Calcutta High Court
Md. Humayun Kabir vs Sk. Arif Ali & Ors on 26 July, 2023
IN THE HIGH COURT AT CALCUTTA
(Ordinary Original Civil Jurisdiction)
ORIGINAL SIDE
Present:
The Hon'ble Justice Krishna Rao
IA No: GA 5 of 2023
In CS 166 of 2020
Md. Humayun Kabir
Versus
Sk. Arif Ali & Ors.
Mr. Mainak Das
Mr. Aniruddha Sinha
... For the plaintiff.
Mr. Uttam Kumar De
Mr. Triptimoy Talukdar
Ms. Writi De
Ms. Riya De
Mr. Abhrajit Tarafdar
... For the defendant no. 1.
Hearing Concluded On : 05.07.2023
Judgment on : 26.07.2023
2
Krishna Rao, J.:
1.
The plaintiff has filed the present application praying for injunction
and for appointment of Receiver. The plaintiff has filed the suit against
the defendants for declaration of the shares of the parties in the suit
properties, partition, preliminary decree and other allied prayers.
2. The plaintiff is claiming the shares in the suit property in terms of the
Deed of Conveyance dated 21st April, 2003. Initially the plaintiff has
filed an application in the suit being GA No. 1 of 2021 praying for
appointment of Special Officer to inspect the suit property, to
ascertain the nature and extent of construction/ reconstruction/
addition/ alteration made in the suit property and also to ascertain
the particulars of tenants at the suit property and the monthly rent
and other expenses paid by the tenants.
3. By an order dated 14th January, 2021, this Court appointed Mr.
Suman Sarkar Chatterjee, Advocate as Receiver in respect of the suit
property for taking symbolic possession of the immovable property,
making inventory of the immovable property, taking photographs of
the repair that the defendant no. 1 is undertaking, taking photographs
of the immovable property on completion of repair by the defendant
no. 1, making inventory of the occupants of premises, tabulate the
name of the occupants, the occupation charges such occupant is
paying and the person to whom the occupation charges are being paid
by such occupants. This Court also restrained the parties by an order
of injunction from creating any third party interest over and in respect
of the suit property. The defendant no. 1 is given liberty to carry on
such repair as are permitted under the rules of the Kolkata Municipal
Corporation.
4. By an order dated 26th February, 2022, the interim order of injunction
passed by this Court dated 14th January, 2021 was made absolute till
the disposal of the suit.
5. On 2nd March, 2021, the Special Officer has filed detailed report in
terms of the order dated 14th January, 2021. After receipt of the
report, the plaintiff has filed the present application.
6. Mr. Mainak Das, learned Advocate representing the plaintiff submits
that as per report of the Special Officer, the suit property is not
properly maintained and certain unauthorized occupiers are
occupying several portions of the suit property and the occupational
charges are very meager and the defendant no. 1 has neither taken
any steps for eviction of the unauthorized occupier or for increase of
the monthly occupational charges. He submitted that from the report,
it is also reveals that two of the tenants, namely, Taher Abdul Hussain
Petiwala and Mulla Mustafa have illegally created sub tenancies and
the details are categorically mentioned in the report of the Special
Officer. He also submits that as per report, none of the occupiers are
paying the taxes to the Municipal Authorities.
7. Mr. Das submitted that the tenanted portion of the Gulam Hussain
comprising of 2 (two) rooms, 1 (one) kitchen and 1 (one) bathroom
being the Middle Suite Front has not been let after the said Gulam
Hussain vacated the said premises and at present, the defendant no.
1 has occupied the said portion. He submits that the defendant no. 1
has also occupied 2 (two) rooms, 1 (one) covered verandah and 1 (one)
room on the terrace as was originally occupied by Ahmed Hussain, the
father of the defendant no. 1 and a shed on the northern portion of
the suit property as was originally occupied by the mother of the
defendant no. 1.
8. Mr. Das submitted that one of the occupiers namely Md. Sayeedur
Rahman who is in illegal occupation of the premises has expressed his
desire to vacate the said portion of the property which is under his
occupation and the defendant no. 1 is trying to take possession of the
said portion also.
9. Mr. Das submitted that by an order dated 14th January, 2021, this
Court has given liberty to the defendant no. 1 to carry on such repair
works as are permitted under the Rules of Kolkata Municipal
Corporation but as per the representation submitted by the defendant
no. 1 to the Municipal Authorities, it reveals that the defendant no. 1
in the name of the repair, making a new construction and it is
admitted in the application submitted by the defendant no. 1 to the
Municipal Authority dated 30th September, 2021.
