Paul
Brothers (Tailoring Division) & Ors Vs. Ashim Kumar Mandal & Ors [1990]
INSC 119 (2 April 1990)
Rangnathan,
S. Rangnathan, S.
Ramaswami, V.
(J) Ii
CITATION:
1991 AIR 796 1990 SCR (2) 283 1990 SCC (3) 726 JT 1990 (3) 81 1990 SCALE (1)768
ACT:
Practice
and Procedure.' Sanchaita case--Directions of Supreme Court explained.
HEAD NOTE:
These
appeals arose as a sequel to certain directions of this Court in the famous Sanchaita
Investment Company case, which by dint of tremendous advertisement campaign collected
deposits amounting to several crores of rupees from thou- sands of depositors
spread all over India. The firm pros- pered and thereafter tied up and siphoned
away a sizeable portion of its funds from its coffers for the benefit of the
management personnel by acquiring movable and immovable properties in the names
of the firm, relatives and benami- dars. Then they started making defaults in
its obligations to the depositors.
The
depositors approached the High Court and eventually the matter came up to this
Court in 1983. With a view to safeguard the interests of the depositors and
ensure that the properties of the firm be duly identified and full and due
benefit of the funds be diverted to its coffers, this Court by its order
appointed a Commissioner to take charge of all the assets, documents, papers of
the firm, agents, sub-agents, transferees and benamidars. Further to enable the
Commissioner to gather all the assets of the firm, he was given powers to
attach all assets and properties which in his prima facie opinion are of the
ownership of the firm or any of its partners. Such assets were to be put to
sale if no objections are received there to within one month from the date of
attachment. All objections thus received in respect of such properties were to
be forwarded to the Prothonotary of Calcutta High Court, and a Division Bench
of the High Court was to dispose of the objections on merits.
By a
further order dated 23rd September, 1985 this Court empowered the Commissioner
to remove all unauthorised 283 persons or trespassers from possession of the
property proposed to be sold, and the Commissioner to hand over vacant
possession to the rightful purchasers.
One of
the properties thus attached by the Commissioner by a public notice was house
N. 52/1/1B Surendra Nath Baner- jee Road, Calcutta. It was subsequently brought to sale on "as is and where is
basis". Asit Kumar Mandal and two others purchased this property and
requested the Commissioner to give them vacant possession. Since the sale was
on "as is and where is basis", the Mandais moved an application
before the High Court Division Bench praying for the vacant posses- sion of the
said property and the same was granted.
Hence
the appellants i.e. Paul Bros and Others, moved two Special Leave Petitions in
this Court and claimed that they were bona fide tenants in the property even
under the predecessors-in-interest of Mahamaya Devi in whose name the property
was purchased by Sanchaita firm and therefore could be evicted only in
accordance with due process of law after full contest, and could not be thrown
out in summary pro- ceedings just as if they were persons in unauthorised pos-
session of the property, or as if they were mere trespass- ers. On the other
hand the Mandais contended that in terms of the orders of this Court, and of
the Calcutta Division Bench they purchased the property only on the basis that
they would get a perfect title and speedy possession.
Allowing
the Special Leave Petitions, this Court, HELl): That the contention of the Mandais
is not main- tainable either in principle or on the terms of the direc- tions
of this Court. The attachment and sale in pursuance of this Court's order of
the present property in question did not have the legal effect of invalidating
any interests created or subsisting in the property by sale, transfer
encumbrance or alienation prior to the attachment. Even the sale was on
"as is and where is basis". The Courts order of 27th September, 1983 only empowered the Commissioner to
remove all unauthorised persons and trespassers but persons who are in lawful
possession of the 284 property could not be evicted forcibly or summarily. The
said order could not be interpreted to mean that the pur- chasers would be
entitled to vacant possession through the commissioner even by evicting bona
fide tenants or other encumbrancer or independent out-siders who had acquired
interest for consideration in the property. The object of the directions was to
cut short the proliferation of litiga- tion and to gather in expeditiously the
assets of Sanchaita.
[292D--E;
295H; 296B] Having regard to the large scale dealings, the special
circumstances and the desperate situation, the Court made an exception and made
it possible for the Commissioner to get false and frivolous claimants out of
the way by a quick procedure because even normally the trespassers and unautho-
rised persons cannot be thrown out except by recourse to legal proceedings. So
this order could not be availed of to ride rough-shod over the rights and
interests of others in the properties which had been created bona fide. Even
third parties who have acquired real interests in the property either
independent of, or even through Sanchaita could not be called upon to give up
their rights which would mean to do more than merely realise what rightfully
belongs to Sanchaita that is by conferring a better title than it had in fact
acquired while purchasing those properties, [297B, G] So in the instant case,
considering the materials and evidence and the records placed before the Court
by the claimants/objectors, to prove that they are not stooges or false
claimants but have bona fide right to possession, it was held that the auction
purchaser could not evict Paul Brothers and Phani Bhushan Ghose except eviction
proceedings in the normal course and in accordance with law as may be available
to them against the claimants/objectors. The claim's of the other appellant was
rejected. [297C-D]
CIVIL
APPELLATE JURISDICTION: Civil Appeal Nos. 1755-56 of 1990.
From
the Judgment and Order dated 9.2.1989 of the Cal- cutta High Court in Matter No. 3737 of 1987.
Dr. Shankar
Ghosh, C.S. Vaidyanathan, S.R. Setia, K.V. Vis- 285 wanathan and A.K. Sil for
the Appellants.
S.K. Kapoor,
P.K. Pillai D.K. Sinha, Mrs. R. Paul and H.K. Puri for the Respondents.
The
Judgment of the Court was delivered by RANGANATHAN, J. Leave granted.
These
appeals arise as a sequel to certain directions of this Court in the famous Sanchaita
case. The Sanchaita Investment Company was a firm which was controlled and run,
primarily, by three persons Samonu Prasad Mukherjee, Bihari- al Murarka, and Swapan
Kumar Guha. It had been able, by dint of a tremendous advertisement campaign,
to collect deposits amounting to several crores of rupees from thousands of
depositors spread all over India by holding out attractive terms of interest.
The firm initially prospered and its deposits steeply mounted to astronomical
figures. The firm, however, began to acquire, or deal in, movable and immovable
properties in various cities of India in the names, not only of the firm, but of relatives and benamidars of
various persons who were in management its affairs. A sizeable portion of the
firm's funds being thus tied up or siphoned away from its coffers for the
private benefit of the indi- viduals running it, the firm eventually began
making de- faults in its obligations to the depositors. The depositors,
thereupon, approached the High Court and eventually the matters came up to this
Court in W.P. Nos. 638 and 755-800 of 1983. With a view to safeguard the
interests of the depositors, arrange for a return to them of as much of their
deposits as possible and ensure that the properties of the firm were duly
identified and the full and due benefit of the funds diverted from its coffers
was restored to the firm, this Court, by its order dated 4.5.83, appointed a
retired District Judge as a Commissioner to take charge of all the assets,
documents and papers of the firm and of its agents, sub-agents, transferees and
benamidars. Directions were given to the Commissioner to look into the claims
of depositers and to devise a scheme whereby persons who had deposited sums not
exceeding Rs.25,000 could be repaid expeditiously. By a subsequent order dated
27.9.83, certain directions were given to enable the Commissioner to 286 gather
in all the assets of the firm. It is necessary to quote a portion of this
order. It read:
"The
Commissioner may attach such assets and properties which, in his prima facie
opinion, are of the ownership of the firm Sanchaita Investments, or of the
ownership of any of its partners. Such assets and properties may be put to sale
by the Commissioner if no objection is received to the attachment thereof
within one month of the date of attach- ment. All objections received to the
attachment of such assets or properties will be forwarded by the Commissioner
to the Prothonotary of the High Court of Calcutta. We re- quest the learned
Chief Justice of the Calcutta High Court to nominate a Division Bench of the
High Court for the purpose of jurisdiction upon such objections. The Division
Bench will dispose of the objections on merits after hearing all interested
parties." Reference must also be made to another order of this Court dated
23.9.85 in C.M.P. No. 38589/85. By this order, this Court directed:
"After
heating counsel for the parties we consider it neces- sary to empower the
Commissioner, Sanchaita Investment, to remove all unauthorised persons and
trespassers from posses- sion of the property proposed to be sold by the
Commissioner under the orders of this Court and to hand over vacant possession
to the rightful purchasers. The Commissioner is authorised to take the
assistance of the police for the purpose of obtaining possession and handing it
over to the rightful purchasers." In pursuance of these directions, the
Commissioner attached a large number of properties situate all over the country
which, he had reason to believe, were properties which belonged to the firm
though acquired in the names of others. When the properties were so attached
and sought to be sold, objections were lodged by persons claiming title or
possession of the property in their own right and these objections were
adjudicated upon by the designated Division Bench of the Calcutta High Court.
