1981 before the high Court. In
view of the amendment to the Civil Procedure Code.
to be on the safe side they also filed two Revision Petitions from the same
judgment and order of the District Judge being Revision Petition Nos. 114 and
115 of 1981 before the High Court. The High Court dismissed the two second
appeals as not maintainable by its order dated 8.7.1981. It, however, admitted
the two revision petitions.
two revision petitions were also dismissed thereafter on 27.1.1987. The Bhowals
asked for a review of the order of 27.1.1987 but the review petition was also
dismissed on 1.7.1987. Civil Appeal Nos.3055-56/1985 are against the orders
passed by the High Court dated 27.1.87 and 1.7.87 in two Revision Petition
Nos.114 and 115 of 1981. Civil Appeal No.6649/1983 is from the order of the
High Court dated 8.7.1981 dismissing the two second Appeals bearing Nos. 9 and
10 of 1981.
the dismissal in 1987 of their revision petitions by the High Court the Bhowals
made a further application in execution proceeding No.4/75. This was numbered
as misc. case No.23/1987. In this application the Bhowals contended that the
compromise decree had become unexecutable. This misc. case was allowed by the
executing court on 30th of May, 1988. A civil revision being civil revision 335
of 1988 was filed by the Debs before the High Court. The High Court reversed
the order passed by the executing court and held by by its order of 25.9.1992
that the compromise decree was executable. Civil Appeal No.3052 of 1995 Which
is before us is from this decision of the High court dated 25.9.92 in civil
revision 335 of 1988.
made a Review Application No.11/92 before the High Court to review its order of
25.9.1992. This was dismissed by the High Court by its order of 20.1.1993.
Civil Appeal No.3054/95 which is before us is from this order of 20.1.1993
dismissing the review application.
Civil Appeal Nos.6649 of 1983. 3055 and 3056 of 1995. 3052 of 1995 and 3054 of
1995 deal with the execution of the compromise decree of 10.5.1965.
the Debs entitled to evict the Bhowals from land admeasuring 1 Katha and 7 Chataks
as also the building standing thereon, in execution of the compromise decree of
10.5.1965? It is necessary to first examine the terms of the consent decree of
10.5.1965. Clause A of the consent terms hes been set out earlier, It requires
the Bhowals to give up possession of an area of 7' x 7' in the South-Western
corner of the room in the suit property. The clause further provides, "In
the event of non-compliance with the terms contained above for his default the
defendant appellant (Bhowal ) will be liable to ejectment in execution of the
decree passed in the suit in terms of the compromise" .
therefore, if the Bhowals do not give up possession of this area of 7 x 7',
they can be ejected from this portion in execution of the compromise decree.
next part of the compromise decree deals with possession by the Bhowals of the
rest of the building located on 1 Katha 7 Chataks of land. Under Clause C of
the consent terms the Bhowals are permitted to remain in possession of the rest
of the building as monthly tenants of the Debs for a period of ten years from Ist
of May 1965 till 30th of April, 1975 on payment of a rent of Rs.255/- per
month. Clause D prohibits the Bhowals from sub-letting or transferring any
portion of the said premises . It further provides that on the expiry of the
period of ten years the Bhowals will vacate and deliver possession of the said
premises to the Debs. Clause I provides. "In the event of any breach of
any condition mentioned above the defendant- appellant (Bhowals) will be liable
to ejectment by appropriate action, in a court of law". There is a
striking difference in the language used in Clause A relating to ejectment and
in Clause I relating to ejectment. Clause A clearly contemplates ejectment of
the Bhowals in execution of the compromise decree if they do not hand over
possession of an area of 7' x 7'. However, in respect of their tenancy relating
to the rest of the building.
