Madras High Court
Sudipta Kr Basu vs Sri Aurobindo Ashram Trust on 7 September, 2022
S.A.No.732 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 07.09.2022
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
S.A.No.732 of 2022
and
C.M.P.No.14997 of 2022
Sudipta Kr Basu
... Appellant/Respondent/Defendant-2
Vs.
1.Sri Aurobindo Ashram Trust,
Rep. by its Managing Trustee,
Manoj Das Gupta
Sri Aurobindo Ashram Main Building
No.12. Marine Street,
Pondicherry - 2.
2.Manoj Das Gupta
3.Dr.Dilip Kumar Datta
4.Prabhakar @ Batti
5.Dilip Mahtani
6.Abhipsa P.Nagda
... Respondents /Appellants/Plaintiffs
7.Mousami Mukherjee
... Respondent /Respondent/Defendant-1
1/11
https://www.mhc.tn.gov.in/judis
S.A.No.732 of 2022
PRAYER: Second Appeal filed under Section 100 of the Code of Civil
Procedure against the Judgement and Decree passed in A.S.No.22 of 2020
dated 28.04.2022 passed by the learned Additional Sub Judge, Pondicherry
reversing the Judgement and Decree passed in O.S.No.1266 of 2013 dated
20.03.2020 on the file of the Principal District Munsif Court at Puducherry.
For Appellant : Mr.R.Shreedhar
For Respondent : M/s.C.A.Diwakar Caveator for [R.1 to R.6]
JUDGMENT
The 2nd respondent is the appellant before this Court challenging the
judgment and decree passed in AS.No.22 of 2020 on the file of the
Additional Sub Court, Puducherry in and by which the learned Judge has
reversed the Judgment and Decree passed in A.S.No.1266 of 2013 on the
file of the Principal District Munsif, Pondicherry.
2. The facts which have culminated in the filing of the above Second
Appeal is herein below narrated and the parties are referred to in the same
array as before the Trial Court.
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S.A.No.732 of 2022
3. The plaintiff had filed the suit for a mandatory injunction directing
the defendants to deliver possession of the property to the plaintiff. It is their
case that the property was purchased by the then Shri Aurobindo Research
Academy which is a unit of Sri Aurobindo Memorial Fund Society from one
Kusum Shantilal Mehta under a registered sale deed dated 16.11.1972. The
said society was dissolved and all its assets including the suit property got
vested with the 1st plaintiff. The then trustees had taken possession of all the
properties including the suit property and a registered deed of declaration
dated 09.02.1996 came to be executed. The plaintiffs 2 to 6 are the present
trustees of the 1st plaintiff trust. It appears that one Arabinda Basu, an
inmate who was permitted by the trustees to occupy the suit property.
Thereafter, the 1st defendant with the permission of the plaintiffs stayed
along with the said Arabinda Basu in the suit property to do research. The
trustees had permitted the said Arabinda Basu to avail the services of the 1st
defendant as he was ailing for sometime.
4. On 03.07.2012 Arabinda Basu passed away. After the demise of
Arabinda Basu, both the defendant had on 02.08.2012 issued a letter
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S.A.No.732 of 2022
stating that they would vacate and hand over possession of the suit property.
However this promise was assessed in the breach. Since the 1st defendant
was not an inmate and had no right to occupy the suit property, the plaintiffs
have requested the 1st defendant by letter dated 17.03.2013 to hand over
possession of the suit property. However she sent a reply dated 21.03.2013
claiming that the suit property devolved on the 2 nd defendant after the
demise of Arabinda Basu. The trustees therefore issued a legal notice dated
26.04.2013 directing the 1st defendant to deliver the possession of the suit
property. She once again sent a reply dated 03.05.2013 reiterating her earlier
claim. The 2nd defendant is living abroad and occasionally visits the suit
property. Considering the untenable claim of the defendants, the plaintiffs
have come forward with the suit for the relief stated supra.
5. The defendant have jointly filed a written statement in which apart
from denying the allegations set out in the plaint, the defendant would set up
title on Arabinda Basu stating that he had acquired the suit property out of
his own funds enjoyed and possessed the same as its owner. They further
contended that the revenue records had been mutated in the name of
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S.A.No.732 of 2022
Arabinda Basu and on his death the same has been mutated in the name of
his son the 2nd defendant. It is their case that Arabinda Basu had obtained
permission from the planning authority and constructed the building out of
his own funds and efforts. They would contend that by a mistake the name
of the Society had been engrossed in the sale deed and it was Arabinda Basu
who had spent for the stamp paper, registration etc., They further contended
that since Arabinda Basu was not a party to the deed of declaration dated
09.02.1996, the same would not bind the 2 nd defendant. They sought for a
dismissal of the suit.
6. The learned Principal District Munsif, Puducherry had framed the
following issues:-
1. Whether the suit is property valued?
2. Whether this Court has got jurisdiction to
entertain the suit as laid by the plaintiffs?
3.Whether the plaintiffs have to seek declaration as
ownership of the suit property?
