MIRA CHATTERJEE Vs. SUNIL KUMAR CHATTERJEE

JUDGEMENT

(1.) The premises No. 5A, Beltala Road, P.S. Bhowanipore (hereinafter referred to as "the 'premises") originally belonged 4 to one Aswini Kr. Bandyopadhyay, the maternal grant father of Sushil Kr. Chatterjee (since deceased). The said Aswini Kr. Bandyopadhyay had no male issue. Sushil Kr. Chatterjee was brought up under the care of the said Aswini Kr. Bandyopadhyay in his family from boyhood. Aswini Kr. Bandyopadhyay, during his life time, made a Kill dated 16th June, 1946 which was probated in the year 1949 and by that Kill Aswini Kumar Bandyopadhyay bequeated the entire ground floor of the said premises to the said Sushil Kr. Chatterjee, the husband of Mira Chatterjee who is the appellant before us. The said Sushil Kr. Chatterjee died on 21st December, 1970. During his life time, Sushil had allowed one of his brother viz. Sunil Kr. Chatterjee, the respondent in this appeal to reside in two rooms on the ground floor of the said premises as a licencee under him some time from 1963. After the death of Sushil, the present appellant, the widow of Sushil Kr. Chatterjee allowed the respondent to reside in the said premises as the licencee under her. But due to misbehaviour and indecent attitude and cruel treatment of the respondent and his family which consisted of his wife and two daughters residing in the said premises, the appellant had to revoke the licence by serving a notice upon him. Despite receipt of notice, the respondent did not vacate the suit premises and for that a suit for recovery of possession was filed in the year 1973 in the 4th Court of the Munsif, Alipore, 24 Pgs. of the respondent from the said premises which was registered as Title Suit No. 123 of 1973. the suit for recovery of possession filed on the ground of revocation of licence was contested by the respondent in which he inter alia contended that he was never a licencee under the husband of the appellant nor he was a licencee under the appellant. The mother of the respondent Smt. Ashalekha Devi in the said suit deposed to the effect that he usually resided in Benaras, U.P. She said in her deposition that the premises belonged to her father and Sushil, the husband of the appellant was brought up by her father who gave the premises to him by executing a Will. She never stated in her deposition that she allowed the respondent to live in the premises under her as licencee. The Munsif, 4th Court at Alipore dismissed the aforesaid suit holding inter alia that the appellant had no right, to file the suit when there was no evidence that the said premises was partitioned. The Munsif, however, held that in view of the said finding, the suit must be held to be not maintainable. The case in that suit of the appellant was that the defendant was a licencee under her and so she had every right to evict the respondent. In answer to this case made out by the appellant, the learned Munsif, 24 Pgs. (South) held that due to death of the husband of the appellant, the legal status as to the title of the said premises was changed and hence the plea of the appellant could not be entertained when there was no written deed of licence containing the contents otherwise. Against the aforesaid judgment of the 4th Court of the learned Munsif at Alipore, the appellant preferred an appeal in the first Court of the Additional District Judge, Alipore. The learned Additional District Judge, Alipore by a judgment and decree allowed the said appeal by setting aside the decree of the Munsif, 4th Court at Alipore and granted a decree for recovery of possession to evict the respondent from the said premises. Feeling aggrieved by the Judgment of the Appellate Court, the respondent preferred a second appeal in this Court which was allowed by this Court and the judgment and decree of the appellate Court was set aside and the suit was dismissed on a finding that a reasonable view that would be taken was that there was implied grant of licence by the mother to her son to reside in the said premises. Against the aforesaid judgment of this Court delivered in the aforesaid second appeal, a special leave petition was moved by the present appellant, before the Hon'ble Supreme Court of India which came to be registered as S.L.P. No. 5996 of 1982. The Apex Court of our country after hearing the parties set aside the judgment of the High Court and restored the judgment and decree of the Additional District Judge, Alipore. Thereafter, the appellant started an execution case being Title Execution Case No. 32 of 1990 in the 4th Court of the Munsif, Alipore, 24 Pgs. to evict the respondent and to get khas possession of the said premises. Before the proceedings for execution was started, the respondent filed a suit for partition being Title Suit No. 53 of 1983 in the 4th Court of the Asst. District Judge at Alipore against the appellant and others in which an application for injunction was filed by him. In the application for injunction, it was alleged that the respondent had inherited according to law of inheritance an undivided interest along with legal heirs of his 5 mother Ashalekha Devi in respect of the ground floor of the said premises as Smt. Ashalekha Devi died leaving behind among others the respondent as one of her surviving sons. Therefore, an order of injunction must be granted in his favour restraining the appellant from executing the decree for eviction which was ultimately confirmed by the Supreme Court as mentioned hereinabove and also from interfering with the peaceful possession of the respondent in the said premises till the disposal of the suit. The trial Court by the order impugned in this appeal allowed the said application and directed the parties to maintain status quo in respect of the said premises till the disposal of the suit. Feeling aggreived by this order of the trial Court, the decree holder in the earlier suit has filed this appeal which was heard in presence of both the sides.

(2.) Before us, Mr. Kanon Kr. Ghosh, appearing for the decree holder/appellant at the first instance argued that the suit for partition and for other incidental reliefs was not maintainable in view of the amended provisions embodied in Order 21, Rules 97 to 103 of the Code of Civil Procedure. In support of this contention, Mr. Ghosh relied on a Supreme Court decision reported in AIR 1995 SC 358, (Bhanwarlal v. Satyanarayan) and also of the decisions reported in AIR 1987 Andh Pra 206 (Tahera Sayeed v. Shanmugam) and AIR 1960 Madras 327 (Rengannayaki v. I.T. Commissioner). Mr. Ghosh further argued that the respondent would not be entitled to raise the question of inheritance on the death of his mother Ashalekha Devi in the present suit in view of the previous adjudication already made in respect of the interest of the respondent in the said premises as Section 11, Explanation (iv) of the Code of Civil Procedure clearly says that such a defence ought to have been raised by the respondent in the earlier suit and he not having raised. Such plea in the earlier suit, the suit would be barred under Section 11, Explanation (iv) of the Code of Civil Procedure.

(3.) Mr. Mukherjee, appearing on behalf of the respondent however, contested the submissions so made on behalf of the decree holder/appellant. According to Mr. Mukherjee, the question of raising such plea in the earlier suit would not arise as the death of Ashalekha Devi had occurred during the pendency of the appeal in the Hon'ble Supreme Court of India. He further contended that the suit filed by him for partition in the year 1983 was maintainable in law as in the facts of this case, the provisions contained in Order 21, Rules 97 to 103 of the Code of Civil Procedure would not be attracted. In support of this contention, Mr. Mukherjee relied on the decision reported in AIR 1952 Triv Co. 1996, Raman Nayar Gopalan Nayar v. Leksmi Amma Bharati Amma.