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PETITIONER:

PAUL BROTHERS (TAILORING DIVISION)AND ORS. ETC.

Vs.

RESPONDENT:

ASHIM KUMAR MANDAL AND ORS. ETC.

DATE OF JUDGMENT02/04/1990

BENCH:

RANGNATHAN, S.

BENCH:

RANGNATHAN, S.

RAMASWAMI, V. (J) II

CITATION:

1991 AIR 796 1990 SCR (2) 283

1990 SCC (3) 726 JT 1990 (3) 81

1990 SCALE (1)768

ACT:

Practice and Procedure.' Sanchaita case--Directions of

Supreme Court explained.

HEADNOTE:

These appeals arose as a sequel to certain directions of

this Court in the famous Sanchaita Investment Company case,

which by dint of tremendous advertisement campaign collected

deposits amounting to several crores of rupees from thou-

sands of depositors spread all over India. The firm pros-

pered and thereafter tied up and siphoned away a sizeable

portion of its funds from its coffers for the benefit of the

management personnel by acquiring movable and immovable

properties in the names of the firm, relatives and benami-

dars. Then they started making defaults in its obligations

to the depositors.

The depositors approached the High Court and eventually

the matter came up to this Court in 1983. With a view to

safeguard the interests of the depositors and ensure that

the properties of the firm be duly identified and full and

due benefit of the funds be diverted to its coffers, this

Court by its order appointed a Commissioner to take charge

of all the assets, documents, papers of the firm, agents,

sub-agents, transferees and benamidars. Further to enable

the Commissioner to gather all the assets of the firm, he

was given powers to attach all assets and properties which

in his prima facie opinion are of the ownership of the firm

or any of its partners. Such assets were to be put to sale

if no objections are received there to within one month from

the date of attachment. All objections thus received in

respect of such properties were to be forwarded to the

Prothonotary of Calcutta High Court, and a Division Bench of

the High Court was to dispose of the objections on merits.

By a further order dated 23rd September, 1985 this Court

empowered the Commissioner to remove all unauthorised

283

persons or trespassers from possession of the property

proposed to be sold, and the Commissioner to hand over

vacant possession to the rightful purchasers.

One of the properties thus attached by the Commissioner

by a public notice was house N. 52/1/1B Surendra Nath Baner-

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jee Road, Calcutta. It was subsequently brought to sale on

"as is and where is basis". Asit Kumar Mandal and two others

purchased this property and requested the Commissioner to

give them vacant possession. Since the sale was on "as is

and where is basis", the Mandais moved an application before

the High Court Division Bench praying for the vacant posses-

sion of the said property and the same was granted.

Hence the appellants i.e. Paul Bros and Others, moved

two Special Leave Petitions in this Court and claimed that

they were bona fide tenants in the property even under the

predecessors-in-interest of Mahamaya Devi in whose name the

property was purchased by Sanchaita firm and therefore could

be evicted only in accordance with due process of law after

full contest, and could not be thrown out in summary pro-

ceedings just as if they were persons in unauthorised pos-

session of the property, or as if they were mere trespass-

ers. On the other hand the Mandais contended that in terms

of the orders of this Court, and of the Calcutta Division

Bench they purchased the property only on the basis that

they would get a perfect title and speedy possession.

Allowing the Special Leave Petitions, this Court,

HELl): That the contention of the Mandais is not main-

tainable either in principle or on the terms of the direc-

tions of this Court. The attachment and sale in pursuance of

this Court's order of the present property in question did

not have the legal effect of invalidating any interests

created or subsisting in the property by sale, transfer

encumbrance or alienation prior to the attachment. Even the

sale was on "as is and where is basis". The Courts order of

27th September, 1983 only empowered the Commissioner to

remove all unauthorised persons and trespassers but persons

who are in lawful possession of the

284

property could not be evicted forcibly or summarily. The

said order could not be interpreted to mean that the pur-

chasers would be entitled to vacant possession through the

commissioner even by evicting bona fide tenants or other

encumbrancer or independent out-siders who had acquired

interest for consideration in the property. The object of

the directions was to cut short the proliferation of litiga-

tion and to gather in expeditiously the assets of Sanchaita.

[292D--E; 295H; 296B]

Having regard to the large scale dealings, the special

circumstances and the desperate situation, the Court made an

exception and made it possible for the Commissioner to get

false and frivolous claimants out of the way by a quick

procedure because even normally the trespassers and unautho-

rised persons cannot be thrown out except by recourse to

legal proceedings. So this order could not be availed of to

ride rough-shod over the rights and interests of others in

the properties which had been created bona fide. Even third

parties who have acquired real interests in the property

either independent of, or even through Sanchaita could not

be called upon to give up their rights which would mean to

do more than merely realise what rightfully belongs to

Sanchaita that is by conferring a better title than it had

in fact acquired while purchasing those properties, [297B,

G]

So in the instant case, considering the materials and

evidence and the records placed before the Court by the

claimants/objectors, to prove that they are not stooges or

false claimants but have bona fide right to possession, it

was held that the auction purchaser could not evict Paul

Brothers and Phani Bhushan Ghose except eviction proceedings

in the normal course and in accordance with law as may be

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available to them against the claimants/objectors. The

claim's of the other appellant was rejected. [297C-D]

JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 1755-56

of 1990.

From the Judgment and Order dated 9.2.1989 of the Cal-

cutta High Court in Matter No. 3737 of 1987.

Dr. Shankar Ghosh, C.S. Vaidyanathan, S.R. Setia, K.V. Vis-

285

wanathan and A.K. Sil for the Appellants.

S.K. Kapoor, P.K. Pillai D.K. Sinha, Mrs. R. Paul and

H.K. Puri for the Respondents.

The Judgment of the Court was delivered by

RANGANATHAN, J. Leave granted.

These appeals arise as a sequel to certain directions of

this Court in the famous Sanchaita case. The Sanchaita

Investment Company was a firm which was controlled and run,

primarily, by three persons Samonu Prasad Mukherjee, Bihari-

al Murarka, and Swapan Kumar Guha. It had been able, by dint

of a tremendous advertisement campaign, to collect deposits

amounting to several crores of rupees from thousands of

depositors spread all over India by holding out attractive

terms of interest. The firm initially prospered and its

deposits steeply mounted to astronomical figures. The firm,

however, began to acquire, or deal in, movable and immovable

properties in various cities of India in the names, not only

of the firm, but of relatives and benamidars of various

persons who were in management its affairs. A sizeable

portion of the firm's funds being thus tied up or siphoned

away from its coffers for the private benefit of the indi-

viduals running it, the firm eventually began making de-

faults in its obligations to the depositors. The depositors,

thereupon, approached the High Court and eventually the

matters came up to this Court in W.P. Nos. 638 and 755-800

of 1983. With a view to safeguard the interests of the

depositors, arrange for a return to them of as much of their

deposits as possible and ensure that the properties of the

firm were duly identified and the full and due benefit of

the funds diverted from its coffers was restored to the

firm, this Court, by its order dated 4.5.83, appointed a

retired District Judge as a Commissioner to take charge of

all the assets, documents and papers of the firm and of its

agents, sub-agents, transferees and benamidars. Directions

were given to the Commissioner to look into the claims of

depositers and to devise a scheme whereby persons who had

deposited sums not exceeding Rs.25,000 could be repaid

expeditiously. By a subsequent order dated 27.9.83, certain

directions were given to enable the Commissioner to

286

gather in all the assets of the firm. It is necessary to

quote a portion of this order. It read:

"The Commissioner may attach such assets and properties

which, in his prima facie opinion, are of the ownership of

the firm Sanchaita Investments, or of the ownership of any

of its partners. Such assets and properties may be put to

sale by the Commissioner if no objection is received to the

attachment thereof within one month of the date of attach-

ment. All objections received to the attachment of such

assets or properties will be forwarded by the Commissioner

to the Prothonotary of the High Court of Calcutta. We re-

quest the learned Chief Justice of the Calcutta High Court

to nominate a Division Bench of the High Court for the

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purpose of jurisdiction upon such objections. The Division

Bench will dispose of the objections on merits after hearing

all interested parties."