287
One of the properties that were thus attached by the Commissioner was house No.
52/1/1B, Surendra Nath Banerjee
Road, Calcutta- 14. (There is a slight discrepancy
in the door number of this property as appearing in various docu- ments but
that is not material for our purposes). This property stood on land of the
small extent of about 800 sq. ft. and comprised of five rooms in the ground
floor (three in front and two at the back), a first floor and a second floor
but, being business premises in a busy commercial locality, is of considerable
value today. The Commissioner found that this property had been acquired in the
name of Mahamaya Devi, an aunt of Sambhu Prasad Mukherjee, for Rs.85,000 on
4.10.1977. Apparently the Commissioner was of the opinion that the property was
really that of the firm acquired in the name of Mahamaya Devi. He, therefore,
at- tached this property by a public notice taken out, inter alia, in "The
Statesman" dated 27.5.84 to the following effect:
"The
Public are hereby informed that in exercise of the authority and power vested
in me under the order of the Hon'ble Supreme Court of India passed and made on
4.5.83 and 27.9.83 ..... , I had attached or I had taken possession of or I am
hereby taking possession of (as the case may be) the following properties
(specified in the schedule below) including flats, lands, cars, launch,
business, shares in companies and partnership firms and house properties. The
persons in which names these properties stand are hereby warned that they shall
not lease out, assign, sell, mort- gage, transfer or otherwise encumber or deal
with them until further orders from me. Anybody dealing with such properties
would do so at his own risk or responsibility." It appears that there were
also other similar notices issued by the Commissioner. In response to one of
these notices, Smt. Mahamaya Devi put forward her claim to the ownership of the
property but her claim was rejected by the Division Bench of the Calcutta High
Court on 29.3. 1985 in Case No. 23 of 1984. Sri Kapur, learned counsel for the
respondents states that a petition for special leave to appeal to this Court
preferred by her was also rejected sometime in 1985. This is not contradicted
by the petition- ers. We may, therefore, proceed, for the purposes of this
case, on the footing that, though standing in the name of Mahamaya Devi, the
property in question belongs to the firm Sanchaita.
288
Subsequently the property was brought to sale by the Commissioner. Sealed
tenders were invited for the purchase of the properties specified in the
schedule, by a notice published in "The Statesman" on 7.3.86, on an
"as is where is basis". The notice specifically mentions that the
posses- sion of only three of the six items mentioned in the notice was with
the Commissioner and the property presently in question was not one of them. Asit
Kumar Mandal and two others (the respondents before us, hereinafter
compendiously referred to as 'the Mandais') offered, on 22.5.86, to purchase
the property for Rs. 1,26,000 in lump sum subject to negotiations in the
matter. They undertook to deposit 25% of the price on the acceptance of the
offer and the balance "at the time of giving us the physical possession of
the said premises". After a discussion with the Commissioner, they
deposited Rs.31,500 on 11.6.1986 and stated in their letter of the same date to
the Commissioner:
"We
shall deposit the balance amount as and when called upon to do so. Thereafter,
you will hand over to us the posses- sion of the said premises free from
illegal trespassers".
On 12.6.86,
the Commissioner accepted the offer of the Mandais subject to the following
conditions, namely:
"(a)
That the proposed sale in your favour under the condi- tions mentioned herein
below is approved by our advisory Board.
(b)
That I/4th (i.e. Rs. 31,500) of the total consideration money is at once paid
by you to the Commissioner, Sanchaita Investments, through bank draft or pay
order.
(c)
That the balance of the consideration money is paid within 30th June, 1986.
(d)
That in default of payment of the consideration money as stated above, the
earnest money (Rs.31,500) to be paid by you through bank draft or Pay Order as
mentioned above shall stand forfeited.
289
(e) That the aforesaid sale is made on "as is where is basis".
(f)
That on payment of the full consideration money as above within the date fixed
you may take steps for obtaining possession of the said entire premises and the
Commissioner will help you for the said purpose." The Mandais, thereafter,
paid Rs.31,500 on 27.6.86 and Rs.
63,000
on 18.7.86 and wrote to the Commissioner as follows:
"Please
sent us the draft sale certificate in respect of the above property for our
approval on behalf of our clients and arrange immediately to give our clients
vacant possession of the property as agreed upon.
Please
inform us if any objection was received by you in respect of the property
pursuant to your advertisement in the Statesman dated March 7, 1986." The Commissioner referred
the purchasers to his lawyer in regard to the preparation of the sale
certificate and a certificate of sale deed was eventually issued in favour of
the Mandais on 10.4.1987. The certificate referred to the orders of the Supreme
Court, the satisfaction of the Commis- sioner, the fact of attachment and the
absence of any objec- tions from Mahamaya Devi and conveyed the property to the
Mandals.
Having
thus purchased the property, the Mandais request- ed the Commissioner to give
them vacant possession of the property but there was no response. Thereupon, on
17.9. 1987, the Mandais moved an application (being Matter No. 3737/87) before
the High Court praying that they may be given vacant possession of the
property. It appears that, in the meantime, they had come to know that the
premises were occupied by the following parties:
Name
of person Portion occupied
1.
Paul Brothers'(Textile Division) One room on Ground Floor 290
2.
Paul Brothers (Watch Repairing One room on Ground Floor Division)
3.
Paul Brothers (Electronics -do- Division)
4. Dulal
Dutta and Panchanan Dutta -do-
5. G. Dey
-do-
6. Phani
Bhusan Ghosh First Floor
7. Hari
Narayan Gupta Second Floor
These
persons were made respondents to the application and, alleging that they were
all trespassers in occupation of the property, a prayer was made that they
should be directed to hand over vacant possession of the property to the appli-
cants. This prayer has been granted by the Division Bench of the High Court
and, hence, these two petitions for leave to appeal, one by the three Paul
Bros. and the other by three of the other four "objectors". We have
heard these petitions at great length. We grant leave in both S.L.Ps. and
proceed to dispose of the appeals.
The
petitioners claim that they are bona fide tenants in the property. Except for
petitioner H.N. Gupta who was inducted as a tenant by Mahamava Devi, the others
claim that they have been tenants even under the predecessors-in-inter- est of Mahamaya
Devi. They clam, therefore, that they can be evicted only in accordance with
due procedure prescribed by law after full contest and opportunity to lead
evidence and cannot be thrown out in summary proceedings like the present one
just as if they were persons in unauthorised possession of the property or as
if they were mere trespassers. On the other hand, for the Mandais it is
contended that once it is held that Mahamaya Devi was a benamidar for Sanchaita,
the Commissioner is entitled to take possession of the property, removing all
present occupants including tenants therein and selling the property at the
maximum possible price free of all encumbrances so that the proceeds may be
made available to the innumerable depositors who had been denuded of their
lifetime savings by the undesirable and fraudulent activi- ties of the persons
in charge of the firm. A pernicious evil, it is said, warrants 291 a drastic
remedy and hence this Court, having regard to the large scale involvements of
the firm. considered it neces- sary to arm the Commissioner with wide powers so
that he may be able to gather in all the real assets of the firm without delay
or obstruction for the benefit of the defrauded inves- tors. The Mandais have,
it is said, having regard to the terms of the orders passed by this Court and
by the Calcutta High Court, purchased the property in the belief that they
would not only get a perfect title but also speedy posses- sion of the
property. If bona fide purchasers are to be obstructed like this by all manner
of claims, real or imagi- nary, it is argued, the properties of the firm can
only be sold for a song and the entire object and purpose of the various
directions of this Court would be frustrated. It is, therefore, contended that,
even if the appellants are really tenants in the property as claimed, their
claims will have to yield to the paramount public interest of the Sanchaita
investors.
