So far as the question of non-joinder of necessary parties is concerned, it is submitted on behalf of the petitioner that in the suit for mandatory injunction the person, i.e., Iman Kalyan Dey, son of Harinarayan Dey, was only impleaded as necessary party because he was only opposing the removal of staircase from the disputed pathway. In CWN (19) 1211 it is held, inter alia, that a dominant owner has no cause of action against servient owners who have neither caused obstruction nor raised any objection to the exercise of his right of easement. In a suit for declaration of his right of way he is not bound to make parties any servient owners other than those who have so obstructed or challenged his right. The said case relates to a suit for declaration of right of way, for restoration of the path to its
former condition and for perpetual injunction. The said suit was decreed against which appeal was preferred with the contention that the suit ought to have failed as the owners of all the servient tenements over which the way is claimed have not been made parties to the suit. The instant case relates to removal of partial obstruction from the existing pathway in terms of a compromise decree which has been waived or relinquished. There is no denial of the fact that the said staircase is now in occupation of the tenants inducted by co- sharers. If such a staircase is to be removed affecting the rights of all the co-owners, they must be treated as necessary party and in such case in absence of all the co-owners no effective decree can be passed. From this point of view the learned Trial Court as well as the Hon'ble Division Bench has not committed any error apparent on the face of record which may be reviewed and the ratio in the aforesaid case is not applicable in the facts and circumstances of the case.1
Kolkata High Court (Appellete Side)
Smt. Subhra Sinha Roy vs Iman Kalyan Dey on 20 May, 2011
The present application is filed for the review of the judgement dated 27.07.2007 passed in F. A. No. 10 of 2005 dismissing the appeal preferred by the plaintiff/ appellant against the judgement and decree of dismissal dated 15.06.2004 passed in Title Suit No. 2044 of 1997 by the learned Judge, 10th Court City Civil Court, Calcutta.
2. In the Court below the plaintiff instituted Title Suit No. 2044 of 1997 praying for a decree for mandatory injunction directing the defendant/ opposite party to remove and/or dismantle the staircase on the common passage at the cost of the defendant as per the terms of settlement in a compromise decree passed by this Hon'ble Court in a Partition Suit No. 646 of 1960.
3. One Sephali Patra filed the above suit against one Lilabati Dashi for partition of premises no. 63, Shyambazar Street, formerly known as no. 111/1 Shyambazar Street, in the Original Side of this Hon'ble Court. The said Lilabati Dashi was substituted by her descendants Kartick Chandra Pal and Harinarayan Dey. The said suit ended in a compromise decree on 01.10.1962 in terms of which Sephali Patra got the back portion of the said premises together with the right of way in the passage of the front portion which leads from Shyambazar Street to the said back portion which was identified under Lot 'B' of the plan annexed to the said decree. On the other hand Kartick 3
Chandra Pal and Harinarayan Dey jointly got the front portion of the said premises identified under Lot 'A' of the said plan under certain conditions. Some of the clauses of such compromise decree are quoted below for the purpose of better appreciation of the judgement under review.
"Clause-5: The back portion of premises No. 63, Shyambazar Street, Calcutta described in Lot 'B' of the schedule below and demarcated in the plan annexed hereto and marked 'B' and therein bounded by yellow borders is hereby allotted to the plaintiff.
Clause-6: It is declared that the front portion of the said premises described in Lot 'A' of the said schedule and demarcated in the said plan and marked 'A' and therein bounded by red borders is hereby allotted to the substituted defendants the defendant Kartick Chandra Paul having one equal fourth part of share herein and the defendant Hari Narayan Dey having three equal fourth parts or shares therein.
Clause-7: To equalies the said partition the substituted defendant Harinarayan Dey shall on or before the putting in of these terms pay to the plaintiff Rs. 5,500/- (Rupees five thousand five hundred only) by way of owelty money and the said amount having been paid by the defendant 4
Hari Narayan Dey one equal half part or shares in the lot 'A' shall belong to the said Hari Narayan Dey alone. Clause-8: Within 6 months from the date of these terms of settlement being put in, the plaintiff and the defendant Kartick Chandra Pal shall sign execute and register in favour of the said Hari Narayan Dey a proper conveyance in respect of the said half share in Lot 'A'.
