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PETITIONER: PAUL BROTHERS (TAILORING DIVISION)AND ORS. ETC.

       Vs.

RESPONDENT: ASHIM KUMAR MANDAL AND ORS. ETC.

DATE OF JUDGMENT02/04/1990

BENCH: RANGNATHAN, S. BENCH: RANGNATHAN, S. RAMASWAMI, V. (J) II

CITATION:  1991 AIR  796            1990 SCR  (2) 283  1990 SCC  (3) 726        JT 1990 (3)    81  1990 SCALE  (1)768

ACT:     Practice  and Procedure.’ Sanchaita case--Directions  of Supreme Court explained.

HEADNOTE:     These appeals arose as a sequel to certain directions of this Court in the famous Sanchaita Investment Company  case, which by dint of tremendous advertisement campaign collected deposits  amounting to several crores of rupees  from  thou- sands  of depositors spread all over India. The  firm  pros- pered  and thereafter tied up and siphoned away  a  sizeable portion of its funds from its coffers for the benefit of the management  personnel  by acquiring  movable  and  immovable properties  in the names of the firm, relatives and  benami- dars.  Then they started making defaults in its  obligations to the depositors.     The depositors approached the High Court and  eventually the  matter  came up to this Court in 1983. With a  view  to safeguard  the interests of the depositors and  ensure  that the  properties of the firm be duly identified and full  and due  benefit of the funds be diverted to its  coffers,  this Court  by its order appointed a Commissioner to take  charge of  all the assets, documents, papers of the  firm,  agents, sub-agents,  transferees and benamidars.  Further to  enable the  Commissioner to gather all the assets of the  firm,  he was  given powers to attach all assets and properties  which in his prima facie opinion are of the ownership of the  firm or  any of its partners. Such assets were to be put to  sale if no objections are received there to within one month from the  date  of attachment. All objections  thus  received  in respect  of  such  properties were to be  forwarded  to  the Prothonotary of Calcutta High Court, and a Division Bench of the  High Court was to dispose of the objections on  merits. By  a  further order dated 23rd September, 1985  this  Court empowered the Commissioner to remove all unauthorised 283 persons  or  trespassers  from possession  of  the  property proposed  to  be  sold, and the Commissioner  to  hand  over vacant possession to the rightful purchasers.     One of the properties thus attached by the  Commissioner by a public notice was house N. 52/1/1B Surendra Nath Baner-

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jee  Road, Calcutta. It was subsequently brought to sale  on "as is and where is basis". Asit Kumar Mandal and two others purchased  this property and requested the  Commissioner  to give  them vacant possession. Since the sale was on  "as  is and where is basis", the Mandais moved an application before the High Court Division Bench praying for the vacant posses- sion of the said property and the same was granted.     Hence  the appellants i.e. Paul Bros and  Others,  moved two  Special Leave Petitions in this Court and claimed  that they  were bona fide tenants in the property even under  the predecessors-in-interest of Mahamaya Devi in whose name  the property was purchased by Sanchaita firm and therefore could be evicted only in accordance with due process of law  after full  contest, and could not be thrown out in  summary  pro- ceedings  just as if they were persons in unauthorised  pos- session  of the property, or as if they were mere  trespass- ers.  On the other hand the Mandais contended that in  terms of  the orders of this Court, and of the  Calcutta  Division Bench  they  purchased the property only on the  basis  that they would get a perfect title and speedy possession. Allowing the Special Leave Petitions, this Court,     HELl):  That the contention of the Mandais is not  main- tainable  either in principle or on the terms of the  direc- tions of this Court. The attachment and sale in pursuance of this  Court’s order of the present property in question  did not  have  the legal effect of  invalidating  any  interests created  or  subsisting in the property  by  sale,  transfer encumbrance or alienation prior to the attachment. Even  the sale was on "as is and where is basis". The Courts order  of 27th  September,  1983 only empowered  the  Commissioner  to remove all unauthorised persons and trespassers but  persons who are in lawful possession of the 284 property  could  not be evicted forcibly or  summarily.  The said  order could not be interpreted to mean that  the  pur- chasers  would be entitled to vacant possession through  the commissioner  even  by evicting bona fide tenants  or  other encumbrancer  or  independent out-siders  who  had  acquired interest  for consideration in the property. The  object  of the directions was to cut short the proliferation of litiga- tion and to gather in expeditiously the assets of Sanchaita. [292D--E; 295H; 296B]     Having  regard to the large scale dealings, the  special circumstances and the desperate situation, the Court made an exception  and made it possible for the Commissioner to  get false  and  frivolous claimants out of the way  by  a  quick procedure because even normally the trespassers and unautho- rised  persons  cannot be thrown out except by  recourse  to legal proceedings. So this order could not be availed of  to ride  rough-shod over the rights and interests of others  in the properties which had been created bona fide. Even  third parties  who  have acquired real interests in  the  property either  independent of, or even through Sanchaita could  not be  called upon to give up their rights which would mean  to do  more  than  merely realise what  rightfully  belongs  to Sanchaita  that is by conferring a better title than it  had in  fact acquired while purchasing those properties,  [297B, G]     So  in the instant case, considering the  materials  and evidence  and  the records placed before the  Court  by  the claimants/objectors,  to prove that they are not stooges  or false  claimants but have bona fide right to possession,  it was  held  that the auction purchaser could not  evict  Paul Brothers and Phani Bhushan Ghose except eviction proceedings in  the normal course and in accordance with law as  may  be

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available  to  them  against  the  claimants/objectors.  The claim’s of the other appellant was rejected. [297C-D]

JUDGMENT:     CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.  1755-56 of 1990.     From  the Judgment and Order dated 9.2.1989 of the  Cal- cutta High Court in Matter No. 3737 of 1987. Dr. Shankar Ghosh, C.S. Vaidyanathan, S.R. Setia, K.V. Vis- 285 wanathan and A.K. Sil for the Appellants.     S.K.  Kapoor, P.K. Pillai D.K. Sinha, Mrs. R.  Paul  and H.K. Puri for the Respondents. The Judgment of the Court was delivered by RANGANATHAN, J. Leave granted.     These appeals arise as a sequel to certain directions of this  Court  in  the famous Sanchaita  case.  The  Sanchaita Investment Company was a firm which was controlled and  run, primarily, by three persons Samonu Prasad Mukherjee, Bihari- al Murarka, and Swapan Kumar Guha. It had been able, by dint of a tremendous advertisement campaign, to collect  deposits amounting  to  several crores of rupees  from  thousands  of depositors  spread all over India by holding out  attractive terms  of  interest. The firm initially  prospered  and  its deposits steeply mounted to astronomical figures. The  firm, however, began to acquire, or deal in, movable and immovable properties in various cities of India in the names, not only of  the  firm, but of relatives and  benamidars  of  various persons  who  were  in management its  affairs.  A  sizeable portion  of the firm’s funds being thus tied up or  siphoned away  from its coffers for the private benefit of the  indi- viduals  running  it, the firm eventually began  making  de- faults in its obligations to the depositors. The depositors, thereupon,  approached  the High Court  and  eventually  the matters  came up to this Court in W.P. Nos. 638 and  755-800 of  1983.  With  a view to safeguard the  interests  of  the depositors, arrange for a return to them of as much of their deposits  as possible and ensure that the properties of  the firm  were duly identified and the full and due  benefit  of the  funds  diverted from its coffers was  restored  to  the firm,  this  Court, by its order dated 4.5.83,  appointed  a retired  District Judge as a Commissioner to take charge  of all the assets, documents and papers of the firm and of  its agents,  sub-agents, transferees and benamidars.  Directions were  given to the Commissioner to look into the  claims  of depositers  and to devise a scheme whereby persons  who  had deposited  sums  not  exceeding Rs.25,000  could  be  repaid expeditiously. By a subsequent order dated 27.9.83,  certain directions were given to enable the Commissioner to 286 gather  in  all the assets of the firm. It is  necessary  to quote a portion of this order. It read: "The  Commissioner  may attach such  assets  and  properties which,  in his prima facie opinion, are of the ownership  of the  firm Sanchaita Investments, or of the ownership of  any of  its partners. Such assets and properties may be  put  to sale by the Commissioner if no objection is received to  the attachment  thereof within one month of the date of  attach- ment.  All  objections received to the  attachment  of  such assets  or properties will be forwarded by the  Commissioner to  the Prothonotary of the High Court of Calcutta.  We  re- quest  the learned Chief Justice of the Calcutta High  Court to  nominate  a  Division Bench of the High  Court  for  the

