Rajani Kanta Burman vs Union of India (UOI) and Another

Girish Chandra Gupta, J.

The Court : This is a suit for recovery of possession of premises No. 6, Clive Row, Hastings, Calcutta together with mesne profits. The case of the plaintiff briefly stated is that the plaintiff purchased premises No. 6, Clive Row, Hastings House at an auction sale. Originally the premises No. 6, Clive Row, Hastings, Calcutta belonged to the defendant No. 2 who defaulted in making payment of the ground rent to the Revenue Authority as a result whereof the Revenue Authority put up the premises for sale under the provisions of Public Demand Recovery Act. The amount due from the defendant No. 2 was certificated but the certificate remained unsatisfied which culminated in the sale of the premises. The plaintiff was the highest bidder. The sale was concluded in his favour. After the sale was concluded in his favour the defendant No. 1 namely Union of India and the defendant No. 2 namely Seamen''s Welfare Association both resorted to various proceedings challenging the sale concluded in favour of the plaintiff.

On 28th August, 1957 the defendant No. 2 applied for setting aside the sale. The application made by the defendant No. 2 was dismissed on the ground of limitation by an order dated 25th November, 1957. The defendant No. 2 preferred an appeal which was disposed of by an order dated 11th March, 1958 by which the appeal was dismissed. The defendant No. 2 challenged the order dated 11th March, 1958 before the Commissioner, Presidency Division in revision and the said revisional application was also dismissed by an order dated 9th May, 1958. Against the order dated 9th May, 1958, the defendant No. 2 applied before the Board of Revenue. Such application was registered as Revisional Case No. 136 of 1958. The Additional Member of the Board of Revenue by the order dated 5th February, 1960 allowed the application made by the defendant No. 2 by directing that the application made by the said defendant on 28th August, 1957 should be heard on merits. It is worth remembering that the application made on 28th August, 1957 had been dismissed on the ground of limitation. Aggrieved by the order dated 5th February, 1960 the plaintiff came up before this Court under Article 226 of the Constitution of India. The writ petition made by the plaintiff was allowed by a judgment and order dated 18th June, 1962 delivered by B.N. Banerjee, J. (as His Lordship then was). The judgment passed by Banerjee, J. is exhibit ''J'' in this suit. It would appear from Exhibit ''J'' that the defendant No. 2 Seaman''s Welfare Association and Union of India were both parties to that writ petition. The order passed by the Additional Member of the Board of Revenue was set aside for the following reasons :-

"There is nothing to show that the delay in making the application was due to the fact that the petitioner association was unable to file an application before its meeting was held or that it was misled by the pendency of the application to have the sale set aside which had been filed by the Executing Engineer, CPWD. The Member of the Board of Revenue should not have taken these facts into consideration, which were not borne out by evidence.

The order dated 18.6.1962 was appealed against and has since been dismissed by the Appellate Court. The challenge thrown by the defendant No. 2 thus stood extinguished. It appears that the defendant No. 1 has also by a separate appeal challenged the order dated 18.6.1962 passed by Banerjee, J. But the said appeal appears to have been withdrawn. I have crosschecked this fact with Ms. Joshi, learned counsel appearing for the defendant No. 1 and there is no dispute that the appeal preferred by the defendant No. 1 has in fact been withdrawn. Therefore, the order passed by Banerjee, J. became final. We have also noticed that Banerjee, J. in his judgment referred to a challenge thrown independently by CPWD to the sale concluded in favour of the plaintiff which, it is not in dispute, was ultimately unsuccessful. There can, therefore be no dispute that the plaintiff is the auction purchaser of premises No. 6, Clive Row and he has acquired the interest of the defendant No. 2.

