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CASE NO.: Appeal (civil)  6408 of 2002

PETITIONER: Sudhir Jaggi & another

RESPONDENT: Sunil Akash Sinha Choudhury & others

DATE OF JUDGMENT: 11/08/2004

BENCH: ASHOK BHAN & S.H. KAPADIA.

JUDGMENT: J U D G M E N T

WITH

CIVIL APPEAL No.2507 OF 2004.

Shashi Properties & Industries Ltd.             \005    Appellant        

Versus

Sunil Akash Sinha Choudhury & others    \005    Respondents

KAPADIA, J.

       These two civil appeals are filed by the defendants who  were aggrieved by the judgment and decree passed by the  learned Single Judge of Calcutta High Court dated 27.9.2001 in  Suit No.161 of 1979 ordering repossession in favour of the  plaintiffs and which judgment and decree is confirmed by the  impugned judgment of the Division Bench of the Calcutta High  Court dated 16.7.2002 in A.P.D. No.220 of 2002.

       Briefly, the facts giving rise to these appeals are as  follows:\027         Plaintiffs are the two executors of the will of one P.K.  Chowdhury (since deceased) who agreed, vide agreement dated  8.5.1965, to purchase two flats no.12C and 12D on the 12th  floor of the building known as "Monalisa" situate at Camac  Street, Calcutta along with two garages on the ground floor for  the total consideration of Rs.2,34,168/-, out of which the  deceased P.K. Chowdhury paid Rs.2,22,168/-. Originally, it  was agreed that two flats would be allotted by the developer  (defendant no.1) to P.K. Chowdhury on 8th floor.  That  agreement was varied and it was agreed that the two other flats  would be allotted on the 12th floor.  Similarly, the said two  garages, as agreed upon, could not be allotted due to technical  defect in the construction, so an alternative larger space was  allotted at an increased price.  Later on, P.K. Chowdhury  constructed two complete locked up garages.  Apart from two  flats, P.K. Chowdhury purchased three rooms spaces in the  ground floor.  In respect of flat nos.12C and 12D, it was  originally agreed between the developer and P.K. Chowdhury  that the developer would carry out all internal works in  accordance with the suggestions of P.K. Chowdhury.   Subsequently, that condition was varied and it was stipulated by  and between the parties that P.K. Chowdhury would himself  make internal changes at his own costs, for which the developer

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agreed to give a rebate.  In May, 1967, the developer gave  possession of the said two flats which then consisted of outer  walls on four sides without any partition, doors and windows.    On obtaining possession, P.K. Chowdhury erected walls,  partitions, doors, windows and collapsibles at his own costs.   These works were of permanent nature.  On or about 10.1.1968,  accounts between P.K. Chowdhury and the developer were  settled.  Rs.12000/- was found due and payable by P.K.  Chowdhury to the developer being balance amount in full  settlement of the consideration for the flats and garages.  P.K.  Chowdhury agreed to pay Rs.12000/- to the developer upon  execution of conveyance in his favour for the two flats. In  December, 1975, however, the developer instituted a suit in the  City Civil Court, Calcutta being suit no.2180 of 1975 for  permanent injunction restraining P.K. Chowdhury from  interfering with his alleged possession.  The said suit was  dismissed, as not maintainable.   

       On 10.2.1979, the appellants herein wrongfully and  illegally broke into the said two flats and obtained wrongful and  forcible possession of the two flats.  P.K. Chowdhury came to  know of the dispossession on 12.2.1979.  On 12.3.1979, he  filed the present suit.  In the present suit, the developer  contended that P.K. Chowdhury was never given possession of  the suit flats; that he was given access to execute certain  masonry works in the said two flats; that P.K. Chowdhury did  not pay the full consideration and consequently, he had sold  both the suit flats to original defendants no.2 and 3 (appellants  in Civil Appeal No.6408 of 2002), who were put in possession  of the two flats on 3.1.1979 from which date defendants no.2  and 3 have continued to be in possession thereof.

