Companies Act Case Law Tushar Kanti Bose & Ors. Vs Savitri Devi And Ors.




DATE OF JUDGMENT: 25/07/1996


JT 1996 (7) 480 1996 SCALE (5)574




Present :
Hon’ble Mr.Justice K.Ramaswamy
Hon’ble Mr.Justice G.B.Pattanaik
Jayant Das, Sr.Adv., G.S.Chatterjee and Ms.Aruna Banerjee,
Advs., with him for the appellants.
P.P.Rao, Sr. Adv. S.Banerjee, Sumant Bharadwaj and Mrs.
M.R.Bharadwaj, Advs. with him for the Respondents.
The following Judgment of the Court was delivered:
Tushar Kanti Bose & Ors.
Savitri Devi and Ors.
G.B. Pattanaik, J.
Leave granted.
This appeal is directed against the judgment dated 25th
September, 1995 passed by the Division Bench of the Calcutta
High Court dismissing the appeal which had been filed
against the judgment of the Learned Single Judge dated 9th
May, 1998 passed in Matter No. 64 of 1950.
There are mass of facts and several litigations pending
between the parties but it is not necessary to go into those
controversies for disposing of the present appeal. Suffice
it to state that the appellants had purchased the Premises
No. 22/1C, Monoharpukur Road, Calcutta from Ballygunge
Estate Pvt. Limited in course of a liquidation proceeding
pursuant to a court sale dated 2nd May, 1974 and the sale
deed in question had been executed on 16th August, 1974.
After possession of the same. The respondents are the owners
of the Premises No. 22/1D which they had purchased also from
Ballygunge Estate Pvt. Limited as early as on 13th January,
1953. The appellants application before the Liquidator on
23rd August, 1977 seeking level of the Company Judge for
demarcation of the property and an order to that effect was
passed directing Ballygunge Estate Pvt. Limited to demarcate
the purchased property of the appellants as per deed of
conveyance. The respondents then filed an application for an
order of injunction on the ground that on the garb of
demarcation the appellants are trying to encroach upon the
portion of the property which the respondents had purchased
and are in possession thereof since 1953. Ultimately, the
Learned Single Judge after considering the several orders,
passed after considering the several orders, passed by the
Civil Judge in civil suits between the parties as well as
the reports of the Engineer, Surveyor, and Special Officer
appointed by the High Court and the officer-in-charge of the
local police station, came to the conclusion that the
appellants had made two holes on the wall so as to have
access to the portion in occupation of the respondents and
the appellants have raised a wall and dispossess the
respondents from a portion in respect of which there was
already an order of injunction by the Alipore Court. After
coming to the aforesaid conclusion the Learned Single Judge
directed by an order of mandatory injunction to close down
the holes and remove all obstacles and restore back
possession of the portion to the respondents which was to be
done under the supervision of Sri Anajn Chakraborty who was
appointed as the Special Officer. Against the aforesaid
order the appellants moved the Division Bench of the
Calcutta High Court which was registered as Appeal No. 340
of 1988. On 20th May, 1988 the Division Bench passed an
order of status quo as on that date. On 12th November, 1991
the Division Bench in the aforesaid appeal passed an order
appointing Shri Suhrid Roychowdhury as the Special officer
and directed that the Special Officer shall take forthwith
possession of the disputed rooms. After taking possession of
the rooms he shall allow the parties to occupy the rooms
subject to the undertaking of such parties that they will
not claim equity to occupy the disputed rooms until further
orders. The Special Officer was also directed to appoint a
surveyor who shall demarcate Plot No. 3 belonging to the
appellants and Plot No. 4 belonging to the respondents on
the basis of conveyance, original plans, original documents,
scheme and other papers. Both parties were directed to make
over conveyance and other documents on which they rely. The
Special Officer was directed to complete demarcation within
3 weeks from the date of order and submit a report to the
court. Pursuant to the aforesaid order of the Division Bench
Shri Suhrid Roychowdhury, the Special Officer appointed one
Shri Bhupendra Mohan Saha as the Surveyor by consent of
parties for the purpose of demarcation of Plot Nos. 3 and 4.
After demarcation was done through the assistance of the
Surveyor Shri Bhupendra Mohan Saha, the Special Officer
Suhrid Kumar Roychoudhury submitted his report on 20th
April, 1992. The Division Bench by order dated 1st July,1992
granted leave to the respondents to file an application