The defendant No. 2 has filed a written statement his contention appears to be two fold:-

a) that the certificate sale is wrongful and illegal;

b) that the control and management of premises No. 6, Clive Row was taken over by the Port Health Officer with effect from 1st October, 1948 on the basis of a letter dated 22nd September, 1948 issued by the Ministry of Health, Government of India and that with effect from 1st April, 1954 the administration and control of the premises, wherefrom the clinic used to be run, was taken by CPWD and therefore it alleges that liability to pay ground rent was of the defendant No. 1.

We are not here called upon to decide the proportionality of the blame between the defendant No. 2 and the defendant No. 1 which was responsible for the default in payment of the rent.

The defendant No. 2 was admittedly the tenant of the land beneath and owner of the structure at premises No. 6, Clive Row which was sold in auction and purchased by the plaintiff, challenge thrown to the sale has failed. Therefore, the right of the plaintiff is impeccable. It would at this stage be proper to notice the fact that although the defendant No. 2 had filed the written statement but did not ultimately contest the suit. The defendant No. 1 in its written statement has alleged as follows:

a) At all material times the defendant No. 2 an incorporated company formerly governed by the Indian Companies Act, 1913 but now by the Companies Act 1956 has been a tenant of the said land under the Central Government. It has its own building and structure thereon.

b) In or about 1948 defendant No. 2 made over the said entire premises to the Central Government under the following terms and conditions:-

i) A nominal rent of Re 1/- per month would be paid for the building to defendant No. 2 by the Central Government;

ii) The ground rent, Municipal dues, repairs to buildings and all other outgoings would be the liability of the Central Government;

iii) All furniture, instruments laboratory, chemicals and all other movables lying in the said premises would belong to the Central Government;

iv) The entire expenses of the maintenance and upkeep of the building and the running of the dispensary would be borne by the Central Government;

v) From 1948 to March, 1954 the administration of the said premises remained in the hands of the Port Health Officer, Calcutta and from April, 1954 the Administrative control of the building was transferred to the Central Public Works Department of the Government of India and the Khasmahal Tahasildar was duly informed thereof.

It would appear that the case of the defendant No. 1 is that on the basis of some arrangements between the defendant No. 2 and the defendant No. 1 the defendant No. 1 was in possession of the premises.

The suit was filed in the year 1969. In or about 2001 the defendant No. 3 was added as a party defendant to the suit at the instance of the said defendant. The said defendant is Port Health Organisation, Ministry of Heath. The said defendant in its written statement has alleged as follows :

The right of this defendant as a TENANT cannot be disturbed even if the plaintiff has acquired ownership of the premises by virtue of his purchase in a Public Auction.

We already have noticed the facts and circumstances in which the plaintiff became the owner of the premises No. 6, Clive Row. The plaintiff is seeking possession because according to the Plaintiff, the defendant No. 1 is in wrongful possession thereof. Hence the claim for a decree for possession and mesne profits.

The defendant No. 3 is claiming to be in possession. The defendant No. 1 is also claiming to be in possession. But the funniest part is that neither the defendant No. 1 nor the defendant No. 3 has adduced any evidence. Therefore, whatever assertion they might have made in their respective pleading that has merely remained in the realm of allegation but has not been proved.

Let us now see the issues framed by this Court on 24.7.2002. The issues framed after hearing the learned advocates for the plaintiff and the defendant No. 1 and defendant No. 3 are as follows:

Is the suit maintainable in its present form as alleged in paragraph 12 of the written statement of defendant No. 1 ?

Is the suit barred by limitation ?

Were the notices u/s 80 of the CPC served upon defendant Nos. 1 & 3 prior to institution of the suit ?

Is the plaintiff sole and absolute owner of the suit premises as alleged in paragraph 14 of the plaint?

Was the defendant No. 3 a tenant in respect of any part or portion of the suit premises at any time ? If so, had the alleged tenancy of defendant No. 3 come to an end long ago expressedly or by necessary implication or by its surrender expressed or implied ?

