IN THE HIGH COURT AT CALCUTTA

CIVIL APPELLATE JURISDICTION

APPELLATE SIDE

Present:-

The Hon’ble Justice Madhuresh Prasad

And

The Hon’ble Justice Supratim Bhattacharya

F.M.A. 1588 of 2016

With

CAN 3 of 2015 (Old CAN 5848 of 2015) CAN 4 of 2015 (Old CAN 5849 of 2015) CAN 5 of 2017 (Old CAN 1232 of 2017) CAN 6 of 2017 (Old CAN 1942 of 2017)

CAN 10 of 2023 CAN 11 of 2024

Gautam Mondal and others

Versus

Rani Birla Girls’ College and others

For the appellants : Mr. Sakti Nath Mukherjee, Sr. Adv.,

Mr. Surajit Nath Mitra, Sr. Adv.,

Mr. Dip Narayan Mukherjee,

Mrs. Ananya Chakraborty,

Mr. Subhojit Mookherji,

Mr. Amiya Narayan Mukherjee

For the respondent no.1: Mr. Subir Sanyal, Sr. Adv.,

Mr. Amiya Kumar Dutta,

Mr. Swadesh Priya Ghosh,

Mr. Sourojit Mukherjee,

Mr. Trijit Mitra

For the Calcutta University: Mr. Nilotpal Chatterjee,

Mr. Sourabh Sengupta

Judgment on : August 14, 2025.

Madhuresh Prasad, J.:

1. One Title Suit No. 1054 of 2004 was filed by one Smt. Labanya Koley along with 14 others (hereinafter referred to as “plaintiffs”) seeking the relief of eviction and recovery of Khas possession of lands and buildings erected thereupon at premises No. 38, Theatre Road now Shakespeare Sarani forming a part of Holding No. 7 in Block Nos. 5 and 6 of the South Division of the Town of Calcutta from one Hindusthan Charity Trust (hereinafter referred to as “Trust”) along with 7 others. The Trial Court passed the decree in favour of the plaintiffs on 21.11.2005.

2. One Rani Birla Girls’ College (“College” for short) is running from the suit premises since 02.01.1979. The College which was not a party to the Title Suit resisted the delivery of possession pursuant to the decree dated 21.11.2005 and filed an application invoking Order XXI Rule 101 C.P.C. being Miscellaneous Case No. 2841 of 2006 (hereinafter referred to as “Misc Case”), represented by the Principal of the College, for setting aside the decree passed in Title Suit No. 1054 of 2004.

3. The College claims to be a lawful tenant of the plaintiffs/ decree holders.

Further, declaration was sought by the petitioner that Labanya Koley and others (plaintiffs) in the suit have obtained a collusive and fraudulent decree in collusion with O.P. No. 16 to 22 the defendants (Trust) therein; and as such the petitioner (College) is not bound by the decree. The petitioner also prayed for setting aside the fraudulent and collusive decree dated 21.11.2005 passed in Title Suit No. 1054 of 2004 and an order restraining the plaintiffs from executing the decree.

4. The College was established in July 1961 by the Trust as a Women Undergraduate College and was then situated at 78, Sayed Amir Ali Avenue, Calcutta. The College was subsequently shifted to the present suit premises on 02.01.1978 and claims to be a tenant holding lawful possession of the suit property for a monthly rental of Rs. 7,500/- according to the English Calendar Month. It further claims that it has also paid taxes due to the Kolkata Municipal Corporation.

5. It is the case of the petitioner (College) that rent was paid till September, 2001. Thereafter, when plaintiffs refused to accept rent from the petitioner, then rent was tendered by sending account payee cheque which also was not accepted by the owners of the property. The petitioners thus kept the monthly rent in a separate bank account. The petitioner is still willing to pay the amounts lying therein as well as the current rent to the O.P. No. 1 to 15.

6. The College has asserted that Trust is not a tenant in respect of the suit property. The Trust never paid any rent from its own funds. The rents were paid by the College funds, but through the Trust. The College is lawful tenant in possession of the suit property and paying rent for the tenancy in question. Therefore, institution of the suit by plaintiffs against the Trust was collusive. The fact that Trust surrendered the tenancy right in favour of the plaintiffs is glaring proof of collusion between the parties, since Trust was not a tenant in respect of the suit