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NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  10689     OF 2014 (Arising out of SLP (Civil) No.29686 of 2013)

SUSHIL KUMAR DEY BISWAS & ANR.      ..Appellants

Versus

ANIL KUMAR DEY BISWAS                     ..Respondent

O R D E R   

R. BANUMATHI, J.

Leave granted.

2. This appeal arises out of the Order dated 5.8.2013  

passed by the Calcutta High Court in Civil Order No.718 of  

2013,  dismissing the civil  revision filed by the appellants-

defendants  declining to  order  restoration  of  possession of  

the suit property and also the staircase.

3. Brief facts, which led to the filing of this appeal are  

as follows:- Respondent-plaintiff filed a suit for eviction being

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Title  Suit  No.196/2004  against  the  appellants-defendants  

before  the  Court  of  Civil  Judge  (Junior  Division)  4th Court,  

Sealdah, North 24-Parganas.  The eviction was sought for in  

respect of one room, one bath and privy on the first floor and  

one room on the ground floor in the western side and one  

shop  room  measuring  20’  x  12’  in  the  western  side  of  

premises     No. 59, Old Nimta Road, North 24-Parganas. The  

appellants-defendants filed their written statement  interalia  

contending that the suit property is the joint property of the  

plaintiff and the defendant Nos.1 and 2 and claiming a share  

in  the  suit  property  by  virtue  of  a  settlement  dated  

11.12.2000.  The appellants contended that the respondent-

plaintiff  is  entitled  to  only  one  third  share  in  the  suit  

property.   

4. In  the  suit,  trial  commenced  and  respondent-

plaintiff  adduced  evidence  and  the  appellants-defendants  

also adduced their evidence in part.   When the matter was  

posted for further evidence of the defendants, they filed an  

application  under  Section  151  C.P.C.  on  4.1.2012,  

contending  that  the  respondent  took  the  law  in  his  own  

hands  in  June  2011  and  the  appellants  were  forcefully  

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dispossessed from the shop room of the suit property.  The  

appellants alleged that they were also forcibly dispossessed  

from the first floor room by chopping the wooden staircase  

that leads to the first floor room.

5. The appellants filed an application under Section  

151  C.P.C.  seeking  restoration  of  possession  of  the  suit  

property.   By  an  order  dated  9.10.2012,  the  trial  court  

dismissed the petition on the grounds that:- (i) even though  

the alleged dispossession was in June 2011, the restoration  

application was filed on 4.1.2012 nearly seven months after  

the alleged  dispossession; (ii)  trial has already begun  and  

the evidence of  the defendants  is  nearly  on the verge of  

completion.  Being  aggrieved  by  the  dismissal  of  the  

application,  the  appellants  filed  revision  before  the  High  

Court.  The High Court appointed a Special Officer to inspect  

the suit property and file a report.  Accordingly, the Special  

Officer  visited the suit  premises and submitted the report  

observing  that  there  is  no  trace  of  any  structure  for  a  

staircase excepting a vacant narrow space which according  

to the special officer is apparently indicative of the location  

of the staircase in question.  The High Court dismissed the  

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revision petition observing that the application filed under  

Section 151 C.P.C.  is  vague and that  the appellants  have  

approached  the  court  belatedly.  However,  the  High  Court  

gave liberty to the appellants to take appropriate steps in  

accordance with law.  

6. We have heard learned counsel for the appearing  

parties at considerable length.

7. In the application filed under Section 151 C.P.C.,  

the appellants have alleged as under:-  

“…in June, 2011….they were forcefully dispossessed  from the shop room of the schedule “B” property without  due process of law….. the matter was informed for the first  time to the local MP who requested the local police to look  into  the  matter,  but  instead  to  make  an  enquiry  the  plaintiff  again  dispossessed  the  defendants  from  the  possession of the first floor room by chopping of the steps  of the wooden stair case that leads to the first floor room.  The  rooms  on  the  first  floor  and  the  shop  room in  the  ground floor are in absolute occupation of the defendant  No.2  and  the  defendant  No.1  was  in  possession  of  the  other  room  in  the  ground  floor  from  wherein  he  was  forcefully dispossessed in the year 2005…”

8. Courts below dismissed the application filed under  

Section 151 C.P.C. mainly on the ground that for the alleged  

dispossession of the appellants from the suit property in June  

2011, the application was filed only on 4.1.2012.  According  

to  the  appellants-defendants,  the  respondent-plaintiff  is  a  

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very  influential  person  and  since  the  appellants  were  

threatened by the men of  the respondent,  they could not  

immediately lodge the complaint.  We are not inclined to go  

into the merits of the rival contentions.   

9. Admittedly,  the  suit  was  filed  for  ejectment  

indicating thereby that at the time of filing the suit in the  

year 2004,  the defendants were in possession of the entire  

suit “B” schedule property.    Application for restoration of  

possession of the room on the first floor and the shop room  

on the ground floor was neatived by the courts below merely  

on the ground of delay.  Without going into the merits of  

rival  contentions of  both the parties in  order  to  meet  the  

ends  of  justice,  in  our  view,  possession  of  the  first  floor  

alongwith staircase and the shop room on the ground floor  

should  be  restored to  the  appellants-defendants.  Delay  in  

filing the application for restoration of possession cannot be  

the reason for declining relief.

10. Insofar as another room in the ground floor on the  

western side, as seen from the averments in the application  

as extracted above, even according to the appellants they  

were  evicted  in  the  year  2005.   For  a  long  time,  the  

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defendants have neither raised any objection nor filed any  

application in the court at the relevant time regarding the  

said  room  in  the  ground  floor.   The  respondent-plaintiff  

contends that the defendants have voluntarily vacated the  

premises  and  the  defendants  have  purchased  a  flat  at  

Nadanagore,  Belghoria  and  have  left  the  suit  property  at  

their own will.  Having regard to the rival contentions, in our  

view, so far as the restoration of room on the western side of  

the ground floor,  the same can be decided alongwith the  

suit.

11. In the result, impugned order of the High Court is  

set aside and the appeal is allowed.  The respondent-plaintiff  

is directed to restore the staircase and the possession of one  

room, one bath and privy on the first floor and shop room in  

the ground floor to the appellants-defendants within a period  

of six weeks from the date of receipt of copy of this order.  

On  failure  to  restore  the  possession,  the  appellants-

defendants are at liberty to approach the trial court which  

shall  pass  appropriate  order  for  ensuring  compliance with  

the direction of this Court.   In so far as one room on the  

western  side  of  ground  floor,  the  same  shall  be  decided  

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alongwith the suit.  We have not expressed any opinion on  

the merits of the rival contentions of the parties.  The trial  

court shall  expedite the trial  of the Title Suit No.196/2004  

and dispose of the same at an early date.  Stay of further  

proceedings of the suit granted vide this Court Order dated  

30.9.2013 stands vacated.  

12. In the facts and circumstances of the case, parties  

to bear their own costs.

…………………………J.         (T.S. Thakur)    

…………………………J.     (Adarsh Kumar Goel)

…………………………J.       (R. Banumathi)    

New Delhi; December 3, 2014    

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