1 Letters Patent Appeal No.845 OF 1995 -------- Against the judgment and order dated 21.7.1995 passed in Company Petition No. 5 of 1977 by the Company Judge. -------- Surendra Singh, son of late Sukhdeo Singh, resident of Mohalla Basusaheb Colony, Kabilpur, P.S. Laheria-Sarai, Distt. Darbhanga ------ Petitioner ----- Appellant. Versus 1. Thakur Ram Ganga Prasad (Pvt) Ltd. (under Liquidation) a company incorporated under the Indian Companies Act, 1913 through the Official Liquidator, 4th Floor A, Block, Maurya Lok, Dak Bunglow Road, Patna 800 001. 2.The Registrar of Company Bihar, Boring canal Road, P.S.Kotwali, Distt. Patna ----- Opposite Party ----Petitioner ----- Respondent. --------- For the Appellant : Mr. Umesh Prasad Singh, Sr. Advocate. For Official Liquidator: Mr.S.D. Sanjay, Mr. Akash Chaturvedi. ---------- P R E S E N T THE HON'BLE MR. JUSTICE SUDHIR KUMAR KATRIAR THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA S.K. Katriar, J. This appeal under Clause 10 of the Letters Patent of the High Court of Judicature at Patna has been preferred by an objector of Company Petition No. 5 of 1977, and is aggrieved by the order dated 21.7.1995, passed by the learned Company Judge, whereby the objection petition of the appellant has been rejected. He has been declared to be an 2 encroacher of the Company’s lands and his eviction ordered for. 2. A brief statement of facts essential for the disposal of the appeal may be indicated. This appeal has a chequered history. The present proceedings are with respect to plot nos. 495, 497, 498 and 503, covering a total area of 15 Kathas and 3 Dhurs, situate at Darbhanga, and allegedly belonged to Thakur Ram Ganga Prasad (Pvt.) Ltd. (under liquidation), through the Official Liquidator. The company had submitted an application under the Companies Act before the learned Company Judge of this Court in 1977, for voluntary liquidation, which has been registered as Company Petition No.5 of 1977, and order for voluntary liquidation was passed. 2.1. The official liquidator filed a complaint in the proceedings on 21.8.1981, alleging therein that the present appellant and others are in illegal and unauthorized possession of different portions of the lands of the company. By order dated 31.1.1989, the learned Company Judge directed for issuance of notice to the alleged encroachers to show-cause as to why they be not evicted. The appellant 3 allegedly did not enter appearance, nor did he file any reply/objection to the complaint, which was allowed by order dated 31.7.1990, whereby he was declared to be an encroacher and was directed to be evicted with the help of the local District Magistrate. The appellant at this stage filed his detailed petition of objection on 11.1.1993, on a consideration of which the order was re-affirmed by the learned Single Judge on 21.7.1995. The appellant preferred the present appeal which was rejected by the order dated 18.9.1997, on the sole ground that one Chandeshwar Prasad, whose objection had similarly been rejected by the said order dated 31.7.1990, and his appeal before the Supreme Court bearing S.L.P. No. 18539 of 1995, was dismissed. 3. Aggrieved by the order, the present appellant preferred Civil Appeal No.5017 of 1999, which was allowed by the Supreme Court by order dated 23.9.2004, and the matter has been remitted to this Court for fresh disposal of this appeal in accordance with law. The Supreme Court allowed the appeal on the sole ground that the High Court did not examine the question of similarity between the cases of the 4 appellant and the said Chandeshwar Prasad, and fell in the error of not examining the present appellant’s case on its own merits. Hence this appeal before us for reconsideration. 4. While assailing the validity of the impugned order, learned counsel for the appellant submits that service of notice in the proceedings before the learned Company Judge is invalid, being in violation of the mandatory provisions of section 26 read with Rule 46 and Form 109 of the Companies Court Rules, 1959. He submits in the same vein that the provisions of Section 477(1) of the Act has also not been complied with. He next submits that the learned Company Judge is required to examine the issues of title and possession in terms of sub- sections (2) to (7) of Section 477 of the Act, because jurisdiction of the civil court is barred in terms of section 446 of the Act. He also submits in the alternative, with respect to his case of adverse possession, that the plaintiff shall have to discharge the initial onus of proving its title, whereafter the onus shifts to the person who claims adverse possession. In his submission, the Company in the present case has not discharged its primary 5 onus, and has only produced photo copy of the sale-deed. He relies on the judgment of a Division Bench of this Court in the case of Ram Swaroop Singh & Ors. Vrs. Badri Narain Singh & Ors., reported in 1982 BBCJ 320. He also relies on the judgment of the Supreme Court in the case of Suraj Ahir and others Vs. Prithinath Singh and others, reported A.I.R. 1963 SC 454. He lastly submits that both sides have placed fresh materials on record in respect of their respective cases. Therefore, the appropriate course is to remit the matter to the learned Single Judge for a fresh decision. 5. Mr. S. D. Sanjay, learned counsel for the Official Liquidator, submits that notices were duly served and the principles of natural justice were fully observed. He next submits that the appellant has been taking different and really inconsistent stand at different stages. In any view of the matter, taking the common denominator of his stand, and on his own showing, he is an encroacher and can be forcibly evicted. He submits in the same vein that the appellant has not produced any document of title before the learned Company Judge. He next submits that the lands in 6 question had been attached by the department of Income Tax for realization of the company’s dues which goes a long way in establishing that the appellant was till the conclusion of the proceedings not in possession of the same. He lastly submits that the company’s title and possession is not in dispute. 