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2014 Supreme(Cal) 545
High Court of Judicature at Calcutta
DEBANGSU BASAK, J.
Ishwari Prasad Singh Roy
Versus
International Society for Krishna Consciousness & Others
C.S. No. 927 of 1982
Decided On : 12-09-2014
For the Plaintiff:Arijit Chaudhuri, Senior Advocate, Sayantan Bose, Kaushik Mondal, Advocates
For the Defendants:Ahin Chowdhury, Senior Advocate, Pradip Kr. Ghosh, D. Banerjee, K. Bhattacharya, Advocates.
A lessor cannot grant a valid lease in respect of any property to a lessee apart from the property of which he is the owner.
Headnote:
POSSESSION SUIT - TRESPASS - ENCROACHMENT - WILL - LEASE DEED - PARTITION - LIMITATION - MESNE PROFIT - The plaintiff, claiming to be the sole owner of premises No. 3A, Albert Road, Kolkata, filed a suit for recovery of possession alleging that the defendants encroached into a portion of the premises. The defendants, claiming to be lessees of the upper floor flat of premises No. 3C, Albert Road, Kolkata, denied the encroachment and claimed that they were in possession of the entirety of the verandah on and from May 1, 1971, the date of the lease deed. The court held that the lessor, Lila Mohan Singh Roy, had no right, title, and interest in respect of any part or portion of premises No. 3A, Albert Road, Kolkata, and therefore, could not grant a valid lease in respect of any other property to the first defendant apart from the property of which he was the owner. The court further held that the defendants were not claiming right to occupy any portion of premises No. 3A, Albert Road, Kolkata by adverse possession, and therefore, the date of the encroachment, the manner and method of the encroachment, and the acts subsequent to the encroachment became irrelevant.
Fact of the Case:
The plaintiff, claiming to be the sole owner of premises No. 3A, Albert Road, Kolkata, filed a suit for recovery of possession alleging that the defendants encroached into a portion of the premises. The defendants, claiming to be lessees of the upper floor flat of premises No. 3C, Albert Road, Kolkata, denied the encroachment and claimed that they were in possession of the entirety of the verandah on and from May 1, 1971, the date of the lease deed.
Finding of the Court:
The court held that the lessor, Lila Mohan Singh Roy, had no right, title, and interest in respect of any part or portion of premises No. 3A, Albert Road, Kolkata, and therefore, could not grant a valid lease in respect of any other property to the first defendant apart from the property of which he was the owner. The court further held that the defendants were not claiming right to occupy any portion of premises No. 3A, Albert Road, Kolkata by adverse possession, and therefore, the date of the encroachment, the manner and method of the encroachment, and the acts subsequent to the encroachment became irrelevant.
Issues: 1. Did the first defendant encroach upon or trespass into any portion of any premises beyond what was originally let out to the defendant no. 1? 2. Was the 1st defendant inducted as a Lessee under the indenture of Lease dated 18th June, 1971 in respect of the portion of the premises now occupied by the defendant no. 1? 3. Was the defendant no. 1 inducted as a tenant even before the said lease? If so when? 4. Prior to the demise in favour of the defendant no. 1 was the premises clearly demarcated on both floors and only such demarcated upper portion was let out to the defendant no.1? 5. Is the defendant in unlawful occupation of any part of the premises now in possession of the defendant no. 1? 6. Could the suit as originally framed by maintained in the absence of Kamala Prasad Singh Roy? 7. Is the claim of the plaintiff barred by law of limitation? 8. Is the suit barred by principles of estoppels, waiver and acquiescence and/or principles analogous thereto? 9. To what relief if any is the plaintiff entitled?
Ratio Decidendi: 1. A lessor cannot grant a valid lease in respect of any property to a lessee apart from the property of which he is the owner. 2. The date of the encroachment, the manner and method of the encroachment, and the acts subsequent to the encroachment become irrelevant in the absence of a defence of adverse possession.
Final Decision: The court decreed the suit in favor of the plaintiff and directed the defendants to deliver vacant and peaceful possession of the encroached portion to the plaintiff. The court also appointed a Special Referee to quantify the mesne profit payable by the defendants to the plaintiff and directed the defendants to pay the costs of the suit.
DEBANGSU BASAK, J.
The suit is for recovery of possession of a portion of the upper flat at premises No. 3A, Albert Road, Kolkata from the defendants.
There are five defendants in the suit. The first defendant has allegedly encroached upon and/or trespassed into a portion of the building owned by the plaintiff. The first defendant is a society registered under the Societies Registration Act, 1960. The second and the third defendants are the President and Vice-President of the Kolkata branch of the first defendant at Kolkata. The fourth defendant was the owner of premises No. 3C, Albert Road, Kolkata from whom the fifth defendant purchased the said premises.
Premises Nos. 3A and 3C, Albert Road, Kolkata came into being out of premises No. 3, Albert Road, Kolkata. Smt. Priyambada Debi was the owner of premises No. 3, Albert Road, Kolkata. By her Will dated April 6, 1926 she bequeathed 8 annas in the eastern portion of the land and building of premises No. 3A, Albert Road, Kolkata to Saileswar Singh Roy absolutely and 8 annas in the western portion of the land and building of the said premises to Lila Mohan Singh Roy absolutely.
The original plaintiff claims that, the building situate at premises No. 3A, Albert Road, Kolkata consisted of a two-storied structure having a lower and an upper flat. By an indenture dated June 18, 1971 the owners of premises No. 3C, Albert Road, Kolkata, namely, Lila Mohan Singh Roy inducted the first defendant as a lessee of a demarcated portion at the upper flat of premises No. 3C, Albert Road, Kolkata. The said Lila Mohan Singh Roy subsequently sold premises No. 3C, Albert Road, Kolkata to the fourth defendant. The original plaintiff claims that, at the time of letting out of the upper flat of premises No. 3C, Albert Road, Kolkata there was separation of the two premises by a clear line of demarcation. The first defendant and his servants and agents wrongfully encroached upon and trespassed into a portion of the upper flat owned by the original plaintiff at premises No. 3A, Albert Road, Kolkata. After such trespass or illegal encroachment the first defendant and his servants or agents has unlawfully constructed a wooden mezzanine floor in the encroached portion and also put up plastic shed on the covered area of the entire first floor verandah, eastern portion of which is within the entitlement of the original plaintiff as the owner of premises No. 3A, Albert Road, Kolkata. The original plaintiff notes the claim of the first and the second defendant that, the fifth defendant has purchased the right, title and interest of the fourth defendant at premises No. 3C, Albert Road, Kolkata.
The plaintiff claims loss and damages at the rate of Rs. 50/- per square feet per day amounting to Rs. 54,750/- for the period of three years prior to the institution of the suit. The plaintiff claims compensation for trespass at such rate as may be determined by the Court for the period subsequent thereto. The plaintiff also claims recovery of vacant and peaceful possession of the portion of the premises belonging to the original plaintiff by evicting the defendants therefrom.
The first and the second defendants filed a written statement. The first and the second defendants denied the allegations levelled against them by the plaintiff. They claim that, the first defendant continued to be a lessee or a tenant of the portion let out to the first defendant under the lease deed dated June 18, 1971. They claim that, the portion let out consisted of one hall, two bed rooms, two bath rooms, one pantry and one verandah on the first floor and one room with attached small room in the second floor and one garage and two servant’s room in the outhouse of the premises No. 3C, Albert Road, Kolkata. They also claim that, the verandah on the first floor of premises No. 3C, Albert Road, Kolkata included the entire front and back portion of the verandah. The claim that, the first defendant is in possession and occupation there