We are
unable to accept this contention of the Mandais.
It is
not maintainable either in principle or on the terms of the directions given by
this Court. To take up the latter first, there is nothing in the terms of the
orders of this Court or of the notices of attachment or sale or of any other
orders of the Calcutta High Court that vests an abso- lute title in the auction
purchasers of the property free from all encumbrances. The order of the Court
dated 27.9.83 only authorised the Commissioner to attach properties which he
believed to belong to Sanchaita and provided for any objections to the
attachment being heard by the designated Division Bench of the High Court. The
attachment and sale of the property presently in question were effected in pursu-
ance of this order. Any sale, transfer, encumbrance or alienation subsequent to
the attachment could, no doubt, be impugned but the attachment did not have the
legal effect of invalidating earlier interests of others subsisting in the property.
In fact also, the sale was on an "as is, where is basis" i.e. without
prejudice to the claims of other persons in whose favour bona fide encumbrances
or interests may have been created earlier qua the property. There appears to
be some force in the contention of the claimants that the price paid by the
appellant is not adequate to reflect the market value of the property situated
in an important commercial locality in Calcutta at the present day if sold free
from all encumbrances but we shall leave this contention out of account as
there is no material before us on this aspect.
The
order of 23.9.85, no doubt, goes a step further but it only empowers the
Commissioner to remove all unauthorised persons and trespassers. The reference
to vacant possession in the order has to be restricted only to 292 cases where
the property is in the possession of such unau- thorised persons or trespassers
and cannot be read so as to empower the Commissioner to evict forcibly, or seek
the orders of the Court to evict summarily, persons who are in lawful
possession of the property. We should also like to point out that, in fact
also, the Mandais got no better right on the terms of the auction and the
correspondence that followed. Though the Mandais referred in their letters to
vacant possession of the property, the sale was only on an "as is, where
is" basis and the Commissioner at no time offered or assured the Mandais
that they would get such vacant possession. He only offered to help them in the
process to the extent permissible in law. He has made this position explicit in
the letters written by him.
Sri Kapur,
for the Mandais, placed considerable reliance on the common order of the
Calcutta High Court dated 25.3.86 in Amar Mondal v. Commissioner, (Matter No.
122 of 1986) and Jagdish Chand Aggarwala v. Commissioner, (Matter No. 146 of
1985) to contend that the Mandais are entitled to get vacant possession of the
property. In that case, Amar Mondal who was the auction purchaser of an item of
property (which we shall call 'Property A') at a sale by the Commissioner
sought to be put into possession by evicting the respondents 2 to 5 "who
are unauthorised occupants" and Jagdish Chand Aggarwala, whose highest bid
at an auction for an item of property (which we shall call 'Property B') by the
Commis- sioner could not be proceeded with because of an injunction obtained by
respondents Nos. 6 & 7, sought the orders of the Court "for completing
the sale and giving delivery of pos- session by evicting the respondents".
So far as Property A is concerned, the Court found, for reasons which need not
be repeated here, that they were "unauthorised occupants" and not"bona
fide tenants in occupation" and were, hence liable to be evicted.
Likewise, in respect of Property B, the Court concluded that the claims or'
tenancy put forward by re- spondents 6 & 7 "were frivolous".
These were, therefore, not cases where tenants were held liable to be evicted
and the order does not help the Mandais to the extent claimed.
Sri Kapur,
however, relies strongly on two sets of observations in this order. the first
reference by him is to an observation that any person claiming to have any
interest in the property should file his claim within 30 days of the attachment
and that any claim made beyond this period would be barred by limitation and
hence cannot be considered. The second reference is to an observation that the
Court is 293 entitled to adjudicate' upon all claims, even those of persons who
claim to have any bona fide intermediate inter- ests in the properties attached
by the Commissioner. The Court observed:
"In
our opinion, therefore, once an attachment is effected by the Commissioner on
the authority of his powers vested in him by the Supreme Court, not only
persons claim- ing right, title and interest independent of Sanchaita
Investments but also claiming any bona fide intermediate interest created by Sanchaita
Investments in favour of the claimant should put forward to claim of objection.
It was not the intention of the Supreme Court that there should be
proliferation of litigation, result whereof would be that the insignificant
part of the depositors' money which should be realised by the Commissioner
would be wasted in litiga- tion. This position has been made clear by the
Supreme Court when the Supreme Court by a recent order upheld the view of the
Bombay High Court that a claim of tenancy in respect of a property attached by
the Commissioner must be lodged with this Special Bench and not before any
ordinary Civil Court.
The
attachment made by the Commissioner cannot be equated with an attachment made
by a Civil Court either prior to judgment or in execution since there what is
attached is the right, title and interest of either the defendant on the
judgment debtor. In the present case, however, on the Scheme framed by the
Supreme Court what is being attached is the property itself so that any body
having any lawful claim in whatever interest held by him, must put forward his
claim before the Commissioner so that it can be adjudicated once for all in a
proceeding before this Special Bench and thus avoid wasting litigation. We do
not accept for a moment that this court's jurisdiction is limited to
adjudication of all claims preferred as against the attachment made by the
Commissioner. The scope of our power must be determined with reference to the
intention of the Supreme Court referred to herein. Such power in our opinion
covers adjudication of all sorts of claims or objections for the Commissioner's
.at- tachment and sales of assets belonging to the beneficial ownership of Sanchaita
Investment preferred or brought forward at any stage and also to make all inci-
294 dental and consequential orders as we may find necessary to assist the
Commissioner in collecting the assets having regard to the resistance faced by
him from persons putting forward any claim of his own. In that view we hold
that our power covers a case like the present one where even after the
objection has been overruled by this Court, others have come forward to resist
the Commissioner from effecting sale by putting forward a claim of tenancy.
Such a claim in our opinion, is really an objection to the attachment when we
consider it on its substance, that comes well within the scope of our
jurisdiction. It matters little whether such jurisdiction is invoked by the
Commissioner or the claimant or the proposed purchaser." He submitted, on
the strength of these passages, that the claims in the present case are liable
to be dismissed (a) on the ground that they are time barred and (b) even if the
claimants are found to be bona fide tenants in the property.
We are
unable to agree. While, no doubt, this Court had indicated that claims and
objections to attachments should be filed within a period of thirty days, that
period cannot be read as if were a rigid rule of limitation prescribed by law.
The order also only says that, if objections are not put forward within a
month, the property may be sold and does not preclude objections being filed
after the, sale.
Indeed,
the Division Bench did not rest its conclusion on this ground and proceeded to
consider the objections on merits. We are also unable to read into the order
any con- clusion of the Division Bench that even bona .fide tenants are liable
to be evicted from the property. If that had been so, the Bench need not have
gone into a detailed considera- tion of the merits of the claim of tenancy put
forward by the contesting respondents in that case. All that the Bench observed
in the passage extracted above was that all claim- ants to the properties
subjected to attachment by the Com- missioner, whether as owners or as
intermediate interest holders (like tenants) or otherwise, have to put forward
their claims for adjudication by the Division Bench. The Bench did not proceed
to hold, as suggested by Sri Kapur, that the auction purchasers are entitled to
get vacant possession of the property free from all encumbrances and that even
bona .fide tenants can be directed to be summarily evicted from the property in
pursuance of the 295 orders of this Court. We are unable to see in this order
any observation that could legitimately have induced the Mandais to believe
that they would be entitled to evict even lawful tenants from the property by
purchasing it at the auction sale.