Reference must also be made to another order of this

Court dated 23.9.85 in C.M.P. No. 38589/85. By this order,

this Court directed:

"After heating counsel for the parties we consider it neces-

sary to empower the Commissioner, Sanchaita Investment, to

remove all unauthorised persons and trespassers from posses-

sion of the property proposed to be sold by the Commissioner

under the orders of this Court and to hand over vacant

possession to the rightful purchasers. The Commissioner is

authorised to take the assistance of the police for the

purpose of obtaining possession and handing it over to the

rightful purchasers."

In pursuance of these directions, the Commissioner

attached a large number of properties situate all over the

country which, he had reason to believe, were properties

which belonged to the firm though acquired in the names of

others. When the properties were so attached and sought to

be sold, objections were lodged by persons claiming title or

possession of the property in their own right and these

objections were adjudicated upon by the designated Division

Bench of the Calcutta High Court.

287

One of the properties that were thus attached by the

Commissioner was house No. 52/1/1B, Surendra Nath Banerjee

Road, Calcutta- 14. (There is a slight discrepancy in the

door number of this property as appearing in various docu-

ments but that is not material for our purposes). This

property stood on land of the small extent of about 800 sq.

ft. and comprised of five rooms in the ground floor (three

in front and two at the back), a first floor and a second

floor but, being business premises in a busy commercial

locality, is of considerable value today. The Commissioner

found that this property had been acquired in the name of

Mahamaya Devi, an aunt of Sambhu Prasad Mukherjee, for

Rs.85,000 on 4.10.1977. Apparently the Commissioner was of

the opinion that the property was really that of the firm

acquired in the name of Mahamaya Devi. He, therefore, at-

tached this property by a public notice taken out, inter

alia, in "The Statesman" dated 27.5.84 to the following

effect:

"The Public are hereby informed that in exercise of the

authority and power vested in me under the order of the

Hon'ble Supreme Court of India passed and made on 4.5.83 and

27.9.83 ..... , I had attached or I had taken possession

of or I am hereby taking possession of (as the case may be)

the following properties (specified in the schedule below)

including flats, lands, cars, launch, business, shares in

companies and partnership firms and house properties. The

persons in which names these properties stand are hereby

warned that they shall not lease out, assign, sell, mort-

gage, transfer or otherwise encumber or deal with them until

further orders from me. Anybody dealing with such properties

would do so at his own risk or responsibility."

It appears that there were also other similar notices

issued by the Commissioner. In response to one of these

notices, Smt. Mahamaya Devi put forward her claim to the

ownership of the property but her claim was rejected by the

Division Bench of the Calcutta High Court on 29.3. 1985 in

Case No. 23 of 1984. Sri Kapur, learned counsel for the

respondents states that a petition for special leave to

appeal to this Court preferred by her was also rejected

sometime in 1985. This is not contradicted by the petition-

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ers. We may, therefore, proceed, for the purposes of this

case, on the footing that, though standing in the name of

Mahamaya Devi, the property in question belongs to the firm

Sanchaita.

288

Subsequently the property was brought to sale by the

Commissioner. Sealed tenders were invited for the purchase

of the properties specified in the schedule, by a notice

published in "The Statesman" on 7.3.86, on an "as is where

is basis". The notice specifically mentions that the posses-

sion of only three of the six items mentioned in the notice

was with the Commissioner and the property presently in

question was not one of them. Asit Kumar Mandal and two

others (the respondents before us, hereinafter compendiously

referred to as 'the Mandais') offered, on 22.5.86, to

purchase the property for Rs. 1,26,000 in lump sum subject

to negotiations in the matter. They undertook to deposit 25%

of the price on the acceptance of the offer and the balance

"at the time of giving us the physical possession of the

said premises". After a discussion with the Commissioner,

they deposited Rs.31,500 on 11.6.1986 and stated in their

letter of the same date to the Commissioner:

"We shall deposit the balance amount as and when called upon

to do so. Thereafter, you will hand over to us the posses-

sion of the said premises free from illegal trespassers".

On 12.6.86, the Commissioner accepted the offer of the

Mandais subject to the following conditions, namely:

"(a) That the proposed sale in your favour under the condi-

tions mentioned herein below is approved by our advisory

Board.

(b) That I/4th (i.e. Rs. 31,500) of the total consideration

money is at once paid by you to the Commissioner, Sanchaita

Investments, through bank draft or pay order.

(c) That the balance of the consideration money is paid

within 30th June, 1986.

(d) That in default of payment of the consideration money as

stated above, the earnest money (Rs.31,500) to be paid by

you through bank draft or Pay Order as mentioned above shall

stand forfeited.

289

(e) That the aforesaid sale is made on "as is where is

basis".

(f) That on payment of the full consideration money as above

within the date fixed you may take steps for obtaining

possession of the said entire premises and the Commissioner

will help you for the said purpose."

The Mandais, thereafter, paid Rs.31,500 on 27.6.86 and Rs.

63,000 on 18.7.86 and wrote to the Commissioner as follows:

"Please sent us the draft sale certificate in respect of the

above property for our approval on behalf of our clients and

arrange immediately to give our clients vacant possession of

the property as agreed upon.

Please inform us if any objection was received by you in

respect of the property pursuant to your advertisement in

the Statesman dated March 7, 1986."

The Commissioner referred the purchasers to his lawyer in

regard to the preparation of the sale certificate and a

certificate of sale deed was eventually issued in favour of

the Mandais on 10.4.1987. The certificate referred to the

orders of the Supreme Court, the satisfaction of the Commis-

sioner, the fact of attachment and the absence of any objec-

tions from Mahamaya Devi and conveyed the property to the

Mandals.

Having thus purchased the property, the Mandais request-

ed the Commissioner to give them vacant possession of the

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property but there was no response. Thereupon, on 17.9.

1987, the Mandais moved an application (being Matter No.

3737/87) before the High Court praying that they may be

given vacant possession of the property. It appears that, in

the meantime, they had come to know that the premises were

occupied by the following parties:

Name of person Portion occupied

1. Paul Brothers'(Textile Division) One room on Ground

Floor

290

2. Paul Brothers (Watch Repairing One room on Ground Floor

Division)

3. Paul Brothers (Electronics -do-

Division)

4. Dulal Dutta and Panchanan Dutta -do-

5. G. Dey -do-

6. Phani Bhusan Ghosh First Floor

7. Hari Narayan Gupta Second Floor

These persons were made respondents to the application and,

alleging that they were all trespassers in occupation of the

property, a prayer was made that they should be directed to

hand over vacant possession of the property to the appli-

cants. This prayer has been granted by the Division Bench of

the High Court and, hence, these two petitions for leave to

appeal, one by the three Paul Bros. and the other by three

of the other four "objectors". We have heard these petitions

at great length. We grant leave in both S.L.Ps. and proceed

to dispose of the appeals.

