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SUPREME COURT OF INDIA
T.S. THAKUR, V. GOPALA GOWDA, R. BANUMATHI, JJ.
BENGAL AMBUJA HOUSING DEVELOPMENT LTD. – APPELLANT
Vs.
PRAMILA SANFUI AND ORS. – RESPONDENTS
CIVIL APPEAL NOS.7209-7210 OF 2015 (Arising Out of SLP (C) Nos.5902-5903 of 2015)
WITH
WEST BENGAL HOUSING BOARD – APPELLANT
Vs.
PRAMILA SANFUI AND ORS. – RESPONDENTS
CIVIL APPEAL NOS. 7211-7212 OF 2015 (Arising Out of SLP (C) Nos.5906-5907 of 2015)
Decided on : 18-09-2015
(2007) 12 SCC 549; (1994) 2 SCC 753; (2012) 12 SCC 378; (2004) 13 SCC 677 – Distinguished
(b) Code of Civil Procedure, 1908 – Order XXXIX Rules 1 and 2 – Suit against predecessor-in-interest of appellants Gangadas Pal abated due to his death – Abatement attaining finality – After three years property of Gangadas Pal added as part to the suit schedule properties by way of an amendment to the plaint – In the meantime legal heirs of Gangadas Pal acquiring intermediary rights under Section 6 of the West Bengal Estates Acquisition Act, 1953 – Legal heirs of Gangadas Pal not made party to the suit – Appellant Housing Board purchasing the land in question from the heirs of late Gangadas Pal – Appellant Housing Board never a party to the suit at any time – Trial court passing order of temporary injunction and granting police protection against appellants without impleading them to the original suit proceedings – Not permissible. (Para 17)
Code of Civil Procedure, 1908 – Order XXXIX Rules 1 and 2 – Injunction granted ostensibly as consent order involving the appellant – Appellant not impleaded – No question of consent. (Para 18)
(c) West Bengal Estates Acquisition Act, 1953 – Section 6 – Original owner an intermediary in khas possession – Subordinate Judge not having jurisdiction to entertain any suit in respect of such property. (Para 19)
Facts of the case:
The appellant, West Bengal Housing Board is the current owner of the suit property in question. The predecessor-in-interest of the appellant, late Gangadas Pal was the owner of suit land. A suit for partition was instituted in the land adjacent to the said land among the co-owners. Gangadas Pal was not a party to the said suit at its inception. He was impleaded as Defendant No. 54 vide order of the learned Trial Court. Gangadas Pal died in June 1958. One Mr. Ranjit Kumar Ganguly was appointed as the Receiver over the said suit properties and he took possession of the entire suit properties on November 30, 1958. After Gangadas Pal died, the defendant No.1 in the partition suit filed an application intimating that among others, defendant no. 54 (Gangadas Pal) had died during the pendency of the suit, following which the suit had abated against them, as per the provisions of Order XXII, Rules 3 and 4, Code of Civil Procedure, 1908. The learned Subordinate Judge, vide order and judgment dated 30.11.1973 dismissed the entire suit under Order XXII of the Code of Civil Procedure, 1908 holding that the suit had abated as against the deceased defendants and the right to sue did not survive as against the other surviving defendants.
On remand, the Civil Judge (Sr. Divn.) after considering the matter afresh held that the plaintiffs had not made out any sufficient ground for the delay in filing of the application and refused to condone the delay and rejected the application of the plaintiffs therein.
This order of abatement has attained finality as no appeal has been preferred by the parties against the same.
In the meanwhile, the land of late Gangadas Pal was acquired by the State Government, and came to be vested in them. The order of vesting was challenged by the heirs of Gangadas Pal, by way of a Writ Petition which was allowed and the order of vesting dated 16.09.1971 was quashed.
The State Government preferred Writ Appeal which was dismissed. Civil appeal thereagainst was dismissed by the Supreme Court.
The ownership of the plot of land was thus retained by the legal heirs of Gangadas Pal as intermediaries.
On 08.06.2006, the plaintiff-respondents herein filed an application in Title Suit seeking for grant of a temporary injunction restraining the parties from alienating, encumbering or creating third party interest on the scheduled properties which was allowed and a consent order was passed. The amendment application dated 28.01.2003, was allowed whereby the plot of land belonging to the heirs of Gangadas Pal was added to the suit schedule properties appended to the plaint.