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purpose  of jurisdiction upon such objections. The  Division Bench will dispose of the objections on merits after hearing all interested parties."     Reference  must  also be made to another order  of  this Court  dated 23.9.85 in C.M.P. No. 38589/85. By this  order, this Court directed: "After heating counsel for the parties we consider it neces- sary  to empower the Commissioner, Sanchaita Investment,  to remove all unauthorised persons and trespassers from posses- sion of the property proposed to be sold by the Commissioner under  the  orders  of this Court and to  hand  over  vacant possession  to the rightful purchasers. The Commissioner  is authorised  to  take the assistance of the  police  for  the purpose  of obtaining possession and handing it over to  the rightful purchasers."     In  pursuance  of  these  directions,  the  Commissioner attached  a large number of properties situate all over  the country  which,  he had reason to believe,  were  properties which  belonged to the firm though acquired in the names  of others.  When the properties were so attached and sought  to be sold, objections were lodged by persons claiming title or possession  of  the property in their own  right  and  these objections were adjudicated upon by the designated  Division Bench of the Calcutta High Court. 287     One  of  the properties that were thus attached  by  the Commissioner  was house No. 52/1/1B, Surendra Nath  Banerjee Road,  Calcutta- 14. (There is a slight discrepancy  in  the door  number of this property as appearing in various  docu- ments  but  that  is not material for  our  purposes).  This property stood on land of the small extent of about 800  sq. ft.  and comprised of five rooms in the ground floor  (three in  front and two at the back), a first floor and  a  second floor  but,  being business premises in  a  busy  commercial locality,  is of considerable value today. The  Commissioner found  that this property had been acquired in the  name  of Mahamaya  Devi,  an  aunt of Sambhu  Prasad  Mukherjee,  for Rs.85,000  on 4.10.1977. Apparently the Commissioner was  of the  opinion that the property was really that of  the  firm acquired  in the name of Mahamaya Devi. He,  therefore,  at- tached  this  property by a public notice taken  out,  inter alia,  in  "The Statesman" dated 27.5.84  to  the  following effect: "The  Public  are hereby informed that in  exercise  of  the authority  and  power vested in me under the  order  of  the Hon’ble Supreme Court of India passed and made on 4.5.83 and 27.9.83   .....  , I had attached or I had taken  possession of or I am hereby taking possession of (as the case may  be) the  following properties (specified in the schedule  below) including  flats, lands, cars, launch, business,  shares  in companies  and partnership firms and house  properties.  The persons  in  which names these properties stand  are  hereby warned  that they shall not lease out, assign,  sell,  mort- gage, transfer or otherwise encumber or deal with them until further orders from me. Anybody dealing with such properties would do so at his own risk or responsibility."     It  appears that there were also other  similar  notices issued  by  the Commissioner. In response to  one  of  these notices,  Smt.  Mahamaya Devi put forward her claim  to  the ownership of the property but her claim was rejected by  the Division  Bench of the Calcutta High Court on 29.3. 1985  in Case  No.  23 of 1984. Sri Kapur, learned  counsel  for  the respondents  states  that a petition for  special  leave  to appeal  to  this Court preferred by her  was  also  rejected sometime in 1985. This is not contradicted by the  petition-

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ers.  We may, therefore, proceed, for the purposes  of  this case,  on the footing that, though standing in the  name  of Mahamaya Devi, the property in question belongs to the  firm Sanchaita. 288     Subsequently  the  property was brought to sale  by  the Commissioner.  Sealed tenders were invited for the  purchase of  the  properties specified in the schedule, by  a  notice published  in "The Statesman" on 7.3.86, on an "as is  where is basis". The notice specifically mentions that the posses- sion of only three of the six items mentioned in the  notice was  with  the Commissioner and the  property  presently  in question  was  not one of them. Asit Kumar  Mandal  and  two others (the respondents before us, hereinafter compendiously referred  to as ’the Mandais’)  offered,  on   22.5.86,   to purchase  the property for Rs. 1,26,000 in lump sum  subject to negotiations in the matter. They undertook to deposit 25% of the price on the acceptance of the offer and the  balance "at  the  time of giving us the physical possession  of  the said  premises". After a discussion with  the  Commissioner, they  deposited Rs.31,500 on 11.6.1986 and stated  in  their letter of the same date to the Commissioner: "We shall deposit the balance amount as and when called upon to  do so. Thereafter, you will hand over to us the  posses- sion of the said premises free from illegal trespassers". On  12.6.86,  the  Commissioner accepted the  offer  of  the Mandais subject to the following conditions, namely: "(a) That the proposed sale in your favour under the  condi- tions  mentioned  herein below is approved by  our  advisory Board. (b) That I/4th (i.e. Rs. 31,500) of the total  consideration money is at once paid by you to the Commissioner,  Sanchaita Investments, through bank draft or pay order. (c)  That  the balance of the consideration  money  is  paid within 30th June, 1986. (d) That in default of payment of the consideration money as stated  above, the earnest money (Rs.31,500) to be  paid  by you through bank draft or Pay Order as mentioned above shall stand forfeited. 289 (e)  That  the  aforesaid sale is made on "as  is  where  is basis". (f) That on payment of the full consideration money as above within  the  date  fixed you may take  steps  for  obtaining possession of the said entire premises and the  Commissioner will help you for the said purpose." The  Mandais, thereafter, paid Rs.31,500 on 27.6.86 and  Rs. 63,000 on 18.7.86 and wrote to the Commissioner as follows: "Please sent us the draft sale certificate in respect of the above property for our approval on behalf of our clients and arrange immediately to give our clients vacant possession of the property as agreed upon. Please  inform  us if any objection was received by  you  in respect  of the property pursuant to your  advertisement  in the Statesman dated March 7, 1986." The  Commissioner referred the purchasers to his  lawyer  in regard  to  the preparation of the sale  certificate  and  a certificate of sale deed was eventually issued in favour  of the  Mandais on 10.4.1987. The certificate referred  to  the orders of the Supreme Court, the satisfaction of the Commis- sioner, the fact of attachment and the absence of any objec- tions  from Mahamaya Devi and conveyed the property  to  the Mandals.     Having thus purchased the property, the Mandais request- ed  the Commissioner to give them vacant possession  of  the

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property  but  there was no response.  Thereupon,  on  17.9. 1987,  the  Mandais moved an application (being  Matter  No. 3737/87)  before  the High Court praying that  they  may  be given vacant possession of the property. It appears that, in the  meantime, they had come to know that the premises  were occupied by the following parties: Name of person                   Portion occupied 1.  Paul  Brothers’(Textile Division)   One room  on  Ground Floor 290 2. Paul Brothers (Watch Repairing   One room on Ground Floor Division) 3.   Paul Brothers (Electronics           -do- Division) 4.  Dulal Dutta and Panchanan Dutta        -do- 5.  G. Dey                                -do- 6.  Phani Bhusan Ghosh             First Floor 7.  Hari Narayan Gupta              Second Floor These persons were made respondents to the application  and, alleging that they were all trespassers in occupation of the property, a prayer was made that they should be directed  to hand  over vacant possession of the property to  the  appli- cants. This prayer has been granted by the Division Bench of the High Court and, hence, these two petitions for leave  to appeal,  one by the three Paul Bros. and the other by  three of the other four "objectors". We have heard these petitions at great length. We grant leave in both S.L.Ps. and  proceed to dispose of the appeals.     The petitioners claim that they are bona fide tenants in the  property.  Except  for petitioner H.N.  Gupta  who  was inducted as a tenant by Mahamava Devi, the others claim that they have been tenants even under the predecessors-in-inter- est of Mahamaya Devi. They clam, therefore, that they can be evicted only in accordance with due procedure prescribed  by law after full contest and opportunity to lead evidence  and cannot be thrown out in summary proceedings like the present one just as if they were persons in unauthorised  possession of the property or as if they were mere trespassers. On  the other hand, for the Mandais it is contended that once it  is held  that Mahamaya Devi was a benamidar for Sanchaita,  the Commissioner is entitled to take possession of the property, removing all present occupants including tenants therein and selling  the property at the maximum possible price free  of all encumbrances so that the proceeds may be made  available to the innumerable depositors who had been denuded of  their lifetime  savings by the undesirable and fraudulent  activi- ties  of  the persons in charge of the  firm.  A  pernicious evil, it is said, warrants 291 a drastic remedy and hence this Court, having regard to  the large  scale involvements of the firm. considered it  neces- sary to arm the Commissioner with wide powers so that he may be able to gather in all the real assets of the firm without delay or obstruction for the benefit of the defrauded inves- tors.  The  Mandais have, it is said, having regard  to  the terms of the orders passed by this Court and by the Calcutta High  Court, purchased the property in the belief that  they would  not only get a perfect title but also speedy  posses- sion  of  the property. If bona fide purchasers  are  to  be obstructed like this by all manner of claims, real or imagi- nary,  it is argued, the properties of the firm can only  be sold  for  a song and the entire object and purpose  of  the various directions of this Court would be frustrated. It is, therefore, contended that, even if the appellants are really tenants  in the property as claimed, their claims will  have

