SUDHIR JAGGI AND ANR.

A v.

SUNIL AKASH SINHA CHOUDHURY AND ORS.

AUGUST 11, 2004

[ASHOK BHAN AND S.H. KAPADIA, JJ.] B

Specific Relief Act, 1963-Section 6-Agreement of sale-Developer handing over possession of flats-Buyer carried out work of permanent nature and had also keys of the flats with him-Developer sold flats to other parties on account of non-payment of full consideration amount by buyer- C Dispossession of buyer-Suit for specific performance-Courts below ordering repossession in favour of buyer-Correctness of-Held : Courts below rightly decreed the suit since dominion/control over the suit flats was with the buyer and he was dispossessed without observing the due process of law.

D Buyer entered into an agreement with the developer-appellant in one of the appeals, for purchase of two flats. Subsequently, the agreement was varied and in terms thereof in May 1967, buyer was given possession of the two incomplete flats. On obtaining possession buyer erected walls, partitions, doors, windows and collapsibles at his own cost and also the keys to the suit flats were with the buyer. Buyer E paid Rs. 2,22,168 out of the total consideration amount and agreed to pay the balance amount in full settlement upon execution of conveyance in his favour for the two flats. Thereafter, appellant-defendant Nos. 2 and 3 who were illegally put in possession of the two flats by developer on 3.1.1979. Buyer filed the present wit Single Judge of F High Court held that dispossession had taken place.11ine_e there was no evidence of agreement between the developer and dcfndant Nos. 2 and 3, of consideration having been received by the developer from defendant Nos. 2 and 3 and of delivery of possession by the development to defendant Nos. and 3 and as such decreed the suit under G section 6 of Specific Relief Act, I 963 in favour of plaintiffs, executors of the will of the buyer. Division Bench upheld the order. Hence the present appeals.

It was contended by the developer that the buyer was never put in possession of the suit flats; that in May I 967 when the flats were H

A handed over, they were not ready and were shell like structure, without doors and windows ad the buyer was given only an access to execute the interiors which , could not constitute control or dominion or possession of the suit llat; that since the buyer was entrusted with the work of completing the flats on behalf of the developer, it was a case B of permissive possession; that there is no evidence of dispossession of the buyer by the developer or by appellant-defendant Nos. 2 and 3; and that defendant Nos. 2 and 3 were bonajide purchasers who are in possession since 3.1.19'79.

Dismissing the appeals, the Court

HELD : There is no substantial question of law arising in these civil appeals. Both the Courts below on consideration of both oral and documentary evidence on record have come to the conclusion that in May, 1967 two incomplete flats were handed over to the buyer who D as purchasers under 0 e modified terms agreed to construct partition walls, doors and windows inside the flats and even put collapsibles and also the keys to the suit flats were with the buyer. In the circumstance, both the Courts below have concluded that the dominion/control over the suit flats was with the buyer. There is no reason to disturb these findings of fact. There is no evidence on record to show that the buyer E was allowed to execute the work on behalf of the developer. Further it is established that the buyer was allowed to do the work of permanent nature and even the keys of the flats were with him which shows that the intentio,1 was to put the buyer in possession. There is no term in the agreem1 nt between the parties under which the buyer F was obliged to return the possession of the flats on completion of the work. Hence, the developer has failed to prove permissive possession.

Moreover, there is no evidence of transfer of the suit flats by the developer to alleged bowfide purchasers-defendants Nos. 2 and 3. In the circumstances, both the Courts below were right in coming to the conclusion that buyer was put in possession of the suit flats in May, G I 967 and was wrongly dis possessed by the appellants without following due process of law, and as such were right in decreeing the suit under section 6 of the Specific Relief Act. (476-C-G]

Supdt. And Remembrancer of Legal Affairs, West Bengal v. Anil H Kumar Bhunja and Other, (19791 4 sec 274, relied on.

Kumar Kalyan Prasad & Another v. Kulanand Vaidik & Others, AIR A

(1985) Patna 374 and Raj Krishna Parui v. Muktaram Das, (1910) 12 Calcutta Law Journal 605, approved.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6408 of 2002.