The petitioners claim that they are bona fide tenants in

the property. Except for petitioner H.N. Gupta who was

inducted as a tenant by Mahamava Devi, the others claim that

they have been tenants even under the predecessors-in-inter-

est of Mahamaya Devi. They clam, therefore, that they can be

evicted only in accordance with due procedure prescribed by

law after full contest and opportunity to lead evidence and

cannot be thrown out in summary proceedings like the present

one just as if they were persons in unauthorised possession

of the property or as if they were mere trespassers. On the

other hand, for the Mandais it is contended that once it is

held that Mahamaya Devi was a benamidar for Sanchaita, the

Commissioner is entitled to take possession of the property,

removing all present occupants including tenants therein and

selling the property at the maximum possible price free of

all encumbrances so that the proceeds may be made available

to the innumerable depositors who had been denuded of their

lifetime savings by the undesirable and fraudulent activi-

ties of the persons in charge of the firm. A pernicious

evil, it is said, warrants

291

a drastic remedy and hence this Court, having regard to the

large scale involvements of the firm. considered it neces-

sary to arm the Commissioner with wide powers so that he may

be able to gather in all the real assets of the firm without

delay or obstruction for the benefit of the defrauded inves-

tors. The Mandais have, it is said, having regard to the

terms of the orders passed by this Court and by the Calcutta

High Court, purchased the property in the belief that they

would not only get a perfect title but also speedy posses-

sion of the property. If bona fide purchasers are to be

obstructed like this by all manner of claims, real or imagi-

nary, it is argued, the properties of the firm can only be

sold for a song and the entire object and purpose of the

various directions of this Court would be frustrated. It is,

therefore, contended that, even if the appellants are really

tenants in the property as claimed, their claims will have

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to yield to the paramount public interest of the Sanchaita

investors.

We are unable to accept this contention of the Mandais.

It is not maintainable either in principle or on the terms

of the directions given by this Court. To take up the latter

first, there is nothing in the terms of the orders of this

Court or of the notices of attachment or sale or of any

other orders of the Calcutta High Court that vests an abso-

lute title in the auction purchasers of the property free

from all encumbrances. The order of the Court dated 27.9.83

only authorised the Commissioner to attach properties which

he believed to belong to Sanchaita and provided for any

objections to the attachment being heard by the designated

Division Bench of the High Court. The attachment and sale of

the property presently in question were effected in pursu-

ance of this order. Any sale, transfer, encumbrance or

alienation subsequent to the attachment could, no doubt, be

impugned but the attachment did not have the legal effect of

invalidating earlier interests of others subsisting in the

property. In fact also, the sale was on an "as is, where is

basis" i.e. without prejudice to the claims of other persons

in whose favour bona fide encumbrances or interests may have

been created earlier qua the property. There appears to be

some force in the contention of the claimants that the price

paid by the appellant is not adequate to reflect the market

value of the property situated in an important commercial

locality in Calcutta at the present day if sold free from

all encumbrances but we shall leave this contention out of

account as there is no material before us on this aspect.

The order of 23.9.85, no doubt, goes a step further but it

only empowers the Commissioner to remove all unauthorised

persons and trespassers. The reference to vacant possession

in the order has to be restricted only to

292

cases where the property is in the possession of such unau-

thorised persons or trespassers and cannot be read so as to

empower the Commissioner to evict forcibly, or seek the

orders of the Court to evict summarily, persons who are in

lawful possession of the property. We should also like to

point out that, in fact also, the Mandais got no better

right on the terms of the auction and the correspondence

that followed. Though the Mandais referred in their letters

to vacant possession of the property, the sale was only on

an "as is, where is" basis and the Commissioner at no time

offered or assured the Mandais that they would get such

vacant possession. He only offered to help them in the

process to the extent permissible in law. He has made this

position explicit in the letters written by him.

Sri Kapur, for the Mandais, placed considerable reliance

on the common order of the Calcutta High Court dated 25.3.86

in Amar Mondal v. Commissioner, (Matter No. 122 of 1986) and

Jagdish Chand Aggarwala v. Commissioner, (Matter No. 146 of

1985) to contend that the Mandais are entitled to get vacant

possession of the property. In that case, Amar Mondal who

was the auction purchaser of an item of property (which we

shall call 'Property A') at a sale by the Commissioner

sought to be put into possession by evicting the respondents

2 to 5 "who are unauthorised occupants" and Jagdish Chand

Aggarwala, whose highest bid at an auction for an item of

property (which we shall call 'Property B') by the Commis-

sioner could not be proceeded with because of an injunction

obtained by respondents Nos. 6 & 7, sought the orders of the

Court "for completing the sale and giving delivery of pos-

session by evicting the respondents". So far as Property A

is concerned, the Court found, for reasons which need not be

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repeated here, that they were "unauthorised occupants" and

not"bona fide tenants in occupation" and were, hence liable

to be evicted. Likewise, in respect of Property B, the Court

concluded that the claims or' tenancy put forward by re-

spondents 6 & 7 "were frivolous". These were, therefore, not

cases where tenants were held liable to be evicted and the

order does not help the Mandais to the extent claimed.

Sri Kapur, however, relies strongly on two sets of

observations in this order. the first reference by him is to

an observation that any person claiming to have any interest

in the property should file his claim within 30 days of the

attachment and that any claim made beyond this period would

be barred by limitation and hence cannot be considered. The

second reference is to an observation that the Court is

293

entitled to adjudicate' upon all claims, even those of

persons who claim to have any bona fide intermediate inter-

ests in the properties attached by the Commissioner. The

Court observed:

"In our opinion, therefore, once an attachment is

effected by the Commissioner on the authority of his powers

vested in him by the Supreme Court, not only persons claim-

ing right, title and interest independent of Sanchaita

Investments but also claiming any bona fide intermediate

interest created by Sanchaita Investments in favour of the

claimant should put forward to claim of objection. It was

not the intention of the Supreme Court that there should be

proliferation of litigation, result whereof would be that

the insignificant part of the depositors' money which should

be realised by the Commissioner would be wasted in litiga-

tion. This position has been made clear by the Supreme Court

when the Supreme Court by a recent order upheld the view of

the Bombay High Court that a claim of tenancy in respect of

a property attached by the Commissioner must be lodged with

this Special Bench and not before any ordinary Civil Court.

The attachment made by the Commissioner cannot be equated

with an attachment made by a Civil Court either prior to

judgment or in execution since there what is attached is the

right, title and interest of either the defendant on the

judgment debtor. In the present case, however, on the Scheme

framed by the Supreme Court what is being attached is the

property itself so that any body having any lawful claim in

whatever interest held by him, must put forward his claim

before the Commissioner so that it can be adjudicated once

for all in a proceeding before this Special Bench and thus

avoid wasting litigation. We do not accept for a moment that

this court's jurisdiction is limited to adjudication of all

claims preferred as against the attachment made by the

Commissioner. The scope of our power must be determined with

reference to the intention of the Supreme Court referred to

herein. Such power in our opinion covers adjudication of all

sorts of claims or objections for the Commissioner's .at-

tachment and sales of assets belonging to the beneficial

ownership of Sanchaita Investment preferred or brought

forward at any stage and also to make all inci-

294

dental and consequential orders as we may find necessary to

assist the Commissioner in collecting the assets having

regard to the resistance faced by him from persons putting

forward any claim of his own. In that view we hold that our

power covers a case like the present one where even after

the objection has been overruled by this Court, others have

come forward to resist the Commissioner from effecting sale

by putting forward a claim of tenancy. Such a claim in our

opinion, is really an objection to the attachment when we

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consider it on its substance, that comes well within the

scope of our jurisdiction. It matters little whether such

jurisdiction is invoked by the Commissioner or the claimant

or the proposed purchaser."

