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High Court Of Calcutta
D. K. SEN, S. C. SEN
MACNEILL AND MAGOR LTD. - Appellant
Versus
MOUHSEN ALI - Respondent
Appeal 25 Of 1980
Decided On : 02/21/1985
JURISDICTION - SUIT FOR LAND - [O. VII, R. 11, CIVIL P. C.] - Suit for declaration and injunction concerning land outside the jurisdiction of the court - Held, a suit for land - Court lacks jurisdiction to entertain and try the suit - Plaint cannot be rejected at the preliminary stage.
Fact of the Case:
Plaintiffs filed a suit for declaration that defendants are not entitled to cause any obstruction to or interfere with the free ingress and egress to and from the building at premises No. 217, Acharya Jagadish Chandra Bose Road, Calcutta through the Northern Gate and the user by the plaintiffs of a space delineated in the sketch plan annexed to the Plaint. They also sought a perpetual injunction restraining the defendants from interfering with the right of the plaintiffs to have free ingress and egress to and from either flat in the said building through the said northern gate and/or user of the said space for the aforesaid purposes or from fixing any chain or any other device for obstructing the opening of the said gate or from creating any other obstruction or interference in any manner whatsoever. The defendants contended that the plaintiffs had no right to enter the premises through the said northern gate or to park any car in the said space in the courtyard. They also contended that the plaintiffs were seeking declaration of a right in respect of the said space which was in the nature of easement or grant relating to the said tenancy and an injunction in respect thereof. The reliefs claimed were in respect of an immovable property admittedly situated outside the jurisdiction of this Court. It was contended that the suit is a suit for land situated outside the jurisdiction of this Court.
Finding of the Court:
The court found that the dispute in the suit was in respect of the right, title and interest of the plaintiffs in the said space in the courtyard of the said premises and that though the plaintiffs were not claiming possession of the said premises directly but doing so indirectly through an injunction. The court also found that the right of the plaintiffs to use the said space, the subject matter of the suit was a property situated outside the jurisdiction of this Court. The court came to the conclusion that this suit was a suit for land and this Court had no jurisdiction in respect of such land.
Issues: Whether the suit is a suit for land and the court has jurisdiction to entertain and try the suit.
Ratio Decidendi: A suit which directly affected the possession or control of land would be a suit for land. The reliefs claimed by the plaintiff in this suit concern land outside the jurisdiction of this Court. The declaration and the injunction sought for admittedly will affect possession and; or control of the said space in the courtyard of the premises. Whether the plaintiffs are entitled to have possession or occupation of the said space would necessarily fall for determination in this suit. Therefore, this suit is a suit for land and this Court does not have jurisdiction to entertain and try this suit.
Final Decision: The suit was transferred to the District Court having jurisdiction over the land.
( 1 ) MACNEILL and Magor Ltd. the plaintiff No. 1 and Denzil G. Stephens, the plaintiff No. 2. instituted this Suit on or about the 29th Aug. , 1979 against Mohsen Ali, the defendant No. 1 and M. H. Khaleeli, the defendant No. 2, claiming, inter alia. A) A declaration that the defendants are not entitled to cause any obstruction to or interfere with the free ingress and egress to and from the building at premises No. 217, Acharya Jagadish Chandra Bose Road. Calcutta through the Northern Gate and the user by the plaintiffs of a space delineated in the sketch plan annexed to the Plaint. B) A perpetual injunction restraining the defendants from interfering with the right of the plaintiffs to have free ingress and egress to and from either flat in the said building through the said northern gate and/or user of the said space for the aforesaid purposes or from fixing any chain or any other device for obstructing the opening of the said gate or from creating any other obstruction or interference in any manner whatsoever. C) A mandatory injunction directing the defendants to forthwith remove a chain from the, said gate of the said premises and to allow free ingress and egress to the plaintiff No. 2 through the said gate and the user of the said space.
( 2 ) THE material facts constituting the cause of action of the plaintiffs in this, suit are inter alia, as follows:a) The defendant No. 2 is the owner of the land and building at premises No. 217, Acharya Jagadish Chandra Bose Road, Calcutta, hereafter referred to as the said premises;b) The defendant No. 2 let out a flat situated on the second floor of the building in the said premises on and from the 1st June 1970 to the plaintiff No. 1 for residence of its Officers at a stipulated rent initially for a five years with option to the plaintiff No. 1 to renew the same for another five years. C) The terms and conditions of the tenancy were recorded in a letter dated the 18th June, 1970 but prior thereto it was expressly represented by the defendant No. 2 that the plaintiff No. 1 and the occupiers of the said flat would be entitled to the user of a space in the courtyard on the western side of the said premises for ingress to and egress from the said flat and also for parking motor vehicles therein. D) The said agreement of tenancy was concluded at the office of the plaintiff No. 2 within the original civil jurisdiction of this Court. E) The right to user of the said space was, in the alternative, a licence coupled with the grant of the said tenancy and in the further alternative was a right in the nature of easement annexed to the tenancy. F) The plaintiff No. 2 has been in occupation of the said flat on and from July 1970 continuously and the plaintiffs have enjoyed the user of the said space in the courtyard as also the user of the northern gate in the said premises. G) The defendant No. 1 claims to be an authorised representative of the defendant No. 2 and a care-taker of the said premises. H) Since 24th Dec. 1978 the defendants wrongfully kept the northern gate in the said premises locked with a chain and interfered with the user of the plaintiffs of the said space in courtyard and obstructed the plaintiffs in their ingress to and egress from the said flat through the said northern gate.
( 3 ) ON a notice dated the 28th Aug. , 1979 the defendants made an application in the suit for the following orders:-A) The suit be dismissed with costs for want of jurisdiction. b) Alternatively, the plaint filed in the suit be rejected and taken off the file.
( 4 ) IT was contended by the defendants in their petition that the plaintiffs had no right to enter the premises through the said northern gate or to park any car in the said space in the courtyard. It was contended further that the plaintiffs were seeking declaration of a right in respect of the said space which was in the nature of easement or grant relating to the said tenancy and an injunction in respect thereof. The r
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