The dispute relates to a very valuable property situated at the Commercial Hub of Calcutta being Premises No.2, Jawaharlal Nehru Road, Kolkata – 700013 formerly known as Chowringhee Road. Two suits have been filed in relation to the said property, namely, Suit No.1059 of 1954 (Deboprasad Gooptu Vs. Prafulla Kumar Mitra) and C.S. No.524 of 1984 (Shankarananda Banerjee & Ors. Vs. Smt. Aruna Basu Mullick & Ors.).

For the sake of brevity and convenience Suit No.1059 of 1954 is referred to as the “first suit” and C.S. No.524 of 1984 as the “second suit”.

Shorn of details, Deboprasad Gooptu of No.5/4 Rammoy Road, Calcutta was the owner of the said property. Probodh Chandra Mitra of No.23, Elliot Road, Calcutta was a monthly tenant under Deboprasad Gooptu. Probodh during his lifetime used to carry on a hotel business in the said premises under the name and style of “Bristol Hotel” as sole proprietor thereof. Probodh died on 12th June, 1949 without leaving any male descendants. After his death, his nephew Prafulla Kumar Mitra obtained probate of an alleged Will of Probodh and on a representation that after the death of Probodh, he became the sole proprietor of the hotel business he was inducted as monthly tenant by Deboprasad Gooptu since 1950. The rent was reduced from Rs.2800/- to Rs.2500/- per month by mutual consent. Thereafter, Prafulla continued to carry on the hotel business in the said premises as a sole proprietor thereof until he was appointed as Receiver of the said hotel business.

On or about 15th February, 1951, one Nibaran Mitra, a nephew of Probodh filed an application before the District Judge, Alipore, for revocation of the grant of probate being Revocation Case No.8 of 1951 in which an order was passed appointing Prafulla as a Receiver in respect of the said Hotel business. Even after his appointment as Receiver Prafulla continued to occupy the said premises as a tenant under Deboprasad Gooptu on the same terms and conditions under which Prafulla occupied the said premises prior to his appointment as Receiver. Prafulla was a habitual defaulter. By reason of defaults in payment of rent, large sums of money became due and payable by him to Deboprasad. Deboprasad by a notice in writing dated 12th August, 1953 determined the tenancy and called upon Prafulla to deliver peaceful possession of the premises on the expiry of month of August, 1953. Prafulla did not make over possession. Deboprasad, accordingly, filed a suit on 5th April, 1954 in this Court being Suit No.1059 of 1954, inter alia, for decree for khas possession and for recovery of a sum of Rs.21500/-.

By an order dated 29th May, 1959, the learned District Judge, Alipore revoked the probate in respect of the Will of Probodh in favour of Prafulla as a result whereof the original proceedings of probate of the Will of Prafulla had revived. After the revocation, Prafulla, however, continued to occupy the said premises and pursued the appeal.

In the first suit on 17th June, 1960, an ex parte decree was passed in favour of Debo Prosad. Prafulla preferred an appeal being Appeal No.106 of 1960. The appeal was disposed of on 11th September, 1963, on the basis of terms of settlement filed by the parties. The ex parte decree was set aside as also all the earlier orders. The said terms of settlement, inter alia, contains the following terms:-

“3. The payments made by the defendant to the plaintiff, the payments made by the defendant to the Corporation of Calcutta on account of the rates and taxes of the premises in suit and the amounts collected by the Corporation of Calcutta from the defendant’s sub-tenants on account of such rates and taxes upto this day and also payments and disbursements under Clause 9 hereunder shall be dealt with and/or adjusted as follows:

(a) All payments made by the defendant to the plaintiff or to his Solicitors after the institution of the