10. Mr. Uttam Kumar De, learned Advocate representing the defendant
no. 1 submits that the plaintiff cannot claim equal share in the suit
property as Deed of Conveyance was executed at the sale price of Rs.
22,00,000/- but the actual market value of the property was Rs.
1,39,03,437/- and thus the stamp duty for the market value of the
property was paid by the defendant no. 1 only.
11. Mr. De submitted that since the purchase of the said property, the
plaintiff and the other defendants have never contributed any amount
or looked after the property as the income of the property was very
meagre. The property was purchased along with tenancy. After the
negotiation with the tenant, namely Gulam Hussain Sakir, in the year
2017, the defendant no. 1 paid Rs. 15,00,000/- to the said tenant as
compensation and cost of fixture and furniture, the said tenant has
surrendered his tenancy to the defendant no. 1 and he took
possession of the said premises for the use of his family.
12. Mr. De submitted that the defendant no. 1 has not inducted any new
tenant in the said premises and he admits that there are two
unauthorized occupants and the same was also informed to the
plaintiff and the defendant no. 2 and requested to take legal action
but neither the plaintiff nor the defendant no. 2 came forward to take
any action against the illegal occupier.
13. Mr. De submitted that the building is in dilapidated conditions and
during the cyclone, the old big tree also uprooted and the building has
been further damaged for which as per liberty given by this Court, the
defendant no. 1 had applied for renovation of the damaged portion of
the building but the plaintiff and the defendant no. 2 are not coming
forward to obtain approval for renovation of the building.
14. Mr. De submitted that without disturbing the possession of the
defendant no. 1, if any receiver is appointed, the defendant no. 1 has
no objection but he prays that the possession of the defendant no. 1
shall not be disturbed.
15. Considered the rival submissions of the respective parties, perused
the materials on record. As per the order passed by this Court dated
14th January, 2021, the Receiver has already submitted report and as
per the report, the Receiver has already taken symbolic possession of
the property and also submitted tabulated statement of the occupier
and tenants in the said property.
16. In the present application, the plaintiff has prayed for injunction and
for appointment of Receiver. By an order dated 14 January, 2021, this
Court has granted injunction restraining the parties from creating any
third party interest over and in respect of the suit property in any
manner whatsoever and by an order dated 26th February, 2021, the
interim order passed by this Court was made absolute till the disposal
of the suit. Now, again the plaintiff has filed the present application
praying the injunction and appointment of Receiver. As regards to
injunction, this Court finds that already an order of injunction is in
existence thus no further injunction can be passed.
17. As regard the appointment of receiver, by an order dated 14th January,
2021, this Court had appointed Receiver and the Receiver has
submitted report. Now, the contention of the plaintiff is that the
Receiver should be directed to manage and control all the affairs
relating to the suit property by collecting rent and to get the rent
increase and to induct tenant, if any of the occupier vacated or lying
vacant. As per the report of the Receiver, the monthly rent is very
meagre and some of the occupiers have not disclosed the amount of
the occupational charges. The plaintiff is also in occupation of the
premises.
18. Considering the above circumstances, this Court is of the view that
this Court already appointed the Receiver by an order dated 14th
January, 2021, the Receiver shall continue as Receiver in the instant
case and shall collect rent from the occupiers/tenants of the said
premises. If it is found that the monthly rent is meagre, the Receiver
shall demand rent as per the present market rent of the said area and
if any occupier/tenant vacates the premises, the Receiver shall induct
new tenant as per the present market rent of the said area. On receipt
of the monthly rent, the Receiver shall pay the dues of the Municipal
Corporation of the suit premises other than the portion which is in
occupation of the defendant no. 1. The Receiver shall not disturb the
possession of the defendant no. 1 in which the defendant no. 1 along
with his family members are occupying for their own use.
19. As per report of the Receiver and as per the contention of the Counsel
for the defendant no. 1, the building in question is in dilapidated
condition and if all the parties are ready and willing to repair the said
premises, the same shall be informed to the Receiver and in presence
of Receiver and after approval from the Municipal Corporation, the
repair can be carried out by the parties out of their own expenditure
as per approval.
20. The remuneration of the Receiver is fixed at Rs. 50,000/- at the first
instance. The Receiver shall open a bank account in any nationalized
bank and shall deposit the monthly rent in the said account and shall
maintain proper account. The Receiver shall submit report before this
Court within three months from date.
21. GA No. 5 of 2023 is thus disposed of.
(Krishna Rao, J.)
