SUPREME COURT OF INDIA
Sudhir Jaggi
Vs.
Sunil Akash Sinha Choudhury
(Ashok Bhan and S. H. Kapadia JJ.)
11.08.2004
JUDGMENT
S.H.Kapadia, J.
1. These two civil appeals are filed by the defendants who were aggrieved by
the judgment and decree passed by the learned Single Judge of Calcutta High
Court dated 27.9.2001 in Suit No.161 of 1979 ordering repossession in favour of
the plaintiffs and which judgment and decree is confirmed by the impugned
judgment of the Division Bench of the Calcutta High Court dated 16.7.2002 in
A.P.D. No.220 of 2002.
2. Briefly, the facts giving rise to these appeals are as follows:
3. Plaintiffs are the two executors of the will of one P.K. Chowdhury (since
deceased) who agreed, vide agreement dated 8.5.1965, to purchase two flats
no.12C and 12D on the 12th floor of the building known as "Monalisa"
situate at Camac Street, Calcutta along with two garages on the ground floor
for the total consideration of Rs.2, 34, 168/-, out of which the deceased P.K.
Chowdhury paid Rs.2, 22, 168/-. Originally, it was agreed that two flats would
be allotted by the developer (defendant no.1) to P.K. Chowdhury on 8th floor.
That agreement was varied and it was agreed that the two other flats would be
allotted on the 12th floor. Similarly, the said two garages, as agreed upon,
could not be allotted due to technical defect in the construction, so an
alternative larger space was allotted at an increased price. Later on, P.K.
Chowdhury constructed two complete locked up garages. Apart from two flats,
P.K. Chowdhury purchased three rooms spaces in the ground floor. In respect of
flat nos.12C and 12D, it was originally agreed between the developer and P.K.
Chowdhury that the developer would carry out all internal works in accordance
with the suggestions of P.K. Chowdhury. Subsequently, that condition was varied
and it was stipulated by and between the parties that P.K. Chowdhury would
himself make internal changes at his own costs, for which the developer agreed
to give a rebate. In May, 1967, the developer gave possession of the said two
flats which then consisted of outer walls on four sides without any partition,
doors and windows. On obtaining possession, P.K. Chowdhury erected walls,
partitions, doors, windows and collapsibles at his own costs. These works were
of permanent nature. On or about 10.1.1968, accounts between P.K. Chowdhury and
the developer were settled. Rs.12000/- was found due and payable by P.K.
Chowdhury to the developer being balance amount in full settlement of the
consideration for the flats and garages. P.K. Chowdhury agreed to pay
Rs.12000/- to the developer upon execution of conveyance in his favour for the
two flats. In December, 1975, however, the developer instituted a suit in the
City Civil Court, Calcutta being suit no.2180 of 1975 for permanent injunction
restraining P.K. Chowdhury from interfering with his alleged possession. The
said suit was dismissed, as not maintainable.
4. On 10.2.1979, the appellants herein wrongfully and illegally broke into the
said two flats and obtained wrongful and forcible possession of the two flats.
P.K. Chowdhury came to know of the dispossession on 12.2.1979. On 12.3.1979, he
filed the present suit. In the present suit, the developer contended that P.K.
Chowdhury was never given possession of the suit flats; that he was given
access to execute certain masonry works in the said two flats; that P.K.
Chowdhury did not pay the full consideration and consequently, he had sold both
the suit flats to original defendants no.2 and 3 (appellants in Civil Appeal
No.6408 of 2002), who were put in possession of the two flats on 3.1.1979 from
which date defendants no.2 and 3 have continued to be in possession thereof.
5. In the present suit filed on the Original Side of the High Court, extensive
evidence, both oral and documentary, was led. On behalf of the plaintiffs, PW1,
the wife of P.K. Chowdhury was extensively examined. PW1 in her evidence stated
that possession of the two incomplete flats was given to her husband in terms
of the modified agreement under which P.K. Chowdhury had agreed to execute the
work of permanent nature at his own costs subject to rebate from the developer.
