SUDHIR JAGGI Vs. SUNIL AKASH SINHA CHOUDHARY

JUDGEMENT

(1.) These two civil appeals are filed by the defendants who were aggrieved by the judgment and decree passed by the learned single judge of Calcutta High Court dated 27.9.2001 in suit no. 161 of 1979 ordering repossession in favour of the plaintiffs and which judgment and decree is confirmed by the impugned judgment of the division Bench of the Calcutta High Court dated 16.7.2002 in A. P. D. No. 220 of 2002.

(2.) Briefly, the facts giving rise to these appeals are as follows: plaintiffs are the two executors of the Will of one P. K. Chowdhury (since deceased) who agreed, vide agreement dated 8.5.1965, to purchase two flats nos. 12c and 12d on the 12th floor of the building known as "monalisa" situate at Camac street, Calcutta along with two garages on the ground floor for the total consideration of Rs. 2,34,168/-, out of which the deceased p. K. Chowdhury paid Rs. 2,22,168/ -. Originally, it was agreed that two flats would be allotted by the developer (defendant no. 1) to P. K. Chowdhury on 8th floor. That agreement was varied and it was agreed that the two other flats would be allotted on the 12th floor. Similarly, the said two garages, as agreed upon, could not be allotted due to technical defect in the construction, so an alternative larger space was allotted at an increased price. Later on, P. K. Chowdhury constructed two complete locked up garages. Apart from two flats, P. K. Chowdhury purchased three rooms spaces in the ground floor. In respect of flat nos. 12c and 12d, it was originally agreed between the developer and P. K. Chowdhury that the developer would carry out all internal works in accordance with the suggestions of P. K. Chowdhury. Subsequently, that Condition was varied and it was stipulated by and between the parties that P. K. Chowdhury would himself make internal changes at his own costs, for which the developer agreed to give a rebate. In may, 1967, the developer gave possession of the said two flats which then consisted of outer walls on four sides without any partition, doors and windows. On obtaining possession, P. K. Chowdhury erected walls, partitions, doors, windows and collapsibles at his own costs. These works were of permanent nature. On or about 10. 1.1968, accounts between P. K. Chowdhury and the dev'eloper were settled. Rs. 120007- was found due and payable by p. K. Chowdhury to the developer being balance amount in full settlement of the consideration for the flats and garages. P. K. Chowdhury agreed to pay Rs. 12000/- to the developer upon execution of conveyance in his favour for the two flats. In december, 1975, however, the developer instituted a suit in the city civil court, Calcutta being suit no. 2180 of 1975 for permanent injunction restraining P. K. Chowdhury from interfering with his alleged possession. The said suit was dismissed, as not maintainable.

(3.) On 10. 2.1979, the appellants herein wrongfully and illegally broke into the said two flats and obtained wrongful and forcible possession of the two flats. P. K. Chowdhury came to know of the dispossession on 12.2.1979. On 12.3.1979, he filed the present suit. In the present suit, the developer contended that P. K. Chowdhury was never given possession of the suit flats; that he was given access to execute certain masonry works in the said two flats; that P. K. Chowdhury did not pay the full consideration and consequently, he had sold both the suit flats to original defendants no. 2 and 3 (appellants in civil appeal no. 6408 of 2002) , who were put in possession of the two flats on 3.1.1979 from which date defendants no. 2 and 3 have continued to be in possession thereof.