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PETITIONER: BIBEKANANDA BHOWAL (DEAD) BY LRS.

       Vs.

RESPONDENT: SATINDRA MOHAN DEB (DEAD) BY LRS.

DATE OF JUDGMENT:       16/04/1996

BENCH: MANOHAR SUJATA V. (J) BENCH: MANOHAR SUJATA V. (J) PUNCHHI, M.M.

CITATION:  1996 AIR 1985            JT 1996 (4)   597  1996 SCALE  (3)567

ACT:

HEADNOTE:

JUDGMENT: (With Civil Appeal Nos. 3052-3056 of 1995)                       J U D G M E N T Mrs.Sujata V.Manohar.J.      The dispute  relates to  3 Kathas  9  Chataks  of  land situated in a commercial ares of Silchar in District Cachar. The land  originally belonged  to Surendra  Nath Sen and his two other  co-sharers. Under  a  deed  of  settlement  dated 25.3.1939 Surendra  Nath Sen  gave a settlement of this land to Satindra  Mohan Deb  for a  period of 27 years commencing from 14,4.1939  and   expiring on 13.4.1965. The respondents in all  these appeals  are the  heirs and/or  successors  in title of  Satindra Mohan Deb (hereinafter referred to as the ’Debs’).  According   to  the  Debs,  after  obtaining  this settlement they  built  some  permanent  construction  on  a portion of this land.      Bibekananda Bhowal,  the  predecessor  of  the  present appellants took  settlement of 1 Katha 7 Chataks of land out of the  total land  admeasuring 3  Kathas and 9 Chataks from Satindra Mohan Deb on or about 17th of April 1953. He claims to have  constructed a  single storey  building on  the land taken under  this settlement. He started a pharmacy business in this building which is known as Bhowal Medical Hall.  The business was  being run  by Bibekananda  Bhowal with his two brothers. For  the sake  of  convenience  the  heirs  and/or successors-in-interest   of    Bibekananda   Bhowal   (since deceased) who  are the  appellants before us are hereinafter referred to as the ’ Bhowals’.      The Debs  filed Title  Suit No. 41/1956 in the court of the Assistant  District Judge,  Silchar against  the Bhowals for possession  of 1  katha and  7 Chataks  of land  and the building thereon  in the  occupation  of  the  Bhowals.  The Assistant District  Judge decreed  the suit  by his judgment and order  dated 13.7.59  in favour  of the Debs. In appeal, however, the  parties arrived  at a  compromise. A decree in terms of the compromise was passed by the appellate court on

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10. 5 .1965. The relevant terms of the compromise decree are as follows:-      "A.  That  the  defendant-appellant      will give  up possession of an area      of 7’  x 7  ’ more  or less  in the      south-western corner of the room in      suit in his possession in favour of      the plaintiff within one month from      the date  of  this  compromise  and      will  allow  the  plaintiff  within      that period an access to that area.      The said space will be walled up to      the ceiling  at  the  cost  of  the      plaintiff and  within one month. In      the event of noncompliance with the      terms  contained   above  for   his      default  the   defendant  appellant      will  be  liable  to  ejectment  in      execution of  the decree  passed in      the   suit    in   terms   of   the      compromise.      B.  That   the  plaintiff  will  be      entitled to  build the upper storey      above the  building in  suit at his      expense and  a stair  case  in  the      aforesaid   south-western   portion      given up  by the  appellant through      the opening  already  in  existence      for  access   to  the   said  upper      storey.  The   defendant  appellant      will have  no manner  of  right  or      claim   for   possession   in   the      aforesaid   upper    storey   after      construction.      C. That  on compliance of the terms      mentioned  in   paragraph   I   the      defendant appellant shall remain in      possession  of  the  room  in  suit      minus   the   area   mentioned   in      paragraph I  as  a  monthly  tenant      according to English Calender month      for a  period of  10 year  from 1st      May. 1995 till 30th April, 1975 and      a rent of Rs. 225/- per month, rent      for each month being payable within      the  14th  day  of  the  succeeding      month. The defendant appellant also      undertakes to  pay as  he had  been      paying the Municipal Tax in respect      of the room in his possession.      D.   That  the  defendant-appellant      shall not sublet any portion of the      said room  in  his  occupation  nor      transfer his  tenancy right  to any      one else.  The  defendant-appellant      will vacate  and deliver possession      of the  room in  his possession  to      the  plaintiff  or  his  assign  or      representative in  interest on  the      expiry of  the said  period  of  10      years without  any notice  from the      plaintiff’.      E.  The   defendant-appellant  will      have also  the right  to vacate the      room or  surrender the tenancy even