He submitted, on the strength of these passages, that the

claims in the present case are liable to be dismissed (a) on

the ground that they are time barred and (b) even if the

claimants are found to be bona fide tenants in the property.

We are unable to agree. While, no doubt, this Court had

indicated that claims and objections to attachments should

be filed within a period of thirty days, that period cannot

be read as if were a rigid rule of limitation prescribed by

law. The order also only says that, if objections are not

put forward within a month, the property may be sold and

does not preclude objections being filed after the, sale.

Indeed, the Division Bench did not rest its conclusion on

this ground and proceeded to consider the objections on

merits. We are also unable to read into the order any con-

clusion of the Division Bench that even bona .fide tenants

are liable to be evicted from the property. If that had been

so, the Bench need not have gone into a detailed considera-

tion of the merits of the claim of tenancy put forward by

the contesting respondents in that case. All that the Bench

observed in the passage extracted above was that all claim-

ants to the properties subjected to attachment by the Com-

missioner, whether as owners or as intermediate interest

holders (like tenants) or otherwise, have to put forward

their claims for adjudication by the Division Bench. The

Bench did not proceed to hold, as suggested by Sri Kapur,

that the auction purchasers are entitled to get vacant

possession of the property free from all encumbrances and

that even bona .fide tenants can be directed to be summarily

evicted from the property in pursuance of the

295

orders of this Court. We are unable to see in this order any

observation that could legitimately have induced the Mandais

to believe that they would be entitled to evict even lawful

tenants from the property by purchasing it at the auction

sale.

In principle also, this contention is not well founded.

The object of the directions given by this Court was to cut

short the proliferation of litigation and to ensure that the

Commissioner is able to gather in expeditiously the assets

of Sanchaita which were dissipated or siphoned off by the

persons in charge of the firm. Thus, if the firm's moneys

had been utilised to purchase properties in the name of

various individuals benami such property had to be taken

back by the Commissioner from such benamidars. Also, where

the said benamidars or other persons put up frivolous claims

to the property or its possession without the semblance of

any legal title to its ownership or possession, such claims

could and should be rejected by the Court. But this princi-

ple cannot apply to bona fide interests of others in the

property. For instance, suppose Sanchaita's moneys had been

advanced on the mortgage of an item of immovable property,

all that the Commissioner would be entitled, legally and

equitably, would be to call in the mortgage moneys (princi-

pal and interest) and not the entire property itself. An

auction purchaser of such a property cannot get anything

higher than the interest Sanchaita itself could have claimed

in respect of the property. Likewise, if Sanchiata's moneys

had been invested in a property which had been bona fide let

out to tenants, Sanchaita would have paid only the value of

the property so encumbered and its rights in the property

can only be subject to those tenancy rights. Sanchaita could

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not have a right in respect of the property superior to that

which its vendor had. Similar would be the position where

Sanchaita or its benamidars had, after acquiring a property,

created a bona fide tenancy or other encumbrance in respect

of that property, in respect of independant outsiders who

acquire such interest for consideration. To say that San-

chaita, through the Commissioner, would be entitled to

vacant possession even from such tenants, or free from such

encumbrances, would result in its being able to realise a

larger interest in the property than it acquired. Not only

this, the result of any such conclusion would ensure the

benefit of, not Sanchaita, but of the auction purchaser of

the property. Having bid for and acquired the right, title

and interest of Sanchaita in the property, he would be

enable to get vacant possession which Sanchiata, even if it

had continued to be active and properous, could not have got

except by due process of law.

296

We have, therefore, no doubt that this Court, by its orders

dated 4.5.83 and 27.9.83 intended only that the firm, or the

auction purchasers at the sales effected by the Commission-

ers, should be able to clear the property of trespassers and

unauthorised persons and not that even bona fide tenants

could be got evicted straight away in pursuance thereof.

Normally, even trespassers and unauthorised persons cannot

be thrown out except by recourse to legal proceedings but,

having regard to the large scale dealings, the special

circumstances and the desperate situation, this Court made

an exception and made it possible for the Commissioner to

get false and frivolous claimants out of the way by a quick

procedure but nothing more. We are, therefore, of opinion

that if the Court, on a consideration of the materials

placed by the claimants or objectors, comes to the conclu-

sion that they are not mere stooges or false claimants but

have a bona fide fight to possession as against Sanchaita,

it cannot direct their eviction but should leave it to the

auction purchaser to initiate such eviction proceedings in

the normal course and in accordance with law, as may be

available to him against the claimants/objectors.

Sri 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 the Commis-

sioner 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 therefore and to ensure expedi-

tious 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 expedi-

tious realisation of the properties that really belong to

Sanchaita. That is why the Court empowered the Commissioner

to attach and sell 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. Third parties who have acquired real

interests 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

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what

297

rightfully belongs to Sanchaitas; it would amount to confer-

ring 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 Mandais to

an interest that can ignore or override all manner of rights

and interests in the auctioned properties.

For the above reasons, we are unable to accept the plea

that the Mandais 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 maintainable.

Though the High Court has set out in extenso the details

of the claims put forward by the various claimants, we

consider it necessary to set out, in some detail, the evi-

dence put forward by the claimants as the principal com-

plaint of every one of the claimants is that a considerable

volume of evidence adduced by him has been summarily brushed

aside by the Division Bench. We shall, therefore, proceed to

do this:

1. PAUL BROTHERS

The petitioners in SLP 3258/59 have described themselves

as "Paul Brothers". A complete paper book containing copies

of a number of documents has been placed before us to sub-

stantiate their claim that they have been tenants in the

premises since a very long time. These are:

"(1) A letter addressed by one Ramakrishna Paul to Dilip

Kumar Paul and Mihir Kumar Paul, Landlords, seeking permis-

sion to make some alterations in the Radio and Electrical

shop and a reply thereto dated 8.4.75 by Dilip and a similar

reply to Amar Nath Paul (Paul Brothers) in respect of the

watch repairing shop;

298

(2) A letter intimating "Amar Nath Paul (Paul Bros.), Re-

pairing Shop" that Satyanarayan Paul had died on 10.8.66 and

that the four signatories Ashok Paul, Dilip Kumar Paul,

Mihir Kumar Paul and Mrs. Suchitra Kundu had succeeded as

landlords entitled to the rents thereafter;

(3)(a) A stamped deed of partnership dated 14.6.61 drawn up

by B.M. Motilal Advocate, between Amar Nath Paul, Robindra

Nath Paul. Abani Bhushan Paul, Arun Kumar Paul, Kiron Chan-

dra Paul and Gopal Chandra Paul (all sons of Mohni Mohan

Paul) sharing profits equally. The firm is said to have

started business in Watch Repairing and Tailoring w.e.f.

14.4.61 at the suit premises under the name and style of

Paul Bros. and is said to have been registered with the

Registrar of Firms.