Clause-9: The said defendant Harinarayan Dey shall also within one month from the putting in of these terms pay to the plaintiff Rs. 80/- (Rupees eighty only) in payment of the defendants share of the Municipal Taxes in respect of the suit premises.
Clause-10: The parties will have right to way in the passage leading from Shyambazar Street to the said back portion described in lot B, the said passage being marked 'X' to 'Y' in the said plan and therein coloured burnt ciena with liberty to lay drain, swear, filtered and unfiltered water pipes, and electrical and telephone connections under or over the same.
Clause-11: The aforesaid passage will be maintained by all the parties herein.
Clause-12: Immediate steps shall be taken by the parties herein to eject the existing tenant occupying a portion of 5
the said front portion of the suit premises costs whereof however will be borne by the substituted defendants only. Clause-13: The plaintiff will have no claim for any or all damages, costs, recovery of arrears of rent and any other relief that may be granted by the court in respect of eviction of the said tenant which the substituted defendants undertake to get at their own costs.
Clause-14: Within six months from the date of obtaining vacant possession of the portion of the said premises in possession of the said tenant the substituted defendants will at their won costs and with the necessary co-operation of the plaintiff do or cause to be done all that is necessary for having separate Municipal Premises numbers for the said back portion and front portion of the suit premises and also do or causes to be done for effecting the same, the following acts, matters and things or such of them as may be required by the Corporation of Calcutta.
To dismantle the thatched portion with the stairs marked "P" in the plan annexed hereto and marked "B" in such a way as to make the passage on the ground floor marked "X" to "Y" in the said plan and coloured burnt ciena through passage from the public road on the East leading to the said back portion of the said premises and to close the existing gate marked "C" permanently by brick work. " 6
4. On perusal of the evidence on record and contention of the parties the learned Trial Court dismissed the suit mainly on the grounds of non-joinder of necessary parties and maintainability. So far as the first point is concerned, the learned Trial Judge held that in the decree of compromise of 1962 the front portion of the disputed premises was allotted to Harinarayan Dey and Kartick Chandra Pal. The said Harinarayan Dey died in 1987 and has been succeeded by his son and married daughter. The son has been impleaded in the suit but the married daughter who had two annas share has not been impleaded. Moreover, Kartick Chandra Pal who had 1/4th share was also not made a party. In their absence no effective decree for mandatory injunction for removal of the staircase on the common passage could be passed. So far as the limitation point is concerned the learned Trial Judge was of the opinion that the suit was decreed on compromise in 1962 and the same could be executed within 12 years, i.e., by 1974. But the same was instituted in 1997 and as such hopelessly barred by limitation.
5. Being aggrieved by and dissatisfied with such order the plaintiff preferred an appeal in this Hon'ble Court being F. A. No. 10 of 2005 and claimed inter alia, that in terms of clause 14 of the aforesaid 7
decree of compromise the existing staircase on the common passage has to be demolished in order to ensure uninterrupted egress and ingress through the entire passage from the public road on the East leading to the back portion of the disputed premises within six months from the date of obtaining vacant possession of the portion occupied by the then existing tenant. The plaintiff, however, claims that in spite of such agreement the said stair case was not removed neither by Harinarayan Dey nor by Kartick Chandra Pal the defendants or their predecessors. In 1978 the said back portion including the said common passage was sold out to the plaintiff/ petitioner by the said Sephali Patra. After such purchase the plaintiff submitted an application for mutation before the KMC authorities in 1982 which was obtained at a belated stage. In fact in 1993 she obtained possession of the said back portion which was tenanted and thereafter in 1997 she instituted the above suit for mandatory injunction which was within the period of limitation. The appeal was dismissed on 27.07.2007 by this Hon'ble Court affirming the findings of the learned Trial Court which is now under review.
