IMPORTANT POINT
Question of recovery of possession would arise only when one party is dispossessed from the rightful possession.

Subrata Talukdar, J.—In this CO 2064 of 2013 challenge is thrown to the judgment dated 30th April, 2013 passed by the Learned Civil Court (Junior Division), Kurseong in Title Suit No. 1 of 2010 by which the ld. Court was pleased to finally consider the suit filed by the present petitioner/plaintiff under Section 6 of the Specific Relief Act. The case of the present petitioner/plaintiff in the suit claiming restoration of possession and permanent injunction was as follows:-

a) That the petitioner/plaintiff constructed one CI sheet roofed brick wall, road level pucca floor, temporary structure on the road side of the government land (PWD) at Parijat Nagar, Sevoke Bazar, PS Kurseong, District Darjeeling in the year 1984. In the said temporary structure the petitioner/plaintiff started a hotel and restaurant business under the name and style of ‘Gautam Hotel’.

b) The Petitioner/plaintiff claims to be the proprietor of the said hotel and has obtained trade licence which stands renewed from time to time. He has also obtained electricity connection and pays other levies in respect of the said hotel business.

c) The petitioner/plaintiff alleges that his peaceful and uninterrupted possession of the suit premises was disturbed by defendant/opposite party No. 1 (OP1) on 17th August, 2009. According to the petitioner/plaintiff the present OP1/defendant forcibly took away cash from the counter of the hotel and thereafter assaulted the petitioner/plaintiff. As a result of the assault the petitioner/plaintiff was admitted to the nursing home.

d) That following the incidents of 17th August, 2009, the suit premises was kept under lock and key by the petitioner/plaintiff. However, on 27th August, 2009 the OP1/defendant illegally and forcibly entered the suit premises and took possession of the same by dispossessing the petitioner/plaintiff. Thereafter the OP1/defendant is running the said hotel without lawful authority. Hence the suit.

2. The case of the OP1/defendant before the learned Trial Court was as follows:-

i) That the late father of both the petitioner/plaintiff and the OP1/defendant, one Jagat Gazmer constructed a two-storied building with tin roof at the road level and started running a hotel under the name and style of ‘Gouttam Line Hotel’. The business of ‘Gouttam Line Hotel’ as well as a travel business was looked after by the late Jagat Gazmer with the assistance of the present OP1/defendant. The petitioner/plaintiff was responsible for looking after the travel business of their late father and a separate restaurant by the name of ‘Vivek Restaurant’

ii) However, after the death of Jagat Gazmer on 22nd March, 2007, the petitioner/plaintiff and the OP1/defendant entered into a mutual family settlement wherein it was decided that the OP1/defendant would continue to run the business of ‘Gouttam Line Hotel’ and the petitioner/plaintiff would run the travel business and the Vivek Restaurant. The OP1/defendant has, therefore, argued that the petitioner/plaintiff was never in possession of the said ‘Gouttam Line Hotel’ and the question of his forcible and illegal dispossession does not arise.

3. The learned Trial Court, on the basis of the respective submissions of the parties, framed ten issues for consideration. The petitioner/plaintiff relied on Exbts 1 to 9 and the defendant relied on Exbts (a) to (d).

4. The learned Trial Court was pleased to come to the following findings:-

(A) That the story of the OP1/defendant that he used to run ‘Gouttam Hotel’ is without any basis in as much as the OP1/defendant has been unable to show any document in support of the running of the hotel business. He has also not filed any family settlement to the effect that after the death of their late father it is the OP1/defendant who was allowed to run ‘Gouttam Hotel’.

The learned Trial Court noticed that vide Exbt C, which has been admitted into evidence, the OP1/defendant has revealed the name as Gautam Hotel and the trade l