Are the defendant Nos. 1 & 2 entitled to any claim against the plaintiff in view of the two orders namely, the order of the learned single Judge dated 11th October, 1974 passed in C.R. No. 4865 of 1970 and the order of the Hon''ble Division Bench passed in F.M.A. No. 359 of 1975 ?

Is the plaintiff entitled to get a decree for delivery of peaceful and vacant possession of the suit property in terms of prayer (a) of the plaint ?

Is the plaintiff entitled to get a decree for mesne profits and/ or damages in terms of prayers (b) & (c) of the plaint.

To what other relief or reliefs is the plaintiff entitled ?

Mr. Ghosh, learned senior advocate appearing for the defendant No. 3 made the following submissions :

a) The plaintiff has not been able to prove ownership in respect of premises No. 6, Clive Row. The sale certificate in original has not been produced before this Court nor was the same even disclosed in the affidavit of documents affirmed by the plaintiff on 19th December, 1972.

b) Consideration has not been proved. He drew attention of this Court to the answers given by the plaintiff in cross-examination to questions Nos. 296, 297, 312, 227, 475, 536, 519, 523, 530 and contended that the plaintiff at the relevant point of time was a mere boy of 18 and the case run by him that he purchased the property or paid for the same cannot be believed because he did not have any money to pay. His case is that he found that money from his father but no records of documents in that regard have been forthcoming. He, therefore, contended that the consideration has not been proved.

c) He drew attention of this Court to the answer to questions No. 599 to 604 in order to show that the plaintiff had admitted in cross-examination that the defendant No. 3 was in possession. The only relevant question and answer is the question No. 600 and the answer thereto which reads as follows:-

"Would it appear from those photographs that the added defendants board is appearing on the premises ? / Yes."

On the basis of this sole answer he contended that the defendant No. 3 is in possession and has always been in possession yet the plaintiff chose not to sue him.

d) He submitted that State of West Bengal from whom the property is alleged to have been purchased by the plaintiff is a necessary party and in the absence of the State the suit should be dismissed under the provisions of Order 1 Rule 9 of the Civil Procedure Code.

e) The amended paragraph 18 of the plaint would show that demand was made by the plaintiff against the defendant No. 3 for possession but the defendant No. 3 did not comply therewith. He submitted that this demand, according to the plaintiff, is by a notice u/s 80 of the CPC but there is nothing to show on the record that any such notice u/s 80 was in fact issued to the defendant No. 3.

f) With regard to the notice u/s 80 which has been disclosed and proved by the plaintiff he commented that the notice is vague and that the description of the defendant No. 1 in the plaint is even vague. No one can decipher, according to him, as to which wing of the Union of India is sought to be sued. Relying on Rule 10 of Order 7 of the CPC he submitted that the plaintiff is under an obligation to describe the name and place of residence of the defendant so far as the same can be ascertained which, according to him, the plaintiff did not do.

g) He submitted that the plaintiff should have taken recourse to the procedure laid down under Sections 27 & 28 of the Bengal Public Demand Recovery Act for recovery of possession. Relying on Section 37 of the Bengal Public Demand Recovery Act he submitted that jurisdiction of a Civil Court to entertain a suit for possession is barred. He drew attention of this Court to various forms of the orders laid down in the rules of Bengal Public Demand Recovery Act, particularly form No. 29 & Rule 84. He also referred to Rules 75 & 76. The point of substance he wanted to make was that the jurisdiction of a Civil Court is barred.

h) His next submission was that originally relief was claimed only against the first defendant. After the 3rd defendant was added, the relief claimed purports to be against the defendants but the word "first" was not deleted and therefore no relief has in fact been claimed against the defendant No. 3 and therefore no relief has in fact been claimed against the defendant No. 3.

i) Lastly, he submitted that the suit is barred by limitation. He referred to Article 134 of the Limitation Act and submitted that the suit is hopelessly barred by limitation and invited this Court to dismiss the suit with exemplary cost.