       In the present suit filed on the Original Side of the High  Court, extensive evidence, both oral and documentary, was led.  On behalf of the plaintiffs, PW1 \026 the wife of P.K. Chowdhury  was extensively examined.  PW1 in her evidence stated that  possession of the two incomplete flats was given to her husband  in terms of the modified agreement under which P.K.  Chowdhury had agreed to execute the work of permanent  nature at his own costs subject to rebate from the developer.   That when possession was given to her husband, the flats in  question were not habitable.  That P.K. Chowdhury had erected  the walls, doors and windows.  That he had put the collapsibles  which were kept locked.  That the keys to the suit flats were  with her husband.  PW1, in her evidence, further deposed that  P.K. Chowdhury had paid Rs.2,22,168/- leaving a balance of  only Rs.12000/-, which was to be paid on the date when the  developer executed the conveyance in favour of P.K.  Chowdhury.   

       In the light of the above evidence, the learned Single  Judge came to the conclusion that dispossession had taken place  on 10.2.1979 and, therefore, the suit filed on 12.3.1979 was  within the period of six months as prescribed by section 6 of the  Specific Relief Act, 1963.  The learned Single Judge further  found that there was no evidence of agreement between the  developer and defendants no.2 and 3; that there was no  evidence of consideration having been received by the  developer from defendants no.2 and 3; that there was no  evidence of delivery of possession by the developer to  defendants no.2 and 3.  In the circumstances, the suit filed  under section 6 of the Specific Relief Act, 1963 by the  executors of the will of P.K. Chowdhury was decreed in terms  of prayers ’a’ and ’b’.          

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       Being aggrieved by the judgment and decree passed by  the learned Single Judge dated 27.9.2001, the matter was  carried in appeal to the Division Bench of the Calcutta High  Court.  By the impugned judgment dated 16.7.2002, the appeals  preferred by the original defendants came to be dismissed.   Consequently, the developer (defendant no.1) has come by way  of Civil Appeal No.2507/2004 whereas purported bonafide  purchasers (defendants no.2 and 3) have come to this Court by  way of Civil Appeal No.6408/2002.           Since, common question of fact is raised in these civil  appeals, the same are heard and disposed-of by this common  judgment.

       Mr. N.S. Vasisht, learned counsel appearing on behalf of  the developers submitted that P.K. Chowdhury was never put in  possession of the suit flats and that he was given only an access  to supervise the interiors. It was submitted that P.K.  Chowdhury was keen to have the interior dicor inside the flats  of his choice, for which access was provided for.  That such  access cannot constitute control or dominion or possession of  the suit flats.  It was further urged that P.K. Chowdhury was  entrusted with the work of completing the flats on behalf of the  developer and, therefore, it was a case of permissive possession.   In the circumstances, it cannot be said that P.K. Chowdhury  was in possession of the suit flats.  It was further contended that  in May, 1967, the flats were not ready; that they were shell like  structure, without doors, windows and P.K. Chowdhury was  permitted to execute the interiors.  In such circumstances, it was  urged that P.K. Chowdhury was given access to visit the flats  and give instructions to decorate the suit flats and, therefore,  P.K. Chowdhury was never put in possession as alleged.  It was  next submitted that there is no evidence of dispossession of  P.K. Chowdhury by the developer or by defendants no.2 and 3.   That defendants no.2 and 3 were bonafide purchasers who are  in possession since 3.1.1979.   

       We do not find any merit in these civil appeals.  Firstly,  there is no substantial question of law arising in these civil  appeals.  Both the Courts below on consideration of the entire  evidence, both oral and documentary, on record have come to  the conclusion that in May, 1967 two incomplete flats were  handed over to P.K. Chowdhury; that under the modified terms  P.K. Chowdhury agreed as the purchaser to construct partition,  walls, doors and windows inside the flats; that even collapsibles  were put by P.K. Chowdhury and that the keys to the suit flats  were with P.K. Chowdhury.  In the circumstances, both the  Courts below have concluded that the dominion/control over  the suit flats was with P.K. Chowdhury.  We do not see any  reason to disturb these findings of fact.  Secondly, there is no  evidence on record to show that P.K. Chowdhury was allowed  to execute the work on behalf of the developer.  Thirdly, on  evidence, it is established that P.K. Chowdhury was allowed to  do the work of permanent nature and that even the keys of the  flats were with him which proved beyond doubt that P.K.  Chowdhury was in complete control of the suit flats.  Fourthly,  there is no term in the agreement between the parties under  which P.K. Chowdhury was obliged to return the possession of  the flats on completion of the work.  Hence, the developer has  failed to prove "permissive" possession as alleged.  Lastly, as  held by the Courts below, there is no evidence of transfer of the  suit flats by the developer to alleged bonafide purchasers i.e.  defendants no.2 and 3.  In the circumstances, both the Courts  below were right in decreeing the suit under section 6 of the  Specific Relief Act, 1963.