That when possession was given to her husband, the flats in question were not
habitable. That P.K. Chowdhury had erected the walls, doors and windows. That
he had put the collapsibles which were kept locked. That the keys to the suit
flats were with her husband. PW1, in her evidence, further deposed that P.K. Chowdhury
had paid Rs.2, 22, 168/- leaving a balance of only Rs.12000/-, which was to be
paid on the date when the developer executed the conveyance in favour of P.K.
Chowdhury.
6. In the light of the above evidence, the learned Single Judge came to the
conclusion that dispossession had taken place on 10.2.1979 and, therefore, the
suit filed on 12.3.1979 was within the period of six months as prescribed by
section 6 of the Specific Relief Act, 1963.
7. Being aggrieved by the judgment and decree passed by the learned Single
Judge dated 27.9.2001, the matter was carried in appeal to the Division Bench
of the Calcutta High Court. By the impugned judgment dated 16.7.2002, the
appeals preferred by the original defendants came to be dismissed.
Consequently, the developer (defendant no.1) has come by way of Civil Appeal
No.2507/2004 whereas purported bonafide purchasers (defendants no.2 and 3) have
come to this Court by way of Civil Appeal No.6408/2002.
8. Since, common question of fact is raised in these civil appeals, the same
are heard and disposed-of by this common judgment.
9. Mr. N.S. Vasisht, learned counsel appearing on behalf of the developers
submitted that P.K. Chowdhury was never put in possession of the suit flats and
that he was given only an access to supervise the interiors. It was submitted
that P.K. Chowdhury was keen to have the interior dicor inside the flats of his
choice, for which access was provided for. That such access cannot constitute
control or dominion or possession of the suit flats. It was further urged that
P.K. Chowdhury was entrusted with the work of completing the flats on behalf of
the developer and, therefore, it was a case of permissive possession. In the
circumstances, it cannot be said that P.K. Chowdhury was in possession of the
suit flats. It was further contended that in May, 1967, the flats were not
ready; that they were shell like structure, without doors, windows and P.K.
Chowdhury was permitted to execute the interiors. In such circumstances, it was
urged that P.K. Chowdhury was given access to visit the flats and give
instructions to decorate the suit flats and, therefore, P.K. Chowdhury was
never put in possession as alleged. It was next submitted that there is no
evidence of dispossession of P.K. Chowdhury by the developer or by defendants
no.2 and 3. That defendants no.2 and 3 were bonafide purchasers who are in
possession since 3.1.1979.
10. We do not find any merit in these civil appeals. Firstly, there is no
substantial question of law arising in these civil appeals. Both the Courts
below on consideration of the entire evidence, both oral and documentary, on
record have come to the conclusion that in May, 1967 two incomplete flats were
handed over to P.K. Chowdhury; that under the modified terms P.K.
Chowdhury agreed as the purchaser to construct partition, walls, doors and
windows inside the flats; that even collapsibles were put by P.K. Chowdhury and
that the keys to the suit flats were with P.K. Chowdhury. In the circumstances,
both the Courts below have concluded that the dominion/control over the suit
flats was with P.K. Chowdhury. We do not see any reason to disturb these
findings of fact. Secondly, there is no evidence on record to show that P.K.
Chowdhury was allowed to execute the work on behalf of the developer. Thirdly,
on evidence, it is established that P.K. Chowdhury was allowed to do the work
of permanent nature and that even the keys of the flats were with him which
proved beyond doubt that P.K. Chowdhury was in complete control of the suit
flats. Fourthly, there is no term in the agreement between the parties under
which P.K. Chowdhury was obliged to return the possession of the flats on
completion of the work. Hence, the developer has failed to prove
"permissive" possession as alleged. Lastly, as held by the Courts
below, there is no evidence of transfer of the suit flats by the developer to
alleged bonafide purchasers i.e. defendants no.2 and 3. In the
circumstances, both the Courts below were right in decreeing the suit under
section 6 of the Specific Relief Act, 1963.
