RAKESH GUPTA Vs. HARSH CONSTRUCTION

JUDGEMENT

(1.) THIS appeal is directed against the order dated 23rd November, 2009 passed in G.A.No. 2859 of 2009 and C.S.No. 4161 of 1953 ( Baidyanath Chatterjee and another ?vs- Kumar Purendu Nath Tagore and others ) by the Hon?ble Justice Sanjib Banerjee thereby His Lordship has refused to cancel the deed of conveyance dated 21st August ,2008.

(2.) THE short background of the matter is that a perpetual lease was granted by the sons of late Raja Prafulla Nath Tagore, predecessors-in-interest of the parties to the present suit in favour of Babu Bechanram Gupta and Babu Mewalal Gupta by a registered deed dated October 1, 1994. THE appellants are the successors-in-interest of Babu Bechanram Gupta. THEy erected a building on the property and the same has been let out. Presently the Associate Tubewells Limited is the appellants? tenant in respect of the property. One M/s. Harsh Construction, a partnership firm claiming to be the present owner of the property allegedly disturbed the appellants possession. THEy claimed that they are the owner of the property by virtue of a sale deed executed by the Special Officer appointed in Suit No. 187 of 1952 and Suit No. 4161 of 1953 in terms of the order passed by this Hon?ble Court. On the appellants application , the learned trial Judge by its impugned order refused to cancel the deed of conveyance dated 21st August, 2008, so this appeal.

(3.) THE impugned order indicates that it will be open to both the purchaser and the appellant to establish their right in the appropriate forum. On plain reading of the order dated 28th March, 2008 , it appears that actual possession either was not required to be delivered to the purchaser or entitled the purchaser to dispossess any person from the property. It was not necessary to go into the question as to whether appellants are in possession of the property. Similarly if the appellants have any right for their names to remain in the municipal records , the mere fact that the order dated March, 28, 2008 was made to facilitate the purchaser obtaining the property would not imply that the municipal corporation cannot consider any defence that may be set up by the appellants or cannot take into consideration the relevant provisions of law. It transpires from the impugned order that the parties submitted before the learned trial Court that in view of the impugned order dated 23-11-2009 nothing remains in GA No. 302 of 2009 and GA No. 463 of 2009. It is to be recorded that GA No. 302 of 2009 was an application praying for cancellation of the deed of conveyance executed in favour of the respondent No. 1 by this Special Officer.