International Society For ... vs Inshwari Prasad Singh Roy
2021 Latest Caselaw 1427 Cal/2

                       In The High Court at Calcutta
                    Ordinary Original Civil Jurisdiction
                               Original Side

The Hon'ble Justice Sabyasachi Bhattacharyya


                              APD No. 414 of 2014
              International Society for Krishna Consciousness
                                     Vs.
                         Inshwari Prasad Singh Roy

For the appellant         :      Mr. Ahin Chowdhury,
                                 Mr. Debabrata Banerjee,
                                 Mr. Koushik Bhattacharyya

For the respondent        :      Mr. Arijit Chaudhuri,

Mr. Kaushik Mandal, Mr. Sayantan Basu

Hearing concluded on : 16.08.2021

Judgment on : 15.11.2021

The Court:

1. The present reference arises under Clause 36 of the Letters Patent in

view of the difference of opinion in the Judgment and Decree dated

September 20, 2019 passed in APD No. 414 of 2014 on Issue Nos. 1

to 5 as formulated by the learned Single Judge in CS No. 927 of

1982.

2. The matter arises from a suit, inter alia for eviction, filed by Sunil

Kumar Singh Roy, the Plaintiff/Respondent against the

Defendant/Appellant No. 1-Society and its officials on the ground of

trespass and unlawful occupation. Subsequently the original plaintiff

died and the present plaintiff/respondent no. 1 was substituted as

plaintiff in place and stead of the deceased in the capacity of the

latter's heir and legal representative. Apart from defendant no. 1,

which is a registered society, the rest of the defendants are allegedly

functionaries/agents of the defendant no. 1.

3. The suit was contested by the Defendant nos. 1 and 5 by filing

independent written statements. The defendant no. 5 denied having

any connection with defendant no. 1 and claimed to be an

independent entity. The rest of its written statement was mostly

comprised of bald denials of the plaint allegations.

4. The defendant no. 1 set up a case of tenancy in respect of the suit

property and denied the allegation of trespass.

5. The contesting parties adduced evidence, both oral and

documentary, which are part of the records.

6. The relevant five issues, on which there was dissent between the two

learned Judges of the Division Bench, are set out below:

7. Did the first defendant encroach upon or trespass into any portion of

any premises beyond what was originally let out to the defendant no.

1?

8. Was the 1st Defendant inducted as a lessee under the Indenture of

Lease dated 18th June 1971 in respect of the portion of the premises

now occupied by the defendant no. 1?

9. Was the defendant no. 1 inducted as a tenant even before the said

lease? If so when?

10. Prior to the demise in favour of the defendant no. 1 was the premises

clearly demarcated on both floors and only such demarcated upper

portion was let out to the defendant no. 1?

11. Is the defendant in unlawful occupation of any part of the premises

now in possession of the defendant no. 1?

12. All the five issues are so inter-dependent that they cannot be decided

in isolation, since the decision on each would affect that on the

others.

13. Before going into the merits, certain relevant dates are required to be

set forth:

i. April 7, 1926 - Priyambada Debi, the then owner of

the original premises no. 3, Albert Road, Calcutta,

executed her last Will and Testament, thereby

bequeathing her properties, including the aforementioned

premises; 8 annas, comprising the western side of the said

premises (Schedule "Ka") was bequeathed to one

Lilamohan Singh Roy, through whom the present

defendant/appellant claims its rights, and the other 8

annas, comprised of the eastern portion (Schedule "Kha")

to Saileswar Singh Roy, through whom the present

plaintiff/respondent claims title.

ii. March 25, 1939 - The testatrix Priyambada expired.

iii. July 21, 1939 - Priyambada's Will dated April 7, 1926

was duly probated.

iv. May 26, 1971 - A notarized Deed of Declaration was

entered into between Lilamohan Singh Roy and Sunil

Kumar Singh Roy (the latter being the nephew of

Saileswar Singh Roy, on whom Saileswar's portion

devolved by virtue of a Will executed by Saileswar during

his lifetime), being the then owners.

v. June 18, 1971 - A registered Deed of Lease was

executed by Lilamohan and his son Kamala Prasad in

respect of Lilamohan's portion in favour of the

defendant/appellant no.1, namely, the International

Society for Krishna Consciousness ("ISKCON", for the sake

of brevity).

14. The evolution of the original property, comprised of premises no. 3,

Albert Road, insofar as its municipal identity is concerned, proceeded

as narrated below in brief:

15. In the year 1952, the parent premises at 3, Albert Road was

trifurcated into 3A, Albert Road (residential house), 1/1A, Upper

Wood Street and 5/1A, Hungerford Street.