6. We have perused the materials on record and considered the submissions of learned counsel for the parties. We shall first of all take up the grievance raised by learned counsel for the appellant that the proceedings before the learned Single Judge is in violation of the principles of natural justice. It is evident from the order dated 31.1.1989, passed by the learned Company Judge, that “… a fresh notice” were directed to be issued to the concerned persons including the present appellant, meaning thereby that notice had earlier been issued to the appellant. The later order dated 19.12.1989 reads as follows: “(1) Steps for fresh service of notice on Alok Kumar , Asis Kumar and B.K.Verma may be taken within three weeks from today. 7 (2)Notice on Surendra Singh may be accepted as valid.” (Emphasis added) It is thus evident that steps for fresh service of notices were required to be taken with respect to the three persons mentioned in paragraph 1 of the order, and notice on the present appellant was accepted to have been validly served. It further appears that, in spite of valid service of notice, the appellant did not file his show-cause/objection, nor did he enter appearance. His case along with others (not before us), was considered by the learned Company Judge and was rejected by order dated 31.7.1990, whereby the appellant was declared to be an encroacher and had to be evicted. The matter was re-considered by the learned Company Judge because of the belated submission of the appellant’s petition of show-cause, by his fresh order dated 21.7.1995 and reiterated his earlier order, directed for the appellant’s eviction by force with the help of the District Magistrate. 7. Alarmed by this situation, the appellant preferred the present appeal which was dismissed by order dated 21.7.1995, on the sole 8 ground that one Chandeshwar Prasad, whose objection had similarly been rejected by the learned Single Judge, was taken in appeal to the Supreme Court (S.L.P. No. 18539 of 1995), and was dismissed. Aggrieved by the order, the appellant preferred Civil Appeal No.5017 of 1999, before the Supreme Court, which was allowed by the order dated 23.9.2004, on the sole ground that the High Court did not examine the appellant’s case on its own and on merits, and remitted the matter to this Court for a fresh decision after consideration of the appellant’s case on merits. It is thus evident that the learned Company Judge had issued notices to the appellant more than once, and was validly served on him as a result of which he had proceeded to dispose of the matter on 31.7.1990. Failure to appear before the learned Single Judge, and failure to file his objection till this stage, is entirely attributable to the appellant. We are convinced that notice had been validly served on the appellant, and he had purposely abstained from the proceedings, perhaps under the impression that such an approach may get him better results. In that view of the matter, the alleged non-observance 9 of the provisions of Rules 6 read with Rule 246(1) and Form 109 is a wholly untenable submission. We are in this connection reminded of a Division Bench judgment of the Calcutta High Court in the case of Chandra Nath Bagchi V. Nabadwip Chandra Dutt and others, reported in A.I.R.1931 Calcutta 476, where Chief Justice Rankins speaking for the Court observed that such a contention amounts to piling unreason upon technicality. We are, therefore, convinced that the contention before us is equally and wholly untenable and is rejected. 8. It is significant in the present context that the present appellant had placed on record before the learned Single Judge detailed petition of objection on 11.1.1993, and on a consideration of the same and other materials placed by the parties, the learned Single Judge passed the said order dated 21.7.1995, whereby he has affirmed the earlier order dated 31.7.1990. The order dated 21.7.1995 was thus passed by the learned Single Judge on full consideration of the appellant’s petition of show-cause. 9. Learned counsel for the appellant has also contended that once a company goes into 10 liquidation, all suits with respect to its properties are barred in terms of section 436 of the Act. In that view of the matter, in his submission, it was incumbent upon the learned Company Judge to act as a civil court and ought to have decided issues of title and possession in terms of sub-sections (2) to (7) of Section 477 of the Act. It is correct to state that, in view of the provisions of section 446 of the Act, no suit can proceed after winding up proceedings commence. In that view of the matter, learned counsel for the appellant is right in his submission that his only remedy now is before the learned Company Court. It is equally correct to state that sub-sections (2) to (7) of Section 477 of the Act prescribe the procedure to examine the issues in hand. But then law is equally well settled that it is for the parties to lead evidence in support of their respective cases on their own, and there is no duty on the learned Company Judge to invite the parties to lead evidence. First of all the present appellant played truant and acted in complete defiance of the notice issued by the learned Company Judge, purposely abstaining from the proceedings. Secondly, the 11 appellant’s detailed objection filed on 11.1.1993, along with the materials placed on record by him as well as the other side, have been considered in detail by the learned Company Judge, leading to the order dated 21.7.1995. Furthermore, no material has been brought to our notice to establish that the appellant wanted to lead evidence before the learned Company Judge and he was denied the opportunity. We are convinced that the learned Company Judge examined in depth all the materials placed before him by the parties. In that view of the matter, we do not find any violation of the procedure prescribed by the provisions of sub-sections (2) to (7) of Section 477 of the Act. The contention is rejected. 