Full Judgment
IN THE HIGH COURT AT CALCUTTA Ordinary Original Civil Jurisdiction Original Side Before: The Hon’ble Justice Debangsu Basak C.S.No.265 of 1977 Satyanarayan Pasari versus Ashok Kumar Pasari & ORS.For the Plaintiff : Mr.Arindam Mukherjee, Advocate Ms.Surabhi Banerjee, Advocate Heard on : March 27, 2014 Judgment on : March 31, 2014 DEBANGSU BASAK, J.
The suit was for declaration and permanent injunction.
The plaintiff and the Defendant Nos.1 and 2 were brothers and the Defendant No.3 was their sister.
The plaintiff was interested in the flats on the fiRs.floor on the ground floor at Premises No.4, Clyde Row, Kolkata.
The plaintiff sought a declaration that he was the sole and absolute lessee of the ground floor flat and was entitled to continue in sole and exclusive occupation and possession of the same to the exclusion of the defendants.
The plaintiff sought a decree for perpetual injunction restraining the defendants from in any manner interfering with the plaintiff’s possession and occupation of the ground floor and the fiRs.floor flat.
The defendants were served with the writ of summons.
No written statement was filed by the defendants.
An Advocate claiming to represent some of the defendants wanted time to file written statement.
Such advocate was without any vakalatnama and was therefore not entertained.
No steps were taken by the defendants since then.
The plaintiff produced himself as a witness.
Various documents were produced in evidence by the plaintiff and were marked as exhibits.
So far as the ground floor flat was concerned the plaintiff relied upon a deed of lease dated July 29, 1980.
The deed of lease was marked as Exhibit ‘A’.
The original deed of lease was misplaced.
The plaintiff produced a certified copy thereof.
According to the plaintiff, the certified copy of the deed of lease could be accepted as secondary evidence under the provisions of Section 63 read with Section 76 of the Indian Evidence Act, 1872.
Moreover, such deed of lease was dated July 29, 1980 and was more than 30 years old.
It should be presumed that the signature or any of the other part of such document was proved under the provisions of Section 90 of the Indian Evidence Act, 1872.
The original deed of lease was in the custody of the plaintiff.
The original deed of lease being lost the plaintiff was entitled to produce a certified copy thereof.
According to the plaintiff, the deed of lease established the plaintiff’s right in respect of the ground floor flat.
The plaintiff was in possession of the ground floor flat.
The key to the ground floor flat was made over by the plaintiff to the Receiver appointed by this Hon’ble Court in the interlocutory proceedings in the instant suit.
The plaintiff also relied upon the seizure list and Panchnama issued by the Income Tax Department of the year 1988.
The plaintiff also produced and relied on maintenance bill for the ground floor flat.
Exhibit ‘E’ was some of such maintenance bills for the ground floor flat.
It was contended on behalf of the plaintiff that, none of the defendants appeared to contest the claim of the plaintiff.
None of the defendants filed written statement although the entered appearance after being served with the summons.
The defendants contested the interlocutory proceedings and as such the aware of the suit.
In spite of such knowledge none of the defendants took any steps to contest the claim of the plaintiff.
According to the plaintiff, disputes and differences arose between the brothers and sisters during the lifetime of their mother and after the death of their father.
An arbitration was held to settle such disputes and an award dated September 29, 1995 was made in respect thereof.
According to the plaintiff, such award was never given effect to.
Subsequently, a memorandum of understanding dated June 19, 1996 was entered into.
The Defendant No.2 did not join the memorandum of understanding and did not sign the same.
In any event, according to the plaintiff, the memorandum of understanding was never acted upon and put to execution.
So far as the fiRs.floor flat was concerned it was submitted on behalf of the plaintiff that, the plaintiff was in occupation of such flat.
Initially the Defendant No.2 stayed with the plaintiff for a short period.
However, on and from 1990 onwards the Defendant No.2 left the flat and was staying elsewhere.
The service of the writ of summons on the Defendant No.2 at No.7 Burdwan Road, Kolkata also established that, the Defendant No.2 was not residing at the fiRs.floor flat any more.
The plaintiff produced and relied upon ration cards and seizure list as well as maintenance bills to establish that, he was in occupation of the fiRs.floor flat since 1981.
I have considered the pleadings, the evidence adduced and the submissions made on behalf of the plaintiff.
Exhibit ‘A’ was a deed of lease dated July 29, 1980.
The lessee was the plaintiff.
The lease was in respect of the ground floor of the Premises No.4, Clyde Row, Kolkata.
The tenure of the lease was still in operation.
The lessor did not challenge the right of the plaintiff as the lessee.
The plaintiff established that, he was in actual physical possession of the ground floor flat.
From the minutes of the inspection held on July 16, 1997 which was Exhibit ‘I’ it could be seen that the keys to the lock to the ground floor was produced by the plaintiff.
From Exhibits ‘B’ and ‘C’ also it could be seen that the plaintiff was in occupation of the ground floor flat.
There was no contest to such position by any of the defendants.
So far as the fiRs.floor flat was concerned the plaintiff was in possession thereof.
The plaintiff was being the maintenance bills in respect of such flat.
The plaintiff produced ration cards which was Exhibit ‘D’ and as well as Exhibits ‘B’ and ‘C’ which would show that the plaintiff was in occupation of the fiRs.floor flat.
Again there was no contest from the defendants in that regard.
The award dated September 29, 1995 being Exhibit ‘F’ did not mature into a decree of Court.
Such award was governed by the provisions of the Arbitration Act, 1940.
The memorandum of understanding dated June 19, 1996 being Exhibit ‘G’ did not contain the signature of all the 3 brothers and the sister.
The Defendant No.2 did not sign the document.
In any event of the plaintiff in his evidence established that the memorandum of understanding was not acted upon and not given effect to.
Considering the evidence on record the plaintiff was entitled to a decree in terms of prayers (a) and (b) of the plaint.
The Department is directed to draw up and complete the decree expeditiously.
[DEBANGSU BASAK, J.].