16. From the Fourth Quarter of the financial year 1972-73, the then 3A,

Albert Road was further bifurcated into a new (truncated) 3A, Albert

Road (eastern portion of the original premises no. 3A) and 3C, Albert

Road (western portion of the original premises no. 3A).

17. Issue No. 4 is central to the adjudication of the lis. To consider the

merits of the same, the trail of devolution of title needs to be gone

into.

18. Undisputedly, Priyambada was the sole and exclusive owner of the

then 3, Albert Road when she executed her last Will and Testament

on April 7, 1926 as well as on the date of her death on March 25,

1939. The Will was duly probated in the year 1939 and has been

marked as Exhibit 'B' in the suit.

19. Priyambada bequeathed, among other properties, the western portion

of the said premises no. 3, Albert Road and the eastern part thereof

equally to Lilamohan and Saileswar respectively.

20. The next important document is a notarized Deed of Declaration

executed jointly on May 26, 1971 by Lilamohan and Sunil Kumar

Singh Roy. The latter was the legatee of Saileswar (since deceased),

who filed C.S. No. 927 of 1982, from which the instant lis arises. On

the subsequent demise of Sunil, his heir and legal representative

Ishwari Prasad Singh Roy (the present plaintiff/respondent no.1) was

substituted as plaintiff.

21. The plaintiff alleges that the Deed of Declaration dated May 26, 1971

clearly reflects the separate demarcation and possession between the

declarants, of the western and eastern portions of the then premises

no. 3A, Albert Road, in terms of Priyambada's Will.

22. Soon thereafter, in 1972-73, the said municipal premises no. 3A was

further bifurcated into two re-numbered premises - a truncated, new

3A (eastern portion of previous 3A) and 3C (western portion of

previous 3A), Albert Road.

23. The plaintiff alleges that subsequently the defendant no. 1 ISKCON,

the tenant in respect of the newly-carved out premises no. 3A,

trespassed and wrongfully encroached upon the suit property, which

is a part of the western verandah, that is part and parcel of premises

no. 3C, which is exclusively owned and was possessed till such

alleged trespass by the Plaintiff. However, the defendant no.

1/appellant denies such proposition by arguing that, in the absence

of any lawful partition by metes and bounds, the mere execution of a

notarized Deed of Declaration could not be deemed to effect actual

physical partition by metes and bounds between the eastern and

western portions of the previous premises no. 3A. By virtue of the

Lease Deed dated June 18, 1971, Lilamohan and his son Kamala

Prasad granted lease in respect of their western portion of the then

3A, Albert Road in favour of the defendant/appellant ISKCON. The

appellant further contends that the 250 square feet of suit property,

which is a part of the entire balcony, fell within such western portion

of the previous premises no. 3A, Albert Road, and thus formed a part

and parcel of the lease granted to the appellant by Lilamohan and his

son.

24. Moreover, the appellant argues, the factum of trespass by the

appellant, which is a positive assertion of the plaintiff, was never

proved by the plaintiff by cogent evidence.

25. To determine whether a specifically demarcated upper portion of the

suit building was let out to the defendant no. 1/appellant, we have to

look into the intrinsic evidence, as found from the relevant

documents, as well as the surrounding circumstances and conduct

of the predecessors-in-interest of the contesting parties.

26. Priyambada, the admitted original owner, by her last Will dated April

7, 1926, had clearly bequeathed "absolute rights" in the properties

mentioned in Schedules 'Ka' and 'Kha' to Lilamohan (through whom

the appellant claims) and Saileswar (the original predecessor-in-

interest of the plaintiff/respondent no. 1) respectively (at page 31 of

the Supplementary Paper Book, Volume 1).

27. At pages 47-48 and 51 of the same volume of Supplementary Paper

Book, we find that the three-storied house called Rai Castle, situated

at the then 3, Albert Road, being the parent premises, was clearly

demarcated into moiety shares, described to be situated at the

western and eastern sides respectively (including the main building),

as Item No. 10 of Schedule 'Ka' (to Lilamohan) and Item No. 2 of

Schedule 'Kha' (to Saileswar).

28. The Will (Exhibit 'B'), upon being probated in the year 1939, acquired

finality in law with effect from the date of death of the testatrix.

29. Such bequest of 'absolute' rights in the western and eastern portions

of the property has to be now seen in conjunction with the

subsequent conduct of the legatees.

30. On such score, the Deed of Declaration (Exhibit 'D'), executed jointly

on May 26, 1971 by the predecessors-in-interest of the contesting

parties, acquires relevance. The same finds place at pages 85 to 98 of

Volume 1 of the Supplementary Paper Book.