taking exception to the report of the special Officer within
two weeks. The respondents filed their objections. When the
matter was called on 1st September, 1992 none appeared for
the applicants. and therefore, application was dismissed.
Finally, the matter was listed before another Division Bench
who by the impugned order dismissed the appeal and directed
the Special Officer Sri Anajn Chakraborty who had been
appointed by the Learned Single Judge to handover possession
of the property to Bhattacharjees, the respondents herein
and it is this order which is under challenge in this
Mr. Das the learned senior counsel appearing for the
appellants contended that the Special appointed by the
Division Bench and having submitted a report on the basis of
the survey which he had conducted with the help of Surveyor
Shri Bhupendra Mohan Saha and said Surveyor having been
appointed on consent of the parties, the Division Bench
committed gross error in not considering the foresaid report
and disposing of the matter on the basis of report submitted
earlier by Sri Anajn Chakraborty who had been appointed as a
Special Officer by the Learned Single Judge. Mr. Das further
contended that an objection to the report of the Special
Officer, Shri Suhrid Kumar Roychoudhury having been filed
and the same having been rejected by order dated 1st
September, 1992, Division Bench should have given effect to
the said report and therefore the Bench was not right in
ignoring the same and directing implementation of the
earlier order of the Learned Single Judge. Mr. Das lastly
contended that in view of the order of the Division Bench
appointing Shri Suhrid Kumar Roychoudhury as a Special
Officer, Sri Anajn Chakraborty’s earlier appointment as a
special officer is not valid and therefore the Division
Bench, should not give effect to the order of the Learned
Single Judge. Mr. P.P. Rao, learned senior counsel appearing
for the respondents on the other hand contended that in view
of several pending litigations between the parties both for
declaration of title as well as for possession, it was not
open for the appellant on the basis of an order for
demarcation to get their title established and in that view
of the matter the Division Bench was wholly justified in
dismissing the appeal. Mr. Rao further contended that during
he pendency of the proceeding the appellants having been
found encroached upon a portion of respondents property, the
court was fully justified in passing the order impugned
Having heard the learned counsel for the parties and
after going through the record of the case without
expressing and opinion on the merits of the rival contention
we are of the considered opinion that the impugned order of
the Division Bench cannot be sustained on the sole ground of
non- consideration of the relevant material. It is
undisputed that Shri Suhrid Kumar Roychoudhury was appointed
as a Special Officer by the Division Bench on 12th November,
1991 and it was directed that he shall demarcate the two
plots by taking assistance of a Surveyor. It is also
undisputed that said Shri Suhrid Kumar Roychoudhury
appointed Shri Bhupendra Mohan Saha as the Surveyor on the
consent of parties and ultimately on the basis of the survey
done the Special Officer had submitted his report on 28th
April, 1992. An objection filed to the said report by the
respondents stood dismissed on 1st September, 1992. The
aforesaid report of the Special Officer as well as the
survey done by Shri Bhupendra Mohan Saha constitute an
important item of evidence which could not have been ignored
by the Division Bench while disposing of the appeal. Then
again so far as the appeal is concerned it is Shri Suhrid
Kumar Roychoudhury who had been appointed by the Division
Bench and said order of appointment had not been reversed by
the subsequent bench and therefore any direction can be
given only to the said Special Officer. Non Consideration of
the aforesaid vital piece of evidence vitiates the ultimate
conclusion. In this of the matter we set aside the judgment
of the Division Bench dated 25th September, 1995 passed in
appeal No. 340 of 1988 and remit the appeal to the High
Court with the request to the Hon’ble Chief Justice to
constitute a Division Bench with the Chief Justice as
Presiding Judge or senior most Judge of the High Court the
Presiding Judge and dispose of the appeal in accordance with
law after considering the report of the Special Officer Shri
Bhupendra Mohan Saha, Surveyor, if any. In view parties the
High Court is requested to dispose of not the appeal at the
earliest. This appeal is allowed but in the circumstances
there will be no order as coats.



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