In
principle also, this contention is not well founded.
The
object of the directions given by this Court was to cut short the proliferation
of litigation and to ensure that the Commissioner is able to gather in
expeditiously the assets of Sanchaita which were dissipated or siphoned off by
the persons in charge of the firm. Thus, if the firm's moneys had been utilised
to purchase properties in the name of various individuals benami such property
had to be taken back by the Commissioner from such benamidars. Also, where the
said benamidars or other persons put up frivolous claims to the property or its
possession without the semblance of any legal title to its ownership or
possession, such claims could and should be rejected by the Court. But this princi-
ple cannot apply to bona fide interests of others in the property. For
instance, suppose Sanchaita's moneys had been advanced on the mortgage of an
item of immovable property, all that the Commissioner would be entitled,
legally and equitably, would be to call in the mortgage moneys (princi- pal and
interest) and not the entire property itself. An auction purchaser of such a
property cannot get anything higher than the interest Sanchaita itself could
have claimed in respect of the property. Likewise, if Sanchiata's moneys had
been invested in a property which had been bona fide let out to tenants, Sanchaita
would have paid only the value of the property so encumbered and its rights in
the property can only be subject to those tenancy rights. Sanchaita could not
have a right in respect of the property superior to that which its vendor had.
Similar would be the position where Sanchaita or its benamidars had, after
acquiring a property, created a bona fide tenancy or other encumbrance in
respect of that property, in respect of independant outsiders who acquire such
interest for consideration. To say that San- chaita, through the Commissioner,
would be entitled to vacant possession even from such tenants, or free from
such encumbrances, would result in its being able to realise a larger interest
in the property than it acquired. Not only this, the result of any such
conclusion would ensure the benefit of, not Sanchaita, but of the auction
purchaser of the property. Having bid for and acquired the right, title and
interest of Sanchaita in the property, he would be enable to get vacant
possession which Sanchiata, even if it had continued to be active and properous,
could not have got except by due process of law.
296 We
have, therefore, no doubt that this Court, by its orders dated 4.5.83 and 27.9.83
intended only that the firm, or the auction purchasers at the sales effected by
the Commission- ers, should be able to clear the property of trespassers and unauthorised
persons and not that even bona fide tenants could be got evicted straight away in
pursuance thereof.
Normally,
even trespassers and unauthorised persons cannot be thrown out except by
recourse to legal proceedings but, having regard to the large scale dealings,
the special circumstances and the desperate situation, this Court made an
exception and made it possible for the Commissioner to get false and frivolous
claimants out of the way by a quick procedure but nothing more. We are,
therefore, of opinion that if the Court, on a consideration of the materials
placed by the claimants or objectors, comes to the conclu- sion that they are
not mere stooges or false claimants but have a bona fide fight to possession as
against Sanchaita, it cannot direct their eviction but should leave it to the
auction purchaser to initiate such eviction proceedings in the normal course
and in accordance with law, as may be available to him against the
claimants/objectors.
Sri Kapur
laid considerable stress on the aspect that, unless vacant possession can be
had, no one will purchase any property at the auction sales conducted by the Commis-
sioner as no one would like to face further litigation to secure possession of
the property. He submitted that the object which the Court had in mind was to
effectuate sales of Sanchaita properties by assuring vacant possession with a
view to secure maximum price therefore and to ensure expedi- tious return to
the Sanchaita investors of as much of their deposits as possible and that this
object would be totally frustrated if people were encouraged to put in hurdles
in the way which will depreciate the value of the property.
This
contention proceeds, only partially, on a correct basis. It is true that there
should be a quick and expedi- tious realisation of the properties that really
belong to Sanchaita. That is why the Court empowered the Commissioner to attach
and sell properties that, in his opinion, really belong to Sanchaita though
ostensibly held in the names of others and also devised a quick and summary
method for adjudication upon claims and removal of obstructions. But this order
cannot be availed of to ride rough-shod over the rights and interests of others
in the properties which have been created bona fide. Third parties who have
acquired real interests in the property, either independent of, or even
through, Sanchaita cannot be called upon to give up their rights. To do so
would be to do more than merely realise what 297 rightfully belongs to Sanchaitas;
it would amount to confer- ring on Sanchaita a better title than it had, in
fact, acquired. The depositors or investors in Sanchaita cannot claim any such
rights. It is, therefore, difficult to accept the ground urged by Sri Kapoor as
entitling the Mandais to an interest that can ignore or override all manner of
rights and interests in the auctioned properties.
For
the above reasons, we are unable to accept the plea that the Mandais are
entitled to get vacant possession of the premises, irrespective of the nature
of the interests the claimants had therein and that, on this ground alone, we
should uphold the order of the Division Bench. We shall, therefore, proceed to
consider how far the claim of each one of the appellants before us to continue
in possession of the property, unless and until evicted in due course by
process of law, is maintainable.
Though
the High Court has set out in extenso the details of the claims put forward by
the various claimants, we consider it necessary to set out, in some detail, the
evi- dence put forward by the claimants as the principal com- plaint of every
one of the claimants is that a considerable volume of evidence adduced by him
has been summarily brushed aside by the Division Bench. We shall, therefore,
proceed to do this:
1.
PAUL BROTHERS The petitioners in SLP 3258/59 have described themselves as
"Paul Brothers". A complete paper book containing copies of a number
of documents has been placed before us to sub- stantiate their claim that they
have been tenants in the premises since a very long time. These are:
"(1)
A letter addressed by one Ramakrishna Paul to Dilip Kumar Paul and Mihir Kumar
Paul, Landlords, seeking permis- sion to make some alterations in the Radio and
Electrical shop and a reply thereto dated 8.4.75 by Dilip and a similar reply
to Amar Nath Paul (Paul Brothers) in respect of the watch repairing shop;
298 (2)
A letter intimating "Amar Nath Paul (Paul Bros.), Re- pairing Shop"
that Satyanarayan Paul had died on 10.8.66 and that the four signatories Ashok
Paul, Dilip Kumar Paul, Mihir Kumar Paul and Mrs. Suchitra Kundu had succeeded
as landlords entitled to the rents thereafter;
(3)(a)
A stamped deed of partnership dated 14.6.61 drawn up by B.M. Motilal Advocate,
between Amar Nath Paul, Robindra Nath Paul. Abani Bhushan Paul, Arun Kumar
Paul, Kiron Chan- dra Paul and Gopal Chandra Paul (all sons of Mohni Mohan Paul)
sharing profits equally. The firm is said to have started business in Watch
Repairing and Tailoring w.e.f. 14.4.61 at the suit premises under the name and
style of Paul Bros. and is said to have been registered with the Registrar of
Firms.
(b)
Three stamped deeds of partnership drawn by B.M. Motilal (Advocate) and dated
25.4.75 have also been produced. The first of these, of Paul Brothers (Watch
Division), Amar Nath Paul, RobindraNath Paul, shows Abani Bhushan Paul and Rama
Kishore Paul (sons of Mohni Mohan Paul) as having started and been carrying on
business as watch dealers and repairers since 15.4.74 in the premises sharing
profits equally with- out a formal deed till then. The second is of Paul
Brothers (Radio and Electrical Division) in which Kiron Chandra Paul, Amiya
Kumar Paul, Samir Kumar Paul, Amar Nath Paul (sons of Mohni Mohan Paul) and Shyama
Ran jan Paul (son of Lalit Mohan Paul) are partners with Amar Nath having a 10%
share and the others 22.5% share each. The deed recites that the above
partnership started a business in radio and electri- cals on 15.4.74 at the
suit premises as well as at 1951, Mahatma Gandhi Road, Calcutta without a
formal deed having been drawn up till that date. The third deed is between Arun
Kumar Paul, Benoy Kumar Paul, Gopal Chandra Paul and Amar Nath Paul (all sons
of Mohni Mohan Paul) in respect of Paul Brothers--Tailoring Division with Amar Nath
Paul having a 10% share and the others 30% each. This deed also recites that
the business had started earlier with effect 299 from 15.4.74 but that no
formal deed had been drawn up till then.