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    before the  expiry of the aforesaid      period of  10 years  on giving  one      month’s  previous   notice  to  the      plaintiff.      I. In  the event  of any  breach of      any condition  mentioned above  the      defendant appellant  will be liable      to ejectment  by appropriate action      in a Court of law." Pursuant to  the compromise  decree the  Bhowals handed over possession of an area of 7’ x 7’ as described in Clause A of the compromise  decree. This  was disputed  by the  Debs who took out  Execution  Application  No.  18/65  for  obtaining possession of  this area  of 7’  X 7’.  In this  application which  was  decided  by  the  Assistant  District  Judge  on 7.2.1972 he  has recorded the contention of the Bhowals that as far back as in 1965 they had already apportioned the area and delivered  possession of  that area  to  the  Debs.  The District Judge,  however, passed  an order  for handing over possession of  the said  area  to  the  Debs  and  Execution Application No.  18/65 was disposed of accordingly. The Debs also  filed   an  Execution   Application  No.15/66  for  an amendment of  their execution  application to get possession of the  entire  land  and  building  in  the  occupation  of Bhowals. This  application, however, does not appear to have been pursued. It was allowed to be dismissed on 12.4.1972.      The lease  of 3  Kathas 9  Chataks of  land  which  was executed by  Sen in  favour of  Satindra Mohan  Deb in  1939 expired on  13.4.1965. We  are not  here concerned  with the question whether  this leave was renewed in favour of Deb or not. On  the expiry  of the  period of the lease Bibekananda Bhowal  the   original  sub-lessee   and  his  two  brothers purchased from  the original  owner Satindra  Nath  Sen  the entire 3  Kathas and 9 Chataks of land by a registered sale- deed dated 24.6.1966.      After purchasing  the entire  land Bhowals  filed Title Suit  No.41/1966  subsequently  re-numbered  as  Title  Suit No.5/1972 against  Satindra Mohan  Deb for a declaration (1) that they  were the  owners of  the entire  3 kathas  and  9 Chataks of  land, (2)  for confirmation  of their possession over 1  Katha and 7 Chataks of land i.e. the land which they had taken  on sub-lease  from the  Debs. (3) for recovery of possession of  the portion  of Debs  by evicting  the  Debs. This suit  was decreed  on 31.7.1973.   In  appeal, however, (First Appeal  No.458/1973) the  Gauhati High  Court  partly allowed the  appeal filed  by the  Debs.  It held, modifying the decree  of the  trial court,  that the  Bhowals were not entitled to  the possession of the land occupied by the Debs by evicting  the Debs.  The High  Court also  set aside  the decree awarding  compensation of  Rs.200/- per month against the Debs  for illegal  occupation of the said land. The High Court also  set aside  the order of injunction passed by the trial court  restraining the  Debs from  realizing the rent. The High  Court confirmed  the decree  of the trial court to the extent  that it  declared the  title of the Bhowals over the entire  land consisting  of 3  Kathas 9 Chataks. as also insofar as  it declared  the possession  of 1  Katha  and  7 Chataks of  land out  of this land and the building thereon, by the Bhowals. In Execution Application No.1/1987 taken out by the  Bhowals in that suit, the Bhowals deposited a sum of Rs.9,000/-  in  court  being  the  value  of  the  structure standing  on  1  Katha  and  7  Chatkas  of  land  in  their possession as  per the  directions given  by the trial court and became  the owners of the said structure in execution of that portion of the decree of the trial court which had been