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to  yield to the paramount public interest of the  Sanchaita investors.     We are unable to accept this contention of the  Mandais. It  is not maintainable either in principle or on the  terms of the directions given by this Court. To take up the latter first,  there is nothing in the terms of the orders of  this Court  or  of the notices of attachment or sale  or  of  any other orders of the Calcutta High Court that vests an  abso- lute  title in the auction purchasers of the  property  free from all encumbrances. The order of the Court dated  27.9.83 only authorised the Commissioner to attach properties  which he  believed  to belong to Sanchaita and  provided  for  any objections  to the attachment being heard by the  designated Division Bench of the High Court. The attachment and sale of the  property presently in question were effected in  pursu- ance  of  this  order. Any sale,  transfer,  encumbrance  or alienation subsequent to the attachment could, no doubt,  be impugned but the attachment did not have the legal effect of invalidating  earlier interests of others subsisting in  the property. In fact also, the sale was on an "as is, where  is basis" i.e. without prejudice to the claims of other persons in whose favour bona fide encumbrances or interests may have been  created earlier qua the property. There appears to  be some force in the contention of the claimants that the price paid by the appellant is not adequate to reflect the  market value  of the property situated in an  important  commercial locality  in Calcutta at the present day if sold  free  from all  encumbrances but we shall leave this contention out  of account  as there is no material before us on  this  aspect. The  order of 23.9.85, no doubt, goes a step further but  it only  empowers the Commissioner to remove  all  unauthorised persons and trespassers. The reference to vacant  possession in the order has to be restricted only to 292 cases where the property is in the possession of such  unau- thorised persons or trespassers and cannot be read so as  to empower  the  Commissioner to evict forcibly,  or  seek  the orders  of the Court to evict summarily, persons who are  in lawful  possession of the property. We should also  like  to point  out  that, in fact also, the Mandais  got  no  better right  on  the terms of the auction and  the  correspondence that followed. Though the Mandais referred in their  letters to  vacant possession of the property, the sale was only  on an  "as is, where is" basis and the Commissioner at no  time offered  or  assured the Mandais that they  would  get  such vacant  possession.  He  only offered to help  them  in  the process  to the extent permissible in law. He has made  this position explicit in the letters written by him.     Sri Kapur, for the Mandais, placed considerable reliance on the common order of the Calcutta High Court dated 25.3.86 in Amar Mondal v. Commissioner, (Matter No. 122 of 1986) and Jagdish Chand Aggarwala v. Commissioner, (Matter No. 146  of 1985) to contend that the Mandais are entitled to get vacant possession  of the property. In that case, Amar  Mondal  who was  the auction purchaser of an item of property (which  we shall  call  ’Property  A’) at a sale  by  the  Commissioner sought to be put into possession by evicting the respondents 2  to 5 "who are unauthorised occupants" and  Jagdish  Chand Aggarwala,  whose highest bid at an auction for an  item  of property  (which we shall call ’Property B’) by the  Commis- sioner could not be proceeded with because of an  injunction obtained by respondents Nos. 6 & 7, sought the orders of the Court  "for completing the sale and giving delivery of  pos- session  by evicting the respondents". So far as Property  A is concerned, the Court found, for reasons which need not be

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repeated  here, that they were "unauthorised occupants"  and not"bona fide tenants in occupation" and were, hence  liable to be evicted. Likewise, in respect of Property B, the Court concluded  that  the claims or’ tenancy put forward  by  re- spondents 6 & 7 "were frivolous". These were, therefore, not cases  where tenants were held liable to be evicted and  the order does not help the Mandais to the extent claimed.     Sri  Kapur,  however,  relies strongly on  two  sets  of observations in this order. the first reference by him is to an observation that any person claiming to have any interest in the property should file his claim within 30 days of  the attachment and that any claim made beyond this period  would be barred by limitation and hence cannot be considered.  The second reference is to an observation that the Court is 293 entitled  to  adjudicate’  upon all claims,  even  those  of persons who claim to have any bona fide intermediate  inter- ests  in  the properties attached by the  Commissioner.  The Court observed:          "In  our opinion, therefore, once an attachment  is effected by the Commissioner on the authority of his  powers vested in him by the Supreme Court, not only persons  claim- ing  right,  title  and interest  independent  of  Sanchaita Investments  but  also claiming any bona  fide  intermediate interest  created by Sanchaita Investments in favour of  the claimant  should put forward to claim of objection.  It  was not the intention of the Supreme Court that there should  be proliferation  of litigation, result whereof would  be  that the insignificant part of the depositors’ money which should be  realised by the Commissioner would be wasted in  litiga- tion. This position has been made clear by the Supreme Court when the Supreme Court by a recent order upheld the view  of the Bombay High Court that a claim of tenancy in respect  of a property attached by the Commissioner must be lodged  with this Special Bench and not before any ordinary Civil  Court. The  attachment made by the Commissioner cannot  be  equated with  an  attachment made by a Civil Court either  prior  to judgment or in execution since there what is attached is the right,  title  and interest of either the defendant  on  the judgment debtor. In the present case, however, on the Scheme framed  by the Supreme Court what is being attached  is  the property itself so that any body having any lawful claim  in whatever  interest held by him, must put forward  his  claim before  the Commissioner so that it can be adjudicated  once for  all in a proceeding before this Special Bench and  thus avoid wasting litigation. We do not accept for a moment that this court’s jurisdiction is limited to adjudication of  all claims  preferred  as  against the attachment  made  by  the Commissioner. The scope of our power must be determined with reference to the intention of the Supreme Court referred  to herein. Such power in our opinion covers adjudication of all sorts  of claims or objections for the  Commissioner’s  .at- tachment  and  sales of assets belonging to  the  beneficial ownership  of  Sanchaita  Investment  preferred  or  brought forward at any stage and also to make all inci- 294 dental and consequential orders as we may find necessary  to assist  the  Commissioner in collecting  the  assets  having regard  to the resistance faced by him from persons  putting forward any claim of his own. In that view we hold that  our power  covers a case like the present one where  even  after the objection has been overruled by this Court, others  have come forward to resist the Commissioner from effecting  sale by  putting forward a claim of tenancy. Such a claim in  our opinion,  is really an objection to the attachment  when  we

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consider  it  on its substance, that comes well  within  the scope  of our jurisdiction. It matters little  whether  such jurisdiction is invoked by the Commissioner or the  claimant or the proposed purchaser." He  submitted, on the strength of these passages,  that  the claims in the present case are liable to be dismissed (a) on the  ground  that they are time barred and (b) even  if  the claimants are found to be bona fide tenants in the property.     We are unable to agree. While, no doubt, this Court  had indicated  that claims and objections to attachments  should be filed within a period of thirty days, that period  cannot be read as if were a rigid rule of limitation prescribed  by law.  The order also only says that, if objections  are  not put  forward  within a month, the property may be  sold  and does  not preclude objections being filed after  the,  sale. Indeed,  the Division Bench did not rest its  conclusion  on this  ground  and proceeded to consider  the  objections  on merits.  We are also unable to read into the order any  con- clusion  of the Division Bench that even bona .fide  tenants are liable to be evicted from the property. If that had been so, the Bench need not have gone into a detailed  considera- tion  of the merits of the claim of tenancy put  forward  by the contesting respondents in that case. All that the  Bench observed in the passage extracted above was that all  claim- ants  to the properties subjected to attachment by the  Com- missioner,  whether  as owners or as  intermediate  interest holders  (like  tenants) or otherwise, have to  put  forward their  claims  for adjudication by the Division  Bench.  The Bench  did not proceed to hold, as suggested by  Sri  Kapur, that  the  auction  purchasers are entitled  to  get  vacant possession  of the property free from all  encumbrances  and that even bona .fide tenants can be directed to be summarily evicted from the property in pursuance of the 295 orders of this Court. We are unable to see in this order any observation that could legitimately have induced the Mandais to believe that they would be entitled to evict even  lawful tenants  from the property by purchasing it at  the  auction sale.     In principle also, this contention is not well  founded. The object of the directions given by this Court was to  cut short the proliferation of litigation and to ensure that the Commissioner  is able to gather in expeditiously the  assets of  Sanchaita which were dissipated or siphoned off  by  the persons  in charge of the firm. Thus, if the  firm’s  moneys had  been  utilised to purchase properties in  the  name  of various  individuals  benami such property had to  be  taken back  by the Commissioner from such benamidars. Also,  where the said benamidars or other persons put up frivolous claims to  the property or its possession without the semblance  of any legal title to its ownership or possession, such  claims could and should be rejected by the Court. But this  princi- ple  cannot  apply to bona fide interests of others  in  the property. For instance, suppose Sanchaita’s moneys had  been advanced  on the mortgage of an item of immovable  property, all  that  the Commissioner would be entitled,  legally  and equitably, would be to call in the mortgage moneys  (princi- pal  and  interest) and not the entire property  itself.  An auction  purchaser  of such a property cannot  get  anything higher than the interest Sanchaita itself could have claimed in respect of the property. Likewise, if Sanchiata’s  moneys had been invested in a property which had been bona fide let out to tenants, Sanchaita would have paid only the value  of the  property so encumbered and its rights in  the  property can only be subject to those tenancy rights. Sanchaita could