(c) A
deed of partnership dated 8.5. 1980, also on stamp paper and witnessed by B.M. Motilal,
is between Kiran Chan- dra Paul, Amiya Kumar Paul, Samir Kumar Paul (sons of Mohni
Mohan Paul) and Promotho Nath Paul (son of Lalit Mohan Paul). By this deed Shama
Ranjan and Amar Nath retire from Paul Brothers--Radio and Electricals w.e.f.
13.4.80 leaving the remaining four to share the profits equally.
(4)
More than 225 rent receipts in favour of "Amar Nath Paul", "Amar
Nath Paul and others", or "Amar Nath Paul (Paul Brothers)" have
been produced. They are spread over the period from 1962 to November 1987
(except October 1965 to March 1968). They are signed by S.N. Pal between May
1962 and September 1965, by Ashok Paul between April 1968 and October 1971, by Dilip
and Mihir between October 1971 and September 1977 and by Mahamaya Devi from
October 1977 onwards. Rent receipts from April 1962 to September 1987 in favour
of "Amar Nath Paul", "Amar Nath Paul (Paul Bros.) Watch Makers
Shop" have been produced. Also copies of rent receipts in favour of "Ramkrishna
Paul", "Ramakrishna Paul and others" in respect of one shop room
in the north west corner covering the period from March 1974 onwards signed by Dilip
and Mihir and Mahamaya Devi are also produced.
(5)
Rent receipts and a deposit receipt showing that a third shop situated in the
north west corner of the ground floor, previously occupied by one Tarak Nath
Roy, was taken over by the Paul Bros. at a rent of Rs.75 p.m. in December 1973
after purchasing the assets of the earlier tenant for Rs.200.
(6)
Three electricity bills of October '69, January '75 and 300 May '88 in respect
of the premises issued in the name of one D.P. Paul, claimed to be an uncle of
the Pauls and Electric- ity bills in the name of Paul Bros Radio Division of
April '80 and April '88 have also been produced.
(7)
Three telephone bills of 1969, 1973 and 1977 in the name of Paul Brothers (and
three electricity bills of March '74, March '77 and February '88 in the name of
Tarak Nath Roy) have been produced.
(8)
Receipts dated 2.5.61, 10.5.62, 7.5.63, 25.3.72 and 28.12.87 by the Corporation
of Calcutta being fees in re- spect of the Tailoring Shop in the premises for
the years 1961-62, 1962-63, 1963-64, 1971-72 and 1987-88 in favour of Paul
Bros. (Partners Sri Arun Kumar Paul and others). Corpo- ration Receipts ( 18 in
number) for trade licence fees in respect of radio and watch business carried
on in the prem- ises covering the years 1962-63 to 1987-88 (except 1984-85,
1981-82, 1980-81, 1975-76, 1972-73 and 1971-72) in the name of Paul Bros. are
produced. These describe the partners of the firm differently as "Amiya
Paul and others", "Arun Kumar Paul and others" and "Amar Nath
Paul and others" 7 fee receipts for trade licences issued to the watch
division of Paul Bros. covering the years 1987-88, 1986-87, 1985-86, 1983-84,
1982-83, 1981-82, 1980-81, 1979-80, 1978-79, 1977-78, 1976-77, 1975-76 and
1974-75 describe the partners as "Rabindra Nath Paul and others".
There are also fee receipts in respect of licence fees for the years 1961-62,
1971-72, 1972-73, 1987-88 in respect of the watch repairing shop in the name of
"Paul Bros. (Amar Nath Paul & Others)".
(9) A
letter dated 17.7.70 addressed by the Government of West Bengal to the
Accountant General, copy endorsed to M/s Paul Brothers at the address of the
suit premises and other correspondence between 1970 and 1973 with the tailoring
division of the said firm at the same address. Copies of two letters addressed
to the radio and watches 301 shop of Paul Bros. at this address between July
1965 have also been produced.
(10) Challans
for payment of self-assessment tax of Rs..190 for assessment year 1976-77 by
Paul Brothers (Tailoring Division) on 12.8.76 from this address. Also produced
are certificates from the Income Tax Department that the three Paul Bros. at
the above address are being assessed to income tax since assessment year
1975-76/1976-77.
(11)
Orders u/s 158 and demand notices u/s 156 of the In- come-tax Act in respect of
assessment years 1969-70, 1968- 69, 1967-68 have been produced, the former of
which evi- dences the constitution of Paul Bros. A declaration have been filed
before a Presidency Magistrate, Calcutta, on 26.8.65 by some of the Pauls
referred to above to the effect that they are the partners in the firm from
14.4.61 and that they have filed income-tax returns for three years. The
declaration also states:
"2.
That we have been carrying on business as tailors, watch repairers and sellers
of cut piece cloth and watches from 1st day of Baisakh, 1368 B.S. and also we
have started radio manufacturing/sales/service department from second year of
our business i.e. 1369 B .S. We have no other business save and except those
mentioned in this paragraph, this is true to our knowledge".
(12)
Documents showing the registration of the following firms with the Registrar of
Firms:
Date
Firm 10.1.74 Paul Bros. (Watch) Division) 10.6.74 Paul Bros- (Radio and
Electrical Division) 20.9.61 Paul Bros.
302
(13) A central excise licence dated 20.1.1965 and a postal department licence
of 24.8.62 in respect of the radio and electrical shop in the name of Paul
Bros. with Shri Kitart Chandra Paul as a partner.
(14)
Several letters, notices, receipts etc. from the In- cometax Department and
Central Excise Department as well as correspondence from the Life Insurance
Corporation of India and premium receipts have been produced but these are not
of much help except to show that they were addressed to Paul Bros. or Arun
Kumar Paul or Rabindra Kumar Paul or Amar Nath Paul or A.K. Paul or Amarendra Nath
Paul and others or Abani Bhushan Paul or Kiran Chandra Paul, or Gopal Chandra
Paul at the suit premises.
(15)
Extracts from the assessment registers of the Corpora- tion of Calcutta for two
years. The first of these shows the name of the owner as Avamoyee Paul and that
of the occupier as Taraknath Roy and others. Endorsements thereon show the
calculation of the annual value on the basis of the follow- ing rents:
Rs.
p.m.
"I
Tarak Nath Roy 25.00 Panchanan Dutta 25.00 (Watch Shop) 41.00 (Tailoring Shop)
44.00 7.50 7.50 II Phani Bhusan Ghose 45.00 III Owner 45.00 --------------
240.00" -------------- The second of these documents shows the name of the
owner as "Estate of Avamoyee Paul C/o Shri Mihir Paul 303 and
Brothers" but this is struck off and replaced by "Smt.
Mahamaya
Devi (In the premises)". Against the column "occu- pants" the
name of Taraknath Roy and others is replaced by "Smt. Mahamaya Devi and
others". This extract also contains, what apparently are later,
endorsements of details as fol- lows:
"R.S.
(Road Side) Shops Rent p.m.
I
Ramakrishna Paul says 75 (Goldsmith) (Radio Amarnath Paul " 48 (Tailoring)
Paul Bros. " 48 (Goldsmith Panchanan " 44 Dutta (Dulal Dutta)
2.
DULAL CHANDRA DUTTA The tenancy in respect of a backside shop on the ground
floor is claimed as having belonged initially to two per- sons, Panchanan and Dulal
Dutta. Of these, Panchanan Dutta appears to have died in 1981 and it is only Dulal
Dutta who is the claimant now. He states that the property belonged to Satya Narain
Paul then to Dilip Kumar Paul and Mihir Kumar Paul and then to Mahamaya Devi.