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upheld by the High Court.      In 1972  the  Debs  also  filed  Title  Suit  No.133/72 against the Bhowals for eviction of the Bhowals from 1 Katha 7 Chataks  of land  and the  building thereon on the ground, inter alia,  that the Bhowals had not handed over possession of the  said land and building on the expiry of ten years as set out  in the compromise decree dated 10.5.1965. This suit is still pending.      Now we  come to  the  litigation  giving  rise  to  the present appeals. In 1975 the Debs took out another execution application being  Title Execution No.4/75 in The Title Suit No.41/56  for   execution  of   the  compromise   decree  of 10.5.1965. The  Debs sought  possession of l Katha 7 Chataks of land  and building  from the  Bhowals in execution of the compromise  decree.   The  Bhowals  filed  objections  under section 47  of the  Civil Procedure  Code to  this execution application being  Misc. Case  No. 27/1975. It was contended by the Bhowals that under the terms of the compromise decree the relationship  of landlord  and tenant was created afresh between the parties and the Debs were not entitled to obtain possession of the said land and building in execution of the compromise decree. It was also contended by the Bhowals that by reason of the decree obtained by them in their Title Suit no.41/1966 as  modified by  the High  Court in  first appeal 458/73, they could not be evicted from the said land and the building  standing  thereon  in  execution  of  the  earlier compromise decree  of 10.5.1965,  as they  were protected by the  subsequent  decree  between  the  same  parties.  These objection was  allowed and the Execution Application No.4/75 was dismissed.      The Debs  filled Misc.  Appeal Nos. 13 and 14/1976 from the above decision. The appeals were allowed by the District Judge on  10.6.1981. The  Bhowals filed  two second  appeals being Second  Appeal Nos.9  and 10  of 1981  before the high Court. In view of the amendment to the Civil Procedure Code. however, to be on the safe side they also filed two Revision Petitions from  the same  judgment and order of the District Judge being  Revision Petition  Nos. 114  and  115  of  1981 before the  High Court.  The High  Court dismissed  the  two second appeals  as  not  maintainable  by  its  order  dated 8.7.1981. It,  however, admitted the two revision petitions. The two revision petitions were also dismissed thereafter on 27.1.1987. The  Bhowals asked  for a  review of the order of 27.1.1987 but  the review  petition was  also  dismissed  on 1.7.1987. Civil  Appeal  Nos.3055-56/1985  are  against  the orders passed  by the High Court dated 27.1.87 and 1.7.87 in two Revision  Petition Nos.114 and 115 of 1981. Civil Appeal No.6649/1983 is  from the  order of  the  High  Court  dated 8.7.1981 dismissing  the two  second Appeals  bearing Nos. 9 and 10 of 1981.      After the dismissal in 1987 of their revision petitions by the  High Court the Bhowals made a further application in execution proceeding  No.4/75. This  was numbered  as  misc. case No.23/1987.  In this  application the Bhowals contended that the  compromise decree  had become  unexecutable.  This misc. case  was allowed  by the  executing court  on 30th of May, 1988. A civil revision being civil revision 335 of 1988 was filed  by the Debs before the High Court. The High Court reversed the order passed by the executing court and held by by its  order of  25.9.1992 that  the compromise  decree was executable. Civil  Appeal No.3052 of 1995 Which is before us is from  this decision  of the  High court  dated 25.9.92 in civil revision 335 of 1988.      The Bhowals  made a  Review Application No.11/92 before the High  Court to  review its  order of 25.9.1992. This was