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not have a right in respect of the property superior to that which  its vendor had. Similar would be the  position  where Sanchaita or its benamidars had, after acquiring a property, created a bona fide tenancy or other encumbrance in  respect of  that property, in respect of independant  outsiders  who acquire  such interest for consideration. To say  that  San- chaita,  through  the  Commissioner, would  be  entitled  to vacant possession even from such tenants, or free from  such encumbrances,  would result in its being able to  realise  a larger  interest in the property than it acquired. Not  only this,  the  result of any such conclusion would  ensure  the benefit  of, not Sanchaita, but of the auction purchaser  of the  property. Having bid for and acquired the right,  title and  interest  of  Sanchaita in the property,  he  would  be enable to get vacant possession which Sanchiata, even if  it had continued to be active and properous, could not have got except by due process of law. 296 We have, therefore, no doubt that this Court, by its  orders dated 4.5.83 and 27.9.83 intended only that the firm, or the auction purchasers at the sales effected by the  Commission- ers, should be able to clear the property of trespassers and unauthorised  persons  and not that even bona  fide  tenants could  be  got evicted straight away in  pursuance  thereof. Normally,  even trespassers and unauthorised persons  cannot be  thrown out except by recourse to legal proceedings  but, having  regard  to  the large scale  dealings,  the  special circumstances  and the desperate situation, this Court  made an  exception and made it possible for the  Commissioner  to get false and frivolous claimants out of the way by a  quick procedure  but nothing more. We are, therefore,  of  opinion that  if  the  Court, on a consideration  of  the  materials placed  by the claimants or objectors, comes to the  conclu- sion  that they are not mere stooges or false claimants  but have  a bona fide fight to possession as against  Sanchaita, it  cannot direct their eviction but should leave it to  the auction  purchaser to initiate such eviction proceedings  in the  normal  course and in accordance with law,  as  may  be available to him against the claimants/objectors.     Sri  Kapur laid considerable stress on the aspect  that, unless  vacant possession can be had, no one  will  purchase any  property at the auction sales conducted by the  Commis- sioner  as no one would like to face further  litigation  to secure  possession  of the property. He submitted  that  the object  which the Court had in mind was to effectuate  sales of Sanchaita properties by assuring vacant possession with a view to secure maximum price therefore and to ensure expedi- tious return to the Sanchaita investors of as much of  their deposits  as possible and that this object would be  totally frustrated  if people were encouraged to put in  hurdles  in the  way  which will depreciate the value of  the  property. This  contention  proceeds,  only partially,  on  a  correct basis.  It is true that there should be a quick and  expedi- tious  realisation of the properties that really  belong  to Sanchaita. That is why the Court empowered the  Commissioner to  attach and sell properties that, in his opinion,  really belong  to Sanchaita though ostensibly held in the names  of others  and  also  devised a quick and  summary  method  for adjudication  upon claims and removal of  obstructions.  But this order cannot be availed of to ride rough-shod over  the rights and interests of others in the properties which  have been created bona fide. Third parties who have acquired real interests  in the property, either independent of,  or  even through,  Sanchaita cannot be called upon to give  up  their rights.  To  do so would be to do more than  merely  realise

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what 297 rightfully belongs to Sanchaitas; it would amount to confer- ring  on  Sanchaita  a better title than it  had,  in  fact, acquired.  The depositors or investors in  Sanchaita  cannot claim any such rights. It is, therefore, difficult to accept the  ground urged by Sri Kapoor as entitling the Mandais  to an interest that can ignore or override all manner of rights and interests in the auctioned properties.     For the above reasons, we are unable to accept the  plea that  the Mandais are entitled to get vacant  possession  of the  premises, irrespective of the nature of  the  interests the claimants had therein and that, on this ground alone, we should  uphold  the order of the Division Bench.  We  shall, therefore, proceed to consider how far the claim of each one of the appellants before us to continue in possession of the property, unless and until evicted in due course by  process of law, is maintainable.     Though the High Court has set out in extenso the details of  the  claims  put forward by the  various  claimants,  we consider  it necessary to set out, in some detail, the  evi- dence  put  forward by the claimants as the  principal  com- plaint of every one of the claimants is that a  considerable volume of evidence adduced by him has been summarily brushed aside by the Division Bench. We shall, therefore, proceed to do this: 1. PAUL BROTHERS     The petitioners in SLP 3258/59 have described themselves as "Paul Brothers". A complete paper book containing  copies of  a number of documents has been placed before us to  sub- stantiate  their  claim that they have been tenants  in  the premises since a very long time. These are: "(1)  A  letter addressed by one Ramakrishna Paul  to  Dilip Kumar Paul and Mihir Kumar Paul, Landlords, seeking  permis- sion  to make some alterations in the Radio  and  Electrical shop and a reply thereto dated 8.4.75 by Dilip and a similar reply  to Amar Nath Paul (Paul Brothers) in respect  of  the watch repairing shop; 298 (2)  A letter intimating "Amar Nath Paul (Paul  Bros.),  Re- pairing Shop" that Satyanarayan Paul had died on 10.8.66 and that  the  four signatories Ashok Paul,  Dilip  Kumar  Paul, Mihir  Kumar Paul and Mrs. Suchitra Kundu had  succeeded  as landlords entitled to the rents thereafter; (3)(a) A stamped deed of partnership dated 14.6.61 drawn  up by  B.M. Motilal Advocate, between Amar Nath Paul,  Robindra Nath Paul. Abani Bhushan Paul, Arun Kumar Paul, Kiron  Chan- dra  Paul  and Gopal Chandra Paul (all sons of  Mohni  Mohan Paul)  sharing  profits equally. The firm is  said  to  have started  business  in Watch Repairing and  Tailoring  w.e.f. 14.4.61  at  the suit premises under the name and  style  of Paul  Bros.  and is said to have been  registered  with  the Registrar of Firms. (b) Three stamped deeds of partnership drawn by B.M. Motilal (Advocate)  and dated 25.4.75 have also been  produced.  The first of these, of Paul Brothers (Watch Division), Amar Nath Paul,  RobindraNath Paul, shows Abani Bhushan Paul and  Rama Kishore  Paul (sons of Mohni Mohan Paul) as  having  started and been carrying on business as watch dealers and repairers since 15.4.74 in the premises sharing profits equally  with- out a formal deed till then. The second is of Paul  Brothers (Radio and Electrical Division) in which Kiron Chandra Paul, Amiya Kumar Paul, Samir Kumar Paul, Amar Nath Paul (sons  of Mohni  Mohan  Paul) and Shyama Ran jan Paul  (son  of  Lalit Mohan  Paul) are partners with Amar Nath having a 10%  share