In the case of this claimant there is no direct evidence of tenancy in the form
of a rent deed or rental agreement. About 51 rent receipts have been produced
but all these receipts purport to have been issued only by Mahamaya Devi. No
receipts have been produced for any earlier period though the claimant says he
has been tenant of the property since 1973; it is stated that the rent receipts
issued in the joint names by Dilip Kumar Paul and Mihir Kumar Paul are missing
from his custody. The High Court has said that there are several
inconsistencies, defects and errors in the receipts that had been produced and,
though a number of other documents have been placed before us here, none of
these receipts or copies thereof have been produced. According to the
claimant's affidavit filed before the High Court, he started his work as a gold-
smith in the premises in 1973, the tenancy of which stood in the name of one Panchanan
Dutta and that he also contributed rents to 304 Panchanan Dutta "who used
to pay the rents in his name to the owner of the premises". No receipts in
the joint names of Panchanan Dutta and the claimant have been produced. The
extracts from the records of the Corporation referred to earlier show Panchanan
Dutta as the occupant and the claim- ant's name does not figure therein. The
claim of tenancy is, however, sought to be established by the following docu- ments:
(a) A
certificate of the Gold Control Authority of 1976 recognising the claimant as a
goldsmith with his place of business and residence at 6, Doctor's Lane,
Calcutta subse- quently shifted to the suit premises w.e.f. 4.11.81;
(b) A
certificate from the Bangia Swarna Silpi Smithi dated 12.8.75 showing the
claimant's place of work at the suit premises and a letter of 13.11.1987 from
the Samithi stating that the claimant has been maintaining a Khata under the Gold
Control Act from 1976;
(c) A
petition for remand by the police dated 18.9.75 in connection with a criminal
case showing the claimant's address at the suit premises;
(d) A
search list of 23.9.75 on complaint no. 657 u/s 380 I.P.C. showing that certain
items were seized from Dulal Dutta's shop in the suit premises; and a petition
from the prosecution seeking impleadment of Dulal Dutta of the suit premises as
a co-accused in connection with the above case;
(e) A
letter from the Police of a complaint from the Corpo- ration against the
claimant for not having obtained a trade licence for 1979-80 in time and a
municipal licence fee receipt dated 19.12.80 in respect of the year 1978-79
issued by the Corporation of Calcutta in favour of the claimant and Panchanan Dutta;
(f) A
summons issued by the Corporation to the claimant on 305 6.2.81 showing his
address as at the suit premises; and (g) A letter dated 10.6.81 by the claimant
to the Superin- tendent, Central Excise asking for a change of address from
Doctor's Lane to the suit premises.
(h) An
extract got in 1988 from the assessment book of the Corporation which shows Smt.
Mahamaya Devi as the owner and Shri Phani Bhusan Ghose, Shri Amarnath Paul and Shri
Dulal Dutta as the occupants. This purports to be the entry with effect from
3/66-67 to 4/88.
3.
PHANI BHUSAN GHOSH Phani Bhusan Ghosh, who claims tenancy in respect of the
first floor of the suit premises comprising of three bed rooms and one sitting
room besides other conveniences. Ghosh is a retired Government servant. He
claims to have been inducted as a tenant in 1948 by Satyanarayan Paul at a
monthly rent of Rs.75 p.m. According to him, on the death of Satyanarayan, his
son Ashok Paul used to grant rent re- ceipts; thereafter, consequent on a
partition among the heirs of Satyanarayan, Dilip Kumar Paul and Mihir Kumar
Paul used to issue the receipts until, in October 1977, they sold the suit
premises to Mahamaya Devi. Though it iS not clear whether there was any
original tenancy agreement in 1948 and no rent receipts of that time have been
produced, the claim- ant relied on the following documents in support of the
plea of tenancy:
(a) A
photo copy of a certified copy of the plaint in Eject- ment Suit No. 1095/61
filed by Satyanarayan Paul against the claimant for eviction and khas
possession which recites that the claimant was a tenant of Satyanarayan in
respect of the premises; (Incidentally, the schedule to this deed refers to Taraknath
Roy, Panchanan Dutta, Dulal K. Dey and Amarnath Paul (Paul Bros.) as the
tenants on the ground floor).
(b) An
undated letter from Dilip Kumar Paul and Mihir Kumar 306 Paul informing the
claimant of the sale of the Premises to Mahamaya Devi and a letter dated
9.10.77 from Prabir Kar, an Advocate on behalf of Mahamaya Devi asking claimant
to attorn to Mahamaya Devi as she had purchased the property from the two Pauls;
(d)
Three receipts issued by Ashok Paul in 1969, three issued by Dilip and Mihir in
1971, 1976 and 1977 and two issued by Mahamaya Devi for July' 78 and September'
87;
(e) A
certificate dated 4.1. 1988 from the Geological Survey of India stating that
the address of the claimant had been recorded on 20.3.52 in its official
records as being at the suit premises.
4.
HARI NARA YAN GUPTA This person claims tenancy in the second floor. One feature
that distinguishes this claimant from others is that he claims to have been a
tenant in the property under Maha- maya Devi since 1982. The plea of Gupta is
that he became a tenant of the flat on the second floor under Mahamaya Devi on
a rent of Rs.350 p.m. vide an agreement dated 7.1.1982 and that he had been
regularly paying the rent to her ever since upto September 1987. The agreement
produced is an unregistered agreement. There are only two rent receipts dated
January 1983 and September 1987 produced in support of the claim. The photostat
copies of the extract from the records of the Corporation which have been
referred to earlier show the occupants as Mahamaya Devi and then one Harindra Nath
Chakraborty. H.N. Gupta claims to be running a tea stall on S.P. Banerjee Road and to have taken this premises on
rent.
We
shall now consider the claims of each of these claim- ants individually,
starting with Hari Narayan Gupta.
1. Hari
Narayan Gupta:
Sri Kapur
contended that since it has now been finally decided 307 that Mahamaya Devi
never really owned the premises herself, she could not have validly created a
tenancy in favour of Gupta. We do not think this conclusion necessarily
follows.
It is
true that the finding that Mahamaya Devi was only a benamidar for Sanchaita has
become final but it does not follow that any tenancy created by her is invalid,
unless it can be shown that, in creating such interest, she acted in breach of
trust and contrary to the interest of Sanchaita.
If she
had put Gupta in possession of the property as her stooge or, if Gupta had
taken the property from her on rent collusively or with full knowledge that the
property really belonged to Sanchaitas the position would be different but if
Gupta is an independent third party with no such notice or intention and had
been inducted by her as a tenant bona fide, all the Sanchaita can claim is that
she should account to firm for the rents derived by her from the property in
the past and that the firm or the Commissioner or the auc- tion purchaser
should be entitled to the rents from the property as from the date of its
attachment by the Commis- sioner.
Examining
the facts and the evidence from the perspec- tive, it does seem that Gupta has
not been able to adduce any evidence to satisfactorily establish that he was a
bona fide tenant under Mahamaya Devi. It is difficult to believe that this
tea-stall owner took the suit premises on a rent of Rs.350 from Mahamaya Devi.
There is no consistent or satisfactory evidence of such tenancy. We are
inclined to agree with the conclusion of the High Court that Gupta was not a
bona fide tenant in the property as claimed and that he is liable to evicted
from the premises.
2. Dulal
Dutta:
Turning
next to the case of Dulal Dutta, we have gone through the documents placed
before us carefully and are constrained to observe that this claimant has also
not been able to establish his bona fide tenancy of the premises. The original
trade licence shows that the claimant had started his business at No. 6,
Doctor's Lane and that this was got changed to the address presently in
question only in 1981 but, according to him, he had started working at the suit
premises even in 1973. The police remand papers and corpora- tion notices no
doubt indicate that the claimant was found at this address in 1975 and 1978-
308 79 but these papers are not sufficient to establish the claimant's plea of
tenancy. Admittedly, even according to him. Panchanan Dutta was originally the
tenant of the prem- ises and the claimant seems to have had some working ar- rangement
with him, Panchanan Dutta is said to have died sometime in 1981 and the change
of address for excise pur- poses seems to show that the claimant moved into the
prem- ises wholly thereafter. But the question is not whether the claimant was
in occupation of the premises but whether he was a bona fide tenant therein. As
to this, there is no proof or evidence except the few odd rent receipts
purport- edly issued by Mahamaya Devi the genuineness of which has not been
accepted by the High Court. It was argued that even if Dulal Dutta is treated
as a sub-tenant or as being in adverse possession, the landlords' right to
evict him would be time barred. But neither of these stands was taken by Dulal Dutta
and his adverse possession, even if claimed, could not have started before 1981
and so no question of time bar could arise. In the circumstances, we are con-
strained to uphold the findings of the Division Bench in respect of the portion
of the suit premises occupied by Dulal Dutta.