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dismissed by the High Court by its order of 20.1.1993. Civil Appeal No.3054/95  which is  before us is from this order of 20.1.1993 dismissing the review application.      Thus Civil  Appeal Nos.6649  of 1983.  3055 and 3056 of 1995. 3052  of 1995 and 3054 of 1995 deal with the execution of the compromise decree of 10.5.1965.      Are the  Debs entitled  to evict  the Bhowals from land admeasuring 1  Katha and  7 Chataks  as  also  the  building standing thereon,  in execution  of the compromise decree of 10.5.1965? It is necessary to first examine the terms of the consent decree  of 10.5.1965.  Clause A of the consent terms hes been set out earlier, It requires the Bhowals to give up possession of an area of 7’ x 7’ in the South-Western corner of the  room  in  the  suit  property.  The  clause  further provides, "In  the event  of non-compliance  with the  terms contained above  for his  default  the  defendant  appellant (Bhowal )  will be  liable to  ejectment in execution of the decree passed  in the  suit in  terms of  the compromise"  . Clearly, therefore, if the Bhowals do not give up possession of this  area of  7 x  7’, they  can be  ejected  from  this portion in execution of the compromise decree.      The next  part of  the  compromise  decree  deals  with possession by  the Bhowals  of  the  rest  of  the  building located on  1 Katha 7 Chataks of land. Under Clause C of the consent  terms  the  Bhowals  are  permitted  to  remain  in possession of the rest of the building as monthly tenants of the Debs for a period of ten years from Ist of May 1965 till 30th of  April, 1975  on payment  of a  rent of Rs.255/- per month. Clause  D prohibits  the Bhowals  from sub-letting or transferring any  portion of  the said premises . It further provides that  on the  expiry of the period of ten years the Bhowals will  vacate and  deliver  possession  of  the  said premises to  the Debs.  Clause I  provides. "In the event of any breach  of any  condition mentioned above the defendant- appellant  (Bhowals)   will  be   liable  to   ejectment  by appropriate action,  in a court of law". There is a striking difference in  the language  used in  Clause A  relating  to ejectment and  in Clause  I relating  to ejectment. Clause A clearly contemplates  ejectment of  the Bhowals in execution of  the   compromise  decree   if  they  do  not  hand  over possession of  an area  of 7’  x 7’.  However, in respect of their   tenancy   relating  to  the  rest  of  the building. If  they   commit  any  breach  of  any  of  the  conditions stipulated in  the compromise decree (which would presumably include the condition relating to handing over possession on the expiry of ten years) the Bhowals are liable to ejectment by appropriate  action  in  a  court  of  law.  This  is  in contradistinction to  the  ejectment  in  execution  of  the compromise decree  contemplated  under  Clause  A.  In  this context, ejectment  by appropriate  action in a court of law can only mean ejectment by taking action by filing a suit or taking any  other proceeding  in a court of law. Clearly the parties did  not contemplate  ejectment by  execution of the compromise decree  of relation to a breach of Clause C. This difference  in  the  phraseology  of  Clauses  A  and  I  is understandable because  a tenant who may otherwise be liable to ejectment  may be protected by provisions of the Rent Act or by  any other  provision of  law. This  issue can only be adjudicated properly in an appropriate proceeding and not in the execution  of a  decree. Had the intention been to allow the Bhowals  only permissive  possession for a period of ten years,  and   ejectment  thereafter   in  execution  of  the compromise decree the decree would have so provided. It does not do  so. Therefore   assuming  that the  tenancy  of  the Bhowals has  come to  an end.  the  Debs  cannot  eject  the