31. Shorn of unnecessary narrative, paragraph no. 6 thereof, in no

uncertain terms, declares that, after probate, the Executrix and

Executors fully completed the administration of the estate and,

without executing any deed or document, put Lilamohan in exclusive

possession of the western portion. Paragraph no. 7, again, declares

the same in respect of the exclusive possession of the eastern portion

being given to Saileswar.

32. In paragraph no. 14 of the said Deed of Declaration, the declarants

proclaim that they had agreed that, to avoid any misunderstanding

between their respective heirs and legal representatives in future in

view of non-execution of any specific document, they should clearly

demarcate the said eastern and western portions. The expression "we

have agreed", used in paragraph 14, indicates that such demarcation

had already taken place in the past.

33. However, any shade of doubt which could still have remained

regarding the Deed merely recording, and not effecting the

demarcation, stands thoroughly clarified by the very next paragraph,

that is, paragraph no. 15 of the said Deed. Both declarants clearly

state therein : "We declare that we have demarcated the Western and

Eastern portion of the premises No. 3, Albert Road as mentioned in

Schedule 'Ka' and 'Kha' to the will of the said later Priyambada Devi

by creating and constructing boundary wall eight feet in height

between the said Western and Eastern portions and running from

North to South as shown by dotted yellow lines on the map or plan

hereto annexed and marked as boundary pillars thereof".

34. Paragraph 16 of the Deed further reiterates such position.

35. Hence, the predecessors-in-interest of the plaintiff as well as the

defendant no. 1 recorded in writing the factum of such previous

demarcation, which had already taken place, at least from the day

when the Executrix and Executors of Priyambada's probated Will

administered the estate of Priyambada, including the present suit

property, putting the said predecessors-in-interest of the contesting

parties in "exclusive" possession of the portions of the suit building

belonging to them "absolutely" in terms of the said Will.

36. A Deed effecting a present/future transfer of immovable property,

equivalent in worth to the suit building, is compulsorily registrable in

terms of Section 17 of the Indian Registration Act. The said provision,

read in conjunction with Section 49 of the said Act, prohibits transfer

of title by virtue of such document in the absence of registration.

37. However, it is well-settled that if a document merely records the

factum of past settlement/arrangement between the parties thereto

and does not, of itself, purport or operate to create any right, title

and interest in the property, such document is not compulsorily

registrable at all, thus saving such a document from the mischief of

Section 49 of the Registration Act.

38. In the instant case, the Deed of Declaration dated May 26, 1971 only

reiterated in writing that the parties thereto had already been put in

exclusive possession of their respective (western and eastern)

portions at the time of administration of the probated Will by the

Executrix and Executors. Such separate exclusive possession was

further reinforced by constructing an eight feet-high boundary wall

demarcating the western and eastern portions respectively, as

evidenced by paragraph no. 15 of the said Deed.

39. Thus, the said Deed (Exhibit 'D' in the suit) was sufficient

corroborative evidence, apart from the language of Priyambada's Will,

which was duly probated, to show that the predecessors-in-interest

of the plaintiff and defendant no. 1 clearly knew and conducted

themselves in accordance with the fact that the said predecessors

were already separately possessing demarcated exclusive properties

in terms of the Will of Priyambada Debi all along, at least since the

date of administration of the said Will by its Executrix and

Executors.

40. In view of the Will and the conduct of parties, there was no need of

any further formal partition by metes and bounds, since the separate

demarcations and possession as per Priyambada's Will had already

been continuing on mutual agreement as between the legatees of the

Will and all claiming through such legatees subsequently.

41. Since the lessor of the defendant no. 1, namely Lilamohan, could not

transfer better title to the lessee/defendant no. 1-society than the

lessor himself had, the Deed of Lease executed on June 18, 1971 by

Lilamohan could not have conferred any right, title and/or interest in

respect of the suit property, which is a part and parcel of the eastern

portion of the previous premises no. 3A, Albert Road, which was

again renumbered as the truncated 3A, and is owned exclusively by

the Plaintiff, who claims through Sunil Kumar Singh Roy, whose title

relates back to Saileswar Singh Roy.

42. The registered Lease Deed (a certified copy of which was marked as

Exhibit 'E' in the suit) was executed on June 18, 1971 only, that is,

already after the demarcation and separate possession had been

continuing for a long time, at least since administration of late

Priyambada's estate to the legatees, and even after the Deed of

Declaration dated May 26, 1971, which unequivocally recorded in

writing the admission of the lessor of the defendant no. 1/appellant

as to such demarcation and reinforcement of the same by

construction of an eight-feet tall boundary wall.