From the Judgment and Order dated 16.7.2002 of the Calcutta High Court in A.P.D. No. 220 of 2002.

N.S. Vasisht, Ranjit Singh, Arun K. Sinha and B. Mohan for the Appellants.

Dipankar Prasad Gupta, Jaydeep Gupta, Samir Roy Chowdhury and G.S. Chatterjee for the Respondents.

The Judgment of the Court was delivered by

KAPADIA, J. : These two civil appeals are filed by the defendants D who were aggrieved by the judgment and decree passed by the learned Single Judge of Calcutta High Court dated 27.9.2001 in Suit No. 161 of 1979 ordering repossession in favour of the plaintiffs and which judgment and decree is confirmed by the impugned judgment of the Division Bench of the Calcutta High Court dated 16.7.2002 in A.P.D. No. 220 of 2002. E

Briefly, the facts giving rise to these appeals are as follows:-

Plaintiffs are the two executors of the will of one P.K. Chowdhury (since deceased) who agreed, vide agreement dated 8.5.1965, to purchase two flat nos. 12C and 12D on the 12th floor of the building known as F "Monalisa" situate at Camac Street, Calcutta, along with two garages on the ground floor for the total consideration of Rs. 2,34, 168, out of which the deceased P.K. Chowdhury paid Rs. 2,22,168. Originally, it was agreed that two flats would be allotted by the developer (defendant no. I) to P.K.

Chowdhury on 8th floor. That agreement was varied and it was agreed that the two other flats would be allotted on the 12th floor. Similarly, the G said two garages, as agreed upon, could not be allotted due to technical defect in the construction, so an alternative larger space was allotted at an increased price. Later on, P.K. Chowdhury constructed two complete locked up garages. Apat1 from two flats, P.K. Chowdhury purchased three room spaces on the ground floor. lfi' respect of flat nos. I 2C and I 2D, it H

A was originally agreed between the developer and P.K. Chowdhury that the developer would carry out all internal works in accordance with the suggestions of P.K. Chowdhury. Subsequently, that condition was varied and it was stipulated by and between the parties that P.K. Chowdhury would himself make internal changes at his own costs, for which the B developer agreed to give a rebate.

In May, 1967, the developer gave possession of the said two flats which then consisted of outer walls on four sides without any partition, doors and windows. On obtaining possession, P.K. Chowdhury erected walls, partitions, doors, windows and collapsibles at his own costs. These works were of permanent nature. On or about I 0.1.1968, accounts between P.K. Chowdhury and the developer were C settled. Rs. 12000 was found due and payable by P.K. Chowdhury to the developer being balance amount in full settlement of the consideration for the flats and garages. P.K. Chowdhury agreed to pay Rs. 12000 to the developer upon execution of conveyance in his favour for the two flats.

In December, 1975, however, the developer instituted a suit in the City D Civil Court, Calcutta, being suit no. 2180 of 1975 for permanent injunction restraining P.K. Chowdhury from interfering with his alleged possession.

The said suit was dismissed, as not maintainable.

On I 0.2.1979, the appellants herein wrongfully and illegally broke into the said two flats and obtained wrongful and forcible possession E thereof. P.K. Chowdhury came to know of the dispossession on 12.2.1979.

On 12.3.1979, he filed the present suit. In the present suit, the developer contended that P.K. Chowdhury was never given possession of the suit flats; that he was given access to execute certain masonry works in the said two flats; that P.K. Chowdhury did not pay the full consideration and F consequently, he had sold both the suit flats to original defendants nos. 2 and 3 (appellants in Civil Appeal No. 6408 of 2002), who were put in possession of the two flats on 3.1.1979 from which date defendants nos. 2 and 3 have continued to be in possession thereof.

In the present suit filed on the Original Side of the High Court, G extensive evidence, both oral and documentary, was led. On behalf of the plaintiffs, PW!, the wife of P.K. Chowdhu1y, was extensively examined.

PW! in her evi4ence stated that possession of the two incomplete flats was given to her husband in terms of the modified agreement under which P.K.

Chowdhury had agreed to execute the work of permanent nature at his own H costs subject to rebate from the developer. That when possession was given

to her husband, the flats in question were not habitable. That P.K. A Chowdhury had erected the walls, doors and windows. That he had put the collapsibles which were kept locked, that the keys to the suit flats were with her husband.