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Bhowals from the building in their possession without taking appropriate legal  action by  filing a suit for ejectment or in any other manner as may be permissible in law; but not by applying for execution of the compromise decree.      There is  also a further hurdle in the way of the Debs. The compromise  decree was  passed as  far  back  10.5.1965. Subsequently,  in   the  Title   Suit  No.41/66   filed   by Bibekananda Bhowal  and his  two brothers,  the trial  court passed a  decree in  favour of  the Bhowals  under which the title of  the Bhowals  to the  entire land of 3 Kathas and 9 Chataks was declared. They were also declared as entitled to possession of  1 Katha  7 Chataks  of land  and the building standing thereon.  The decree  of the  trial  court  further provided that  the Bhowals  could obtain  Khas possession of the structures  standing on  3 Kathas  9 Chataks  of land by payment of Rs.27,000/-to the Debs. This was the value of the structures as  determined by  the trial court. Of these. the structure which  was standing  on 1  Katha 7 Chataks of land was valued  at Rs.9000/-.  This portion of the decree of the trial court  including its  valuation of  the structures  at Rs.27,000/- was upheld by the High Court in appeal. The High Court set  aside only the decree of the trial court granting to the Bhowals Khas possession of the land in the occupation of the  Debs (i.e. 3 Kathas 9 Chataks of land less 1 Katha 7 Chataks of land) and the building standing thereon. This was because the  High Court  held, inter  alia, that the Debs as lessees of  the said  land had  constructed buildings on the portion of land in their possession and were entitled to the protection of  Section 5 of the Assam Non-Agricultural Urban Areas   Tenancy   Act,   1955.   On   an   application   for clarification, the  High Court  clarified that  it  had  not pronounced on the nature of the possession of the Bhowals in respect of  the building  standing on  1 Katha  7 Chataks of land in their possession. In view of this clarification, the Bhowals applied  by Title  Execution Application  1/1987 for execution of  the decree in respect of the building in their occupation. As  per the  valuation of  the trial court they- deposited in  the execution court a sum of Rs.9,000/- as the value of  the structure. The decree was executed accordingly in respect  of the  structure in  their occupation. Thus the Bhowals  became   the  owners  of  the  structure  in  their occupation. This  order passed  by the  executing  court  in Title Execution  No.1/87 has not been challenged by the Debs By supervening  events, therefore,  the Bhowals  are now the owners of , interalia, 1 Katha 7 Chataks of land as also the structure standing thereon.  In view of this decree which is binding on the Debs who were parties to it, the right of the Debs to  eject the  Bhowals from the structure standing on 1 Katha 7  Chataks of  land has  now come to an end.  Assuming that despite  the execution  levied in Application No.1/1987 in Title  Suit No.41/1966, any right of eviction survives in the Debs,  such a  right can best be litigated in a separate suit and  not in execution of an old compromise decree which did not  contemplate ejectment  of the Bhowals from the suit structure by execution of the compromise decree.      Learned counsel  for the  appellants (Bhowals) has also contended that  just as  the Debs  were held to be protected tenants under  Section D of the Assam Non-Agricultural Urban Areas Tenancy  Act. 1955.  the Bhowals.  in turn.  are  also protected by  the same  Section 5  assuming  that  they  are tenants of  the Debs.  There is  evidence to  show that  the building on 1 Katha 7 Chataks of land was constructed by the Bhowals  and/or   their  predecessor   interest  after   the execution of  the lease  within the period permissible under Section 5  of the  said Act.  The rights which are available

