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BHASKAR BHAITACHARYA AND PRASENJIT MANDAL. JJ.
Subal Chandra Maity & Ors. – Appellants
Vs.
Usha Banerjee & Ors. – Respondents
F. A. No. 152 of 2005.
Decided on : 26-6-2009
TRANSFER OF PROPERTY ACT - CREATION OF RIGHT OF ENJOYMENT - SECTION 11 - LICENSE - INHERITANCE - ADVERSE POSSESSION - INJUNCTION - [The creation of a conditional right of enjoyment in garages in favor of the son on certain conditions is not an encroachment on the absolute right of the daughter's sons as title to the property was conferred subject to such right in the garages and the donee accepted such condition. A simple license was created in respect of those two garages on payment of license fees without creating any interest in the land. The right created in favor of the son of the donor was that of licensee on payment of specific license fees, the same is not inheritable and the right that was created in favor of the son of the donor could not be inherited by his sons. However, a lawful owner can be injuncted at the instance of a person having no right but in settled possession from taking forcible possession.]
Fact of the Case:
The plaintiffs filed a suit for declaration of title and injunction, claiming ownership of three garages and one stable on the ground floor of premises. The defendants, subsequent purchasers, contested the suit, claiming that the plaintiffs had only a license to occupy the garages, which was conditional and had terminated.
Finding of the Court:
The court held that the deed of gift created a conditional right of enjoyment in the garages in favor of the son of the donor, which was not an encroachment on the absolute right of the daughter's sons. However, the right was that of a licensee on payment of license fees and was not inheritable. Therefore, the plaintiffs were not entitled to a declaration of title or a declaration as licensees. However, the court granted an injunction restraining the defendants from taking forcible possession of one of the garages where the plaintiffs had kept their car.
Issues: 1. Whether the creation of a conditional right of enjoyment in the garages in favor of the son on certain conditions is an encroachment on the absolute right of the daughter's sons? 2. Whether the right created in favor of the son of the donor was that of a licensee on payment of specific license fees? 3. Whether the right of a licensee is inheritable? 4. Whether a lawful owner can be injuncted at the instance of a person having no right but in settled possession from taking forcible possession?
Ratio Decidendi: 1. The creation of a conditional right of enjoyment in the garages in favor of the son on certain conditions is not an encroachment on the absolute right of the daughter's sons as title to the property was conferred subject to such right in the garages and the donee accepted such condition. 2. The right created in favor of the son of the donor was that of a licensee on payment of specific license fees, the same is not inheritable and the right that was created in favor of the son of the donor could not be inherited by his sons. 3. A lawful owner can be injuncted at the instance of a person having no right but in settled possession from taking forcible possession.
Final Decision: The court set aside the judgment and decree of the trial court and modified it by restraining the defendants from taking forcible possession of one of the garages where the plaintiffs had kept their car. The court dismissed the suit in respect of the other two garages.
BHASKAR BHATTACHARYA, J. :- This first appeal is at the instance of the defendants in a suit for declaration and injunction and is directed against the judgment and decree dated 12th May. 2004 passed by the learned Trial Judge. Tenth Bench, City Civil Court at Calcutta. in Title Suit No. 1271 of 2001 thereby decreeing the said suit in part.
2. Being dissatisfied, the defendants have come up with the present first appeal.
3. The respondents before us filed in the City Civil Court at Calcutta a suit being Title Suit No. 1271 of 2001 thereby praying for declaration that the plaintiffs were the absolute owners of three garages including one stable on the ground floor of premises Nos. 131-A and 131-B. Akhil Mistry Lane, Calcutta-9 and were entitled to use and enjoy the said property without any interference and interruption of ingress and egress and for permanent injunction restraining the defendants their men and agents from disturbing or interfering with the possession of the plaintiffs of those properties as mentioned above.
4. The case made out by the plaintiffs may be summed up thus: ".
a) One Sarada Sundari Devi, the paternal grandmother of the plaintiffs, was the absolute owner elf the entire premises Nos. 131-A and 131-B. Akhil Mistry Lane. During her lifetime: 'She executed a deed of gift dated 21st April. 1923 by which she allotted to her son" namely, Panchu Gopal Banerjee, since deceased, the father of the plaintiffs, three garages including one stable which is the subject-matter of the suit. The remaining portion of the premises was allotted to her only daughter, viz. Smt. Kali Dassi Devi for life and after her death, absolutely to the legal heirs of the said Kali Dassi Devi.
b) On the death of Kali Dassi Devi, Sri Samaresh Chandra Mukherjee, Sikharesh Chandra Mukherjee and Sunilesh Chandra Mukherjee, her three sons, became the absolute owners of the remaining portion of the premises and the three garages including the stable devolved upon Panchu Gopal Banetjee and ultimately, upon the plaintiffs and thus, the plaintiffs became the absolute owners of those three garages including the stable.
c) The plaintiffs were in possession of those three garages but recently the defendants who were subsequent purchasers from Dr. Anil Misra and others, started creating disturbance in possession of the plaintiffs in the three garages and hence, the suit was filed.
5. The suit was contested by the defendants by filing written statement thereby denying the material allegations made in the plaint and the defence of the defendants may be summed up thus:
The defendants admitted that the paternal grandmother of the plaintiffs was the original owner of the property and that she executed the deed of gift mentioned in the plaint and relied upon the said deed of gift. According to the defendants, the deed itself would show that the entire property was given to the daughter of the original owner, the predecessor-in-interest of the defendants but in respect of two garages on the ground floor, only the right of enjoyment was given to Panchu Gopal Banetjee and his sons provided they paid one-third of the corporation tax of the entire building to Kali Dassi Devi or her heirs for such occupation. It was further stated that by virtue of the said deed, no right, title and interest accrued in favour of Panchu Gopal Banerjee or his heirs but only a licence devolved and that too, on fulfillment of certain conditions. The plaintiffs or their predecessor having failed to pay such amount either to Kali Dassi Devi or to her sons or the subsequent purchasers, they have no right, title and interest in the two garages.
6. At the time of hearing of the suit, one of the plaintiffs alone gave evidence in support of the case while four witnesses were examined on behalf of the defendants.
7. The deed of 1923 executed by the original owner was also marked exhibit.
8. The learned trial Judge, as indicated earlier, by the judgment and decree impugned herein. decreed the s
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