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S.A.No.732 of 2022
4.Whether the plaintiffs have got title to the suit
property as per the sale Deed dated 16.11.1972 executed
by Kusum Shantila Mehta?
5.Whether the plaintiffs are entitled to the
mandatory injunction directing the defendants to deliver
the possession of the suit property to the plaintiffs?
6. To what relief the plaintiffs are entitled?
7. The plaintiffs had examined one Mattriprasad as P.W.1 and
marked Ex.A.1 to Ex.A.17. The 2nd defendant had examined himself as
D.W.1 and Ex.B.1 to Ex.B.17 were marked.
8. The learned District Munsif, Puducherry ultimately dismissed the
suit. The learned District Munsif held that except for Ex.A.2 the sale deed
dated 16.11.1972 no other document had been filed on the side of the
plaintiffs to substantiate their claim. Ex.A.7 which was the letter under
which the defendant had agreed to vacate and hand over possession was also
glossed over by stating that in the said letter the defendant had not admitted
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S.A.No.732 of 2022
that the suit property belonged to the plaintiffs. Further the revenue record
stands in the name of the 2nd defendant and no documents and revenue
records have been filed by the plaintiffs.
9. Challenging the said judgement and decree the plaintiffs had filed
A.S.No.22 of 2020 on the file of the Additional Sub Judge Puducherry. The
learned Sub Judge on considering the arguments and the evidence on record
had framed the following point for consideration;-
1. Whether the 2nd defendant's father purchase the
suit property on his own income in the name of society?
2. Whether the building in the suit property was
constructed by the 2nd defendant father and he had been
in possession and enjoyment of his own right?
3. Whether the Judgement and decree of the trial
court is correct or liable to set aside?
10. The learned Judge, ultimately allowed the appeal. Challenging the
same the appellant is before this Court.
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S.A.No.732 of 2022
11. Mr.R.Shreedhar, learned counsel appearing on behalf of the
appellant/defendant would submit that once a cloud had been cast on the
title then it is the bounden duty of the plaintiffs to have sought for a
declaration of title and therefore, the suit filed only for the relief of
mandatory injunction directing the delivery of possession is not
maintainable. He would further contend that the plaintiffs have not produced
the original of Ex.A.2 sale deed and the Appellate Court had also ignored the
revenue records standing in the name of the said Arabinda Basu.
12. Heard the counsels.
13. A perusal of Ex.A.2, the original of which has been filed by the
defendant as Ex.B.1, would clearly show that the property has been
purchased by the said Sri Aurobindo Research Academy, a unit of Shri
Aurobindo Memorial Fund Society having its address at Sri Aurobindo
Ashram Main Building. No.12, Marine Street, Pondicherry-2 and
represented by Arabinda Basu. Therefore, it is crystal clear that the
purchaser of the property is the trust and not Arabinda Basu. The case of the
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S.A.No.732 of 2022
plaintiffs is that they had permitted the appellant/defendant to stay in the
property. This fact is proved by Ex.A.7 which is a letter written by the
defendant after the demise of Arabinda Basu promising to vacate the suit
property. Even in the cross examination of D.W,1 he had admitted that he is
a British national and the 1st defendant has returned to Kolkata. D.W.1 has
fairly conceded that he does not have any personal knowledge as to why
Ex.B.1 = Ex.A.2 has been executed in favour of the trust. The plaintiffs have
therefore proved their title to the property by filing Ex.A.2 = Ex.B.1. The
defendants have not been able to state the basis upon which they claim a
right to the property. In fact, the Appellate Court would observe that in the
2nd page of the sale deed an endorsement is made that Rs.25,000/- was paid
by one Indu K Roy. This clearly shows that Arabinda Basu had not made
any amount for the purchase of the property and that it was paid by one
Indu K Roy. It is clear that he had purchased the property only as a
representative of the Academy.
14. The Appellate Court has rejected the contention of the 2 nd
defendant that the building was constructed by his father by pointing out the
recitals in Ex.B.2 where the planning authority while granting permission
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S.A.No.732 of 2022
has clearly mentioned that there is already a house in the property. The
documents produced by the defendant to show possession has also been
found not relating to the suit property but to an earlier property allotted to
the 2nd defendant’s father.
15. The learned Judge has elaborately considered the evidence on
record, the judgment passed by the Trial Court and after giving reasons for
disagreeing with the Trial Court has proceeded to dismiss the Second
Appeal. The appellant has not been able to show that the Judgement and
decree under appeal suffers from some perversity or an error. That apart, no
Substantial questions of law has been made out. Consequently, the Second
Appeal is dismissed. No costs. Consequently, the connected Civil
Miscellaneous Petition is closed, if any.
07.09.2022
Index : Yes/No
Internet : Yes/No
shr
To
1.The Additional Sub Judge, Pondicherry.
2.The Principal District Munsif Court at Puducherry.
https://www.mhc.tn.gov.in/judis
S.A.No.732 of 2022
P.T. ASHA, J,
shr
S.A.No.732 of 2022
and
C.M.P.No.14997 of 2022
07.09.2022
https://www.mhc.tn.gov.in/judis
