SUSHIL KUMAR DEY BISWAS Vs ANIL KUMAR DEY BISWAS
Bench: T.S. THAKUR,ADARSH KUMAR GOEL,R. BANUMATHI
Case number: C.A. No.-010689-010689 / 2014
Diary number: 27769 / 2013
Advocates: SARLA CHANDRA Vs
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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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