Full Judgment
ORDER
SHEET GA NO.2128 OF 201.WITH CS NO.286 OF 201.GA NO.298 OF 201.IN THE HIGH COURT AT CALCUTTA Ordinary Original Civil Jurisdiction ORIGINAL SIDE NEELA DEVI PODDAR Versus SUBIR PODDAR & ANR.
……… BEFORE: The Hon'ble JUSTICE PATHERYA Date :
4. h September, 2013.
Mr.D.Basak, Mr.R.Kapoor, Mr.A.Kanodia…for plaintiff.
Mr.H.Banerjee, Mr.A.Pain, Mr.S.Dutta, Mr.P.P.Mukherjee…for added defendant.
The Court : GA No.298 of 2012 has been filed for examination of the petitioner pro inter esse suo so also for leave to file proceedings in an appropriate Civil Court and to vacate the interim orders dated 5th December, 2011, 13th December, 2011 and 21st December, 2011.
The facts on which the said reliefs are sought is that the petitioners herein are owners of premises no.147, Park Street, Kolkata.
Pursuant to a deed of conveyance dated 29th July, 2011 the Banerjees, who were the original owners of the said premises granted a 30-year lease in 1953 in favour of one Hasim Ali.
The said lease by efflux of time expired in 1983.
During the subsistence of the said lease the said premises changed hands.
This could only be in respect of the unexpired lease period.
It is after the expiry of the lease period that the agreement was executed between the petitioners in GA No.298 of 2012 and the legal heirs and representatives of the original owneRs.Mutation certificate has been issued and although a claim of thika tenancy has been made this could only be restricted to Hasim Ali, the original lessee but the provision of the 1949 Act will also not apply to the original lessee as the lease executed in his favour was for a period of 30 years and in view of Section 3[5].[b].of the 1949 Act no person in whose favour a lease has been granted for more than 12 years can be a thika tenant.
A sublessee can never be a thika tenant as it is the landowner’s interest which vests in the State for payment of compensation.
The Special Officer appointed by order dated 5th December, 2011 has been directed to take symbolical possession of the said premises.
The said order needs to be vacated.
Pursuant to the deed of conveyance the applicant herein is in symbolical possession and actual physical possession was given to the petitioners by letter dated 1st September, 2011.
Therefore, the orders dated 5th December, 2011, 13th December, 2011 and 21st December, 2011 be vacated.
In opposing the said application counsel for the plaintiff-respondent submits that the relief sought in CS No.286 of 2011 is for dissolution of partnership and for protecting the properties of the partnership firm.
In the deed of conveyance it is an accepted position that there are trespassers and illegal occupants and that the deed has been entered into on, as is where is basis.
Therefore, the petitioners herein were not in possession of the said premises.
It has also been urged by the petitioner that it was through an employee of the defendant no.2 that possession was taken.
In view of the recording in the order dated 21st December, 2011 the defendant no.2 had surrendered tenancy to the defendant no.1 in February, 2011.
Therefore, if possession was to be taken it could only have been taken from the defendant no.1 and none else, and the letter of 1st September, 2011 is nothing but a manufactured document.
Reliance is placed on 74 CWN 444.
As the petitioner was never in possession the orders dated 5th December, 2011, 13th December, 2011 and 21st December, 2011 do not call for interference.
Having considered the submissions of the parties, by order dated 23rd February, 2012 an order in terms of prayer [a].has been granted.
Therefore, the only relief that needs to be considered are prayers [b].and [c].As the petitioners are claiming title pursuant to the deed of conveyance dated 29th July, 2011, which is a valid document as on date not challenged or cancelled entitles the petitioner to take steps for initiating proceedings thereunder in accordance with law.
From a reading of the deed of conveyance dated 29th July, 2011 it appears that the legal heirs and representatives of Sunil Kumar Banerjee have sold premises no.147, Park Street, Kolkata in favour of the petitioner herein on as is where is basis and fully encumbered by trespassers for a consideration.
Notionally by virtue of the said deed of conveyance the petitioner came to be in possession of the said premises but while considering the relief it appears that trespassers and illegal occupants continued to be in actual possession of the said premises.
This is borne out from the letter dated 1st September, 2011 whereby possession of the said premises was handed over by one Mr.Anil Chopra of the defendant no.2 in CS No.286 of 2011.
While in the letter dated 1st September, 2011 Mr.Anil Chopra has described himself as the agent of the defendant no.2 authorised by the defendant no.2 to give delivery of possession of the said premises to the petitioner.
In the petition filed by the petitioner Mr.Anil Chopra has been described as an employee of the defendant no.2.
No letter of authority has been annexed to the petition.
Therefore, that Mr.Anil Chopra was authorised to hand over possession of the said premises to the petitioner is questionable.
In fact, all that was done by the orders dated 5th December, 2011 was to appoint a Receiver for purposes of making an inventory of the said premises and from the report submitted it appears that the men of one M/S.A.M.Abasan PVT.LTD.were found at the said premises.
In the order dated 21st December, 2011 it has been categorically recorded that the second defendant had surrendered the tenancy to the defendant no.1 in February, 2011 and by a subsequent order dated 23rd February, 2012 the parties were directed to maintain status quo.
Nowhere has the petitioner stated that they are in any way connected with M/s.A.M.
Abasan PVT.LTD.Therefore, it will ensure to the benefit of not only the plaintiffs but also the petitioner herein if the order of status quo is continued.
Accordingly, the interim orders need not be vacated.
In the event any proceedings are initiated by the petitioneRs.the same may be considered totally uninfluenced by the orders passed by this Court.
In view of the aforesaid, GA No.298 of 2012 is disposed of.
All parties concerned are to act on a signed photocopy of this order on the usual undertakings.
(PATHERYA, J.) pkd.
A.R.[C.R.].