http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 4  

PETITIONER: TUSHAR KANTI BOSE & ORS.

       Vs.

RESPONDENT: SAVITRI DEVI AND ORS.

DATE OF JUDGMENT:       25/07/1996

BENCH: G.B. PATTANAIK (J) BENCH: G.B. PATTANAIK (J) RAMASWAMY, K.

CITATION:  JT 1996 (7)   480        1996 SCALE  (5)574

ACT:

HEADNOTE:

JUDGMENT:                  THE 25TH DAY OF JULY, 1996 Present :           Hon’ble Mr.Justice K.Ramaswamy           Hon’ble Mr.Justice G.B.Pattanaik Jayant Das,  Sr.Adv., G.S.Chatterjee  and Ms.Aruna Banerjee, Advs., with him for the appellants. P.P.Rao, Sr.  Adv. S.Banerjee,  Sumant  Bharadwaj  and  Mrs. M.R.Bharadwaj, Advs. with him for the Respondents.                       J U D G M E N T The following Judgment of the Court was delivered: Tushar Kanti Bose & Ors. V. Savitri Devi and Ors.                       J U D G M E N T G.B. Pattanaik, J.      Leave granted.      This appeal is directed against the judgment dated 25th September, 1995 passed by the Division Bench of the Calcutta High Court  dismissing  the  appeal  which  had  been  filed against the  judgment of  the Learned Single Judge dated 9th May, 1998 passed in Matter No. 64 of 1950.      There are mass of facts and several litigations pending between the parties but it is not necessary to go into those controversies for  disposing of  the present appeal. Suffice it to  state that  the appellants had purchased the Premises No.  22/1C,  Monoharpukur  Road,  Calcutta  from  Ballygunge Estate Pvt.  Limited in  course of  a liquidation proceeding pursuant to  a court  sale dated  2nd May, 1974 and the sale deed in  question had  been executed  on 16th  August, 1974. After possession of the same. The respondents are the owners of the Premises No. 22/1D which they had purchased also from Ballygunge Estate  Pvt. Limited as early as on 13th January, 1953. The  appellants application  before the  Liquidator on 23rd August,  1977 seeking  level of  the Company  Judge for demarcation of  the property and an order to that effect was passed directing Ballygunge Estate Pvt. Limited to demarcate

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 4  

the purchased  property of  the appellants  as per  deed  of conveyance. The respondents then filed an application for an order of  injunction on  the ground  that  on  the  garb  of demarcation the  appellants are  trying to encroach upon the portion of  the property which the respondents had purchased and are  in possession  thereof since  1953. Ultimately, the Learned Single  Judge after  considering the several orders, passed after  considering the  several orders, passed by the Civil Judge  in civil  suits between  the parties as well as the reports  of the  Engineer, Surveyor, and Special Officer appointed by the High Court and the officer-in-charge of the local police  station,  came  to  the  conclusion  that  the appellants had  made two  holes on  the wall  so as  to have access to  the portion  in occupation of the respondents and the  appellants  have  raised  a  wall  and  dispossess  the respondents from  a portion  in respect  of which  there was already an  order of  injunction by the Alipore Court. After coming to  the aforesaid conclusion the Learned Single Judge directed by  an order  of mandatory injunction to close down the  holes   and  remove  all  obstacles  and  restore  back possession of the portion to the respondents which was to be done under  the supervision of Sri Anajn Chakraborty who was appointed as  the Special  Officer.  Against  the  aforesaid order  the  appellants  moved  the  Division  Bench  of  the Calcutta High  Court which  was registered as Appeal No. 340 of 1988.  On 20th  May, 1988  the Division  Bench passed  an order of  status quo as on that date. On 12th November, 1991 the Division  Bench in  the aforesaid appeal passed an order appointing Shri  Suhrid Roychowdhury  as the Special officer and directed  that the  Special Officer shall take forthwith possession of the disputed rooms. After taking possession of the rooms  he shall  allow the  parties to  occupy the rooms subject to  the undertaking  of such  parties that they will not claim  equity to occupy the disputed rooms until further orders. The  Special Officer  was also directed to appoint a surveyor who  shall demarcate  Plot No.  3 belonging  to the appellants and  Plot No.  4 belonging  to the respondents on the basis of conveyance, original plans, original documents, scheme and  other papers. Both parties were directed to make over conveyance  and other documents on which they rely. The Special Officer  was directed to complete demarcation within 3 weeks  from the  date of  order and submit a report to the court. Pursuant to the aforesaid order of the Division Bench Shri Suhrid  Roychowdhury, the Special Officer appointed one Shri Bhupendra  Mohan Saha  as the  Surveyor by  consent  of parties for the purpose of demarcation of Plot Nos. 3 and 4. After demarcation  was done  through the  assistance of  the Surveyor Shri  Bhupendra Mohan  Saha,  the  Special  Officer Suhrid Kumar  Roychoudhury  submitted  his  report  on  20th April, 1992. The Division Bench by order dated 1st July,1992 granted leave  to the  respondents to  file  an  application taking exception to the report of the special Officer within two weeks.  The respondents filed their objections. When the matter was  called on  1st September, 1992 none appeared for the applicants.  and therefore,  application was  dismissed. Finally, the matter was listed before another Division Bench who by  the impugned order dismissed the appeal and directed the Special  Officer Sri  Anajn  Chakraborty  who  had  been appointed by the Learned Single Judge to handover possession of the  property to  Bhattacharjees, the  respondents herein and it  is this  order which  is  under  challenge  in  this appeal.      Mr. Das  the learned  senior counsel  appearing for the appellants contended  that  the  Special  appointed  by  the Division Bench and having submitted a report on the basis of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 4  