3. Phani
Bhusan Ghose:
We
next turn to the case of Phani Bhusan Ghose. On behalf of the Mandals, it is
submitted that the pieces of evidence relied on by the claimant amount to
nothing. Sri Kapur submits that, as per the extracts from the Corporation
records filed in the case, one Avamoyee Paul was the owner of the premises in
1948 and there is nothing to show that either Satyanarayan Paul or his legal
heirs were ever the owners of the property. The partition deed has not been produced.
The rent receipts produced contain lacunae, errors and inconsistencies. The
genuineness of the receipts and the letters produced is not accepted. Advocate Prabir
Kar, who is alleged to have sent the attornment notice, is alleged to be a
reputed agent of Sanchaitas. So far as the plaint of 1961 is concerned, he
points out, there is no explanation given as to what made the claimant obtain a
certified copy of the plaint in 1972 and there is also no evidence as to the
outcome of the suit. The records of the Geological Survey had not been summoned
and it is also curious that the claimant has produced a certificate of 1988 to
show the claimant's address in 1952 but not his recent or present address as
recorded therein.
We are
of opinion that these objections cannot be sustained.
309
Leaving aside the rent receipts and other correspondence the authenticity of
which cannot be taken for granted, there is enough evidence to sustain the
claim of the applicant. The certified copy of the plaint shows that Ghosh was
tenant of the first floor under Satya Narayan Paul who claimed to be the owner
of the premises. It does not show that he was tenant since 1948 but read, with
the certificate of the Geological Survey of India, it does show that Ghosh was
the tenant between 1952 and 1961 in the premises. No foundation has been laid
and no material has been adduced to show that the copy of the plaint is not
genuine or cannot be acted upon or that there was no such suit in 1961 between
the parties as alleged. What happened to the suit or what de- fence was raised
by Ghosh to the suit is irrelevant in the absence of any suggestion, or any
material to indicate, that Ghosh had been in fact evicted in pursuance of the
order passed in the suit by the date of the present proceedings.
There
is also no information placed before us as to the persons who were the legal
representatives of Avomoyee Paul or that Dilip and Mihir did not at all because
the owners of the property. On the other hand, the extract from the Corpo-
ration records at the relevant time, shows the owner of the premises to be:
"Estate
of Avamoyee Paul c/o Sri Mihir Paul and Bros." This indicates a connection
of Mihir Paul with the premises and the sale deed of 1977, the genuineness of
which is not.
and
cannot be, in dispute (for that, verily, is the basis of the title of Sanchaita
to the property in question) shows that she purchased it from Mihir and Dilip.
It is, of course, theoretically possible that Ghosh had been evicted from the
premises by Satyanarayan and that the receipts produced from Dilip and Mihir as
well as the letters of authority produced are not genuine. But this is a
far-reach- ing assumption and it cannot be presumed that all these are got-up
documents, in the absence of some foundation or material for the suggestion. In
our opinion, the claimant has let in sufficient material to show that he was a
tenant in the premises long before Mahamaya Devi entered into the picture.
4.
Paul Brothers:
Now
turning to the case of Paul Brothers, our narration above shows that there was
a mass of evidence adduced by the parties in 310 support of their tenancy in
the premises since long. The grievance of these--and indeed also the
other--claimants has been that the High Court has failed to apply its mind to
the evidence produced in support of each of the claimants. It is submitted that
an analysis of the judgment of the High Court (which runs to 52 pages) will
show that the High Court, after setting out the preliminary facts, the contents
of the affidavits, counter affidavits and rejoinder affidavits and the
contentions of the respective counsel in great detail, has disposed of the
entire case with the following observa- tions appearing on the last page of the
judgment:
"On
the basis of the intrinsic evidence and when the 'Corpo- ration' records,
produced on behalf of the Respondents, being incompatible with the rent
receipts, their inherent inconsistencies do not appear to us to be trust
worthy, it would appear that the submissions of Mrs. Paul, regarding the character
and quality of rent receipts as produced now, were of substance and we also
feel that the story of tenan- cies were subsequently sought to be established
for the purpose of avoiding the effect of the auction sale and that too, not in
a bona fide manner. We are of the confirmed opinion that in terms of the
determinations of the Hon'ble Supreme Court of India, as followed earlier by a
Special Division Bench of this court in Jagadish Agarwalla's case (supra), this
court is not so powerless to make orders in terms of the prayers as made in the
petition and that too in the facts of the present case and as such, we allow
this application and direct the Respondent Commissioner, to take such steps, so
that, forthwith vacant possession of the said premises is handed over to the
petitioners i.e. the purchas- ers in the auction sale. We also have it on
record that if necessary, the Respondent Commissioner would also be enti- tled
to take appropriate Police help and assistance in having Respondent Nos. 2-8
removed from their claimed occu- pation of the said premises or to break open
any padlock which is there or which has been put in now." It is submitted
that the High Court does not discuss why and in what respects the Corporation
records are inconsistent with the rent 311 receipts, what the inherent detects
and inconsistencies were in the rent receipts produced and why the story of
tenancies is considered to be an after thought. There is also no reason given
for the rejection of the innumerable other pieces of evidence produced by the
claimants.
On the
other hand, the complaint of Sri Kapur has been that the claimants--Paul
Brothers, in particular--had been placing documents before the Courts in
driblets. Most of these were in the nature of Xerox copies with no guarantee of
their authenticity. He points out that the entire collec- tion of receipts,
purporting to be from Satyanarayan Paul, Ashok Paul and Dilip and Mihir--not to
speak of Mahamaya Devi--could easily have been written up for the purposes of
the case. In his submission, they have indeed been so writ- ten up at one or
more sittings and these are revealed by the inconsistencies and discrepancies,
some of which have been pointed out before the High Court by Mandal's counsel
and referred in the judgment. It is unfair, argues Sri Kapur, to say that the
Division Bench has not applied to the facts of the individual cases. These
having been fully brought out in the earlier parts of the judgment with special
reference to the defects pointed out and criticisms made by the counsel for Mandals,
the High Court did not consider it necessary to repeat the same again m the
concluding part of the judgment.
He
says that the Division Bench had occasion to deal with similar claims in regard
to various other properties and has assessed the entire evidence in the light
of its experience regarding the various devices employed to put forward osten- sible
third parties as obstructors. The criticism that the judgment, High Court's
reasoning is brief and cryptic, he submits, is based on a total misconception
and should be rejected.
Sri Kapur
then drew our attention to the' infirmities in the case put forward by the
claimants, both procedural and substantive. He says that it is only in this
Court, for the first time, and that too, after this Court called upon them to
do so, that the Paul Brothers have attempted to put forward a chronological
version of the history of tenancy of the three shops allegedly taken on rent by
them. Earlier, they merely produced a few receipts and correspondence in the
name of Paul Brothers--a convenient label enabling them to explain away
documents of different dates in the names of different persons who were all
"Pauls" and to create a confusion between Avamoyee Paul (shown
originally in the municipal records), Satyanarayan Paul and his 312 alleged
relatives Dilip and Mihir, and the different Pauls who were alleged to be
partners in Paul Brothers on differ- ent dates. Also, many documents (such as
the income-tax and customs department notices, assessment and certificates)
have been produced in this Court and were not produced' before the High Court.