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and  the others 22.5% share each. The deed recites that  the above  partnership started a business in radio and  electri- cals  on  15.4.74 at the suit premises as well as  at  1951, Mahatma  Gandhi Road, Calcutta without a formal deed  having been drawn up till that date. The third deed is between Arun Kumar  Paul, Benoy Kumar Paul, Gopal Chandra Paul  and  Amar Nath Paul (all sons of Mohni Mohan Paul) in respect of  Paul Brothers--Tailoring  Division with Amar Nath Paul  having  a 10%  share and the others 30% each. This deed  also  recites that the business had started earlier with effect 299 from 15.4.74 but that no formal deed had been drawn up  till then. (c)  A  deed of partnership dated 8.5. 1980, also  on  stamp paper and witnessed by B.M. Motilal, is between Kiran  Chan- dra Paul, Amiya Kumar Paul, Samir Kumar Paul (sons of  Mohni Mohan  Paul)  and  Promotho Nath Paul (son  of  Lalit  Mohan Paul).  By this deed Shama Ranjan and Amar Nath retire  from Paul Brothers--Radio and Electricals w.e.f. 13.4.80  leaving the remaining four to share the profits equally. (4)  More  than 225 rent receipts in favour  of  "Amar  Nath Paul", "Amar Nath Paul and others", or "Amar Nath Paul (Paul Brothers)"  have  been produced. They are  spread  over  the period  from 1962 to November 1987 (except October  1965  to March  1968). They are signed by S.N. Pal between  May  1962 and  September  1965, by Ashok Paul between April  1968  and October  1971, by Dilip and Mihir between October  1971  and September   1977  and by Mahamaya Devi  from  October   1977 onwards. Rent receipts from April 1962 to September 1987  in favour  of  "Amar Nath Paul", "Amar Nath Paul  (Paul  Bros.) Watch  Makers Shop" have been produced. Also copies of  rent receipts  in favour of "Ramkrishna Paul", "Ramakrishna  Paul and  others" in respect of one shop room in the  north  west corner covering the period from March 1974 onwards signed by Dilip and Mihir and Mahamaya Devi are also produced. (5) Rent receipts and a deposit receipt showing that a third shop situated in the north west corner of the ground  floor, previously occupied by one Tarak Nath Roy, was taken over by the  Paul  Bros. at a rent of Rs.75 p.m.  in  December  1973 after  purchasing  the  assets of  the  earlier  tenant  for Rs.200. (6) Three electricity bills of October ’69, January ’75 and 300 May ’88 in respect of the premises issued in the name of one D.P. Paul, claimed to be an uncle of the Pauls and Electric- ity  bills in the name of Paul Bros Radio Division of  April ’80 and April ’88 have also been produced. (7) Three telephone bills of 1969, 1973 and 1977 in the name of Paul Brothers (and three electricity bills of March  ’74, March  ’77 and February ’88 in the name of Tarak  Nath  Roy) have been produced. (8)  Receipts  dated 2.5.61, 10.5.62,  7.5.63,  25.3.72  and 28.12.87  by the Corporation of Calcutta being fees  in  re- spect  of the Tailoring Shop in the premises for  the  years 1961-62, 1962-63, 1963-64, 1971-72 and 1987-88 in favour  of Paul Bros. (Partners Sri Arun Kumar Paul and others). Corpo- ration  Receipts ( 18 in number) for trade licence  fees  in respect of radio and watch business carried on in the  prem- ises covering the years 1962-63 to 1987-88 (except  1984-85, 1981-82, 1980-81, 1975-76, 1972-73 and 1971-72) in the  name of  Paul Bros. are produced. These describe the partners  of the firm differently as "Amiya Paul and others", "Arun Kumar Paul  and  others"  and "Amar Nath Paul and  others"  7  fee receipts for trade licences issued to the watch division  of Paul  Bros. covering the years 1987-88,  1986-87,   1985-86,

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1983-84,   1982-83,   1981-82,  1980-81,  1979-80,  1978-79, 1977-78, 1976-77, 1975-76 and 1974-75 describe the  partners as  "Rabindra  Nath  Paul and others". There  are  also  fee receipts  in respect of licence fees for the years  1961-62, 1971-72, 1972-73, 1987-88 in respect of the watch  repairing shop in the name of "Paul Bros. (Amar Nath Paul & Others)". (9)  A letter dated 17.7.70 addressed by the  Government  of West Bengal to the Accountant General, copy endorsed to  M/s Paul Brothers at the address of the suit premises and  other correspondence  between  1970 and 1973  with  the  tailoring division of the said firm at the same address. Copies of two letters addressed to the radio and watches 301 shop  of Paul Bros. at this address between July  1965  have also been produced. (10) Challans for payment of self-assessment tax of  Rs..190 for  assessment  year 1976-77 by  Paul  Brothers  (Tailoring Division)  on 12.8.76 from this address. Also  produced  are certificates  from the Income Tax Department that the  three Paul Bros. at the above address are being assessed to income tax since assessment year 1975-76/1976-77. (11)  Orders u/s 158 and demand notices u/s 156 of  the  In- come-tax  Act in respect of assessment years 1969-70,  1968- 69,  1967-68  have been produced, the former of  which  evi- dences  the  constitution of Paul Bros. A  declaration  have been  filed  before a Presidency  Magistrate,  Calcutta,  on 26.8.65 by some of the Pauls referred to above to the effect that they are the partners in the firm from 14.4.61 and that they  have  filed income-tax returns for  three  years.  The declaration also states:           "2.  That  we have been carrying  on  business  as tailors, watch repairers and sellers of cut piece cloth  and watches from 1st day of Baisakh, 1368 B.S. and also we  have started  radio manufacturing/sales/service  department  from second year of our business i.e. 1369 B .S. We have no other business save and except those mentioned in this  paragraph, this is true to our knowledge". (12)  Documents  showing the registration of  the  following firms with the Registrar of Firms: Date          Firm 10.1.74 Paul Bros. (Watch) Division) 10.6.74 Paul Bros-              (Radio and Electrical Division) 20.9.61 Paul Bros. 302 (13)  A central excise licence dated 20.1.1965 and a  postal department  licence of 24.8.62 in respect of the  radio  and electrical  shop in the name of Paul Bros. with Shri  Kitart Chandra Paul as a partner. (14)  Several letters, notices, receipts etc. from  the  In- cometax Department and Central Excise Department as well  as correspondence from the Life Insurance Corporation of  India and premium receipts have been produced but these are not of much  help except to show that they were addressed  to  Paul Bros. or Arun Kumar Paul or Rabindra Kumar Paul or Amar Nath Paul or A.K. Paul or Amarendra Nath Paul and others or Abani Bhushan Paul or Kiran Chandra Paul, or Gopal Chandra Paul at the suit premises. (15) Extracts from the assessment registers of the  Corpora- tion of Calcutta for two years. The first of these shows the name of the owner as Avamoyee Paul and that of the  occupier as  Taraknath Roy and others. Endorsements thereon show  the calculation of the annual value on the basis of the  follow- ing rents:                               Rs. p.m.

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"I   Tarak Nath Roy           25.00      Panchanan Dutta          25.00      (Watch Shop)             41.00      (Tailoring Shop)         44.00                                7.50                                7.50 II   Phani Bhusan Ghose        45.00 III  Owner                      45.00                             --------------                                240.00"                             -------------- The second of these documents shows the name of the owner as "Estate of Avamoyee Paul C/o Shri Mihir Paul 303 and  Brothers" but this is struck off and replaced by  "Smt. Mahamaya Devi (In the premises)". Against the column  "occu- pants"  the name of Taraknath Roy and others is replaced  by "Smt. Mahamaya Devi and others". This extract also contains, what  apparently are later, endorsements of details as  fol- lows: "R.S. (Road Side) Shops                                         Rent p.m.       I    Ramakrishna Paul             says  75            (Goldsmith)            (Radio Amarnath Paul         "     48            (Tailoring) Paul Bros.       "     48            (Goldsmith Panchanan         "     44            Dutta (Dulal Dutta) 2. DULAL CHANDRA DUTTA     The tenancy in respect of a backside shop on the  ground floor  is claimed as having belonged initially to  two  per- sons,  Panchanan and Dulal Dutta. Of these, Panchanan  Dutta appears to have died in 1981 and it is only Dulal Dutta  who is the claimant now. He states that the property belonged to Satya  Narain Paul then to Dilip Kumar Paul and Mihir  Kumar Paul and then to Mahamaya Devi. In the case of this claimant there is no direct evidence of tenancy in the form of a rent deed  or rental agreement. About 51 rent receipts have  been produced but all these receipts purport to have been  issued only  by Mahamaya Devi. No receipts have been  produced  for any  earlier  period though the claimant says  he  has  been tenant  of  the property since 1973; it is stated  that  the rent receipts issued in the joint names by Dilip Kumar  Paul and Mihir Kumar Paul are missing from his custody. The  High Court  has  said  that there  are  several  inconsistencies, defects  and errors in the receipts that had  been  produced and,  though  a number of other documents have  been  placed before  us  here, none of these receipts or  copies  thereof have  been produced. According to the  claimant’s  affidavit filed before the High Court, he started his work as a  gold- smith in the premises in 1973, the tenancy of which stood in the name of one Panchanan Dutta and that he also contributed rents to 304 Panchanan  Dutta "who used to pay the rents in his  name  to the  owner of the premises". No receipts in the joint  names of Panchanan Dutta and the claimant have been produced.  The extracts  from  the records of the Corporation  referred  to earlier show Panchanan Dutta as the occupant and the  claim- ant’s name does not figure therein. The claim of tenancy is, however,  sought  to be established by the  following  docu- ments: (a)  A  certificate of the Gold Control  Authority  of  1976 recognising  the claimant as a goldsmith with his  place  of business and residence at 6, Doctor’s Lane, Calcutta  subse-