6. One of the grounds of review is that there is error apparent on the face of record which should be rectified. The cause of action for filing 8
the suit is very much within the period of limitation after taking possession of the premises by the subsequent purchaser. In terms of the compromise decree the predecessor-in-interest of the defendant opposite parties being the owner of "servient heritage" granted an easementary right through the said passage to the owner of the back portion of the said premises and the said right of easement is attached with and annexed to the "dominant heritage", i.e., the back portion of the suit premises. It is clearly mentioned in the schedule map of the compromise decree that the area to be dismantled was indicated under the thatched portion with the stairs marked 'P' in the plan annexed thereto and marked 'B' in such a way as to make the passage on the ground floor marked 'X' to 'Y' with coloured burnt ciena all through the passage from the public road on the East leading to the said back portion of the disputed premises and to close the existing gate marked 'C' permanently by brick work. It is contended on behalf of the present petitioner that the said easementary right has been created for the purpose of the beneficial enjoyment of the back portion of the said premises (dominant heritage) by the grant of the owners of the front portion of the said premises (servient heritage) as envisaged under Sections 8 to 11 of the Easement Act, 1882. Moreover, it is an easement of necessity as 9
contemplated under Section 13 of the said Act. It is further contended that subsequent event has also brought on record in the review proceedings being C. A. N. 8817 of 2008 whereby and whereunder some documents have been filed to show that there is still tenant in the front portion of the disputed premises. In his affidavit-in-opposition it is admitted by the defendant in paragraph 4(b) to the following effect:
"4(b). I further say that the said two rooms in the ground floor of the front portion was let out by my father Harinath Dey to one Nirmal Chandra Sinha with effect from June 1, 1967."
It is also averred therein that the said rooms were given to different tenants and the same is still under occupation of the tenants. It is further contended that the said fact was disclosed by the defendant in his affidavit-in-opposition for the first time and, therefore, the subsequent event can be treated as another valid ground and condition of review as contemplated under Order 47 Rule 1 CPC. The concurrent findings of the learned Trial Court as well as the Hon'ble Appellate Court is that the time limit for instituting the suit will be 12 years from the date of the said decree. But the petitioner herein contends that the starting point of limitation in getting the relief on the 10
basis of the aforesaid compromise decree is the date on which the said decree becomes executable. In the instant case the said compromise decree becomes executable within six months from the date of obtaining the vacant possession of the said portion from the tenant and the same will be open to execution till 12 years subject to the condition that the said portion remains vacant for the said entire period of 12 years. From the materials on record it will appear that the said portion of the premises was vacant till sometime between 1st October, 1962 and 1st June, 1967 when one Nirmal Chandra Sinha was inducted there as a tenant. Therefore, even if it is assumed that the said portion was lying vacant for some time but as soon as the tenants were inducted there again the limitation for putting the decree into execution was arrested since it is evident from record that still there are tenants in occupation of the disputed premises. So as per terms of compromise decree it is yet to be executed.
7. It is further contended that in terms of the compromise decree the defendant/respondent/opposite party was under obligation to get the vacant possession of the said portion of the suit premises so as to give a free access to the owners of the back portion of the said premises through the passage of the front portion from the main road 11
but by inducting one after another tenant he never kept the said portion vacant thereby violating the terms of the said compromise decree. Therefore, he cannot be allowed to take advantage of his own wrong and willful conduct detriment to the interest of the decree holder. In fact, the defendant should not be allowed to approbate and reprobate at the same time, that means, to take advantage of one part of the compromise decree and reject the rest.
8. So far as non-joinder of necessary parties, i.e., daughter of Harinarayan Dey and Kartick Chandra Pal is concerned, it is submitted on behalf of the plaintiff/ appellant that the suit was filed for assertion of a right of passage for the purpose of access to the back portion of the suit premises, i.e, the claim relates to right of easement without any claim of right, title and interest over the said passage. The owners of front portion of the said premises have acknowledged and granted such right of easement to the owners of the back portion of the suit premises by the compromise decree. It is specifically claimed in the plaint that only Iman Kalyan Dey being the sole possessor of the 'dominant heritage' is obstructing and/or causing disturbance and/or refusing to remove the said thatched portion thereby causing disturbance to the plaintiff/ appellant in 12
getting free access to the back portion of the said premises, so he is the only necessary party to the suit and against him only relief was sought. He has referred to and relied upon the principles laid down in 19 CWN 1211, 2005(4) SCC 741 and AIR 2006 SC 75 in support of such contention.
