Case: Paul Brothers (Tailoring Division)And Ors. Etc Vs. Ashim Kumar Mandal And Ors. Etc

1987 and 44 with the affidavit of July 1988 - while with ine SLP only 17 rent receipts have been annexed. Some of the receipts date back earlier than 1974 though according to the partnership deeds, the business of the firms commenced only in April 1974. The rent receipts bear almost continuous serial numbers. there are several numbers. There are several discrepancies: for example, a receipt dated 6-8-77 bears,no. 59 whereas one dated 10-6-77 bears No. 60 and there are two rent receipts for July 1977. The rent receipts in favour of Paul Bros. (Electricals) are in the name of R. K. Paul who is not a partner therein according to the deed and who is referred to in the Corporation records as a goldsmith. There is no rent receipt from Avamayee Paul or her estate and Satyanarayan Paul, Ashoka Paul, Dilip Paul or Mihir Paul are not recorded as owners. There is not a single affidavit by any of the signatories to the receipts vouching for their genuineness; (6) There is no effort by these three or the other claimants to pay the rents, after the attachment of the premises, either to the Commissioner or to the Mandals. Their case that they did not know about the attachments was false; (7) There is no difference between the case of the claimants in the cases of Amar Mandal and Jagdlsh Prasad Agarwalla and that of the various claimants herein. 31. WE have carefully considered the contentions of the parties. It is true that, some of the grounds of criticism of the evidence produced by the claimants are valid. A certain amount of difficulty has been caused by the uncertainty as the nature of the proceedings conducted by the High Court in pursuance of the order of this Court. It appears that the Court has produced to consider the issues in a summary manner on the basis of the affidavits of the claimants and on prima facie consideration of the documents formally as well as informally. produced in support thereof. The enquiry has been somewhat analogous to the procedure which used to be adopted in disposing of petitions by obstructors under the Code of Civil Procedure, 1908, (before its amendment in 1976) which concluded in a tentative finding leaving it open to the parties to file a suit and establish their right to possession. On the other hand, if these are taken to be in the nature of proceedings for the execution of a decree under the amended code, there will have to be a more detailed trial with full opportunity to parties to lead evidence and to examine and cross-examine witnesses, as a finding reached in these proceedings would be final and conclusive. In the present case, the application has been disposed of somewhat summarily and informally. At one stage, therefore, we were inclined to think that the matter, so far as the Pauls are concerned, should be remanded to the High Court for fresh disposal. But, on further consideration, we have come to the conclusion that there is sufficient material placed on record by the claimants to show that Paul Bros. have been in the premises as tenants since long and that no such remand is necessary. Taking all the documents collectively, it is difficult to say that one could reasonably arrive at the conclusion that the Pauls were trespassers or unauthorised occupants. The Mandals have done nothing positive to establish this but to barely deny the genuineness of the various documents put forward on behalf of the claimants. 32. ONE direct piece of evidence is the extract from the municipal records. It was suggested that the photostats produced could not be relied upon and that the entries therein could have been reproduced by some process of superimposition. However, it has been found that, apart from the photostat copies, the original records were summoned and certified extracts produced by the reference to Mihir Paul and, admittedly, have been taken on record. These extracts which relate to the relevant period show the Paul Bors. as tenants in the three shops. It Is true that the estate of Avamayee Paul has been shown as the landlords but the entry contains a reference to Mihir Paul and, admittedly,. Mahamaya Devi purchased the property from Dilip and Mihir. Letters calling for attornment and rent receipts galore have been produced. Though one cannot eschew the possibility of these being got up documents, some foundation must be laid by the Mandals to reject them other than a mere assertion that they are not genuine. The discrepancies suggested are few and minor and do not warrant the summary rejection of the large number of receipts. The electricity bills, phone bills, tax department correspondence likewise prima facie support the claim of the appellants. The mistakes pointed out in the telephone and electricity bills are insignificant. The bills are made out not in the name of M. S. Paul but M/s. Paul Brothers and D. P. Paul is said to be an uncle of the Pauls. These, together with the partnership deeds and municipal licences and correspondence the genuineness of which cannot be rejected straightway, support the claim. No doubt there is a slight discrepancy in that the 1961 deed is not referred to in the 1974 deeds but this cannot entail the rejection of the 1961 deed. We do not wish to elaborate on every one of the other points made by the counsel for the Mandals. It is true that Mahamaya Devi did not refer to them in her objections but she was concerned about saving "her" property from attachment and sale as that of Sanchaitas and the issue about her having let out the property was irrelevant for the decision of her objections. We are satisfied that even in the face of the evidence produced before the High Court (which has been supplemented in some respects before us) it is difficult to treat the Paul Bros. as trespassers or unauthorised occupants in the property. 33.