they commit any breach of any of the conditions stipulated in the compromise
decree (which would presumably include the condition relating to handing over
possession on the expiry of ten years) the Bhowals are liable to ejectment by
appropriate action in a court of law. This is in contradistinction to the ejectment
in execution of the compromise decree contemplated under Clause A. In this
context, ejectment by appropriate action in a court of law can only mean ejectment
by taking action by filing a suit or taking any other proceeding in a court of
law. Clearly the parties did not contemplate ejectment by execution of the
compromise decree of relation to a breach of Clause C. This difference in the
phraseology of Clauses A and I is understandable because a tenant who may
otherwise be liable to ejectment may be protected by provisions of the Rent Act
or by any other provision of law. This issue can only be adjudicated properly
in an appropriate proceeding and not in the execution of a decree. Had the
intention been to allow the Bhowals only permissive possession for a period of
ten years, and ejectment thereafter in execution of the compromise decree the
decree would have so provided. It does not do so. Therefore assuming that the
tenancy of the Bhowals has come to an end. the Debs cannot eject the Bhowals
from the building in their possession without taking appropriate legal action
by filing a suit for ejectment or in any other manner as may be permissible in
law; but not by applying for execution of the compromise decree.
is also a further hurdle in the way of the Debs.
compromise decree was passed as far back 10.5.1965.
in the Title Suit No.41/66 filed by Bibekananda Bhowal and his two brothers,
the trial court passed a decree in favour of the Bhowals under which the title
of the Bhowals to the entire land of 3 Kathas and 9 Chataks was declared. They
were also declared as entitled to possession of 1 Katha 7 Chataks of land and
the building standing thereon. The decree of the trial court further provided
that the Bhowals could obtain Khas possession of the structures standing on 3 Kathas
9 Chataks of land by payment of Rs.27,000/-to the Debs. This was the value of
the structures as determined by the trial court. Of these. the structure which
was standing on 1 Katha 7 Chataks of land was valued at Rs.9000/-. This portion
of the decree of the trial court including its valuation of the structures at
Rs.27,000/- was upheld by the High Court in appeal. The High Court set aside
only the decree of the trial court granting to the Bhowals Khas possession of
the land in the occupation of the Debs (i.e. 3 Kathas 9 Chataks of land less 1 Katha
7 Chataks of land) and the building standing thereon. This was because the High
Court held, inter alia, that the Debs as lessees of the said land had
constructed buildings on the portion of land in their possession and were
entitled to the protection of Section 5 of the Assam Non-Agricultural Urban
Areas Tenancy Act, 1955. On an application for clarification, the High Court
clarified that it had not pronounced on the nature of the possession of the Bhowals
in respect of the building standing on 1 Katha 7 Chataks of land in their
possession. In view of this clarification, the Bhowals applied by Title
Execution Application 1/1987 for execution of the decree in respect of the
building in their occupation. As per the valuation of the trial court they-
deposited in the execution court a sum of Rs.9,000/- as the value of the
structure. The decree was executed accordingly in respect of the structure in
their occupation. Thus the Bhowals became the owners of the structure in their
occupation. This order passed by the executing court in Title Execution No.1/87
has not been challenged by the Debs By supervening events, therefore, the Bhowals
are now the owners of , interalia, 1 Katha 7 Chataks of land as also the
structure standing thereon. In view of this decree which is binding on the Debs
who were parties to it, the right of the Debs to eject the Bhowals from the
structure standing on 1 Katha 7 Chataks of land has now come to an end. Assuming
that despite the execution levied in Application No.1/1987 in Title Suit
No.41/1966, any right of eviction survives in the Debs, such a right can best
be litigated in a separate suit and not in execution of an old compromise
decree which did not contemplate ejectment of the Bhowals from the suit
structure by execution of the compromise decree.