9. Learned lawyer for the opposite party/ defendant has, however, opposed the move and claimed that the repeated induction of tenants and occupation of the disputed premises still by some tenants is not a new fact to be taken into account for review of the appeal in question. Because it was very much within the knowledge of the plaintiff in course of trial. The defendant/ opposite party was cross- examined by the plaintiff/ petitioner with regard to one tenant S. S. Shukla who was inducted in the said premises in 1987. So as the point of limitation is concerned it is further contended that the decree of compromise was passed in 1962. The then existing tenant left the suit premises and the opposite party's predecessor-in-interest got the vacant possession of the said portion much before 1967. Only after 1967 he let out the said premises again to new tenants. Thus the plaintiff's predecessor-in-interest Smt. Sephali Patra, the then owner of the 'back portion' did not take any step to have the stair case 13
existing on the common passage dismantled and/or removed within 12 years of the vacation of the then existing tenant. So it will be treated that she has waived her right of removing the said staircase from the common passage. The subsequent purchaser of the back portion acquired the title to the suit property in 1978, i.e., after 16 years of the aforesaid compromise decree with the full knowledge of the existing features of the disputed property and the subsequent purchaser, therefore, cannot claim any mandatory injunction by filing a suit in 1997, i.e., after 35 years of the decree. His cause of action could have survived if the tenant in occupation of the disputed premises, i.e., S. S. Shukla, at the time of compromise decree in 1962 continued the tenancy right till filing of the suit. Therefore, there is no error apparent on the face of record or any new event that may give rise to review the appeal in question and there is no merit in this review application which is liable to be dismissed. He has referred to and relied upon the principles laid down in AIR 1995 SC 455 and 1996 Calcutta Law Times (Vol. II) page 392 in support of his contention. He has further contended that there is no relevancy of the three judgements referred to above and relied on by the learned lawyer for the petitioner on grounds of dissimilar facts. 14
10. For the purpose of better appreciation the relevant provisions of Order 47 Rule 1 CPC is quoted below:
"Order XLVII
Review
1. Application for review of judgement.-(1) Any person considering himself aggrieved - (a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred,
(b) by a decree or order from which no appeal is allowed, or (c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order. "
11. In 2005(4) SCC 741 it has been set at rest by the Hon'ble Apex Court that Order 47 Rule 1 CPC provides for filing an application for review. Such an application for review would be maintainable not only upon discovery of a new and important piece of evidence or when there exists an error apparent on the face of the record but also if the same 15
is necessitated on account of some mistake or for any other sufficient reason. What would constitute sufficient reason would depend on the facts and circumstances of the case. The words "sufficient reason" in Order 47 Rule 1 CPC are wide enough to include a misconception of fact or law by a court or even an advocate. An application for review may be necessitated by way of invoking the doctrine "actus curiae neminem gravabit". Learned lawyer for the opposite party has contended that in the said case the Hon'ble Apex Court was dealing with an interlocutory order of injunction and not with any final decree and, therefore, the said principle is inapplicable in the present facts and circumstances of the case which may at best be a subject matter of an appeal but not review.