PW!, in her evidence, further deposed that P.K.

Chowdhury had paid Rs. 2,22,168 leaving a balance of only Rs. 12000, which was to be paid on the date when the developer executed the B conveyance in favour of P.K. Chowdhury.

Jn the light of the above evidence, the learned Single Judge came to the conclusion that dispossession had taken place on I 0.2.1979 and, therefore, the suit filed on 12.3.1979 was within the period of six months as prescribed by section 6 of the Specific Relief Act, 1963. The learned C Single Judge further found that there was no evidence of agreement between the developer and defendant nos. 2 and 3; that there was no evidence of consideration having been received by the developer from defendant nos. 2 and 3; and that there was no evidence of delivery of possession by the developer to defendant nos. 2 and 3. In the circumstances, D the suit filed under section 6 of the Specific Relief Act, 1963 by the executors of the will of P.K. Chowdhury was decreed in terms of prayers 'a' and 'b'.

Being aggrieved by the judgment and decree passed by the learned Single Judge dated 27.9.2001, the matter was carried in appeal to the E Division Bench of the Calcutta High Court. By the impugned judgment dated 16.7.2002, the appeals preferred by the original defendants came to be dismissed. Consequently, the developer (defendant no.I) has come by way of Civil Appeal No. 2507/2004 whereas purported bonafide purchasers (defendants nos. 2 and 3) have come to this Court by way of Civil Appeal No. 6408/2002.

Sin.ce, common question of fact is raised in these civil appeals, the same are heard and disposed of by this common judgment.

Mr. N.S. Vasisht, learned counsel appearing on behalfofthe developers, submitted that P.K. Chowdhury was never put in possession of the suit flats G and that he was given only an access to supervise the interiors. It was submitted that P.K. Chowdhury was keen to have the interior decor inside the flats of his choice, for which access was provided for. That such access cannot constitute control or dominion or possession of the suit flats. It was fu1ther urged that P.K. Chowdhury was entrusted with the work of H

A completing the flats on behalf of the developer and, therefore, it was a case of permissive possession. In the circumstances, it cannot be said that P.K.

Chowdhury was in possession of the suit flats. It was further contended that in May, 1967, the flats were not ready; that they were shell like structure, without doors and windows and P.K. Chowdhury was permitted B to execute the interiors. In such circumstances, it was urged that P.K.

Chowdhury was given access to visit the flats and give instructions to decorate the suit flats and, therefore, P.K. Chowdhury was never put in possession as alleged. It was next submitted that there is no evidence of dispossession of P.K. Chowdhury by the developer or by defendant nos. 2 and 3. That defendant nos. 2 and 3 were bonafide purchasers who are C in possession since 3.1.1979.

We do not find any merit in these civil appeals. Firstly, there is no substantial question of law arising in these civil appeals. Both the Courts below on consideration of the entire evidence, both oral and documentary, D on record have come to the conclusion that in May, 1967 two incomplete flats were handed over to P.K. Chowdhury; that under the modified terms P.K. Chowdhury agreed as the purchaser to construct partition, walls, doors and windows inside the flats; that even collapsibles were put by P.K.

Chowdhury and that the keys to the suit flats were with him. In the circumstances, both the Courts below have concluded that the dominion/ E control over the suit flats was with P.K. Chowdhury. We do not see any reason to disturb these findings of fact. Secondly, there is no evidence on record to show that P.K. Chowdhury was allowed to execute the work on behalf of the developer. Thirdly, on evidence, it is established that P.K.

Chowdhury was allowed to do the work of permanent nature and that even F the keys of the flats were with him which proved beyond doubt that P.K.

Chowdhury was in complete control of the suit flats. Fourthly, there is no term in the agreement between the parties under which P .K. Chowdhury was obliged to return the possession of the flats on completion of the work.

Hence, the developer has failed to prove "permissive" possession as alleged. Lastly, as held by the Courts below, there is no evidence of transfer G of the suit flats by the developer to alleged bonafide purchasers, i.e., defendant nos. 2 and 3. In the circumstances, both the Courts below were right in decreeing the suit under section 6 of the Specific Relief Act, 1963.