Ms. Joshi, learned advocate appearing for the defendant No. 1 adopted the submissions made by Mr. Ghosh. She placed some of the paragraphs of the written statement and submitted that the case of her client is that the plaintiff is not in possession.

Mr. Das, learned senior advocate appearing for the plaintiff submitted that the consideration paid by the plaintiff is proved by the receipted challans which are exhibits "W" and "W1" in this suit. Upon good and valid payment of consideration, sale certificate was issued to the plaintiff which is exhibit - "N". He submitted that the original certificate was not available and has been missing and that is why he has laid secondary evidence and proved the same in accordance with law. In this regard he drew attention of this Court to question Nos. 117 to 127 put to the plaintiff in examination-in-chief. He submitted that the document was duly tendered in evidence and no objection whatsoever was raised at the time the document was proved and exhibited. His further submission was that after a document has been exhibited there is no scope for any subsequent objection. In support of his submission, he relied on a Judgment in the case of Smt. Dayamathi Bai Vs. Sri K.M. Shaffi, wherein the Apex Court observed as follows:- "... the objection should be taken when the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit ...."

He, therefore, contended that not only that he has been able to prove consideration but he has also been able to prove satisfactorily that the plaintiff is the lawful owner of premises No. 6, Clive Row.

With regard to the possession of the defendant No. 3, Mr. Das submitted that the evidence has to be taken in its totality and no inference can be drawn on the basis of answer to a question which is incompatible with the rest of the evidence of the witness. He drew attention of this Court to the answers given by the plaintiff to very many questions wherein his consistent case was that the building is in dilapidated state; the building is lying in a dangerous condition and is infested by deadly reptiles. No-one is there and even if any was in possession at any point of time he has vacated the same long long ago. He accordingly submitted that relying on the answer to question No. 600 it cannot be said that the defendant No. 3 is in possession.

He also questioned the identity of the defendant No. 3, he submitted that the defendant No. 3 is merely a wing of the Union of India according to its own showing. Union of India is already a party to the suit. Case of the plaintiff is that Union of India is in wrongful occupation of the premises in question. He submitted that even if it is assumed that the answer to question No. 600 is correct that would not take the case further than that, assuming that there is a sing board, at the premises in question, of the defendant No. 3. But the question, according to him, is that if the said defendant itself is not an entity, where is the question of its being in possession ? According to him is that the defendant No. 3 is a wing of the defendant No. 1 and the defendant No. 1 is in wrongful occupation. It could well be that the defendant No. 1 was in possession through the Port Health Organisation at one point of time but everybody has now left and the premises is now lying in a dangerous condition. The plaintiff, however, cannot take possession except in accordance with law and that is why he needs a decree. In support of his submission Mr. Das relied on a Judgment in the case State Vs. Kulwant Singh, In paragraph 25 of the Judgment their Lordships held that :

"All this leads us to conclude that the NCB is merely a wing or branch of the Department of Revenue of the Government of India. As we have held earlier, it is not constituted as a distinct legal entity, and therefore, has no independent existence, except as a branch or wing of the Department of Revenue dealing with the matters entrusted to it by the notified order constituting it."

He also relied on a Judgment of the Apex Court in the case of Chief Conservator of Forest v. Collector, reported in AIR 2003 SCC 1805 for the same proposition.

