JYOTI BISWAS Vs. RAJ KUMAR GHOSH

JUDGEMENT

(1.) This cluster of appeals arose from a common judgment and order dated August 16, 2018 passed in Execution Case No. 146 of 2017 whereby and whereunder the occupiers of an immovable property were directed to be dispossessed. The said cluster of appeals involve same and common question of law for consideration before this Appellate Court and hence, by consent of the parties, the appeals are taken up together, heard and are being disposed of by this common judgment and order.

(2.) The appellants are occupiers of various portions of premises no. 2 Jawaharlal Nehru Road, Kolkata-700013 previously known as Chowringhee Road (for short, the suit property) and are the obstructionists resisting an eviction decree dated May 03, 2017, which was a compromise decree for eviction passed in suit no. 524 of 1984 (Raj Kumar Ghosh and Anr. vs. Jayashree Ghose and Ors.) (for short, the second suit). The appellants/obstructionists claimed to be the sub tenants under the predecessors of the first and the second defendants in the Bando's suit and are still in settled possession and occupation of various portions of the said property. The appellants came to know about the said compromise decree for eviction dated May 03, 2017 (for short, the compromise decree) as and when the learned receiver appointed by the Executing Court went to take possession. Immediately then they applied before the Executing Court under the provisions of Order XXI, Rule 99 read with sec. 47 of the Code of Civil Procedure, 1908 (for short, the code) and resisted the said compromise decree for eviction principally on the grounds that, the appellants had independent rights in respect of their respective portions of the property in which they were in settled possession and the said compromise decree was a clear result of fraud, amongst others. By the said impugned judgment and order such applications filed by the appellants were dismissed and direction was made to handover possession to the receiver, hence, these appeals.

(3.) One Debaprosad Gooptu was the owner of the suit property. Subsequently, the property after his demise was devolved upon his legal heirs and successors (for short, the Gooptus). One Probodh Chandra Mitra, since about 1940 was a monthly tenant under Debaprosad. Probodh during his lifetime carried out a hotel business from the said property under the name and style of "Bristol Hotel" as the sole proprietor thereof. Probodh, the original tenant, died on June 12, 1949, leaving a will with a bequeath in favour of his nephew Prafulla Kumar Mitra. Debaprosad accepted Prafulla as a monthly tenant in place and stead of Probodh at a monthly rent of Rs.2,800.00. Since then Prafulla was continuing to carry out the said hotel business. The said monthly rent was varied by consent from time to time. Prafulla obtained the grant of probate in respect of the said will of Probodh.