counsel for the appellants (Bhowals) has also contended that just as the Debs
were held to be protected tenants under Section D of the Assam Non-Agricultural
Urban Areas Tenancy Act. 1955. the Bhowals. in turn. are also protected by the
same Section 5 assuming that they are tenants of the Debs. There is evidence to
show that the building on 1 Katha 7 Chataks of land was constructed by the Bhowals
and/or their predecessor interest after the execution of the lease within the
period permissible under Section 5 of the said Act. The rights which are
available to a lessee against a lessor are also made available under said Act
to a sub-lessee as against his lessee. There is nothing in the compromise
decree to indicate that this protection of the Assam Non-Agricultural Urban
Areas Tenancy Act. 1955 was meant to be taken away. This contention has
consent decree of 10.5.1965 had created and/or continued the relationship of
landlord and tenant as between the Deb and the Bhowals for a further period of
Bhowals are entitled to the protection of Section 5 of the Assam non-agricultural Urban Areas
Tenancy Act. 1955, they are entitled to avail of this protection in a court of
law. Such a question cannot be decided in execution proceedings. The compromise
decree did not contemplate ejectment of the Bhowals from the suit building in
execution of the compromise decree. It provided that they would be ejected by
taking an appropriate proceeding in accordance with law. The Civil Appeals
3055-56 of 1995 and 3052 of 1995 as also 3054 of 1995 are required to be
allowed in the above circumstances.
Civil Appeal No.6649 of 1983 the appellants (Bhowals) have contended that they
are entitled to maintain second appeals against the decision of the District
Judge dated 17.6.76 in Title Execution No.4/75 along with Misc. Case
No.27/1975. The appellants contend that Misc. Case No.27/75 raising objections
under Section 47 of the Civil Procedure Code was filed under the Unamended Code
of Civil Procedure under which any order passed on such application was to be
treated as a decree. A first appeal and a second appeal would lie from such a
decree. The Amending Act of 1976 provided that an appeal from an order passed
on an application under Section 47 of the Civil Procedure Code was no longer
maintainable. However, the right of filing an appeal and a second appeal which
had accrued to the appellants on the date when they filed Misc. Case No.27/75
could not be taken away by the Amending Act of 1976 since the Amending Act was
not retrospective. We need not examine this contention in the present
proceedings. The appellants had filed second appeals as well as revision
applications -- the latter, out of abundant caution in case second appeals mere
held not maintainable. The decisions in the second appeals as well as the
revision applications are before us in Civil Appeal No. 6649/83 and Civil
Appeal Nos. 3055-56 of 1995. Since these appeals have been heard together, it
is not material whether we allow one set of appeals or the other set of
appeals. Hence we are not examining the merits of this contention.
civil appeal remains. That is Civil Appeal No.3053 Of 1995. In 1983, the Bhowals
i.e. Bibekananda Bhowal and his two brothers filed Title Suit No.113 of 1983 in
the court of the Sadar Munsif. Silchar. They prayed for
declaration that they are entitled to remain in possession of land admeasuring
1 Katha 7, Chataks and the building standing, thereon
a declaration that the Debs have no right to interfere with the peaceful
possession of the Bhowals in respect of the said land and the building thereon
permanent injunction restraining the Debs from entering on the suit land and
the building thereon and from changing the structure of the building by
renovating the same or by making any extension thereto. By Misc. Case No.12/83
the Bhowals asked for an interim injunction restraining the Debs from entering
the suit premises and from changing the structure of the said building either
by renovating it or by making, any extension thereto. This interim injunction
was granted. Misc. Appeal No.60/83 which was filed by the Debs against the
order granting the injunction was dismissed. The Debs came by way of a revision
before the High Court, being Civil Revision No.27/1986. The High Court by its
order dated 25.9.1992 allowed the revision application holding that the Bhowals
had no prima facie case and injunction should not have been granted. Civil
Appeal No.3053/95. which is before us, is from the order of the High Court
dated 25.9.1992 refusing to grant interim injunction to the Bhowals in their
Title Suit No.113/83.
view of what we have observed hereinabove and particularly in view of the
rights which have accrued to the Bhowals as a result of the decree passed in
Title Suit No.41/1966 as modified by the High Court, and as executed in Title
Execution No. 1/87, the Bhowals do have a good prima facie case to retain
possession of the building in question.
trial court was. therefore, right in granting an interim injunction and the
first appellate court was right in dismissing Misc. Appeal No.60/83 which was
filed by the Debs against that order. The judgment and order of the High Court
dated 25.9.1992 is, therefore, set aside and the order of the first appellate
court is restored.
appeals are allowed accordingly with costs.