12. It is submitted on behalf of the learned lawyer for the petitioner that in the judgement of the learned Trial Judge as well as appeal under review the question of limitation has not been properly appreciated and the findings of both the Courts suffers from error which is apparent on the face of record. The claim of the subsequent purchaser in 1978 for acquisition of right, title and interest has not been denied in the instant case and his easementary right over the disputed passage could only be enforced through the Court of law 16
after delivery of vacant possession of the tenancy within the specified period. From this point of view the period of limitation has not expired since still there are tenants in occupation of the disputed premises. For determination of the said controversy the terms of the Clause 12 of the decree of compromise cast an obligation upon both the parties to take immediate steps to eject the existing tenant occupying the portion of the said front portion of the said premises cost whereof, however, will be borne by the substituted defendants only. Clause 14 is a continuation and extension of the same obligation fixing a limited period for assertion of such easementary right following eviction of the existing tenant. It is specifically mentioned therein that within six months from the date of obtaining vacant possession of the portion of the said premises in possession of the said tenant the substituted defendants will at their own costs and with the necessary cooperation of the plaintiff do or cause to be done all that is necessary for having separate municipal premises numbers for the said back portion and front portion of the suit premises and also do or cause to be done for evicting the same, the following acts, matters and things or such of them as may be required by the Corporation of Calcutta. Thus, Clause 14 of the decree of compromise has confined the extent of the rights of the 17
parties to compromise under two constraints. So far as time constraint is concerned, it is within six months from the date of obtaining vacant possession of the portion of the suit premises in possession of the said tenant. By the words 'said tenant' obviously the party to the compromise, agreed to evict the tenant who was in occupation of the disputed premises at the time of compromise decree in 1962. Had it been only the word "tenant" without referring to "said tenant" the right would have been a continuous one including the tenants in succession. When it refers to a particular tenant, the question of delivery of vacant possession by the said tenant gives rise to the starting point of limitation for assertion of rights intended to secure under Clause 14. If such right is not asserted immediately after delivery of vacant possession of the then tenant of 1962 such right will obviously be treated as waived by the parties after expiry of the period of limitation. Moreover, subsequent induction of tenants also make such clause unenforceable because Clause 14 of the agreement prohibit induction of repeated tenants in the suit premises and has intended to create some easementary right after eviction of the existing tenant. When parties opt for inducting successive tenants after eviction or delivery of vacant possession of the then existing tenancy right in favour of the plaintiff of the original 18
suit in 1962, the subsequent purchaser cannot claim that he has purchased the disputed property with right to evict the subsequent tenants. What he has acquired by subsequent purchase in 1978 is the right of way for the passage as indicated in Clause 10 of the compromise decree as existed on the date of purchase and not the right intended to secure under Clause 14. It is on record that the then existing tenant of 1962 left the suit premises and the opposite party's predecessor-in-interest got possession of the said portion much before 1967. Only after 1967 he inducted new tenants in the disputed premises. Therefore, it is evident that the original plaintiff Sephali Patra did not take any step for dismantling or removing the staircase within six months from the eviction of the original tenant before 1967 and thereby relinquished her right conferred under Clause14 of the compromise decree to be exercised within a limited period. Since she had waived or relinquished her claim of dismantling the staircase the petitioner/ appellant who subsequently purchased the property in 1978 had the full knowledge of such staircase partly obstructing the pathway.
13. In this connection it is to be considered how far petitioner's contention that the predecessor-in-interest of the defendant/ 19
opposite party being owner of the 'servient heritage' granted an easementary right through the said passage to the owner of the back portion of the said premises and the said right of easement is attached with and annexed to the 'dominant heritage', i.e., the back portion of the suit premises.
14. Now proviso to Clause 14 of the compromise decree dated 01.10.1962 (paragraph 3 supra) has laid down (a) a limitation of six months from the date of obtaining vacant possession of the portion of the said premises in possession of the 'said tenant' and (b) an obligation upon the substituted defendants to dismantle the thatched portion with the stairs marked 'P[ in the plan annexed with the decree and (c) to close the existing gate marked 'C' permanently by brick wall. Therefore, the legal effect of non-compliance of aforesaid obligations must be taken into account in determining existence of easementary right of way attached with and annexed to the '[dominant heritage' in favour of owner of back portion of the suit premises after expiry of the period of limitation of six months. Admittedly the petitioner purchased the property on 14.07.1978 by a registered sale deed. From the recital of said sale deed it will appear that there is reference of compromise decree to dismantle the thatched portion with the 20