Per contra, certain documents (such as the first affidavit dated 14.11.87, the
1974 partnership deeds and a letter dated 5.4.75 from Ram Krishan Paul to the
landlords) produced before the High Court have been deliber- ately suppressed
from this Court. Sri Kapur submits that the most crucial circumstances in the
present case is that the objections of Mahamaya Devi to the attachment and sale
of the property did not contain even the whisper of a sugges- tion that there
were not one or two but as many as seven tenants in the property. If this had
been a fact, he says, she would not have failed to say so emphatically in her
objections. Sri Kapur points out that the basic case of all the claimants is
that the premises originally belonged to one Satyanarayan Paul, that on his
death five persons inher- ited the property, that on partition among them the
property came to Dilip and Mihir (mentioned, perhaps wrongly, as Dulal Chandra
Paul in the affidavit of 14.11. 1987) who conveyed the property to Mahamaya Devi.
The whole edifice crumbles, he points out, as even according to the municipal
extracts produced by the claimants, neither Satyanarayan Paul nor Dilip and Mihir
have been ever recorded as the owners of the property. The version of undated attornment
letters, partition and Prabir Kar's letter was not attempted to be proved by
producing even an affidavit from Dilip or Mihir or Prabir Kar. Even an
affidavit from Mahamaya Devi is conspicuous by its absence. Above all, says Sri
Kapur, the case of the claimants regarding the constitution and nature of
business of Paul Bros. and the evidence in support there- of as put forward at
various stages bristles with inaccura- cies and inconsistencies which justify
its rejection. These were pointed out before the High Court in detail and have
been set out in the judgment. Some of these are as follows:
The
business has sometimes been described as one business (SLP and affidavit of
2.11.88,) and sometimes (affidavit of 14.11.87) as separate businesses with
separate partners and separate deeds of partnership. The date of commencement
of each of these businesses have been set out differently in the different
affidavits and go back to 1958, 1959, 1962, and 1973. These do not talks with
the partner- ship deeds of 1974 which shows the businesses as having started
only on 15.4.74 which in 313 turn, is belied by the production of a deed of
1961. The names of the partners are also not given consistently. While
Ramakrishna Paul is a partner of the radio and tailoring firms as per the
affidavit of 2.7.88, he is not one as per the affidavit of 14.11.87. So also
K.C. Paul is a partner of the tailoring firm according 'to 1988 affidavit but
is not, according to the earlier one;
(2) In
the affidavit dated 14.11.87, the claimants had stated that they had been able
to locate, after great effort, a few municipal trade licences and produced
eight of them. But late, r, with the second affidavit, they produced a few
more. How this has been done has not been explained;
(3) It
is not explained how the electricity bills stand in the name of Taraknath Roy
and D.P. Paul and how the electricity bill in the name of Paul Brothers dated
13.3.80 shows an electricity connection having been obtained for the premises
only on that date though the claimants were said to have been running the
business there since 1973;
(4)
The telephone bills again are not helpful. They contain the name of one M.S.
Paul for which no explanation has been given. One of the bills shows the
installation of telephone in the premises even in 1958 though according to the
claimants the business in the premises started earliest, only in 1959. Also the
bills give the number of the premises as No. 52/1/1 and not 52/1/1B;
(5)
The rent receipts have been produced in driblets--six with the affidavit of
1987 and 44 with the affidavit of July 1988--while with the SLP only 17 rent
receipts have been annexed. Some of the receipts date back earlier than 1974
though according to the partnership deeds, the business of the firms commenced
only in April 1974. The rent receipts bear almost continuous serial numbers.
There are several discrepancies: for example, a receipt dated 6.8.77 bears no.
59 whereas one dated 10.6.77 bears no. 60 and there are two rent receipts for
July 1977. The rent receipts in favour of Paul Bros. (Electricals) are in the
314 name of R.K. Paul who is not a partner therein according to the deed and
who is referred to in the Corporation records as a goldsmith. There is no rent
receipt from Avamoyee Paul or her estate and Satyanarayan Paul, Ashok Paul, Dilip
Paul or Mihir Paul are not recorded as owners. There is not a single affidavit
by any of the signatories to the receipts vouching for their genuineness;
(6i There
is no effort by these three or the other claimants to pay the rents, after the
attachment of the premises, either to the Commissioner or to the Mandals.
Their
case that they did not know about the attachments was false;
(7)
There is no difference between the case of the claimants in the cases of Amar Mandal
and Jagdish Prasad Agarwalla and that of the various claimants herein.
We
have carefully considered the contentions of the parties. It is true that, some
of the grounds of criticism of the evidence produced by the claimants are
valid. A certain amount of difficulty has been caused by the uncer- tainty as
the nature of the proceedings conducted by the High Court in pursuance of the
order of this Court. It appears that the Court has produced to consider the
issues in a summary manner on the basis of the affidavits of the claimants and
on prima facie consideration of the documents formally as well as informally
produced in support thereof.
The
enquiry has been somewhat analogous to the procedure which used to be adopted
in disposing of petitions by ob- structors under the Code of Civil Procedure,
1908, '(before its amendment in 1976) which concluded in a tentative find- ing
leaving it open to the parties to file a suit and estab- lish their right to
possession. On the other hand, if these are taken to be in the nature of
proceedings for the execu- tion of a decree under the amended code, there will
have to be a more detailed trial with full opportunity to parties to lead
evidence and to examine and cross-examine witnesses, as a finding reached in
these proceedings would be final and conclusive. In the present case, the
application has been disposed of somewhat summarily and informally. At one
stage, therefore, we were inclined to think that the matter, so far as the Pauls
are concerned, should be remanded to the High Court for fresh disposal. But, on
further consideration, we have come to the 315 conclusion that there is
sufficient material placed on record by the claimants to show that Paul Bros.
have been in the premises as tenants since long and that no such remand is
necessary. Taking all the documents collectively, it is difficult to say that
one could reasonably arrive at the conclusion that the Pauls were trespassers
or unauthorised occupants. The Mandals have done nothing positive to estab- lish
this but to barely deny the genuineness of the various documents put forward on
behalf of the claimants.
One
direct piece of evidence is the extract from the municipal records. It was
suggested that the photostats produced could not be relied upon and that the
entries therein could have been reproduced by some process of super-
imposition. However, it has been found that, apart from the photostat copies,
the original records were summoned certi- fied extracts produced by the
representative of the Corpora- tion have been taken on record. These extracts
which relate to the relevant period show the Paul Bros. as tenants in the three
shops. It is true that the estate of Avamoyee Paul has been shown as the
landlords but the entry contains a refer- ence to Mihir Paul and, admittedly, Mahamaya
Devi purchased the property from Dilip and Mihir. Letters calling for attornment
and rent receipts galore have been produced.
Though
one cannot eschew the possibility of these being got up documents, some
foundation must be laid by the Mandals to reject them other than a mere
assertion that they are not genuine. The discrepancies suggested are few and
minor and do not warrant the summary rejection of the large number-of receipts.
The electricity bills, phone bills, tax department correspondence likewise
prima facie support the claim of the appellants. The mistakes pointed out in
the telephone and electricity bills are insignificant. The bills are made out'
not in the name of M.S. Paul but M/s Paul Brothers and D.P. Paul is said to be
an uncle of the Pauls. These, together with the partnership deeds and municipal
licences and corre- spondence the genuineness of which cannot be rejected
straightaway, support the claim. No doubt there is a slight discrepancy in that
the 1961 deed is not referred to in the 1974 deeds but this cannot entail the
rejection of the 1961 deed. We do not wish to elaborate on every one of the
other points made by the counsel for the Mandals. It is true that Mahamaya Devi
did not refer to them in her objections but she was concerned about saving
"her" property from attach- ment and sale as that of Sanchaitas and
the issue about her having let out the property was irrelevant for the decision
of her objections. We are satisfied that even in the face of the evidence
produced 316 before the High Court (which has been supplemented in some
respects before us) it is difficult to treat the Paul Bros. as trespassers or unauthorised
occupants in the property.
In the
result, the appeals of Paul Brothers and Phani Bhusan Ghose are allowed while
those of Hari Narayan Gupta and Dulal Chandra Dutta are rejected. We, however,
make no order as to costs.
S.B.
Petition allowed.
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