Full Judgment Text
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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