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quently shifted to the suit premises w.e.f. 4.11.81; (b) A certificate from the Bangia Swarna Silpi Smithi  dated 12.8.75  showing  the claimant’s place of work at  the  suit premises and a letter of 13.11.1987 from the Samithi stating that  the  claimant has been maintaining a Khata  under  the Gold Control Act from 1976; (c)  A  petition for remand by the police dated  18.9.75  in connection  with  a  criminal case  showing  the  claimant’s address at the suit premises; (d)  A search list of 23.9.75 on complaint no. 657  u/s  380 I.P.C.  showing  that certain items were seized  from  Dulal Dutta’s  shop in the suit premises; and a petition from  the prosecution  seeking impleadment of Dulal Dutta of the  suit premises as a co-accused in connection with the above case; (e) A letter from the Police of a complaint from the  Corpo- ration against the claimant for not having obtained a  trade licence  for  1979-80 in time and a  municipal  licence  fee receipt dated 19.12.80 in respect of the year 1978-79 issued by the Corporation of Calcutta in favour of the claimant and Panchanan Dutta; (f) A summons issued by the Corporation to the claimant on 305 6.2.81 showing his address as at the suit premises; and (g)  A letter dated 10.6.81 by the claimant to the  Superin- tendent, Central Excise asking for a change of address  from Doctor’s Lane to the suit premises. (h)  An extract got in 1988 from the assessment book of  the Corporation which shows Smt. Mahamaya Devi as the owner  and Shri  Phani Bhusan Ghose, Shri Amarnath Paul and Shri  Dulal Dutta  as the occupants. This purports to be the entry  with effect from 3/66-67 to 4/88. 3. PHANI BHUSAN GHOSH     Phani Bhusan Ghosh, who claims tenancy in respect of the first  floor  of the suit premises comprising of  three  bed rooms and one sitting room besides other conveniences. Ghosh is  a  retired Government servant. He claims  to  have  been inducted  as  a  tenant in 1948 by Satyanarayan  Paul  at  a monthly rent of Rs.75 p.m. According to him, on the death of Satyanarayan,  his  son Ashok Paul used to  grant  rent  re- ceipts;  thereafter,  consequent on a  partition  among  the heirs of Satyanarayan, Dilip Kumar Paul and Mihir Kumar Paul used to issue the receipts until, in October 1977, they sold the  suit premises to Mahamaya Devi. Though it iS not  clear whether there was any original tenancy agreement in 1948 and no rent receipts of that time have been produced, the claim- ant relied on the following documents in support of the plea of tenancy: (a) A photo copy of a certified copy of the plaint in Eject- ment Suit No. 1095/61 filed by Satyanarayan Paul against the claimant for eviction and khas possession which recites that the claimant was a tenant of Satyanarayan in respect of  the premises; (Incidentally, the schedule to this deed refers to Taraknath  Roy, Panchanan Dutta, Dulal K. Dey  and  Amarnath Paul (Paul Bros.) as the tenants on the ground floor). (b) An undated letter from Dilip Kumar Paul and Mihir Kumar 306 Paul  informing the claimant of the sale of the Premises  to Mahamaya Devi and a letter dated 9.10.77 from Prabir Kar, an Advocate  on  behalf  of Mahamaya Devi  asking  claimant  to attorn  to Mahamaya Devi as she had purchased  the  property from the two Pauls; (d)  Three  receipts  issued by Ashok Paul  in  1969,  three issued  by  Dilip and Mihir in 1971, 1976 and 1977  and  two issued by Mahamaya Devi for July’ 78 and September’ 87; (e) A certificate dated 4.1. 1988 from the Geological Survey

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of  India stating that the address of the claimant had  been recorded on 20.3.52 in its official records as being at  the suit premises. 4. HARI NARA YAN GUPTA     This  person  claims tenancy in the  second  floor.  One feature that distinguishes this claimant from others is that he claims to have been a tenant in the property under  Maha- maya Devi since 1982. The plea of Gupta is that he became  a tenant  of the flat on the second floor under Mahamaya  Devi on  a rent of Rs.350 p.m. vide an agreement  dated  7.1.1982 and  that he had been regularly paying the rent to her  ever since  upto  September 1987. The agreement  produced  is  an unregistered  agreement.  There are only two  rent  receipts dated January 1983 and September 1987 produced in support of the  claim.  The photostat copies of the  extract  from  the records  of  the  Corporation which have  been  referred  to earlier  show  the occupants as Mahamaya Devi and  then  one Harindra Nath Chakraborty. H.N. Gupta claims to be running a tea  stall  on  S.P. Banerjee Road and to  have  taken  this premises on rent.     We shall now consider the claims of each of these claim- ants individually, starting with Hari Narayan Gupta. 1. Hari Narayan Gupta: Sri  Kapur  contended  that since it has  now  been  finally decided 307 that Mahamaya Devi never really owned the premises  herself, she  could not have validly created a tenancy in  favour  of Gupta. We do not think this conclusion necessarily  follows. It  is true that the finding that Mahamaya Devi was  only  a benamidar  for  Sanchaita has become final but it  does  not follow that any tenancy created by her is invalid, unless it can  be shown that, in creating such interest, she acted  in breach  of trust and contrary to the interest of  Sanchaita. If  she had put Gupta in possession of the property  as  her stooge or, if Gupta had taken the property from her on  rent collusively or with full knowledge that the property  really belonged  to Sanchaitas the position would be different  but if  Gupta is an independent third party with no such  notice or  intention and had been inducted by her as a tenant  bona fide, all the Sanchaita can claim is that she should account to  firm for the rents derived by her from the  property  in the  past and that the firm or the Commissioner or the  auc- tion  purchaser  should be entitled to the  rents  from  the property  as from the date of its attachment by the  Commis- sioner.     Examining  the facts and the evidence from the  perspec- tive,  it does seem that Gupta has not been able  to  adduce any evidence to satisfactorily establish that he was a  bona fide tenant under Mahamaya Devi. It is difficult to  believe that  this tea-stall owner took the suit premises on a  rent of  Rs.350  from Mahamaya Devi. There is  no  consistent  or satisfactory  evidence of such tenancy. We are  inclined  to agree  with the conclusion of the High Court that Gupta  was not  a bona fide tenant in the property as claimed and  that he is liable to evicted from the premises. 2. Dulal Dutta:     Turning  next to the case of Dulal Dutta, we  have  gone through  the  documents placed before us carefully  and  are constrained to observe that this claimant has also not  been able to establish his bona fide tenancy of the premises. The original  trade licence shows that the claimant had  started his  business at No. 6, Doctor’s Lane and that this was  got changed  to the address presently in question only  in  1981 but,  according to him, he had started working at  the  suit