11. In the case of Supdt. And Remembrancer of Legal Affairs, West Bengal v.
Anil Kumar Bhunja and others reported in [ ], this Court observed that the
word "possession" is not purely a legal concept but a polymorphous
term which may have different meanings in different contexts. That the word
"possession" implies a right and a fact. It involves power of control
and intention to control. That the test for determining whether a person is in
possession is : whether he is in general control of it. In the present case, as
stated above, P.K. Chowdhury was given possession in May, 1967 and it was
agreed between the parties that the buyer could construct the walls, partition,
doors and windows, which show the intention to put P.K. Chowdhury in
possession.
12. In the case of Kumar Kalyan Prasad & another v. Kulanand Vaidik &
others reported in 1985 AIR(Patna) 374] while discussing the scope of
section 6 of the Specific Relief Act, 1963, it has been held:
"9. In the first instance, a mere reference to the plain language of the
provision aforesaid would indicate that the word "dispossessed" has
not been used in the narrowly constricted sense of the actual physical
possession of immoveable property. Indeed, it talks somewhat widely of
dispossession of immoveable property otherwise than in due course of law
without the person's consent. If the Legislature intended to narrowly limit the
word "dispossessed" there could have been no difficulty by specifying
in terms the actuality of physical possession as its necessary and vital
ingredient. The word employed is the ordinary word "dispossess".
Plainly enough it would include within its sweep actual physical dispossession
also but this is no warrant for holding that it necessarily excludes the
violation of other forms of possession including a symbolical possession duly
delivered by law and contumaciously violated by an aggressive trespasser. On
principle I am not inclined to construe the word "dispossessed" in
S.6 in any hyper-technical sense and to push it into the procrustean bed of
actual physical possession only. Indeed the intent of the Legislature in S.6 to
provide early and expeditious relief against the violation of possessory right,
irrespective of title, would be equally, if not more, relevant where symbolical
possession delivered by due process of law is sought to be set at naught
forthwith."
13. To the same effect is the judgment of the Calcutta High Court in the case
of Raj Krishna Parui v. Muktaram Das reported in1 in which
while interpreting section 9 of the Specific Relief Act, 1877 (section 6
of the present Act, 1963) it has been held:
"In a suit commenced under section 9 of the Specific Relief Act, the sole
point for determination will be, whether the plaintiffs were in possession of
the disputed property within six months previous to the institution of the suit
and whether they had been deprived of such possession by the defendant
otherwise than in due course of law. It is immaterial, if the plaintiffs were
in possession, that such possession was without title. What the plaintiff has
to prove is possession of the disputed property and not mere isolated acts of
trespass over that property.
In order to entitle the plaintiff to succeed on the ground of possession, he
must prove, firstly, that he exercised acts which amounted to acts of dominion;
the nature of these acts of dominion varies with the nature of the property;
secondly, that the act of dominion was exclusive. If the occupation by the
plaintiff, as indicated by those acts, has been peaceable and uninterrupted and
has extended over a sufficient length of time, the inference may properly be
drawn that the plaintiff was in possession."
14. Applying the above judgments to the facts of the present case, we are of
the view that both the Courts below were right in coming to the conclusion that
P.K. Chowdhury was put in possession of the suit flats in May, 1967 and that he
was wrongly dispossessed on 10.2.1979 by the defendants without following due
process of law. Hence, there is no merit in the civil appeals.
15. Before concluding, we wish to clarify that since the impugned decree is
passed in a summary suit under section 6 of the Special Relief Act, 1963, none
of our observations herein shall preclude the parties herein from raising
contention(s) in the substantive suit to establish title and for recovery of
possession which the defendants herein may file in accordance with law, if so
advised.
16. For the foregoing reasons, we do not find any merit in these civil appeals
and the same are accordingly dismissed, with no order as to costs.
1(1910) 12 Calcutta Law Journal 605