APOLLO GLENEAGLES HOSPITALS LIMITED Vs. DAVID MANTOSH

JUDGEMENT

(1.) THIS review application is filed by the defendant/respondent No.1 Apollo Gleneagles Hospital Limited against the judgement dated 27th April, 2013 passed by this Division Bench in F.A. No.202 of 2008. The defendant/respondent No.1 has stated that the judgement of this Court suffers from error apparent on the face of the record as this Court did not consider that the Opposite Party Nos.1 to 7 had vacant land in excess of ceiling limit provided in the Urban Land (Ceiling and Regulation) Act, 1976. It is further stated in the petition that this Court did not consider that as the Opposite Parties did not file return under Section 6 of Urban Land (Ceiling and Regulation) Act, 1976, competent authority had no occasion to serve any notice upon them. The Opposite Parties intentionally refrained from filing appeal against the order of competent authority. That respondent No.1 has further stated in the petition that this Court did not consider that T.S. No. 4 of 2005 is barred by limitation. It is further stated in the petition that this Court did not consider that a modern hospital with all facilities was being run from the suit property by the respondent No.1 and, therefore, the petitioner/respondent No.1 could not be directed to hand over the vacant possession of the suit property to the Opposite Party Nos.1 to 7. It is also stated in the review petition that this Court did not consider that the respondent No.1, upon payment of consideration obtained lease of the suit property from the Opposite Party Nos.9 and 10 and, therefore, the review petitioner should not be directed to make any payment to the Opposite Party Nos.1 to 7. It is further stated in the review petition that neither the Opposite Parties Nos.1 to 7 nor their predecessor -in -interest were owner of the suit property. It is finally stated that the judgement of this Court did not consider the substantial question of law relating to the points involved in the appeal. Therefore, the respondent No.1 has prayed for review of the judgement of this Division Bench. At the time of hearing the review petition, the learned counsel for the review petitioner/respondent No.1 has submitted that the judgement of this Court did not discuss, in detail, the evidence of P.W.1. It is further submitted that P.W.1 knows nothing and he failed to prove its own case. Learned counsel for the respondent No.1 has further submitted that the sale certificate was not produced and the judgement of this Court did not consider he same. It is also submitted that the judgement of this Court relied upon the judgement of Criminal Court and this is not permissible in law.

(2.) ON the other hand, learned counsel for the Opposite Party Nos.1 to 7 has submitted that the judgement of this Court clearly analysed all the points involved in the dispute and, therefore, the review petition has no merit and is liable to be dismissed. We have carefully heard the submissions of learned counsel of both sides and perused the materials on record. This Court carefully analysed the evidence of P.W.1. On a close and careful scrutiny of evidence of P.W.1, it transpires that he has advanced a detail incident as to how his predecessor -in -interest/P.S. Mantosh acquired title over the suit property. This fact has been elaborately depicted in the judgement. This P.W.1 has stated in paragraph 13 in the evidence that Moni Lal Goyee and Bijay Kumar Goyee filed a Title Suit bearing No.50 of 1942 in the court of learned First Additional Subordinate Judge at Alipore against the late B. S. Mantosh, late James Mantosh and late Daisy Mantosh for recovery of possession of the suit premises. In paragraph 14 he has stated that learned 5th Subordinate Judge at Alipore in T.S. 50 of 1942 passed a judgement and decree dated 17.01.1949 on compromise holding late B.S. Mantosh, late James Mantosh and late Daisy Mantosh to be the owners and possessors of 73, Canal Circular Road, Calcutta.

(3.) ON the point of sale certificate and Criminal court judgement, this Court in page No.30 of the judgement has made a clear observation that "the legal position is not at all disputed and it is the settled principle of law." This Division Bench in its judgement has made it clear that the existence of sale certificate as well as the survey report under Sections 40 and 41 of Bengal Survey Act for the purpose of demarcation and for showing the separate existence of holding No.42 and 43 are quite relevant and admissible under Section 13 of Evidence Act. This Court relied upon the decision of Privy Council in Dinomoni vs. Brojomohini reported in (1901)29 Cal 187 (P.C.). This Court also relied upon the decision of Hon'ble Apex Court in Santi Kumar Panda vs. Sakuntala Devi reported in (2004)1 SCC 438, wherein Hon'ble Apex Court held that at the time of final adjudication by competent Court, the proceeding under Section 145 of Cr.P.C. has value only as a piece of evidence until the entitlement of possession is determined by a Court having competence to enter into adjudication of civil right, which an Executive Magistrate cannot. This Division Bench did not at all adjudicate the title of the parties on the basis of judgement of Criminal Court or on the basis of sale certificate. This Court relied upon the judgement of Civil Court in T.S. No. 50 of 1942. The compromise decree of Civil Court reveals " the principal defendant namely Mrs. B. S. Mantosh & Ors. will remain in possession as before as absolute owner of 2 bighas 15 katas 4 chatak 19 sq.ft. of the Western portion of the land shown by Mr. Radhika Jiban Mukherjee learned Commissioner of local investigation, in his case plan dated 15.03.1948 as holding No.42 (in blue border) and the holding No.43 (in green border) of sub -division VII or and Division III, Dihee Panchannagram, (corresponding approximately to premises No.73, Canal Circular Road)". In page 26 and 27 of the judgement this Court has made detailed analysis as to how the predecessor -in -interest of appellants acquired title by virtue of the said compromise decree. This Court only referred to the proceeding under Section 145 of Cr.P.C. and also the sale certificate filed therein. Therefore, the submission of the learned counsel for the respondent Nos.1 that this Court in its judgement relied upon the judgement of Criminal Court is a misinterpretation of the judgement of this Division Bench.