In paragraph 11 of the Judgment Their Lordships opined as follows:-

"It needs to be noted here that a legal entity - a natural person or an artificial person - can sue or be sued in his/its own name in a Court of law or a Tribunal. It is not merely a procedural formality but is essentially a matter of substance and considerable significance. That is why there AIR special provisions in the Constitution and CPC as to how the Central Government or the Government of a State may sue or be sued. So also there are special provisions in regard to other juristic persons specifying as to how they can sue or be sued. In giving description of a party it will be useful to remember the distinction between misdescription or misnomer of a party and misjoinder or non-joinder of a party suing or being sued. In the case of misdescription of a party, the Court may at any stage of the suit/ proceedings permit correction of the cause title so that party before the Court is correctly described, however a misdescription of a party will not be fatal to the maintainability of the suit/ proceedings. Though Rule 9 Order 1 of CPC mandates that no suit shall be defeated by reason of the misjoinder or non-joinder of parties, it is important to notice that the proviso thereto clarifies that nothing in that Rule shall apply to non-joinder of a necessary party. Therefore, care must be taken to ensure that the necessary party is before the Court, be it a plaintiff or a defendant, otherwise, the suit or the proceedings will have to fail. Rule 10 of Order 1, CPC provides remedy when a suit is filed in the name of wrong plaintiff and empowers the Court to strike out party improperly joined or to implied a necessary party at any stage of the proceedings.

Mr. Das, accordingly, submitted that the defendant No. 3 is a non entity. Defendant No. 3 is a wing of the defendant No. 1 and the defendant No. 1 has been a party to this suit from the very beginning and this, according to him, also takes care of the submission made by Mr. Ghosh that the suit is barred by limitation. He submitted that no right or interest could have been created by the mere fact that defendant No. 3 was added as party to the suit. Because that was an interlocutory order and the interlocutory order does not bind the suit Court at the final hearing of the suit. In support of his submission he relied on a Division Bench Judgment of this Court in the case of Tarini Gupta Chowdhury Vs. Sm. Gouri Gupta Chowdhury, . In paragraph 21 of the Judgment Their Lordships laid down the law as follows:

"21. Counsel for the appellant contended that grant of interim maintenance would amount to grant of entire relief in the suit. I am unable to accept that contention. The relief asked for in the suit has yet to be determined and decided. If there is a prima facie case and if the Court is of opinion that the plaintiff is entitled to interim relief the plaintiff may be given such relief. That is not deciding the whole case. In these cases the Court is bound to arrive at a conclusion as to whether any interlocutory order will be made or not. There has to be a prima facie opinion. Interlocutory opinions do not bind the trial Court."

Mr. Das contended that the State of West Bengal is not a necessary party to this suit. No relief has been claimed against the State. Therefore the question of the suit being dismissed on that ground, as urged by Mr. Ghosh, does not arise. Mr. Das submitted that notice u/s 80 of the CPC was duly issued prior to institution of the suit and the same has duly been proved and exhibited as Ext. N in this suit. He also submitted that a notice u/s 80 is issued with a definite object. The object is to induce the State or the Union, as the case may be, to settle the matter and to avoid the ruinous litigation. In support of his submission he relied on a Judgment in the case of Raghunath Das Vs. Union of India (UOI) and Another, . Their Lordship laid down the law as follows :-

"8. The object of the notice contemplated by that section is to give to the concerned Governments and public officers opportunity to reconsider the legal position and to make amends or settle the claim, if so advised without litigation. The legislative intention behind that section in our opinion is that public money and time should not be wasted on unnecessary litigation and the Government and the public officers should be given a reasonable opportunity to examine the claim made against them lest they should be drawn into avoidable litigations. The purpose of law is advancement of justice. The provisions in Section 80, CPC are not intended to be used as boobytraps against ignorant and illiterate persons. In this case we are concerned with a narrow question. Has the person mentioned in the notice as plaintiff brought the present suit or is he someone else ? This question has to be decided by reading the notice as a whole in a reasonable manner.