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premises even in 1973. The police remand papers and corpora- tion  notices no doubt indicate that the claimant was  found at this address in 1975 and 1978- 308 79  but  these papers are not sufficient  to  establish  the claimant’s  plea of tenancy. Admittedly, even  according  to him. Panchanan Dutta was originally the tenant of the  prem- ises  and  the claimant seems to have had some  working  ar- rangement  with  him, Panchanan Dutta is said to  have  died sometime  in 1981 and the change of address for excise  pur- poses  seems to show that the claimant moved into the  prem- ises wholly thereafter. But the question is not whether  the claimant  was in occupation of the premises but  whether  he was  a  bona fide tenant therein. As to this,  there  is  no proof or evidence except the few odd rent receipts  purport- edly  issued by Mahamaya Devi the genuineness of  which  has not been accepted by the High Court. It was argued that even if  Dulal  Dutta is treated as a sub-tenant or as  being  in adverse possession, the landlords’ right to evict him  would be  time  barred. But neither of these stands was  taken  by Dulal  Dutta  and his adverse possession, even  if  claimed, could  not  have started before 1981 and so no  question  of time  bar  could arise. In the circumstances,  we  are  con- strained  to  uphold the findings of the Division  Bench  in respect  of  the portion of the suit  premises  occupied  by Dulal Dutta. 3. Phani Bhusan Ghose:     We  next  turn  to the case of Phani  Bhusan  Ghose.  On behalf  of the Mandals, it is submitted that the  pieces  of evidence  relied on by the  claimant amount to nothing.  Sri Kapur submits that, as per the extracts from the Corporation records  filed in the case, one Avamoyee Paul was the  owner of  the premises in 1948 and there is nothing to  show  that either  Satyanarayan Paul or his legal heirs were  ever  the owners  of  the property. The partition deed  has  not  been produced. The rent receipts produced contain lacunae, errors and inconsistencies. The genuineness of the receipts and the letters  produced is not accepted. Advocate Prabir Kar,  who is alleged to have sent the attornment notice, is alleged to be  a reputed agent of Sanchaitas. So far as the  plaint  of 1961  is concerned, he points out, there is  no  explanation given  as to what made the claimant obtain a certified  copy of  the plaint in 1972 and there is also no evidence  as  to the  outcome  of  the suit. The records  of  the  Geological Survey had not been summoned and it is also curious that the claimant  has  produced a certificate of 1988  to  show  the claimant’s  address  in 1952 but not his recent  or  present address as recorded therein. We are of opinion that these objections cannot be sustained. 309 Leaving aside the rent receipts and other correspondence the authenticity of which cannot be taken for granted, there  is enough  evidence to sustain the claim of the applicant.  The certified copy of the plaint shows that Ghosh was tenant  of the  first floor under Satya Narayan Paul who claimed to  be the  owner  of the premises. It does not show  that  he  was tenant  since  1948 but read, with the  certificate  of  the Geological Survey of India, it does show that Ghosh was  the tenant between 1952 and 1961 in the premises. No  foundation has been laid and no material has been adduced to show  that the  copy  of the plaint is not genuine or cannot  be  acted upon  or  that there was no such suit in  1961  between  the parties  as alleged. What happened to the suit or  what  de- fence  was raised by Ghosh to the suit is irrelevant in  the absence of any suggestion, or any material to indicate, that

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Ghosh  had  been in fact evicted in pursuance of  the  order passed  in the suit by the date of the present  proceedings. There  is  also no information placed before us  as  to  the persons who were the legal representatives of Avomoyee  Paul or that Dilip and Mihir did not at all because the owners of the property. On the other hand, the extract from the Corpo- ration records at the relevant time, shows the owner of  the premises to be: "Estate of Avamoyee Paul c/o Sri Mihir Paul and Bros." This indicates a connection of Mihir Paul with the  premises and the sale deed of 1977, the genuineness of which is  not. and cannot be, in dispute (for that, verily, is the basis of the  title of Sanchaita to the property in  question)  shows that  she  purchased  it from Mihir and  Dilip.  It  is,  of course,  theoretically possible that Ghosh had been  evicted from  the  premises by Satyanarayan and  that  the  receipts produced  from  Dilip and Mihir as well as  the  letters  of authority produced are not genuine. But this is a far-reach- ing assumption and it cannot be presumed that all these  are got-up  documents,  in  the absence of  some  foundation  or material  for the suggestion. In our opinion,  the  claimant has let in sufficient material to show that he was a  tenant in  the premises long before Mahamaya Devi entered into  the picture. 4. Paul Brothers:     Now turning to the case of Paul Brothers, our  narration above shows that there was a mass of evidence adduced by the parties in 310 support  of  their tenancy in the premises since  long.  The grievance of these--and indeed also the other--claimants has been that the High Court has failed to apply its mind to the evidence produced in support of each of the claimants. It is submitted that an analysis of the judgment of the High Court (which  runs  to 52 pages) will show that  the  High  Court, after setting out the preliminary facts, the contents of the affidavits, counter affidavits and rejoinder affidavits  and the  contentions of the respective counsel in great  detail, has disposed of the entire case with the following  observa- tions appearing on the last page of the judgment: "On the basis of the intrinsic evidence and when the ’Corpo- ration’  records,  produced on behalf  of  the  Respondents, being  incompatible with the rent receipts,  their  inherent inconsistencies  do not appear to us to be trust worthy,  it would  appear that the submissions of Mrs.  Paul,  regarding the character and quality of rent receipts as produced  now, were of substance and we also feel that the story of  tenan- cies  were  subsequently sought to be  established  for  the purpose of avoiding the effect of the auction sale and  that too,  not  in a bona fide manner. We are  of  the  confirmed opinion  that in terms of the determinations of the  Hon’ble Supreme  Court  of India, as followed earlier by  a  Special Division  Bench of this court in Jagadish  Agarwalla’s  case (supra),  this court is not so powerless to make  orders  in terms of the prayers as made in the petition and that too in the  facts  of the present case and as such, we  allow  this application and direct the Respondent Commissioner, to  take such steps, so that, forthwith vacant possession of the said premises is handed over to the petitioners i.e. the purchas- ers  in the auction sale. We also have it on record that  if necessary,  the Respondent Commissioner would also be  enti- tled  to  take  appropriate Police help  and  assistance  in having Respondent Nos. 2-8 removed from their claimed  occu- pation  of  the said premises or to break open  any  padlock which is there or which has been put in now."

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It is submitted that the High Court does not discuss why and in  what respects the Corporation records  are  inconsistent with the rent 311 receipts, what the inherent detects and inconsistencies were in the rent receipts produced and why the story of tenancies is  considered  to  be an after thought. There  is  also  no reason  given  for the rejection of  the  innumerable  other pieces of evidence produced by the claimants.     On  the other hand, the complaint of Sri Kapur has  been that  the claimants--Paul Brothers, in particular--had  been placing  documents  before the Courts in driblets.  Most  of these  were in the nature of Xerox copies with no  guarantee of their authenticity. He points out that the entire collec- tion  of receipts, purporting to be from Satyanarayan  Paul, Ashok  Paul  and Dilip and Mihir--not to speak  of  Mahamaya Devi--could easily have been written up for the purposes  of the case. In his submission, they have indeed been so  writ- ten up at one or more sittings and these are revealed by the inconsistencies  and discrepancies, some of which have  been pointed  out before the High Court by Mandal’s  counsel  and referred in the judgment. It is unfair, argues Sri Kapur, to say that the Division Bench has not applied to the facts  of the individual cases. These having been fully brought out in the earlier parts of the judgment with special reference  to the  defects pointed out and criticisms made by the  counsel for Mandals, the High Court did not consider it necessary to repeat the same again m the concluding part of the judgment. He  says that the Division Bench had occasion to  deal  with similar claims in regard to various other properties and has assessed the entire evidence in the light of its  experience regarding the various devices employed to put forward osten- sible  third parties as obstructors. The criticism that  the judgment,  High Court’s reasoning is brief and  cryptic,  he submits,  is  based on a total misconception and  should  be rejected.     Sri Kapur then drew our attention to the’ infirmities in the  case put forward by the claimants, both procedural  and substantive. He says that it is only in this Court, for  the first time, and that too, after this Court called upon  them to  do  so,  that the Paul Brothers have  attempted  to  put forward a chronological version of the history of tenancy of the  three shops allegedly taken on rent by  them.  Earlier, they  merely produced a few receipts and  correspondence  in the name of  Paul Brothers--a convenient label enabling them to explain away documents of different dates in the names of different  persons  who  were all "Pauls" and  to  create  a confusion  between  Avamoyee Paul (shown originally  in  the municipal records), Satyanarayan Paul and his 312 alleged  relatives Dilip and Mihir, and the different  Pauls who were alleged to be partners in Paul Brothers on  differ- ent dates. Also, many documents (such as the income-tax  and customs  department  notices, assessment  and  certificates) have  been  produced in this Court and  were  not  produced’ before  the High Court. Per contra, certain documents  (such as the first affidavit dated 14.11.87, the 1974  partnership deeds and a letter dated 5.4.75 from Ram Krishan Paul to the landlords) produced before the High Court have been deliber- ately suppressed from this Court. Sri Kapur submits that the most  crucial circumstances in the present case is that  the objections  of Mahamaya Devi to the attachment and  sale  of the  property did not contain even the whisper of a  sugges- tion  that  there were not one or two but as many  as  seven tenants  in the property. If this had been a fact, he  says,