the survey  which he had conducted with the help of Surveyor Shri Bhupendra  Mohan Saha  and said  Surveyor  having  been appointed on  consent of  the parties,  the  Division  Bench committed gross error in not considering the foresaid report and disposing of the matter on the basis of report submitted earlier by Sri Anajn Chakraborty who had been appointed as a Special Officer by the Learned Single Judge. Mr. Das further contended that  an objection  to the  report of  the Special Officer, Shri  Suhrid Kumar  Roychoudhury having  been filed and the  same  having  been  rejected  by  order  dated  1st September, 1992,  Division Bench should have given effect to the said  report and  therefore the  Bench was  not right in ignoring  the  same  and  directing  implementation  of  the earlier order  of the  Learned Single  Judge. Mr. Das lastly contended that  in view  of the  order of the Division Bench appointing Shri  Suhrid  Kumar  Roychoudhury  as  a  Special Officer, Sri  Anajn Chakraborty’s  earlier appointment  as a special officer  is not  valid and  therefore  the  Division Bench, should  not give  effect to  the order of the Learned Single Judge. Mr. P.P. Rao, learned senior counsel appearing for the respondents on the other hand contended that in view of several  pending litigations between the parties both for declaration of  title as  well as for possession, it was not open for  the  appellant  on  the  basis  of  an  order  for demarcation to  get their title established and in that view of the  matter the  Division Bench  was wholly  justified in dismissing the appeal. Mr. Rao further contended that during he pendency  of the  proceeding the  appellants having  been found encroached upon a portion of respondents property, the court was  fully justified  in passing  the  order  impugned herein.      Having heard  the learned  counsel for  the parties and after  going   through  the   record  of  the  case  without expressing and opinion on the merits of the rival contention we are  of the considered opinion that the impugned order of the Division Bench cannot be sustained on the sole ground of non-  consideration   of  the   relevant  material.   It  is undisputed that Shri Suhrid Kumar Roychoudhury was appointed as a Special Officer by the Division Bench on 12th November, 1991 and  it was  directed that  he shall  demarcate the two plots by  taking  assistance  of  a  Surveyor.  It  is  also undisputed  that   said  Shri   Suhrid  Kumar   Roychoudhury appointed Shri  Bhupendra Mohan  Saha as the Surveyor on the consent of parties and ultimately on the basis of the survey done the  Special Officer  had submitted  his report on 28th April, 1992.  An objection  filed to  the said report by the respondents stood  dismissed on  1st  September,  1992.  The aforesaid report  of the  Special Officer  as  well  as  the survey done  by Shri  Bhupendra  Mohan  Saha  constitute  an important item of evidence which could not have been ignored by the  Division Bench  while disposing  of the appeal. Then again so  far as  the appeal  is concerned it is Shri Suhrid Kumar Roychoudhury  who had  been appointed  by the Division Bench and said order of appointment had not been reversed by the subsequent  bench and  therefore any  direction  can  be given only to the said Special Officer. Non Consideration of the aforesaid  vital piece of evidence vitiates the ultimate conclusion. In  this of the matter we set aside the judgment of the  Division Bench  dated 25th September, 1995 passed in appeal No.  340 of  1988 and  remit the  appeal to  the High Court with  the request  to the  Hon’ble  Chief  Justice  to constitute a  Division  Bench  with  the  Chief  Justice  as Presiding Judge  or senior  most Judge of the High Court the Presiding Judge and dispose of the appeal in accordance with law after considering the report of the Special Officer Shri

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 4  

Bhupendra Mohan  Saha, Surveyor, if any. In view parties the High Court  is requested to dispose of not the appeal at the earliest. This  appeal is  allowed but  in the circumstances there will be no order as coats.