On 19.08.2008, the appellant Housing Board acquired ownership of the property by way of five registered conveyance deeds the title and possession of the said 20.184 acres of land from the successors-in-interest of the late Gangadas Pal.
The Bengal Ambuja Housing Development Ltd. (appellant herein) filed an application, under Article 227 of the Constitution of India which was dismissed.
The High Court has dismissed the Review Application.
Judgment
V. Gopala Gowda, J.
Leave granted in all the Special Leave Petitions.
2. The present appeals, filed separately, arise from the impugned judgment and order dated 21.11.2014 passed in R.V.W. No.78 of 2013 and judgment and final order dated 19.12.2012 passed in C.O. No.709/2010 by the High Court of judicature at Calcutta, whereby the High Court refused to interfere with the impugned judgments therein. The appeals arising out of S.L.P. (C) Nos.5902-5903 of 2015 have been preferred by the Bengal Ambuja Housing Development Ltd., whereas the appeals arising out of S.L.P. (C) Nos. 5906-5907 of 2015 have been preferred by the West Bengal Housing Board. Both sets of appeals are being disposed of by this common judgment.
3. As the facts in both the appeals are common, for the sake of convenience, we refer to the facts of the appeals arising out of S.L.P. (C) Nos. 5906-5907 of 2015, which are stated in brief hereunder:
The appellant, West Bengal Housing Board (hereinafter “the Housing Board”) is a statutory body constituted under the West Bengal Housing Board Act, 1972 with the objective of providing affordable housing in the State of West Bengal. The appellant is the current owner of the suit property in question in the present appeals. The predecessor-in-interest of the appellant, late Gangadas Pal was the owner of suit land measuring 20.184 acres of land. A suit for partition being Title Suit No. 43 of 1956 was instituted in the land adjacent to the said land among the co-owners namely, Sanfui, Naskar, Mondal and Sardar family in the year 1956 before the learned Civil Judge (Senior Division), Alipore, the said suit was renumbered subsequently as Title Suit No. 121 of 1962. Gangadas Pal was not a party to the said suit at its inception. He was impleaded as Defendant No. 54 vide order of the learned Trial Court dated 14.08.1957. Gangadas Pal died in June 1958. One Mr. Ranjit Kumar Ganguly was appointed as the Receiver over the said suit properties and he took possession of the entire suit properties on November 30, 1958. After Gangadas Pal died, the defendant No.1 in the suit No. 121 of 1962, filed an application before the learned Subordinate Judge, Alipore, intimating that among others, defendant no. 54 (Gangadas Pal) had died during the pendency of the suit, following which the suit had abated against them, as per the provisions of Order XXII, Rules 3 and 4, Code of Civil Procedure, 1908. The learned Subordinate Judge, vide order and judgment dated 30.11.1973 dismissed the entire suit under Order XXII of the Code of Civil Procedure, 1908 holding that the suit had abated as against the deceased defendants (including Gangadas Pal) and the right to sue did not survive as against the other surviving defendants. The learned Subordinate Judge held as under:
“There is authority to hold that no formal order of abatement need be made as a suit or appeal abates automatically if no application for substitution is made within the prescribed time, i.e. within ninety days from the date of death and not from the date of knowledge. In that view of the matter, the order of abatement as recorded above by order no. 337, dated 15.9.73 was a mere formality. Sub-Rule 3 of Rule 4 of Order 22 CPC provides that the suit shall abate as against the deceased defendant in case no application is made under Sub-Rule 1 within the time allowed by law. Abatement takes place by operation of law and it is this crystal clear that the suit has abated against the deceased defendant nos. 9, 39, 54, 55, 57, 60, 62, 63 in due course of law....”
Aggrieved by the same, the plaintiffs therein filed Title Appeal No. 117 of 1974 before the learned District Judge, Alipore. The learned District Judge, vide order dated 20.09.1977 held that the order passed by learned Subordinate Judge was improper and not justified, and remanded the matter back to be considered afresh. The learned Civil Judge (Sr. Divn.) after considering the matter afresh held that the plaintiffs had not made out
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