IMPORTANT POINT
The test for determining, whether a person is in possession is whether he is in general control of it.

Headnote:Specific Relief Act, 1963-Section 6-Suit for possession-Word possession implies a right and a fact-Test for determining, whether a person is in possession is, whether he is in general control of it-Agreement to purchase two flats between developer and plaintiff (since deceased)-It was stipulated between parties that deceased would himself make internal changes at his own costs-Developer gave possession of two flats which then consisted of outer walls on four sides without any partition, doors and windows-Deceased erected walls, partitions, doors, windows etc. at his own costs-Appellants wrongfully and illegally broken into the said two flats and obtained forcible possession of two flats-Developer s case that as deceased plaintiff did not pay full consideration, he sold both the flats to appellants-No evidence of transfer of flats to alleged bona fide purchasers, appellants-Whether Courts below were justified in decreeing the suit u/s 6 of the Act-(Yes).
       Held : We do not find any merit in these civil appeals. Firstly, there is no substantial question of law arising in these civil appeals. Both the Courts below on consideration of the entire evidence, both oral and documentary, on record have come to the conclusion that in May, 1967 two incomplete flats were handed over to P.K. Chowdhury; that under the modified terms P.K. Chowdhury agreed as the purchaser to construct partition, walls, doors and windows inside the flats; that even collapsibles were put by P.K. Chowdhury and that the keys to the suit flats were with P.K. Chowdhury. In the circumstances, both the Courts below have concluded that the dominion/control over the suit flats was with P.K. Chowdhury. We do not see any reason to disturb these findings of fact. Secondly, there is no evidence on record to show that P.K. Chowdhury was allowed to execute the work on behalf of the developer. Thirdly, on evidence, it is established that P.K. Chowdhury was allowed to do the work of permanent nature and that even the keys of the flats were with him which proved beyond doubt that P.K. Chowdhury was in complete control of the suit flats. Fourthly, there is no term in the agreement between the parties under which P.K. Chowdhury was obliged to return the possession of the flats on completion of the work. Hence, the developer has failed to prove "permissive" possession as alleged. Lastly, as held by the Courts below, there is no evidence of transfer of the suit flats by the developer to alleged bonafide purchasers i.e. defendants No.2 and 3. In the circumstances, both the Courts below were right in decreeing the suit under section 6 of the Specific Relief Act, 1963. (Para 9)
       Both the Courts below were right in coming to the conclusion that P.K. Chowdhury was put in possession of the suit flats in May, 1967 and that he was wrongly dispossessed on 10.2.1979 by the defendants without following due process of law. (Para 13)

JUDGMENT

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

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

Plaintiffs are the two executors of the will of one P.K. Chowdhury (since deceased) who agreed, vide agreement dated 8.5.1965, to purchase two flats No. 12C and 12D on the 12th floor of the building known as "Monalisa" situate at Camac Street, Calcutta along with two garages on the ground floor for the total consideration of Rs. 2,34,168/-, out of which the deceased P.K. Chowdhury paid Rs. 2,22,168/-. Originally, it was agreed that two flats would be allotted by the developer (defendant No. 1) to P.K. Chowdhury on 8th floor. That agreement was varied and it was agreed that the two other flats would be allotted on the 12th floor. Similarly, the said two garages, as agreed upon, could not be allotted due to technical defect in the construction, so an alternative larger space was allotted at the increased price. Later on, P.K. Chowdhury constructed two complete locked up garages. Apart from two flats, P.K. Chowdhury purchased three rooms spaces in the ground floor. In respect of flat Nos. 12C and 12D, it was originally agreed between the developer and P.K. Chowdhury that the developer would carry out all internal works in accordance with the suggestions of P.K. Chowdhury. Subsequently, that condition was varied and it was stipulated by and between the parties that P.K. Chowdhury would himself make internal changes at his own costs, for which the developer agreed to give a rebate. In May, 1967, the developer gave possession of the said two flats which then consisted of outer walls on four sides without any partition, doors and windows. On obtaining possession, P.K. Chowdhury erected walls, partitions, doors, windows and collapsibles at his own costs. These works were of permanent nature. On or about 10.1.1968, accounts between P.K. Chowdhury and the developer were settled. Rs. 12000/- was found due and payable by P.K. Chowdhury to the developer being balance amount in full settlement of the consideration for the flats and garages. P.K. Chowdhury agreed to pay Rs. 12000/- to the developer upon execution of conveyance in his favour for the two flats. In December, 1975, however, the developer instituted a suit in the City Civil Court, Calcutta being suit No. 2180 of 1975 for permanent injunction restraining P.K. Chowdhury from interfering with his alleged possession. The said suit was dismissed, as not maintainable.

3. On 10.2.1979, the appellants herein wrongfully and illegally broke into the said two flats and obtained wrongful and forcible possession of the two flats. P.K. Chowdhury came to know of the dispossession on 12.2.1979. On 12.3.1979, he filed the present suit. In the present suit, the developer contended that P.K. Chowdhury was never given possession of the suit flats; that he was given access to execute certain masonry works in the said two flats; that P.K. Chowdhury did not pay the full consideration and consequently, he had sold both the suit flats to original defendants No. 2 and 3 (appellants in Civil Appeal No. 6408 of 2002), who were put in possession of the two flats on 3.1.1979 from which date defendants No. 2 and 3 have continued to be in possession thereof.

4. In the present suit filed on the Original Side of the High Court, extensive evidence, both oral and documentary, was led. On behalf of the plaintiffs, PW 1 - the wife of P.K. Chowdhury was extensively examined. PW 1 in her evidence stated that possession of the two incomplete flats was given to her husband in terms of the modified agreement under which P.K. Chowdhury had agr

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2004 Supreme(SC) 853

IMPORTANT POINTThe test for determining, whether a person is in possession is whether he is in general control of it.

Cases Referred (1)

IMPORTANT POINT
The test for determining, whether a person is in possession is whether he is in general control of it.