Relying on a Judgment in the case of The State of Madras Vs. C.P. Agencies and Another, , Mr. Das submitted that a common sense approach has to be applied in construing a notice u/s 80 of the Code of Civil Procedure. In the aforesaid Judgment relied upon by him in paragraph 6 Their Lordship laid down the law as follows:-

"6. Learned counsel appearing for the appellant points out that it is not clear at all from the notice whether the plaintiffs claim is based on a contract for the payment of godown rent or on the footing of damages for use and occupation of the plaintiff''s godown or through whom the first defendant is alleged to have entered into the alleged agreement for the payment of godown rent or interest thereon and he submits that in the premises the notice does not fulfil the requirements of Section 80. In considering the question so posed before us we must bear in mind the following observations made by this Court in Dhian Singh Sobha Singh and Another Vs. The Union of India (UOI), :

"We are constrained to observe that the approach of the High Court to this question was not well-founded. The Privy Council no doubt laid down in AIR 1927 176 (Privy Council) that the terms of this section should be strictly complied with. That does not however, mean that the terms of the notice should be scrutinized in a pedanatic manner or in a manner completely divorced from common sense. As was stated by Pollock C.B. in Jones v. Nicholls (1844) 153 ER 149 ''we must import a little common sense into notices or this kind''. Beaumont C.J. also observed in Chandulal Vadilal Vs. Government of The Province of Bombay, ''One must construe Section 80 with some regard to common sense and to the object with which it appears to have been passed.'' It should be remembered that Ext. P-8 is a legal notice of a suit sent through a lawyer. It is well known that a claim for "rent", in legal parlance, can only be founded on a contract. Throughout this notice the claim is described as "godown rent" and not damages for use and occupation of the godown. Therefore, the claim, prima facie Appears to be founded on a contract. Paragraph 3 is quite explicit that the supply of black gram by the plaintiff to the first defendant was arranged by and through the Assistant Marketing Officer, the second defendant. The arrangement for payment of godown rent was only incidental to the contract of supply of the good and it is not unreasonable to infer that this arrangement was also made by and through the second defendant acting for the first defendant. The relief claimed in paragraph 2 of the notice is that the Madras Government should pay up the amount claimed and if it does not pay or the failure is found to be due to the officer of the Madras Government, then the officer concerned should be held responsible, which indicates that the transaction was through some officer and the officer concerned in this case can be no other than the Assistant Marketing Officer though whom the goods were supplied, as stated in paragraph 3 of the notice. In the next place, paragraph 3 indicates that the godown rent is claimed for having stored 11,000 tons of black gram. Paragraphs 1 and 4 indicates that the godown rent became payable as the goods remained undespatched for more than two months on account of no arrangement for transport facilities having been made by the first defendant, the Madras Government. The bill mentioned in paragraph 5 would show the rate at which the godown rent was calculated and the period for which it was claimed. Therefore, on a fair reading of the notice it may be said that the fact of the contract for the payment of the godown rent, the quantity of goods stored, the rate at which and the period for which the claim was made and the failure of the first defendant to pay the same are sufficiently stated so as to enable the first defendant, which is the appellant before us, to know what the plaintiff''s claim was about and whether the claim should be conceded or resisted. On a careful consideration of the terms of the notice we are not of opinion that, the contention of learned counsel for the appellant is well founded. This is sufficient to dispose of this appeal which is accordingly dismissed with costs.

With regard to the amendment made to paragraph 18 of the plaint Mr. Das contended that it has never been the case of the plaintiff that notice u/s 80 of CPC was given to the defendant No. 3. He submitted that only symbolic possession was given to the plaintiff by the Revenue Authority. Demand for possession was made to the occupant of the premises in question but he failed to oblige. If Port Health Organisation was there on behalf of the Union such demand was made to them also. The notice u/s 80 of CPC has been pleaded in paragraph 19 of the plaint which has not undergone any change. Assuming that the defendant No. 3 in an entity, but not admitting the same, it does not lie in its mouth to contend that no notice u/s 80 has been given to it. Because defendant No. 3 was not sued by the plaintiff. It has entered the fray of its own much against the will of the plaintiff. Therefore the defendant No. 3 should be deemed to have waived the notice u/s 80.