43. The execution of the Lease Deed subsequently on June 18, 1971

could not be given retrospective effect from May 1, 1971 to bye-pass

the lessor's unambiguous and written admission of such prior

demarcation in the Deed of Declaration of May 26, 1971, since on

June 18, 1971 the lessor himself had no right, title and/or interest

over the suit property comprised of the 250 square feet western

portion of verandah on the first floor, which fell squarely within the

current premises no. 3A, Albert Road, owned by the Plaintiff.

44. In such context, the physical occupation of the suit property by the

Defendant no.1-society is ex facie unlawful. With utmost respect to

Kapur, J., the burden and onus is upon the defendant to prove the

legality and status of its possession. Such possession could be only

be held to be legal either in the capacity of owner, or lessee or

licensee or any subtler shade of such jural relationships. In view of

the failure of defendant no. 1 to prove the lawfulness of its

possession, as opposed to the several pieces of documentary evidence

to corroborate the plaint case of the plaintiff's title in the suit

property, the actual proof of the exact date and act of trespass pales

into insignificance, since the possession of the suit property by the

defendant no. 1 is proved to be unlawful.

45. With due respect, documentary evidence prevails over oral evidence.

There was sufficient cogent and corroborative evidence on record to

establish the plaintiff's exclusive ownership and prior separate

possession of the suit property on the basis of Priyambada's Will.

Hence, the current possession of the defendants over the suit

property is unlawful and the defendants' status is on the same

footing as rank trespassers, which entitles the plaintiff to the reliefs

as claimed in the plaint.

46. The plaintiff and defendant no.1 and/or their predecessors-in-

interest had been continuously in separate possession of their

respective demarcated portions at least from May 26, 1971. Hence,

preponderance of probability befitting any prudent person unerringly

indicates that the entry of defendant no. 1 and its men/agents was at

some subsequent point of time and is patently unlawful.

47. Even assuming the worst-case scenario against the plaintiff, the

defendant no. 1 can claim possession, at the most, pursuant to the

lease deed dated June 18, 1971 from that date and/or from May 1,

1971. However, the suit for eviction was filed in the eleventh year

thereafter, that is, in 1982. Since the limitation period for filing an

eviction suit is twelve years from dispossession, the suit is not time-

barred under the Limitation Act.

48. Even as per the defence case, there is no pleading as to continuous

possession of the defendant no. 1 over the suit property for more

than twelve years, let alone open, uninterrupted and adverse to the

plaintiff, which would be sufficient to amount to adverse possession.

49. Without any proof whatsoever of conscious and lawful

relinquishment of title by the plaintiff and his predecessors-in-

interest, there cannot arise any question of estoppel, waiver or

acquiescence attributable to the plaintiff, which might have stood in

the way of the grant of the reliefs sought in the plant.

50. The Supreme Court judgment cited by the appellant, reported at

(2015) 14 SCC 450, does not help the defendants in any manner,

since the plaintiff was sufficiently able to prove the plaint case by

cogent evidence, which could not be rebutted by the defendants.

51. Thus, with utmost respect to the legal erudition of both the learned

Judges of the Division Bench, I cannot but agree on principle with

the opinion of Sen, J. as far as the decision on issue nos. 1 to 5 is

concerned. Thus, the Letters Patent appeal, bearing APD No. 414 of

2014, is partially allowed, without any order as to costs.

52. C.S. No. 927 of 1992 is, thus, decreed in part, thereby granting the

plaintiff decree in terms of reliefs (a), (b), (e) and (f) of the plaint

thereof.

53. Liberty is given to the plaintiff to levy execution of the decree after 90

(ninety) days from date in respect of reliefs (a), (b) and (f). With regard

to relief (e), the plaintiff shall be at liberty to approach the Special

Referee as appointed by Sen, J. for adjudication of the mesne profits

as per the modalities as fixed by Sen, J. and will be at further liberty

to move the executing court and/or the Division Bench of Sen and

Kapur, JJ., as and when constituted by the Hon'ble the Chief Justice

if so necessary, for further appropriate orders/final decree with

regard to the mesne profits, in accordance with law.

54. The present reference is answered accordingly.

55. The department shall draw up and finalize the decree at the earliest.

56. Certified copies of the judgment and decree, if applied for, be

supplied to the parties upon compliance of requisite formalities.

( Sabyasachi Bhattacharyya, J. )

Later

Learned counsel appearing for the appellant seeks stay of operation

of this order after the above judgment is passed. However, since 90 days

have been granted for the plaintiff to be able to execute the decree, such

further prayer for stay is redundant and, accordingly, refused.

No order as to costs.

( Sabyasachi Bhattacharyya, J. )