Sevoke Properties Pvt. Ltd. vs West Bengal State Eletrictiy ...

4 On 22 March 1975, a deed of settlement was executed by Mohan Lal Khemka, by which a private trust was created for the benefit of his grandson. By the said deed, Mahabir Prasad Bhartia and Sunita Bhartia were appointed as trustees. On 5 November 1979, a deed of settlement resulted in the creation of a private trust. At this stage, it would be material to note that the property in dispute has by subsequent devolutions vested in the appellant.

5 On 25 May 1981, an indenture of lease was entered into between the appellant and the respondent. The term of the lease was fifteen years. Under the terms of the lease, the respondent took possession of the land. The rent was paid until 19 April 1984.

6 The State of West Bengal initiated proceedings for requisitioning of the land under the West Bengal Lands (Requisition and Acquisition) Act 1948. The appellant challenged the validity of the requisitioning in a Writ Petition before the High Court. The petition was allowed by a judgment dated 25 September 1998 and the order of requisitioning was set aside. The judgment of the Single Judge was questioned in appeal by the respondent. The appeal was dismissed on 16 November 2000. 7 Eventually, a suit for eviction was instituted before the Court of the Civil Judge (Senior Division), Jalpaiguri1. The respondent filed its written statement. The learned trial judge decreed the suit by a judgment and order dated 30 November 2005. The trial court passed a decree for vacant and peaceful possession. A preliminary decree for mesne profits was passed. The respondent filed an appeal before the High Court. By an interim order dated 18 May 2006, the Division Bench of the High Court directed that proceedings before the trial Court for ascertainment of mesne profits in terms of Order 1 Title Suit 63 of 2001 3 XX Rule 12 of the Code of Civil Procedure 1908 2 shall continue, but no final decree shall be drawn up without the leave of the Court. The execution proceedings were stayed, subject to deposit of the arrears of rent.

8 Following the order of the High Court, the valuer submitted a report in regard to the valuation of the property. The trial Court accepted the valuation on 7 September 2016. The order of the trial court was challenged by the respondent before the High Court3. The petition was dismissed on 1 May 2018 by a learned Single Judge. 9 By a judgment and order dated 14 November 2018, the High Court has set aside the decree for possession and, in consequence, directed that the suit instituted by the respondent shall stand dismissed. The High Court has held that:

(ii) Since the indenture of lease is an unregistered document, as a consequence of the provisions of Sections 35 and 36 of the Indian Stamp Act 1899 and Sections 17 and 49 of the Registration Act 1908, the contents of the document are inadmissible in evidence to prove the terms of the contract. As a consequence, the presumption under Section 106 would come into operation and the relationship between the parties would be in the nature of a monthly tenancy. The respondent in its written statement categorically admitted that it was in occupation for a period of fifteen years which ended on 24 May 1996. Once this is the position, the position of the respondent would be as a tenant at sufferance, in which event, no notice under Section 106 was necessary; and

17 For the above reasons, we have come to the conclusion that the judgment of the High Court was in error.

18 We accordingly allow the appeal and set aside the impugned judgment and order of the High Court and restore the judgment of the trial court dated 30 November 2005. In view of the pendency of the proceedings before this Court and having due regard to the interim order that was passed by the High Court during the pendency of the appeal, the respondent should be given the liberty of assailing the judgment dated 1 May 2018 of the learned Single Judge of the High Court accepting the report of the Commissioner in regard to the determination of mesne profits. We grant a period of three months to the respondent to initiate appropriate proceedings in accordance with law for assailing the judgment of the learned Single Judge dated 1 May 2018. 9 (2008) 2 SCC 728 11 19 Mr Yasobant Das requested for the grant of a year to vacate since the respondent has a store in the land and arrangements for shifting have to be made. We direct that the respondent shall have one year's time to vacate the suit premises from the date of the judgment, subject to the filing of the usual undertaking within four weeks from today. We have granted one year's time since the Court was apprised of the fact that a store which provides services to the entire North Bengal area is situated on the land.

20 The bank guarantee furnished by the appellant as a condition for withdrawal of the occupation charges deposited by the respondent shall stand discharged. However, the amount which has been withdrawn by the appellant shall abide by the final determination of mesne profits.

21 There shall be no order as to costs.