In the case of Supdt. And Remembrancer of Legal Affairs, West H Bengal V. Anil Kumar Bhunja and 01hers reported in (1979] 4 sec 274,

SUDHIR JAGGI v. S.A.S. CHOUDHURY [~PADIA, J.] 477 /

this Court observed that the word "possession" is not purely a legal concept A but a polymorphous term which may have different meanings in different contexts. That the word "possession" implies a right and a fact. It involves power of control and intention to control. That the test for determining', whether a person is in possession, is : whether he is in general control of it.

In the present case, as stated above, P.K. Chowdhury was given B possession in May, 1967 and it was agreed between the parties that the buyer could construct the walls, partition, doors and windows, which show the intention to put P.K. Chowdhury in possession.

In the case of Kumar Kalyan Prasad & Another v. Kulana11d Vaidik & Others reported in AIR (1985) Patna 374 while discussing the scope of C section 6 of the Specific Relief Act, 1963, it has been held:

"9. In the first instance, a mere reference to the plain language of the provision aforesaid would indicate that the word "dispossessed" has not been used in the narrowly constricted sense of the actual physical possession of immoveable property. D Indeed, it talks somewhat widely of dispossession of immoveable property otherwise than in due course oflaw without the person's consent. If the Legislature intended to narrowly limit the word "dispossessed" there could have been no difficulty by specifying in terms the actuality of physical possession as its necessary and E vital ingredient.

The word employed is the ordinary word "dispossess". Plainly enough it would include within its sweep actual physical dispossession also but this is no warrant for holding that it necessarily excludes the violation of other forms of possession including a symbolical possession duly delivered by law and contumaciously violated by an aggressive trespasser. On F pr; nciple I am not inclined to construe the word "dispossessed" in S. 6 in any hypertechnical sense and to push it into the procrustean bed of actual physical possession only. Indeed the intent of the Legislature in S. 6 to provide early and expeditious reliefagainst the violation ofpossessory right, irrespective of title, G would be equally, if not more, relevant where symbolical possession delivered by due process of law is sought to be set at naught forthwith .... "

To the same effect is the judgment of the Calcutta High Court in the case of Raj Krishna Parui v. Muktaram Das reported in [1910] 12 Calcutta H

SUPREME COURT REPORTS [2004] SUPP. 3 S.C.R.

A Law Journal 605 in which while interpreting section 9 of the Specific Relief

Act, 1877 (section 6 of the present Act, 1963) it has been held:

"In a suit commenced under section 9 of the Specific Relief Act, the sole point for determination will be, whether the plaintiffs were in possession of the disputed property within six months previous to the institution of the suit and whether they had been deprived of such possession by the defendant otherwise than in due course of law. It is immaterial, if the plaintiffs were in possession, that such possession was without title.

What the plaintiff has to prove is possession of the disputed property and not mere isolated acts of trespass over that property.

In order to entitle the plaintiff to succeed on the ground of possession, he must prove, firstly, that he exercised acts which amounted to acts of dominion; the nature of these acts of dominion varies with the nature of the property; secondly, that the act of dominion was exclusive. If the occupation by the plaintiff, as indicated by those acts, has been peaceable and uninterrupted and has extended over a sufficient length of time, the inference may properly be drawn that the plaintiff was in possession."

E Applying the above judgments to the facts of the present case, we are of the view that both the Courts below were right_ in coming to the conclusion that P.K. Chowdhury was put in possession of the suit flats in May, 1967 and that he was wrongly dispossessed on 10.2.1979 by the defendants without following due process of law. Hence, there is no merit in the civil appeals.

F Before concluding, wt wish to clarify that since the impugned decree is passed in a summary suit under section 6 of the Special Relief Act, 1963, none of our observations herein shall preclude the parties herein from raising contention(s) in the substantive suit to establish title and for G recovery of possession which the defendants herein may file in accordance with law, if so advised.

For the foregoing reasons, we do not find any merit in these civil appeals and the same are accordingly dismissed, with no order as to costs.

N.J.

Appeals dismissed.