(b) Three stamped deeds of partnership drawn by B.M. Motilal

(Advocate) and dated 25.4.75 have also been produced. The

first of these, of Paul Brothers (Watch Division), Amar Nath

Paul, RobindraNath Paul, shows Abani Bhushan Paul and Rama

Kishore Paul (sons of Mohni Mohan Paul) as having started

and been carrying on business as watch dealers and repairers

since 15.4.74 in the premises sharing profits equally with-

out a formal deed till then. The second is of Paul Brothers

(Radio and Electrical Division) in which Kiron Chandra Paul,

Amiya Kumar Paul, Samir Kumar Paul, Amar Nath Paul (sons of

Mohni Mohan Paul) and Shyama Ran jan Paul (son of Lalit

Mohan Paul) are partners with Amar Nath having a 10% share

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and the others 22.5% share each. The deed recites that the

above partnership started a business in radio and electri-

cals on 15.4.74 at the suit premises as well as at 1951,

Mahatma Gandhi Road, Calcutta without a formal deed having

been drawn up till that date. The third deed is between Arun

Kumar Paul, Benoy Kumar Paul, Gopal Chandra Paul and Amar

Nath Paul (all sons of Mohni Mohan Paul) in respect of Paul

Brothers--Tailoring Division with Amar Nath Paul having a

10% share and the others 30% each. This deed also recites

that the business had started earlier with effect

299

from 15.4.74 but that no formal deed had been drawn up till

then.

(c) A deed of partnership dated 8.5. 1980, also on stamp

paper and witnessed by B.M. Motilal, is between Kiran Chan-

dra Paul, Amiya Kumar Paul, Samir Kumar Paul (sons of Mohni

Mohan Paul) and Promotho Nath Paul (son of Lalit Mohan

Paul). By this deed Shama Ranjan and Amar Nath retire from

Paul Brothers--Radio and Electricals w.e.f. 13.4.80 leaving

the remaining four to share the profits equally.

(4) More than 225 rent receipts in favour of "Amar Nath

Paul", "Amar Nath Paul and others", or "Amar Nath Paul (Paul

Brothers)" have been produced. They are spread over the

period from 1962 to November 1987 (except October 1965 to

March 1968). They are signed by S.N. Pal between May 1962

and September 1965, by Ashok Paul between April 1968 and

October 1971, by Dilip and Mihir between October 1971 and

September 1977 and by Mahamaya Devi from October 1977

onwards. Rent receipts from April 1962 to September 1987 in

favour of "Amar Nath Paul", "Amar Nath Paul (Paul Bros.)

Watch Makers Shop" have been produced. Also copies of rent

receipts in favour of "Ramkrishna Paul", "Ramakrishna Paul

and others" in respect of one shop room in the north west

corner covering the period from March 1974 onwards signed by

Dilip and Mihir and Mahamaya Devi are also produced.

(5) Rent receipts and a deposit receipt showing that a third

shop situated in the north west corner of the ground floor,

previously occupied by one Tarak Nath Roy, was taken over by

the Paul Bros. at a rent of Rs.75 p.m. in December 1973

after purchasing the assets of the earlier tenant for

Rs.200.

(6) Three electricity bills of October '69, January '75 and

300

May '88 in respect of the premises issued in the name of one

D.P. Paul, claimed to be an uncle of the Pauls and Electric-

ity bills in the name of Paul Bros Radio Division of April

'80 and April '88 have also been produced.

(7) Three telephone bills of 1969, 1973 and 1977 in the name

of Paul Brothers (and three electricity bills of March '74,

March '77 and February '88 in the name of Tarak Nath Roy)

have been produced.

(8) Receipts dated 2.5.61, 10.5.62, 7.5.63, 25.3.72 and

28.12.87 by the Corporation of Calcutta being fees in re-

spect of the Tailoring Shop in the premises for the years

1961-62, 1962-63, 1963-64, 1971-72 and 1987-88 in favour of

Paul Bros. (Partners Sri Arun Kumar Paul and others). Corpo-

ration Receipts ( 18 in number) for trade licence fees in

respect of radio and watch business carried on in the prem-

ises covering the years 1962-63 to 1987-88 (except 1984-85,

1981-82, 1980-81, 1975-76, 1972-73 and 1971-72) in the name

of Paul Bros. are produced. These describe the partners of

the firm differently as "Amiya Paul and others", "Arun Kumar

Paul and others" and "Amar Nath Paul and others" 7 fee

receipts for trade licences issued to the watch division of

Paul Bros. covering the years 1987-88, 1986-87, 1985-86,

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1983-84, 1982-83, 1981-82, 1980-81, 1979-80, 1978-79,

1977-78, 1976-77, 1975-76 and 1974-75 describe the partners

as "Rabindra Nath Paul and others". There are also fee

receipts in respect of licence fees for the years 1961-62,

1971-72, 1972-73, 1987-88 in respect of the watch repairing

shop in the name of "Paul Bros. (Amar Nath Paul & Others)".

(9) A letter dated 17.7.70 addressed by the Government of

West Bengal to the Accountant General, copy endorsed to M/s

Paul Brothers at the address of the suit premises and other

correspondence between 1970 and 1973 with the tailoring

division of the said firm at the same address. Copies of two

letters addressed to the radio and watches

301

shop of Paul Bros. at this address between July 1965 have

also been produced.

(10) Challans for payment of self-assessment tax of Rs..190

for assessment year 1976-77 by Paul Brothers (Tailoring

Division) on 12.8.76 from this address. Also produced are

certificates from the Income Tax Department that the three

Paul Bros. at the above address are being assessed to income

tax since assessment year 1975-76/1976-77.

(11) Orders u/s 158 and demand notices u/s 156 of the In-

come-tax Act in respect of assessment years 1969-70, 1968-

69, 1967-68 have been produced, the former of which evi-

dences the constitution of Paul Bros. A declaration have

been filed before a Presidency Magistrate, Calcutta, on

26.8.65 by some of the Pauls referred to above to the effect

that they are the partners in the firm from 14.4.61 and that

they have filed income-tax returns for three years. The

declaration also states:

"2. That we have been carrying on business as

tailors, watch repairers and sellers of cut piece cloth and

watches from 1st day of Baisakh, 1368 B.S. and also we have

started radio manufacturing/sales/service department from

second year of our business i.e. 1369 B .S. We have no other

business save and except those mentioned in this paragraph,

this is true to our knowledge".

(12) Documents showing the registration of the following

firms with the Registrar of Firms:

Date Firm

10.1.74 Paul Bros. (Watch) Division)

10.6.74 Paul Bros-

(Radio and Electrical Division)

20.9.61 Paul Bros.

302

(13) A central excise licence dated 20.1.1965 and a postal

department licence of 24.8.62 in respect of the radio and

electrical shop in the name of Paul Bros. with Shri Kitart

Chandra Paul as a partner.

(14) Several letters, notices, receipts etc. from the In-

cometax Department and Central Excise Department as well as

correspondence from the Life Insurance Corporation of India

and premium receipts have been produced but these are not of

much help except to show that they were addressed to Paul

Bros. or Arun Kumar Paul or Rabindra Kumar Paul or Amar Nath

Paul or A.K. Paul or Amarendra Nath Paul and others or Abani

Bhushan Paul or Kiran Chandra Paul, or Gopal Chandra Paul at

the suit premises.

(15) Extracts from the assessment registers of the Corpora-

tion of Calcutta for two years. The first of these shows the

name of the owner as Avamoyee Paul and that of the occupier

as Taraknath Roy and others. Endorsements thereon show the

calculation of the annual value on the basis of the follow-

ing rents:

Rs. p.m.