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       In the case of Supdt. And Remembrancer of Legal  Affairs, West Bengal v. Anil Kumar Bhunja and others  reported in [(1979) 4 SCC 274], this Court observed that the  word "possession" is not purely a legal concept but a  polymorphous term which may have different meanings in  different contexts.  That the word "possession" implies a right  and a fact.  It involves power of control and intention to control.   That the test for determining \026 whether a person is in  possession is : whether he is in general control of it.  In the  present case, as stated above, P.K. Chowdhury was given  possession in May, 1967 and it was agreed between the parties  that the buyer could construct the walls, partition, doors and  windows, which show the intention to put P.K. Chowdhury in  possession.   

       In the case of Kumar Kalyan Prasad & another v.  Kulanand Vaidik & others  reported in [AIR 1985 Patna 374]  while discussing the scope of section 6 of the Specific Relief  Act, 1963, it has been held:\027  "9.     In the first instance, a mere reference to the  plain language of the provision aforesaid would  indicate that the word "dispossessed" has not been  used in the narrowly constricted sense of the actual  physical possession of immoveable property.   Indeed, it talks somewhat widely of dispossession  of immoveable property otherwise than in due  course of law without the person’s consent.  If the  Legislature intended to narrowly limit the word  "dispossessed" there could have been no difficulty  by specifying in terms the actuality of physical  possession as its necessary and vital ingredient.   The word employed is the ordinary word  "dispossess".  Plainly enough it would include  within its sweep actual physical dispossession also  but this is no warrant for holding that it necessarily  excludes the violation of other forms of possession  including a symbolical possession duly delivered  by law and contumaciously violated by an  aggressive trespasser.  On principle I am not  inclined to construe the word "dispossessed" in S.6  in any hypertechnical sense and to push it into the  procrustean bed of actual physical possession only.   Indeed the intent of the Legislature in S.6 to  provide early and expeditious  relief against the  violation of possessory right, irrespective of title,  would be equally, if not more, relevant where  symbolical possession delivered by due process of  law is sought to be set at naught forthwith.\005\005"    

       To the same effect is the judgment of the Calcutta High  Court in the case of Raj Krishna Parui v. Muktaram Das  reported in [(1910) 12 Calcutta Law Journal 605] in which   while interpreting section 9 of the Specific Relief Act, 1877  (section 6 of the present Act, 1963) it has been held:\027          "In a suit commenced under section 9 of the  Specific Relief Act, the sole point for  determination will be, whether the plaintiffs were  in possession of the disputed property within six  months previous to the institution of the suit and  whether they had been deprived of such possession  by the defendant otherwise than in due course of  law.  It is immaterial, if the plaintiffs were in  possession, that such possession was without title.   What the plaintiff has to prove is possession of the  disputed property and not mere isolated acts of

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trespass over that property.

       In order to entitle the plaintiff to succeed on  the ground of possession, he must prove, firstly,  that he exercised acts which amounted to acts of  dominion; the nature of these acts of dominion  varies with the nature of the property; secondly,  that the act of dominion was exclusive.  If the  occupation by the plaintiff, as indicated by those  acts, has been peaceable and uninterrupted and has  extended over a sufficient length of time, the  inference may properly be drawn that the plaintiff  was in possession."

       Applying the above judgments to the facts of the present  case, we are of the view that both the Courts below were right  in coming to the conclusion that P.K. Chowdhury was put in  possession of the suit flats in May, 1967 and that he was  wrongly dispossessed on 10.2.1979 by the defendants without  following due process of law.  Hence, there is no merit in the  civil appeals.  

       Before concluding, we wish to clarify that since the  impugned decree is passed in a summary suit under section 6 of  the Special Relief Act, 1963, none of our observations herein  shall preclude the parties herein from raising contention(s) in  the substantive suit to establish title and for recovery of  possession which the defendants herein may file in accordance  with law, if so advised.

       For the foregoing reasons, we do not find any merit in  these civil appeals and the same are accordingly dismissed,  with no order as to costs.