staircase and to close the existing gate but not the time limit of six months from the date of obtaining vacant possession of the portion of the said premises in possession of the particular tenant. Vendor suppressed this conditional or contingent right waived by her at the time of sale and the vendee has not verified contents of such compromise decree before purchase. Therefore, by such sale deed the vendor transferred her existing right which is quoted below: "The Vendor doeth hereby grant, sell, transfer, convey and assign the said property beign the divided and demarcated back portion of premises No. 63, Shambazar Street in the town of Calcutta together with two storied brick built building thereon wherein and on part whereof the same is built and erected and also together with arrears of rent due from the tenants and also together with all rights of easement and way in over and under the passage leading from Shambazar Street to the said premises fully described in the schedule hereunder delineated and depicted in the map or plan annexed hereto and coloured with Red border which for the sake of brevity hereinafter referred to as the "said property" or howsoever otherwise the said land hereditament tenant and premises now is or are or at any time heretofore was or were butted and bounded called known numbered described or distinguished together with all yards, courts, drains, water, water-courses, sewers, rights light, liberties easement privileges, appurtenances 21
thereon belonging to or anywise appurtenant thereto AND All ESTATE right title interest claim, demand of the Vendor into and upon the said property or any part thereof and all deeds, pattahs, muniments, documents, of title which are now in custody of possession of the Vendor............." This right includes easementary right of way with encumbrance of staircase removal of which within specified time has been waived by the vendor long ago. Obstruction of the pathway for such staircase is an encumbrance upon the way at the time of sale of the property. When the vendee acquires right to a property with such encumbrances, he cannot claim a better right than the vendor possessed. Thus subsequent purchaser did not acquire any right to remove the staircase obstructing the pathway and cannot claim removal of the same long after such purchase to enforce his easementary right over the same which shall only be confined to clause 10 of the compromise decree and not proviso to Clause 14 thereof. The Hon'ble Division Bench while considering the appeal was concerned with the question of limitation and non-joinder of necessary party. Therefore, such a question of enforcement of easementary right of way over the property by removal of staircase was not in existence and not taken into account which cannot be treated as an error apparent on the face of record for review.
22
15. Learned lawyer for the petitioner has further argued that even if there is no legally enforceable easementary right the petitioner/ appellant is entitled to claim such right as of necessity as contemplated under Section 13 of the said Act. It appears to me that in the appeal under review this aspect cannot be considered by us because it was not a point agitated and decided by the Hon'ble Division Bench. So this is not an error apparent on the face of record and beyond the purview of Order 47 Rule 1 CPC.
16. So far as the question of non-joinder of necessary parties is concerned, it is submitted on behalf of the petitioner that in the suit for mandatory injunction the person, i.e., Iman Kalyan Dey, son of Harinarayan Dey, was only impleaded as necessary party because he was only opposing the removal of staircase from the disputed pathway. In CWN (19) 1211 it is held, inter alia, that a dominant owner has no cause of action against servient owners who have neither caused obstruction nor raised any objection to the exercise of his right of easement. In a suit for declaration of his right of way he is not bound to make parties any servient owners other than those who have so obstructed or challenged his right. The said case relates to a suit for declaration of right of way, for restoration of the path to its 23
former condition and for perpetual injunction. The said suit was decreed against which appeal was preferred with the contention that the suit ought to have failed as the owners of all the servient tenements over which the way is claimed have not been made parties to the suit. The instant case relates to removal of partial obstruction from the existing pathway in terms of a compromise decree which has been waived or relinquished. There is no denial of the fact that the said staircase is now in occupation of the tenants inducted by co- sharers. If such a staircase is to be removed affecting the rights of all the co-owners, they must be treated as necessary party and in such case in absence of all the co-owners no effective decree can be passed. From this point of view the learned Trial Court as well as the Hon'ble Division Bench has not committed any error apparent on the face of record which may be reviewed and the ratio in the aforesaid case is not applicable in the facts and circumstances of the case.
17. To be precise, after careful consideration of all these points I hold that in the instant case the plaintiff/ petitioner has tried to assert some easementary right as the subsequent purchaser though such right was relinquished by the original owner by her own conduct and as such the same is barred by limitation and doctrine of estoppel by 24
conduct and no enforceable decree can be passed against such claim. Therefore, there is no error apparent on the face of record or omission or necessity for review on grounds of sufficient reason envisaged under Order 47 Rule 1 CPC.
18. Therefore, I hold that there is no merit in this review application, which is accordingly dismissed.
19. Urgent certified photocopies of this order, if applied for, be supplied to the parties, on compliance of all requisite formalities. (Syamal Kanti Chakrabarti, J.)
I agree.
(Tapan Kumar Dutt, J.)
No comments:
Post a Comment