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to a  lessee against  a lessor are also made available under said Act  to a  sub-lessee as  against his lessee.  There is nothing in  the compromise  decree  to  indicate  that  this protection of the Assam Non-Agricultural Urban Areas Tenancy Act.   1955 was meant to be taken away.  This contention has considerable merit.      The consent  decree of  10.5.1965  had  created  and/or continued the relationship of landlord and tenant as between the Deb  and the  Bhowals for a further period of ten years. If the  Bhowals are  entitled to the protection of Section 5 of the Assam non-agricultural Urban Areas Tenancy Act. 1955, they are  entitled to avail of this protection in a court of law.  Such   a  question  cannot  be  decided  in  execution proceedings.  The  compromise  decree  did  not  contemplate ejectment of the Bhowals from the suit building in execution of the  compromise decree.  It provided  that they  would be ejected by  taking an  appropriate proceeding  in accordance with law. The Civil Appeals 3055-56 of 1995 and 3052 of 1995 as also 3054 of 1995 are required to be allowed in the above circumstances.      In  Civil   Appeal  No.6649   of  1983  the  appellants (Bhowals) have  contended that they are entitled to maintain second appeals  against the  decision of  the District Judge dated 17.6.76  in Title  Execution No.4/75  along with Misc. Case No.27/1975.  The appellants contend that Misc. Case No. 27/75 raising  objections under  Section  47  of  the  Civil Procedure Code  was filed  under the Unamended Code of Civil Procedure under  which any  order passed on such application was to  be treated  as a decree. A first appeal and a second appeal would  lie from  such a  decree. The  Amending Act of 1976   provided that  an appeal  from an  order passed on an application under Section 47 of the Civil Procedure Code was no longer  maintainable. However,  the right  of  filing  an appeal  and  a  second  appeal  which  had  accrued  to  the appellants on  the date  when they filed Misc. Case No.27/75 could not  be taken  away by  the Amending Act of 1976 since the Amending  Act was not retrospective. We need not examine this   contention in the present proceedings. The appellants had filed second appeals as well as revision applications -- the latter,  out of  abundant caution in case second appeals mere held  not maintainable.  The decisions  in  the  second appeals as  well as  the revision applications are before us in Civil Appeal No. 6649/83 and Civil Appeal Nos. 3055-56 of 1995. Since  these appeals  have been  heard together, it is not material  whether we  allow one  set of  appeals or  the other set  of appeals. Hence we are not examining the merits of this contention.      One civil  appeal remains. That is Civil Appeal No.3053 Of 1995.  In 1983,  the Bhowals  i.e. Bibekananda Bhowal and his two  brothers filed  Title Suit  No.113 of  1983 in  the court of  the Sadar  Munsif. Silchar.  They prayed for (i) a declaration that  they are  entitled to remain in possession of land  admeasuring 1  Katha 7,  Chataks and  the  building standing, thereon  (ii) for a declaration that the Debs have no right  to interfere  with the  peaceful possession of the Bhowals in respect of the said land and the building thereon and for  (iii) a  permanent injunction  restraining the Debs from entering  on the suit land and the building thereon and from changing  the structure  of the  building by renovating the same  or by  making any extension thereto. By Misc. Case No.12/83  the   Bhowals  asked  for  an  interim  injunction restraining the  Debs from  entering the  suit premises  and from changing  the structure  of the said building either by renovating it  or by  making, any  extension  thereto.  This interim injunction  was granted. Misc. Appeal No.60/83 which

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was filed  by  the  Debs  against  the  order  granting  the injunction was dismissed. The Debs came by way of a revision before the  High Court, being Civil Revision No.27/1986. The High Court by its order dated 25.9.1992 allowed the revision application holding that the Bhowals had no prima facie case and injunction  should not  have been  granted. Civil Appeal No.3053/95. which  is before  us, is  from the  order of the High  Court   dated  25.9.1992  refusing  to  grant  interim injunction to the Bhowals in their Title Suit No.113/83.      In view  of  what  we  have  observed  hereinabove  and particularly in view of the rights which have accrued to the Bhowals as  a result  of the  decree passed  in  Title  Suit No.41/1966 as modified by the High Court, and as executed in Title Execution  No. 1/87,  the Bhowals do have a good prima facie case to retain possession of the building in question. The trial court was. therefore, right in granting an interim injunction and  the  first  appellate  court  was  right  in dismissing Misc. Appeal No.60/83 which was filed by the Debs against that order. The judgment and order of the High Court dated 25.9.1992  is, therefore,  set aside  and the order of the first appellate court is restored.      The appeals are allowed accordingly with costs.