10. In order to do complete justice to the parties, we have considered all the materials placed before us. Learned counsel for the respondent is right in his submission that the company has been able to establish its title by virtue of registered sale deeds, and has been able to trace its title. It appears from a photo copy of the registered sale-deed dated 19.9.1913, executed by Manki Devi in 12 favour of Thakur Ram, son of Nand Lal Sah, that the lands in question had been alienated in favour of the latter. By registered deed of absolute sale dated 2.8.1951, the lands in question were alienated by Ganga Prasad Sah, son of late Babu Bhagwat Prasad Sah, in favour of Thakur Ram Ganga Prasad (Pvt) Ltd., the company in question. It is evident that the company has been able to establish its title acquired by registered deed of absolute sale. The primary onus is surely discharged. 11. It further appears that the company fell in arrears with respect to the dues of the Department of Income Tax and, therefore, the lands in question were attached, obviously because it was in company’s possession. Copy of the order dated 28.8.1972, passed by the learned Tax Recovery Officer, Darbhanga, is to the effect that the following lands had been attached for default of payment of the income tax: Khata No. Khesra No. Area 359 495 0.62 367 496 0.69 63 497 1.18 184 499 0.30 134 498 1.12 13 358 503 1.06 The appellant claims the aforesaid plot nos. 495, 497, 498, and 503. Aggrieved by the order, the company had approached this Court by preferring C.W.J.C. No.182 of 1973, which was disposed of by order dated 26.7.1979, and is reproduced hereinbelow for the facility of quick reference: “On 30th January, 1979 an order had been passed by this Court requiring the learned Standing Counsel, appearing for the Income Tax Department, to ascertain as to whether the tax demand against the petitioner-assessee for the assessment year in question (1961- 62) had became nil. If that would be so, the sale in question will have to be set aside. It has now been ascertained that, in fact, the tax demand for the assessment year 1961-62 against the assessee has become nil, necessarily, therefore, the petition must succeed. The Tax Recovery proceeding, the sale and the order dated 31st January, 1973 are accordingly quashed. The application is allowed, but in the circumstances without costs.” 14 It is thus evident that the lands in question were in the company’s possession till its attachment, and were in the possession of the Department of Income Tax surely up to 26.7.1979 whereafter possession reverted to the Company. Any claim on the part of the appellant with respect to the lands in question based on possession is belied by documentary evidence of unimpeachable value. 12. Learned counsel for the respondents is right in his submission that the appellant has not produced any document of title to establish his title. He is further right in stating that he has taken different stand at different places. The most important part of his stand is incorporated in his show-cause filed on 11.1.1993, setting up his case before the learned Company Judge. Paragraph 19 of the same is reproduced hereinbelow for the facility of quick reference: “19. That some time in the year 1960-61 the petitioner occupied and squatted over the lands detailed in Schedule I of this petition which was vacant, unguarded and covered with wild shrubs and trees and the only 15 house of the ancestors of Jitendra Mondal and Dharmendra Mondal was there immediately south to the land.” It is thus evident that the appellant has based his claim on unauthorized occupation and encroachment. The same is obviously false in the face of documentary evidence produced by the respondent company relating to the proceedings before the income tax authorities as well as this Court. The appellant’s case verges on fraud. In that view of the matter, the only document, namely, rent receipts, produced by the appellant in support of his claim to the lands in question looses all importance and is fit to be rejected. We accordingly hold that the appellant’s case based on unauthorized occupation is false and meant to mislead this Court. 13. We must consider the appellant’s case based on adverse possession. He relies on the judgment of a Division Bench in the case of Ram Swaroop Singh (supra). In view of the foregoing discussion, the appellant’s case based on adverse possession does not lie at all. The contention is rejected. 14. The appellant also relies on the provisions of Order 41 Rule, 27 of the Code of Civil 16 Procedure, in an effort to persuade us for production of additional evidence in appellate court. We have already held hereinabove that notices were validly served on the appellant, notwithstanding which he did not appear. The appellant had submitted his detailed objection on 11.1.1993, whereafter it was open to him to pray for permission to bring on record additional evidence which was never made. In so far as this Court is concerned, we have considered and allowed the parties to place before us all the documents in support of their respective cases, which we have fully considered, in an effort to do complete justice to the parties. The provisions of Order 41, Rule 27 of the Code of Civil Procedure in substance has been fully complied with. 15. The appeal is dismissed. There shall be no order as to costs. (S.K. Katriar, J.) (Shyam Kishore Sharma, J.) Patna High Court, Patna. Dated 11th September, 2009. Vinay/ A.F.R.