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she  would  not have failed to say so  emphatically  in  her objections. Sri Kapur points out that the basic case of  all the  claimants is that the premises originally  belonged  to one Satyanarayan Paul, that on his death five persons inher- ited the property, that on partition among them the property came  to  Dilip and Mihir (mentioned,  perhaps  wrongly,  as Dulal  Chandra  Paul in the affidavit of  14.11.  1987)  who conveyed  the property to Mahamaya Devi. The  whole  edifice crumbles, he points out, as even according to the  municipal extracts  produced  by the claimants,  neither  Satyanarayan Paul  nor  Dilip and Mihir have been ever  recorded  as  the owners  of the property. The version of  undated  attornment letters, partition and Prabir Kar’s letter was not attempted to  be proved by producing even an affidavit from  Dilip  or Mihir or Prabir Kar. Even an affidavit from Mahamaya Devi is conspicuous  by its absence. Above all, says Sri Kapur,  the case of the claimants regarding the constitution and  nature of business of Paul Bros. and the evidence in support there- of as put forward at various stages bristles with  inaccura- cies and inconsistencies which justify its rejection.  These were  pointed out before the High Court in detail  and  have been set out in the judgment. Some of these are as follows:          The  business has sometimes been described  as  one business  (SLP  and  affidavit of  2.11.88,)  and  sometimes (affidavit of 14.11.87) as separate businesses with separate partners  and  separate deeds of partnership.  The  date  of commencement  of each of these businesses have been set  out differently in the different affidavits and go back to 1958, 1959,  1962, and 1973. These do not talks with the  partner- ship  deeds  of 1974 which shows the  businesses  as  having started only on 15.4.74 which in 313 turn,  is  belied by the production of a deed of  1961.  The names of the partners are also not given consistently. While Ramakrishna  Paul  is a partner of the radio  and  tailoring firms  as per the affidavit of 2.7.88, he is not one as  per the affidavit of 14.11.87. So also K.C. Paul is a partner of the tailoring firm according ’to 1988 affidavit but is  not, according to the earlier one;        (2)  In the affidavit dated 14.11.87,  the  claimants had  stated that they had been able to locate,  after  great effort, a few municipal trade licences and produced eight of them. But late, r, with the second affidavit, they  produced a few more. How this has been done has not been explained;        (3)  It  is not explained how the  electricity  bills stand in the name of Taraknath Roy and D.P. Paul and how the electricity bill in the name of Paul Brothers dated  13.3.80 shows an electricity connection having been obtained for the premises only on that date though the claimants were said to have been running the business there since 1973;        (4)  The telephone bills again are not helpful.  They contain  the name of one M.S. Paul for which no  explanation has  been given. One of the bills shows the installation  of telephone  in the premises even in 1958 though according  to the claimants the business in the premises started earliest, only in 1959. Also the bills give the number of the premises as No. 52/1/1 and not 52/1/1B;        (5)   The  rent  receipts  have  been   produced   in driblets--six  with the affidavit of 1987  and 44  with  the affidavit  of  July 1988--while with the SLP  only  17  rent receipts  have been annexed. Some of the receipts date  back earlier than 1974 though according to the partnership deeds, the business of the firms commenced only in April 1974.  The rent  receipts bear almost continuous serial numbers.  There are  several  discrepancies: for example,  a  receipt  dated

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6.8.77  bears no. 59 whereas one dated 10.6.77 bears no.  60 and  there  are two rent receipts for July  1977.  The  rent receipts in favour of Paul Bros. (Electricals) are in the 314 name of R.K. Paul who is not a partner therein according  to the  deed and who is referred to in the Corporation  records as a goldsmith. There is no rent receipt from Avamoyee  Paul or her estate and Satyanarayan Paul, Ashok Paul, Dilip  Paul or  Mihir  Paul are not recorded as owners. There is  not  a single  affidavit by any of the signatories to the  receipts vouching for their genuineness;       (6i  There  is no effort by these three or  the  other claimants  to  pay the rents, after the  attachment  of  the premises,  either  to the Commissioner or  to  the  Mandals. Their case that they did not know about the attachments  was false;       (7)  There  is no difference between the case  of  the claimants  in  the cases of Amar Mandal and  Jagdish  Prasad Agarwalla and that of the various claimants herein.     We  have  carefully considered the  contentions  of  the parties.  It is true that, some of the grounds of  criticism of  the  evidence  produced by the claimants  are  valid.  A certain  amount of difficulty has been caused by the  uncer- tainty  as  the nature of the proceedings conducted  by  the High  Court  in  pursuance of the order of  this  Court.  It appears  that the Court has produced to consider the  issues in  a summary manner on the basis of the affidavits  of  the claimants and on prima facie consideration of the  documents formally as well as informally produced in support  thereof. The  enquiry  has been somewhat analogous to  the  procedure which  used to be adopted in disposing of petitions  by  ob- structors under the Code of Civil Procedure, 1908,  ’(before its amendment in 1976) which concluded in a tentative  find- ing leaving it open to the parties to file a suit and estab- lish their right to possession. On the other hand, if  these are taken to be in the nature of proceedings for the  execu- tion of a decree under the amended code, there will have  to be a more detailed trial with full opportunity to parties to lead evidence and to examine and cross-examine witnesses, as a  finding reached in these proceedings would be  final  and conclusive.  In the present case, the application  has  been disposed of somewhat summarily and informally. At one stage, therefore, we were inclined to think that the matter, so far as  the Pauls are concerned, should be remanded to the  High Court for fresh disposal. But, on further consideration,  we have come to the 315 conclusion  that  there  is sufficient  material  placed  on record by the claimants to show that Paul Bros. have been in the  premises as tenants since long and that no such  remand is  necessary. Taking all the documents collectively, it  is difficult  to  say that one could reasonably arrive  at  the conclusion  that the Pauls were trespassers or  unauthorised occupants. The Mandals have done nothing positive to  estab- lish this but to barely deny the genuineness of the  various documents put forward on behalf of the claimants.     One  direct  piece of evidence is the extract  from  the municipal  records.  It was suggested  that  the  photostats produced  could  not  be relied upon and  that  the  entries therein could have been reproduced by some process of super- imposition. However, it has been found that, apart from  the photostat copies, the original records were summoned  certi- fied extracts produced by the representative of the Corpora- tion have been taken on record. These extracts which  relate to the relevant period show the Paul Bros. as tenants in the

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three shops. It is true that the estate of Avamoyee Paul has been shown as the landlords but the entry contains a  refer- ence to Mihir Paul and, admittedly, Mahamaya Devi  purchased the  property  from  Dilip and Mihir.  Letters  calling  for attornment  and  rent receipts galore  have  been  produced. Though one cannot eschew the possibility of these being  got up documents, some foundation must be laid by the Mandals to reject  them other than a mere assertion that they  are  not genuine.  The discrepancies suggested are few and minor  and do not warrant the summary rejection of the large  number-of receipts. The electricity bills, phone bills, tax department correspondence likewise prima facie support the claim of the appellants.  The mistakes pointed out in the  telephone  and electricity bills are insignificant. The bills are made out’ not in the name of M.S. Paul but M/s Paul Brothers and  D.P. Paul  is said to be an uncle of the Pauls.  These,  together with the partnership deeds and municipal licences and corre- spondence  the  genuineness  of  which  cannot  be  rejected straightaway, support the claim. No doubt there is a  slight discrepancy in that the 1961 deed is not referred to in  the 1974 deeds but this cannot entail the rejection of the  1961 deed. We do not wish to elaborate on every one of the  other points made by the counsel for the Mandals. It is true  that Mahamaya  Devi did not refer to them in her  objections  but she  was concerned about saving "her" property from  attach- ment and sale as that of Sanchaitas and the issue about  her having let out the property was irrelevant for the  decision of her objections. We are satisfied that even in the face of the evidence produced 316 before  the High Court (which has been supplemented in  some respects before us) it is difficult to treat the Paul  Bros. as trespassers or unauthorised occupants in the property.     In  the result, the appeals of Paul Brothers  and  Phani Bhusan  Ghose are allowed while those of Hari Narayan  Gupta and  Dulal Chandra Dutta are rejected. We, however, make  no order as to costs. S.B.                                                Petition allowed. 317