TRUSTEES FOR IMPROVEMENT OF CALCUTTA Vs. BAHADUR KHAN

JUDGEMENT

(1.) This revisional aplication at the instance of the defendant No. 2 of Title Suit No. 2374 of 1982 now pending in the 12th Bench of the City Civil Court at Calcutta is directed against an order dated July 15, 1983. By the said order the learned Judge disposed of an application under Order 14, Rule 2, C. P. Code filed by the defendant No. 2. The defendant No. 2 (the petitioner herein) alleged that the court had no territorial jurisdiction over the subject-matter of the suit. The learned Court below found in favour of the plaintiff opposite party No. 1 hence the present revisional application.

(2.) In order to appreciate the points involved in this revisional application it would be eminently reasonable to bear in mind certain facts and the reliefs claimed in the suit in the context of the allegations made in the plaint as also in the context of the proceedings that preceded the presentation of the plaint. The suit relates to and arises out of art acquisition proceeding in respect of entire premises No. 21 (old No. 5), Prince Anwar Shah Road, Calcutta. The property is admittedly beyond the territorial jurisdiction of the City Civil Court. The offices of the petitioner defendant No. 2 and the second Land Acquisition Collector are, however, within the jurisdiction of the City Civil Court. There has been an award for the acquisition of the said premises at Prince Anwar Shah Road. The opposite party No. 1, the plaintiff had filed an application in 1976 under Section 78 of the Calcutta Improvement Act for abandonment of a portion of the property on the plea that it was not required for the purpose of widening of Prince Anwar Shah Road for which the acquisition was being made. This application was rejected. In the suit before the City Civil Court the plaintiff alleged that the plaintiff and his uncle, Akhtar Khan both inhabitants of Afganisthan, came to Calcutta in 1952 and took a tenancy in premises No. 5, Prince Anwar Shah Road. The tenancy stood in the name of Akhtar Khan. Akhtar Khan died in 1958. Since then the plaintiff had been in occupation of the premises continuously and even inducted subtenant under him after construction of structures in the vacant land with the permission and knowledge of the Matwali the defendant No. 3. The plaintiff, therefore, is a person interested in the said premises. The plaint goes on to state that in July, 1976 the plaintiff came to know that under scheme No. 114B of the Calcutta Improvement Trust the entire premises No. 21, Prince Anwar Shah Road has been marked as required for the said scheme for the purpose of widening of the then existing Prince Anwar Shah Road. The plaintiff thereupon applied to the Chairman, Calcutta Improvement Trust under Section 78 of the Calcutta Improvement Act, 1911, praying for abandonment of a portion of the premises which was not required for execution of the scheme. This, however, was not acceded too. The defendants Nos. 1 and 2 (petitioner and the Second Land Acquisition Collector, Calcutta) initiated a proceeding for acquisition of the property under the provisions of the Land Acquisition Act, 1894. The notice was issued in the name of late Akhtar Khan who had died in the year 1958, although the plaintiff has been in occupation of the premises for over 20 years as heir and legal representative of Akhtar Khan. Therefore, the basis of the land acquisition proceeding was illegal and ultra vires. Ultimately the plaintiff came to know that an award has been made on 18-3-1981. Thereafter the plaintiff was advised to file a writ application under Article 226 of the Constitution challenging the validity and legality of the notice issued from the office of the Land Acquisition Collector. Pursuant to the said writ application a Rule was issued being Civil Rule No. 11138(W) of 1981. The said Rule was finally heard on October 7, 1982 and was discharged mainly on the ground that the plaintiff was a foreign national and also on the ground that the relief as prayed depended solely on matters regarding which there was no scope for consideration in the writ petition. The plaintiff thereupon preferred an appeal against the said order dated October 7, 1982 which was numbered as F.M.A.T. No. 3094 of 1982. Eventually the plaintiff was advised not to proceed with the said appeal and accordingly the appeal was withdrawn with liberty to file a suit. Thereupon the suit was filed. It is stated that the cause of action arose on 8-4-1981. When the award for the entire premises was made at the office of the Land Acquisition Collector at No. 5, Bankshal Street, Calcutta, within the jurisdiction of the City Court and also on September 24, 1982 when the plaintiff came to know that his application under Section 78 of the Calcutta Improvement Act had been rejected by the Authority at his office at P-16, India Exchange Place, Calcutta also within the jurisdiction of the City Court.

(3.) The plaintiff prayed for a declaration that the acquisition of the premises without serving notice under Section 9 of the Land Acquisition Act in the name of the plaintiff was bad, illegal and not binding upon the plaintiff, that the acquisition of the premises in its entirety is illegal and arbitrary, that the trustees for the Improvement of Calcutta is under a legal obligation to abandon a portion of the premises which was not required for the execution of their scheme, that the plaintiff has obtained an adverse right to the property by having continued an uninterrupted possession for more than 20 years and thereby acquiring at least a limited right of adverse possession as a tenant and for a permanent injunction restraining the defendants from taking possession of the premises.