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"I Tarak Nath Roy 25.00

Panchanan Dutta 25.00

(Watch Shop) 41.00

(Tailoring Shop) 44.00

7.50

7.50

II Phani Bhusan Ghose 45.00

III Owner 45.00

--------------

240.00"

--------------

The second of these documents shows the name of the owner as

"Estate of Avamoyee Paul C/o Shri Mihir Paul

303

and Brothers" but this is struck off and replaced by "Smt.

Mahamaya Devi (In the premises)". Against the column "occu-

pants" the name of Taraknath Roy and others is replaced by

"Smt. Mahamaya Devi and others". This extract also contains,

what apparently are later, endorsements of details as fol-

lows:

"R.S. (Road Side) Shops

Rent p.m.

I Ramakrishna Paul says 75

(Goldsmith)

(Radio Amarnath Paul " 48

(Tailoring) Paul Bros. " 48

(Goldsmith Panchanan " 44

Dutta (Dulal Dutta)

2. DULAL CHANDRA DUTTA

The tenancy in respect of a backside shop on the ground

floor is claimed as having belonged initially to two per-

sons, Panchanan and Dulal Dutta. Of these, Panchanan Dutta

appears to have died in 1981 and it is only Dulal Dutta who

is the claimant now. He states that the property belonged to

Satya Narain Paul then to Dilip Kumar Paul and Mihir Kumar

Paul and then to Mahamaya Devi. In the case of this claimant

there is no direct evidence of tenancy in the form of a rent

deed or rental agreement. About 51 rent receipts have been

produced but all these receipts purport to have been issued

only by Mahamaya Devi. No receipts have been produced for

any earlier period though the claimant says he has been

tenant of the property since 1973; it is stated that the

rent receipts issued in the joint names by Dilip Kumar Paul

and Mihir Kumar Paul are missing from his custody. The High

Court has said that there are several inconsistencies,

defects and errors in the receipts that had been produced

and, though a number of other documents have been placed

before us here, none of these receipts or copies thereof

have been produced. According to the claimant's affidavit

filed before the High Court, he started his work as a gold-

smith in the premises in 1973, the tenancy of which stood in

the name of one Panchanan Dutta and that he also contributed

rents to

304

Panchanan Dutta "who used to pay the rents in his name to

the owner of the premises". No receipts in the joint names

of Panchanan Dutta and the claimant have been produced. The

extracts from the records of the Corporation referred to

earlier show Panchanan Dutta as the occupant and the claim-

ant's name does not figure therein. The claim of tenancy is,

however, sought to be established by the following docu-

ments:

(a) A certificate of the Gold Control Authority of 1976

recognising the claimant as a goldsmith with his place of

business and residence at 6, Doctor's Lane, Calcutta subse-

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quently shifted to the suit premises w.e.f. 4.11.81;

(b) A certificate from the Bangia Swarna Silpi Smithi dated

12.8.75 showing the claimant's place of work at the suit

premises and a letter of 13.11.1987 from the Samithi stating

that the claimant has been maintaining a Khata under the

Gold Control Act from 1976;

(c) A petition for remand by the police dated 18.9.75 in

connection with a criminal case showing the claimant's

address at the suit premises;

(d) A search list of 23.9.75 on complaint no. 657 u/s 380

I.P.C. showing that certain items were seized from Dulal

Dutta's shop in the suit premises; and a petition from the

prosecution seeking impleadment of Dulal Dutta of the suit

premises as a co-accused in connection with the above case;

(e) A letter from the Police of a complaint from the Corpo-

ration against the claimant for not having obtained a trade

licence for 1979-80 in time and a municipal licence fee

receipt dated 19.12.80 in respect of the year 1978-79 issued

by the Corporation of Calcutta in favour of the claimant and

Panchanan Dutta;

(f) A summons issued by the Corporation to the claimant on

305

6.2.81 showing his address as at the suit premises; and

(g) A letter dated 10.6.81 by the claimant to the Superin-

tendent, Central Excise asking for a change of address from

Doctor's Lane to the suit premises.

(h) An extract got in 1988 from the assessment book of the

Corporation which shows Smt. Mahamaya Devi as the owner and

Shri Phani Bhusan Ghose, Shri Amarnath Paul and Shri Dulal

Dutta as the occupants. This purports to be the entry with

effect from 3/66-67 to 4/88.

3. PHANI BHUSAN GHOSH

Phani Bhusan Ghosh, who claims tenancy in respect of the

first floor of the suit premises comprising of three bed

rooms and one sitting room besides other conveniences. Ghosh

is a retired Government servant. He claims to have been

inducted as a tenant in 1948 by Satyanarayan Paul at a

monthly rent of Rs.75 p.m. According to him, on the death of

Satyanarayan, his son Ashok Paul used to grant rent re-

ceipts; thereafter, consequent on a partition among the

heirs of Satyanarayan, Dilip Kumar Paul and Mihir Kumar Paul

used to issue the receipts until, in October 1977, they sold

the suit premises to Mahamaya Devi. Though it iS not clear

whether there was any original tenancy agreement in 1948 and

no rent receipts of that time have been produced, the claim-

ant relied on the following documents in support of the plea

of tenancy:

(a) A photo copy of a certified copy of the plaint in Eject-

ment Suit No. 1095/61 filed by Satyanarayan Paul against the

claimant for eviction and khas possession which recites that

the claimant was a tenant of Satyanarayan in respect of the

premises; (Incidentally, the schedule to this deed refers to

Taraknath Roy, Panchanan Dutta, Dulal K. Dey and Amarnath

Paul (Paul Bros.) as the tenants on the ground floor).

(b) An undated letter from Dilip Kumar Paul and Mihir Kumar

306

Paul informing the claimant of the sale of the Premises to

Mahamaya Devi and a letter dated 9.10.77 from Prabir Kar, an

Advocate on behalf of Mahamaya Devi asking claimant to

attorn to Mahamaya Devi as she had purchased the property

from the two Pauls;

(d) Three receipts issued by Ashok Paul in 1969, three

issued by Dilip and Mihir in 1971, 1976 and 1977 and two

issued by Mahamaya Devi for July' 78 and September' 87;

(e) A certificate dated 4.1. 1988 from the Geological Survey

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of India stating that the address of the claimant had been

recorded on 20.3.52 in its official records as being at the

suit premises.

4. HARI NARA YAN GUPTA

This person claims tenancy in the second floor. One

feature that distinguishes this claimant from others is that

he claims to have been a tenant in the property under Maha-

maya Devi since 1982. The plea of Gupta is that he became a

tenant of the flat on the second floor under Mahamaya Devi

on a rent of Rs.350 p.m. vide an agreement dated 7.1.1982

and that he had been regularly paying the rent to her ever

since upto September 1987. The agreement produced is an

unregistered agreement. There are only two rent receipts

dated January 1983 and September 1987 produced in support of

the claim. The photostat copies of the extract from the

records of the Corporation which have been referred to

earlier show the occupants as Mahamaya Devi and then one

Harindra Nath Chakraborty. H.N. Gupta claims to be running a

tea stall on S.P. Banerjee Road and to have taken this

premises on rent.

We shall now consider the claims of each of these claim-

ants individually, starting with Hari Narayan Gupta.

1. Hari Narayan Gupta:

Sri Kapur contended that since it has now been finally

decided

307

that Mahamaya Devi never really owned the premises herself,

she could not have validly created a tenancy in favour of

Gupta. We do not think this conclusion necessarily follows.