He submitted that there is no provision laid down in the Bengal Public Demand Recovery Act, 1913 barring the jurisdiction of a Civil Court. He drew attention of this Court to Section 37 relied upon by Mr. Ghosh and submitted that in order to attract the applicability of Section 37 he has to show that the suit raises a question between a certificate holder and a certificate debtor or their representatives. He questioned whether the plaintiff could said to be a representative of the certificate holder. He submitted that the plaintiff by no stretch of imagination can be said to be representative of the certificate holder. He submitted that the defendants have not laid any evidence to show that they or any of them is a representative of defendant No. 2. He submitted that there is no question of their being any applicability of Section 37. He further submitted that Sections 27 and 28 are there in the statute to which a purchaser can take recourse to, but Section 28 itself is a pointer to show that physical possession may not be had by taking recourse to the provisions of Sections 27 and 28. The point of substance, according to him, is whether the suit is barred either expressly or impliedly by any provision contained in the Bengal Public Demand Recovery Act to which his submission is that neither has the Act laid down anywhere that the jurisdiction of the Civil Court is barred nor can the Court justifiably presume any such bar to be in operation and in support of the submission he relied on the Judgment in the case of Sahebgouda (dead) by L. Rs. and Ors. v. Ogeppa and Ors. reported (AIR 2003 SC 2743). In paragraph 8 & 9 Their Lordship laid down the following law :-

"8. The question whether the suit filed by the appellants is barred by the provisions of Section 80 of the Act has to be examined in the light of the provisions referred to above. Section 9 of CPC clearly lays down that the Civil Court shall have jurisdiction to try all suits or a civil nature excepting suits of which their cognizance is either expressly or implied barred. It is well settled that the Civil Court has jurisdiction to try all suits of civil nature and the exclusion of jurisdiction of the Civil Court is not to be rightly inferred. Such exclusion must be either explicitly expressed or clearly implied. In Musamia Imam Haider Bax Razvi Vs. Rabari Govindbhai Ratnabhai and Others, this Court observed that it is necessary to bear in mind the important principle of construction which is that if a statute purports to exclude the ordinary jurisdiction of a Civil Court it must do so either by express terms or by the use of such terms as would necessarily lead to the inference of such exclusion. This principle was reiterated in Dewaji Vs. Ganpatlal, .

It is also well settled that a provision of law ousting the jurisdiction of a Civil Court it must be strictly construed and onus lies on the party seeking to oust the jurisdiction to establish his right to do so. In Sri Vedagiri Lakshmi Narasimha Swami Temple Vs. Induru Pattabhirami Reddy, Subha Rao, J. speaking for the Court held as under in para 13 of the reports :

"Under Section 9 of the Code of Civil Procedure, the Courts shall have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. It is well settled principle that a party seeking to oust jurisdiction of an ordinary Civil Court shall establish the right to do so. Section 93 of the Act does not impose a total bar on the maintainability of a suit in a Civil Court. It states that a suit of the nature mentioned therein can be instituted only in conformity with the provisions of the Act; that is to say, a suit or other legal proceeding in respect of matters not covered by the section can be instituted in the ordinary way. It therefore imposes certain statutory restrictions on suits or other legal proceedings relating to matters mentioned therein ....

The omission in the prayer portion of the plaint in striking out the word first is, according to Mr. Das was, accidental and can be ignored or can be amended by the Court at any stage under its inherent power u/s 153 of Civil Procedure Code.

With regard to the question of limitation Mr. Das also contended that Article 134 relied upon by Mr. Ghosh applies to an application and not to a suit.

Mr. Das submitted that there is no dispute with regard to title of the plaintiff. The plaintiff was the highest bidder and the sale certificate was issued in his favour. Both the defendant Nos. 1 & 2 made unsuccessful attempt to ahe the sale set aside. What doubt can, therefore, be about the fact that the plaintiff is the lawful owner of the premises No. 6 Clive Row ? The defendants have not been able to prove nor have they or any of them attempted to prove any manner of right to remain in possession. He therefore invited this Court to pass a decree for possession as prayed for.