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]RI Kapur laid considerable stress on the aspect that, unless vacant possession can be had, no one will purchase any property at the auction sales conducted by thecommissioner as no one would like to face further litigation to secure possession of the property. He submitted that the object which the Court had in mind was to effectuate sales of Sanchaita properties by assuring vacant possession with a view to secure maximum price therefor and to ensure expeditious return to the Sanchaita investors of as much of their deposits as possible and that this object would be totally frustrated if people were encouraged to put in hurdles in the way which will depreciate the value of the property. This contention proceeds, only partially, on a correct basis. It is true that there should be a quick and expeditious realisation of the properties that really belong to Sanchaita. That is why the Court empowered the Commissioner to attach and a all properties that, in his opinion, really belong to Sanchaita though ostensibly held in the names of others and also devised a quick and summary method for adjudication upon claims and removal of obstructions. But this order cannot be availed of to ride rough-shod over the rights and interests of others in the properties which have been created bona fide. If bird parties who have acquired real interests 1 in the property, either independent of, or even through, Sanchaita cannot be called upon to give up their rights. To do so would be to do more than merely realise what rightfully belongs to Sanchaitas; it would amount to conferring on Sanchaita a better title than it had, in fact, acquired. The depositors or investors in Sanchaita cannot claim any such rights. It is, therefore, difficult to accept the ground urged by Sri Kapoor as entitling the Mandals to an interest that can ignore or override all manner of rights and interests in the auctioned propertiesOR the above reasons, we are unable to accept the plea that the Mandals are entitled to get vacant possession of the premises, irrespective of the nature of the interests the claimants had therein and that,on this ground alone, we should uphold the order of the Division Bench. We shall, therefore, proceed to consider how far the claim of each one of the appellants before us to continue in possession of the property, unless and until evicted in due course by process of law, is maintainableWE have carefully considered the contentions of the parties. It is true that, some of the grounds of criticism of the evidence produced by the claimants are valid. A certain amount of difficulty has been caused by the uncertainty as the nature of the proceedings conducted by the High Court in pursuance of the order of this Court. It appears that the Court has produced to consider the issues in a summary manner on the basis of the affidavits of the claimants and on prima facie consideration of the documents formally as well as informally. produced in support thereof. The enquiry has been somewhat analogous to the procedure which used to be adopted in disposing of petitions by obstructors under theCode of Civil Procedure, 1908, (before its amendment in 1976) which concluded in a tentative finding leaving it open to the parties to file a suit and establish their right to possession. On the other hand, if these are taken to be in the nature of proceedings for the execution of a decree under the amended code, there will have to be a more detailed trial with full opportunity to parties to lead evidence and to examine and cross-examine witnesses, as a finding reached in these proceedings would be final and conclusive. In the present case, the application has been disposed of somewhat summarily and informally. At one stage, therefore, we were inclined to think that the matter, so far as the Pauls are concerned, should be remanded to the High Court for fresh disposal. But, on further consideration, we have come to the conclusion that there is sufficient material placed on record by the claimants to show that Paul Bros. have been in the premises as tenants since long and that no such remand is necessary. Taking all the documents collectively, it is difficult to say that one could reasonably arrive at the conclusion that the Pauls were trespassers or unauthorised occupants. The Mandals have done nothing positive to establish this but to barely deny the genuineness of the various documents put forward on behalf of the claimantsNE direct piece of evidence is the extract from the municipal records. It was suggested that the photostats produced could not be relied upon and that the entries therein could have been reproduced by some process of superimposition. However, it has been found that, apart from the photostat copies, the original records were summoned and certified extracts produced by the reference to Mihir Paul and, admittedly, have been taken on record. These extracts which relate to the relevant period show the Paul Bors. as tenants in the three shops. It Is true that the estate of Avamayee Paul has been shown as the landlords but the entry contains a reference to Mihir Paul and, admittedly,. Mahamaya Devi purchased the property from Dilip and Mihir. Letters calling for attornment and rent receipts galore have been produced. Though one cannot eschew the possibility of these being got up documents, some foundation must be laid by the Mandals to reject them other than a mere assertion that they are not genuine. The discrepancies suggested are few and minor and do not warrant the summary rejection of the large number of receipts. The electricity bills, phone bills, tax department correspondence likewise prima facie support the claim of the appellants. The mistakes pointed out in the telephone and electricity bills are insignificant. The bills are made out not in the name of M. S. Paul but M/s. Paul Brothers and D. P. Paul is said to be an uncle of the Pauls. These, together with the partnership deeds and municipal licences and correspondence the genuineness of which cannot be rejected straightway, support the claim. No doubt there is a slight discrepancy in that the 1961 deed is not referred to in the 1974 deeds but this cannot entail the rejection of the 1961 deed. We do not wish to elaborate on every one of the other points made by the counsel for the Mandals. It is true that Mahamaya Devi did not refer to them in her objections but she was concerned about saving "her" property from attachment and sale as that of Sanchaitas and the issue about her having let out the property was irrelevant for the decision of her objections. We are satisfied that even in the face of the evidence produced before the High Court (which has been supplemented in some respects before us) it is difficult to treat the Paul Bros. as trespassers or unauthorised occupants in the property.