It is true that the finding that Mahamaya Devi was only a

benamidar for Sanchaita has become final but it does not

follow that any tenancy created by her is invalid, unless it

can be shown that, in creating such interest, she acted in

breach of trust and contrary to the interest of Sanchaita.

If she had put Gupta in possession of the property as her

stooge or, if Gupta had taken the property from her on rent

collusively or with full knowledge that the property really

belonged to Sanchaitas the position would be different but

if Gupta is an independent third party with no such notice

or intention and had been inducted by her as a tenant bona

fide, all the Sanchaita can claim is that she should account

to firm for the rents derived by her from the property in

the past and that the firm or the Commissioner or the auc-

tion purchaser should be entitled to the rents from the

property as from the date of its attachment by the Commis-

sioner.

Examining the facts and the evidence from the perspec-

tive, it does seem that Gupta has not been able to adduce

any evidence to satisfactorily establish that he was a bona

fide tenant under Mahamaya Devi. It is difficult to believe

that this tea-stall owner took the suit premises on a rent

of Rs.350 from Mahamaya Devi. There is no consistent or

satisfactory evidence of such tenancy. We are inclined to

agree with the conclusion of the High Court that Gupta was

not a bona fide tenant in the property as claimed and that

he is liable to evicted from the premises.

2. Dulal Dutta:

Turning next to the case of Dulal Dutta, we have gone

through the documents placed before us carefully and are

constrained to observe that this claimant has also not been

able to establish his bona fide tenancy of the premises. The

original trade licence shows that the claimant had started

his business at No. 6, Doctor's Lane and that this was got

changed to the address presently in question only in 1981

but, according to him, he had started working at the suit

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premises even in 1973. The police remand papers and corpora-

tion notices no doubt indicate that the claimant was found

at this address in 1975 and 1978-

308

79 but these papers are not sufficient to establish the

claimant's plea of tenancy. Admittedly, even according to

him. Panchanan Dutta was originally the tenant of the prem-

ises and the claimant seems to have had some working ar-

rangement with him, Panchanan Dutta is said to have died

sometime in 1981 and the change of address for excise pur-

poses seems to show that the claimant moved into the prem-

ises wholly thereafter. But the question is not whether the

claimant was in occupation of the premises but whether he

was a bona fide tenant therein. As to this, there is no

proof or evidence except the few odd rent receipts purport-

edly issued by Mahamaya Devi the genuineness of which has

not been accepted by the High Court. It was argued that even

if Dulal Dutta is treated as a sub-tenant or as being in

adverse possession, the landlords' right to evict him would

be time barred. But neither of these stands was taken by

Dulal Dutta and his adverse possession, even if claimed,

could not have started before 1981 and so no question of

time bar could arise. In the circumstances, we are con-

strained to uphold the findings of the Division Bench in

respect of the portion of the suit premises occupied by

Dulal Dutta.

3. Phani Bhusan Ghose:

We next turn to the case of Phani Bhusan Ghose. On

behalf of the Mandals, it is submitted that the pieces of

evidence relied on by the claimant amount to nothing. Sri

Kapur submits that, as per the extracts from the Corporation

records filed in the case, one Avamoyee Paul was the owner

of the premises in 1948 and there is nothing to show that

either Satyanarayan Paul or his legal heirs were ever the

owners of the property. The partition deed has not been

produced. The rent receipts produced contain lacunae, errors

and inconsistencies. The genuineness of the receipts and the

letters produced is not accepted. Advocate Prabir Kar, who

is alleged to have sent the attornment notice, is alleged to

be a reputed agent of Sanchaitas. So far as the plaint of

1961 is concerned, he points out, there is no explanation

given as to what made the claimant obtain a certified copy

of the plaint in 1972 and there is also no evidence as to

the outcome of the suit. The records of the Geological

Survey had not been summoned and it is also curious that the

claimant has produced a certificate of 1988 to show the

claimant's address in 1952 but not his recent or present

address as recorded therein.

We are of opinion that these objections cannot be sustained.

309

Leaving aside the rent receipts and other correspondence the

authenticity of which cannot be taken for granted, there is

enough evidence to sustain the claim of the applicant. The

certified copy of the plaint shows that Ghosh was tenant of

the first floor under Satya Narayan Paul who claimed to be

the owner of the premises. It does not show that he was

tenant since 1948 but read, with the certificate of the

Geological Survey of India, it does show that Ghosh was the

tenant between 1952 and 1961 in the premises. No foundation

has been laid and no material has been adduced to show that

the copy of the plaint is not genuine or cannot be acted

upon or that there was no such suit in 1961 between the

parties as alleged. What happened to the suit or what de-

fence was raised by Ghosh to the suit is irrelevant in the

absence of any suggestion, or any material to indicate, that

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Ghosh had been in fact evicted in pursuance of the order

passed in the suit by the date of the present proceedings.

There is also no information placed before us as to the

persons who were the legal representatives of Avomoyee Paul

or that Dilip and Mihir did not at all because the owners of

the property. On the other hand, the extract from the Corpo-

ration records at the relevant time, shows the owner of the

premises to be:

"Estate of Avamoyee Paul c/o Sri Mihir Paul and Bros."

This indicates a connection of Mihir Paul with the premises

and the sale deed of 1977, the genuineness of which is not.

and cannot be, in dispute (for that, verily, is the basis of

the title of Sanchaita to the property in question) shows

that she purchased it from Mihir and Dilip. It is, of

course, theoretically possible that Ghosh had been evicted

from the premises by Satyanarayan and that the receipts

produced from Dilip and Mihir as well as the letters of

authority produced are not genuine. But this is a far-reach-

ing assumption and it cannot be presumed that all these are

got-up documents, in the absence of some foundation or

material for the suggestion. In our opinion, the claimant

has let in sufficient material to show that he was a tenant

in the premises long before Mahamaya Devi entered into the

picture.

4. Paul Brothers:

Now turning to the case of Paul Brothers, our narration

above shows that there was a mass of evidence adduced by the

parties in

310

support of their tenancy in the premises since long. The

grievance of these--and indeed also the other--claimants has

been that the High Court has failed to apply its mind to the

evidence produced in support of each of the claimants. It is

submitted that an analysis of the judgment of the High Court

(which runs to 52 pages) will show that the High Court,

after setting out the preliminary facts, the contents of the

affidavits, counter affidavits and rejoinder affidavits and

the contentions of the respective counsel in great detail,

has disposed of the entire case with the following observa-

tions appearing on the last page of the judgment:

"On the basis of the intrinsic evidence and when the 'Corpo-

ration' records, produced on behalf of the Respondents,

being incompatible with the rent receipts, their inherent

inconsistencies do not appear to us to be trust worthy, it

would appear that the submissions of Mrs. Paul, regarding

the character and quality of rent receipts as produced now,

were of substance and we also feel that the story of tenan-

cies were subsequently sought to be established for the

purpose of avoiding the effect of the auction sale and that

too, not in a bona fide manner. We are of the confirmed

opinion that in terms of the determinations of the Hon'ble

Supreme Court of India, as followed earlier by a Special

Division Bench of this court in Jagadish Agarwalla's case

(supra), this court is not so powerless to make orders in

terms of the prayers as made in the petition and that too in

the facts of the present case and as such, we allow this

application and direct the Respondent Commissioner, to take

such steps, so that, forthwith vacant possession of the said

premises is handed over to the petitioners i.e. the purchas-

ers in the auction sale. We also have it on record that if

necessary, the Respondent Commissioner would also be enti-

tled to take appropriate Police help and assistance in

having Respondent Nos. 2-8 removed from their claimed occu-

pation of the said premises or to break open any padlock

which is there or which has been put in now."