After hearing the submission made by the learned advocates this Court is convinced that there is no express or implied bar to the maintainability of the suit, contained in of the Sections 27 or 28 or 37 of the Bengal Public Demand Recovery Act. Therefore, the submission made by Mr. Ghosh that the suit is in competent can not be accepted. The issue as framed with regard to the maintainability of the suit goes to show that the grievance of the defendant No. 1 was that the suit is not maintainable because the defendant No. 2 has been made a party to the suit.

Therefore, the submission made by Mr. Ghosh was not at all backed up by the pleadings. His submission based on the provisions of Bengal Public Demand Recovery Act was an obvious improvement upon the pleadings but is devoid of any substance and therefore, this plea is rejected and the issue No. 1 is answered in the affirmative.

I am convinced that the defendant No. 3 is a part and or a wing of the defendant No. 1. The defendant No. 3 is not a separate entity. Even if the defendant No. 3 was at any point of time in possession that has to be treated to be possession of the defendant No. 1. The presence of the sign board of the defendant No. 3 does not prove that the defendant is now in possession.

The suit was filed in the year 1969. Therefore, merely because the defendant No. 3 out of its own volition chose to be impleaded as a party to this suit in the year 2001 can not render the suit or the claim made therein barred by limitation. Therefore, the issue No. 2 is answered in the negative.

The notice u/s 80 was duly given to the defendant No. 1. I already have held that the defendant No. 3 is a part of defendant No. 1, therefore, a notice given to the defendant No. 1 is also a notice to the defendant No. 3. The defendant No. 3 is a branch whereas the defendant No. 1 is the tree. There can be no question of giving a notice u/s 80 of CPC to the defendant No. 3 any more than there can be the question of irrigating the branches of a tree. Moreover, the defendant No. 3 on its volition has come in this suit and cannot in any event contend that the suit is not maintainable for lack of notice u/s 80 to it.

This Court is accordingly of the view that the notice given u/s 80 which is Exhibit N is legal, proper and valid. The issue No. 3 is answered accordingly.

The plaintiff has proved the sale certificate. The plaintiff has proved the receipted challan. There can therefore, be no doubt with regard to the ownership of the plaintiff in respect of premises No. 6, Clive Row and issue No. 4 is accordingly answered in the affirmative.

The defendant No. 3 has not laid any evidence in support of its case that it is or was a tenant in respect of the premises in question. Uncontroverted evidence is that the suit premises in now lying in an abandoned state. Therefore, issue No. 5 is answered accordingly.

The order dated 11.10.74 is ext. A and the order dismissing an appeal therefrom is ext. B. By the order dated 11.10.74 challenge u/s 37 of the Bengal Public Demand Recovery Act, to the sale was negatived and by ext. B the appeal from that order was dismissed. Therefore challenge to the legality and validity of the sale concluded in favour of the plaintiff stood extinguished. The question of the defendant Nos. 1 and 2 or any of them being entitled to any right on the basis of the aforesaid orders was not even urged by Mr. Ghosh. The issue No. 6 is decided accordingly.

This Court has come up to a conclusive finding that the plaintiff is owner in respect of the premises No. 6, Clive Row. There is no evidence before this Court to show that the defendants or any of them has any right to occupy the premises No. 6 or any part of portion thereof and accordingly issue No. 7 is answered in the affirmative.

Mr. Das, learned senior advocate, has not advanced any argument with regard to the entitlement of the plaintiff to the mesne profit. Therefore, issue No. 8 is answered in the negative.

There shall accordingly be a decree directing the defendants to put the plaintiff in possession of premises No. 6, Clive Row, Hastings, Calcutta fully described in Schedule A to the plaint, the defendant No. 1 shall also pay costs assessed at Rs. 20,000/-.

Prayer for stay made by Ms. Joshi, learned advocate.

The suit is accordingly decreed with a direction to prove the plaintiff in possession of the premises involved in the suit.