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2018 Supreme(Cal) 740
IN THE HIGH COURT OF CALCUTTA
Sabyasachi Bhattacharyya, J.
Anand Kumar Agarwal And Another - Appellants
Vs.
Ashok Kumar Agarwal - Respondent
Civil Order No. 3416 of 2018
Decided On : 05-12-2018
Pankaj Kumar Mukherjee, Adv., Bikramaditya Ghosh, Adv., Avishek Guha, Adv.
Headnote:
Eviction - Maintenance and Welfare of Parents and Senior Citizens Act, 2007 - Sections 2, 4, 5, 16, 22, 23 - The court held that an appeal does not lie at the instance of children/relatives under Section 16 of the Act of 2007. The court also ruled that an order of eviction could not be passed under the Act of 2007 and that the Tribunal had no jurisdiction to entertain an application under the Act of 2007. Additionally, the court held that an order could not be passed against a daughter-in-law under the Act of 2007. The court further stated that the Tribunal acted without jurisdiction in granting eviction and that the impugned order was set aside.
Fact of the Case:
The petitioners, son and daughter-in-law of the opposite party, challenged an order directing them to vacate the suit premises under The Maintenance and Welfare of Parents and Senior Citizens Act, 2007. The opposite party alleged that the petitioners were gradually grabbing all properties and subjected the opposite party to severe physical and mental torture. The petitioners contested the jurisdiction of the Tribunal to pass the order of eviction, citing the pendency of eviction and partition suits before Civil Courts.
Finding of the Court:
The court found that an appeal does not lie at the instance of children/relatives under Section 16 of the Act of 2007. It also ruled that an order of eviction could not be passed under the Act of 2007 and that the Tribunal had no jurisdiction to entertain an application under the Act of 2007. The court further held that an order could not be passed against a daughter-in-law under the Act of 2007. The impugned order was set aside.
Issues: The issues included the maintainability of an appeal under Section 16 of the Act of 2007, the permissibility of an order of eviction under the Act of 2007, and the jurisdiction of the Tribunal to entertain an application under the Act of 2007.
Ratio Decidendi: The court held that an appeal does not lie at the instance of children/relatives under Section 16 of the Act of 2007. It also ruled that an order of eviction could not be passed under the Act of 2007 and that the Tribunal had no jurisdiction to entertain an application under the Act of 2007. The court further held that an order could not be passed against a daughter-in-law under the Act of 2007.
Final Decision: The impugned order was set aside, and the court allowed the petition. The court also clarified that the observations made in the order would not bind the parties in any other legal proceeding and that the Civil Courts where the partition suit and the eviction suit were pending would be free to proceed independently.
Sabyasachi Bhattacharyya, J.
1. The present challenge has been preferred by the petitioners, who are the son and daughter-in-law, respectively, of the opposite party, against an order whereby the Sub- Divisional Officer (SDO), Alipurduar, acting as Chairperson of the Alipurduar Maintenance Tribunal, directed the present petitioners to vacate the suit premises within a month from the impugned order and allowing the opposite party (the petitioner before the Tribunal) to utilize the property as per his own will. In the same order, the local police station was directed to extend all efforts for ensuring the same. Certain ancillary observations were also made in the impugned order.
2. The opposite party filed an application under The Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (hereinafter referred to as the "Act of 2007") and made out a case before the Tribunal that the present petitioners had other properties than the suit premises and had been running a business from the suit premises, which was allegedly started by the present opposite party in the name of his wife (the mother of the petitioner no.1). It was also alleged that the present petitioners were gradually grabbing all properties of the opposite party and subjected the present petitioners to severe physical and mental torture.
3. The present petitioners, who were opposite parties before the Tribunal, had raised questions regarding the character of the opposite party, that is, the father of the petitioner no. 1 and had produced certain photographs in that regard. It was further alleged by the petitioners that the suit property belonged to a Hindu Undivided Family (HUF). The HUF was of Lalchand and Tarachand, through Karta, late Tara Chand Agarwal. The HUF acquired the suit plot by paying khajana to the Government of West Bengal and constructed a two-storied building on a portion of the suit property, which facts were apparently reflected in the history of the HUF as explained by late Tara Chand Agarwal, as karta, to the Income Tax Department in the year 1981 and also in the Assessment Order of the Income Tax Department dated May 15, 1981, which documents were ancient ones.
4. It was further held by the petitioners that the petitioners, along with the mother of the petitioner no. 1 Smt. Shobha Devi, were co-parceners in respect of the suit property and had filed a partition suit along with Smt. Shobha Devi, bearing Partition Suit No. 18 of 2018 on May 15, 2018 against the opposite party in the Court of the Civil Judge (Senior Division), at Alipurduar.
5. The opposite party, on the other hand, had filed on September 5, 2017 an ejectment suit against the petitioners before the Civil Judge (Junior Division), at Alipurduar, bearing Title Suit No. 165 of 2017.
6. Both the suits are still pending before Civil Courts.
7. The opposite party, however, filed the complaint, bearing Petition No. 5 of 2018, under the Act of 2007, which gave rise to the present revisional application, praying for a direction on the present petitioners to vacate the suit premises and for a direction on the officer- in-charge of the Jaigaon police station to execute the said order.
8. The petitioners contested such petition by filing a written statement thereto.
9. The further contention of the petitioners is that the petitioners are residing at a portion of the suit property with their mother, Smt. Shobha Devi and their minor daughter Amaaya (aged about two years) and minor son Ayushman (aged about four years).
10. It was admitted that the relationship between the present petitioners and their mother on the one hand, and the opposite party-father on the other, was strained, but such strenuous relationship was attributed to the character of the opposite party.
11. It is argued on behalf of the petitioners that the Tribunal did not have the jurisdiction to pass the order of eviction, primarily on three counts:
i. The Act of 2007 did not confer jurisdiction on the Tribunal to pass an ord