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It is submitted that the High Court does not discuss why and

in what respects the Corporation records are inconsistent

with the rent

311

receipts, what the inherent detects and inconsistencies were

in the rent receipts produced and why the story of tenancies

is considered to be an after thought. There is also no

reason given for the rejection of the innumerable other

pieces of evidence produced by the claimants.

On the other hand, the complaint of Sri Kapur has been

that the claimants--Paul Brothers, in particular--had been

placing documents before the Courts in driblets. Most of

these were in the nature of Xerox copies with no guarantee

of their authenticity. He points out that the entire collec-

tion of receipts, purporting to be from Satyanarayan Paul,

Ashok Paul and Dilip and Mihir--not to speak of Mahamaya

Devi--could easily have been written up for the purposes of

the case. In his submission, they have indeed been so writ-

ten up at one or more sittings and these are revealed by the

inconsistencies and discrepancies, some of which have been

pointed out before the High Court by Mandal's counsel and

referred in the judgment. It is unfair, argues Sri Kapur, to

say that the Division Bench has not applied to the facts of

the individual cases. These having been fully brought out in

the earlier parts of the judgment with special reference to

the defects pointed out and criticisms made by the counsel

for Mandals, the High Court did not consider it necessary to

repeat the same again m the concluding part of the judgment.

He says that the Division Bench had occasion to deal with

similar claims in regard to various other properties and has

assessed the entire evidence in the light of its experience

regarding the various devices employed to put forward osten-

sible third parties as obstructors. The criticism that the

judgment, High Court's reasoning is brief and cryptic, he

submits, is based on a total misconception and should be

rejected.

Sri Kapur then drew our attention to the' infirmities in

the case put forward by the claimants, both procedural and

substantive. He says that it is only in this Court, for the

first time, and that too, after this Court called upon them

to do so, that the Paul Brothers have attempted to put

forward a chronological version of the history of tenancy of

the three shops allegedly taken on rent by them. Earlier,

they merely produced a few receipts and correspondence in

the name of Paul Brothers--a convenient label enabling them

to explain away documents of different dates in the names of

different persons who were all "Pauls" and to create a

confusion between Avamoyee Paul (shown originally in the

municipal records), Satyanarayan Paul and his

312

alleged relatives Dilip and Mihir, and the different Pauls

who were alleged to be partners in Paul Brothers on differ-

ent dates. Also, many documents (such as the income-tax and

customs department notices, assessment and certificates)

have been produced in this Court and were not produced'

before the High Court. Per contra, certain documents (such

as the first affidavit dated 14.11.87, the 1974 partnership

deeds and a letter dated 5.4.75 from Ram Krishan Paul to the

landlords) produced before the High Court have been deliber-

ately suppressed from this Court. Sri Kapur submits that the

most crucial circumstances in the present case is that the

objections of Mahamaya Devi to the attachment and sale of

the property did not contain even the whisper of a sugges-

tion that there were not one or two but as many as seven

tenants in the property. If this had been a fact, he says,

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she would not have failed to say so emphatically in her

objections. Sri Kapur points out that the basic case of all

the claimants is that the premises originally belonged to

one Satyanarayan Paul, that on his death five persons inher-

ited the property, that on partition among them the property

came to Dilip and Mihir (mentioned, perhaps wrongly, as

Dulal Chandra Paul in the affidavit of 14.11. 1987) who

conveyed the property to Mahamaya Devi. The whole edifice

crumbles, he points out, as even according to the municipal

extracts produced by the claimants, neither Satyanarayan

Paul nor Dilip and Mihir have been ever recorded as the

owners of the property. The version of undated attornment

letters, partition and Prabir Kar's letter was not attempted

to be proved by producing even an affidavit from Dilip or

Mihir or Prabir Kar. Even an affidavit from Mahamaya Devi is

conspicuous by its absence. Above all, says Sri Kapur, the

case of the claimants regarding the constitution and nature

of business of Paul Bros. and the evidence in support there-

of as put forward at various stages bristles with inaccura-

cies and inconsistencies which justify its rejection. These

were pointed out before the High Court in detail and have

been set out in the judgment. Some of these are as follows:

The business has sometimes been described as one

business (SLP and affidavit of 2.11.88,) and sometimes

(affidavit of 14.11.87) as separate businesses with separate

partners and separate deeds of partnership. The date of

commencement of each of these businesses have been set out

differently in the different affidavits and go back to 1958,

1959, 1962, and 1973. These do not talks with the partner-

ship deeds of 1974 which shows the businesses as having

started only on 15.4.74 which in

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turn, is belied by the production of a deed of 1961. The

names of the partners are also not given consistently. While

Ramakrishna Paul is a partner of the radio and tailoring

firms as per the affidavit of 2.7.88, he is not one as per

the affidavit of 14.11.87. So also K.C. Paul is a partner of

the tailoring firm according 'to 1988 affidavit but is not,

according to the earlier one;

(2) In the affidavit dated 14.11.87, the claimants

had stated that they had been able to locate, after great

effort, a few municipal trade licences and produced eight of

them. But late, r, with the second affidavit, they produced

a few more. How this has been done has not been explained;

(3) It is not explained how the electricity bills

stand in the name of Taraknath Roy and D.P. Paul and how the

electricity bill in the name of Paul Brothers dated 13.3.80

shows an electricity connection having been obtained for the

premises only on that date though the claimants were said to

have been running the business there since 1973;

(4) The telephone bills again are not helpful. They

contain the name of one M.S. Paul for which no explanation

has been given. One of the bills shows the installation of

telephone in the premises even in 1958 though according to

the claimants the business in the premises started earliest,

only in 1959. Also the bills give the number of the premises

as No. 52/1/1 and not 52/1/1B;

(5) The rent receipts have been produced in

driblets--six with the affidavit of 1987 and 44 with the

affidavit of July 1988--while with the 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 discrepancies: for example, a receipt dated

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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

314

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 Avamoyee Paul

or her estate and Satyanarayan Paul, Ashok 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;

(6i 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 Jagdish Prasad

Agarwalla and that of the various claimants herein.

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 uncer-

tainty 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 ob-

structors under the Code of Civil Procedure, 1908, '(before

its amendment in 1976) which concluded in a tentative find-

ing leaving it open to the parties to file a suit and estab-

lish their right to possession. On the other hand, if these

are taken to be in the nature of proceedings for the execu-

tion 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

315

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 estab-

lish this but to barely deny the genuineness of the various

documents put forward on behalf of the claimants.

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 super-

imposition. However, it has been found that, apart from the

photostat copies, the original records were summoned certi-

fied extracts produced by the representative of the Corpora-

tion have been taken on record. These extracts which relate

to the relevant period show the Paul Bros. as tenants in the

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three shops. It is true that the estate of Avamoyee Paul has

been shown as the landlords but the entry contains a refer-

ence 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 corre-

spondence the genuineness of which cannot be rejected

straightaway, 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 attach-

ment 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

316

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.

In the result, the appeals of Paul Brothers and Phani

Bhusan Ghose are allowed while those of Hari Narayan Gupta

and Dulal Chandra Dutta are rejected. We, however, make no

order as to costs.

S.B. Petition

allowed.

317