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2004 Supreme(Cal) 347
High Court Of Calcutta
ARUN KUMAR MITRA
MANIK CHANDRA NASKAR - Appellant
Versus
TARA DEBL - Respondent
S. A. 155 Of 1989
Decided On : 05/18/2004
ANIL RAKSHIT, ASHIS BAGCHI, ASIT BHATTACHARJEE
Adjustment of Joint Decree by Some Decree-Holders - Validity
Headnote:
POSSESSION AND MESNE PROFITS - Joint Decree - Adjustment by some of the Decree-Holders - Validity - Order 21 Rule 15 C. P. Code - Applicability - Joint Decree - Execution by some of the Decree-Holders against the others - Whether permissible - Tenancy Agreement executed by some of the Co-Sharers with Defendant - Validity - Whether adjustment of Decree with some of the Decree-Holders to the exclusion of the rest is a bona fide adjustment.
Fact of the Case:
Plaintiffs filed a suit for recovery of possession and mesne profits. The defendant was a monthly tenant in respect of the suit premises. An ejectment suit was filed by all the landlords, owners, namely, the pro forma defendants against the defendant in the Court of learned 4th Munsif at Alipur and was renumbered as T. S. No. 96/72 and ultimately the said suit was decreed ex parte. The plaintiffs further stated that after obtaining the said ex parte decree of the co-owners intended to sale out the property to one Rupen Mukherjee and executed an agreement for sale by taking earnest money from the said Rupen mukherjee. After that said Rupen Mukherjee started to look after all pending cases and also taking steps by execution of the decree against the defendant for delivery of possession. The said Rupen Mukherjee happens to be relations of the plaintiffs by marriage. The pro forma defendants coming to know about it started moving adversely against the plaintiffs' interest and also started supporting the defendant No. 1.
Finding of the Court:
The adjustment of a joint decree by some of the decree-holders to the exclusion of the rest is not a bona fide adjustment. Such an adjustment is not valid in law and should be ignored. The remaining decree-holders are entitled to execute the whole decree, as it was originally passed.
Issues: 1. Whether the plaintiffs have any cause of action of the suit? 2. Is the suit maintainable in its present form? 3. Are the plaintiffs entitled to get a decree for Khas possession and mesne profits against the defendant No. 1 in respect of the suit premises? 4. Was there any agreement for sale of the suit property? 5. Was there any fresh tenancy created by the pro forma defendants Nos. 2 to 12 along with principal defendant if so, why? 6. Has the principal defendant acquired a legitimate right by virtue of fresh tenancy agreement with major co-sharers defendants Nos. 2 to 12 at an enhanced rate? 7. Have the plaintiffs acquired independent right, title and interest in the suit property arid their shares? 8. To what relief, if any, are the plaintiffs entitled?
Ratio Decidendi: 1. Where a decree has been passed jointly in favour of more persons than one, any one or more of such persons may, unless the decree imposes any condition to the contrary, apply for the execution of the whole decree for the benefit of them all, or, where any of them has died, for the benefit of the survivors and the legal representatives of the deceased. (Order 21 Rule 15 C. P. Code) 2. Execution of a decree for joint possession by and between the joint decree-holders against the others is an impossible notion. (AIR 1960 Cal 718) 3. When a joint decree, which is a decree obtained by body of decree-holders is sought to be executed by some of the co-sharers then the said co-sharers can invoke provisions of Order XXI rule 15 of the C. P. Code. (1971) 75 Cal WN 502
Final Decision: Appeal dismissed.
( 1 ) THIS second appeal has been taken out by the defendant No. 1 appellant challenging the judgment and decree dated 30- 1 - 1998 passed by the learned Addl. District Judge, 1st Court at Alipur in Title appeal No. 880 of 1984 affirming the judgment and order dated 21-9-1984 passed by the learned Fourth Munsif, Alipur in T. S. No. 180 of 1982.
( 2 ) THIS appeal arises out of a suit for recovery of possession and mesne profits. The case as has been made out by the plaintiff in the plaint is inter alia as follows : 1. One ekchala hut with that walls and tiled roof in the premises No. 32 Kali Temple Road, police Station Bhowanipur belongs to the plaintiffs and pro forma defendants in their respective shares and the aforesaid joint property was let out to different monthly tenants in different portions. The defendant No. 1 was a monthly tenant in respect of suit premises. An ejectment suit was filed by all the landlords, owners, namely, the pro forma defendants Nos. 9 to 11 and predecessors-in-interest of the plaintiffs against the defendant No. 1 in the Court of learned 4th Munsif at Alipur being I. S. No. 351 of 1970 and subsequently the said suit was transferred to 3rd Addl. Court of munsif, Alipur and was renumbered as T. S. No. 96/72 and ultimately the said suit was decreed ex parte. The plaintiffs further stated that after obtaining the said ex parte decree of the co-owners intended to sale out the property to one Rupen Mukherjee and executed an agreement for sale by taking earnest money from the said Rupen mukherjee. After that said Rupen Mukherjee started to look after all pending cases and also taking steps by execution of the decree against the defendant for delivery of possession. The said Rupen Mukherjee happens to be relations of the plaintiffs by marriage. The pro forma defendants coming to know about it started moving adversely against the plaintiffs' interest and also started supporting the defendant No. 1. The plaintiffs further stated that during the pendency of the execution proceeding the pro forma defendants Nos. 9 to 11 filed an application in court praying for non-prosecution of the execution case on the ground that the matter has been compromised with the defendant no. 1 being the judgment-debtor. But their said malicious attempt was nullified by the court's order in the said execution case but in spite of unlawful obstructions created by the pro forma defendants the delivery of possession was obtained by the half on 22-9-1981. That after taking possession of the suit premises the defendant again trespassed into the suit premises on the very same night on 22-9-1981 with the help of certain unruly people. The plaintiffs stated in the plaint that the defendant No. 1 is a rank trespasser in the suit premises and he has no legal right to stay in the suit premises and is liable to be evicted. The plaintiffs and the pro forma defendants are entitled to get a decree for mense profits against the defendant No. 1 on and from 23-9-1981. The cause of action of the suit arose on 22-9-1981 and the plaintiffs prayed for a decree of eviction.
( 3 ) THE defendant No. 1 and the pro forma defendants Nos. 2 to 12 appeared in the suit and contested the suit by filing the Written statement. In their respective W. S. they stated that the suit is bad, the plaintiffs have no cause of action and the suit is liable to be dismissed. The pro forma defendants Nos. 2 to 12 stated that they along with the plaintiffs Nos. 1 to 3 executed an agreement for sale of their interest which they had in premises No. 38, Kali Temple Road, Calcutta-26. The plaintiff No. 2 who is the son- in-law of the said Rupen Mukherjee negotiated the sale on behalf of all the defendants co-sharers. Due to some reasons or other the said Rupen Mukherjee failed to complete the transaction. According to the defendants including the pro forma defendants the allegations made in Paragraph 2 of the plaint by the plaintiffs is false. The pro forma
