Satya Narayan Lal and Others vs Rajendra Prasad Sahu and Others

M. Karpaga Vinayagam, C.J.—This contempt application has been filed by the petitioners, seeking to punish the opposite parties on the ground that the opposite parties have violated the terms of compromise entered into between the parties, namely, the petitioners and the opposite parties in Title Appeal No. 119 of 1994 as they have not handed over the possession of the suit premises to the petitioners.

The case of the petitioners is as follows:

(i) The petitioners'' father executed a lease deed on 31.07.1968 in respect of a shop premises in favour of the father of the defendants-tenants.

(ii) On the death of the original lessor and lessee, their legal heirs have been substituted.

(iii) A suit for eviction was filed in the year 1978. The suit was decreed on 22.09.1985 in favour of the lessor.

(iv) The defendants-opposite parties preferred an appeal in Title Appeal No. 15 of 1985 before the Judicial Commissioner, Ranchi.

(v) Though the appeal was allowed on 11.08.1988, on the order of the Supreme Court, matter was remanded to the Trial Court.

(vi) After decree, the defendants-tenants filed an appeal before the Judicial Commissioner in Title Appeal No. 119 of 1994.

(vii) Ultimately, having regard to the long delay of the pendency of the matter, both the parties, namely, lessor and lessee entered into a compromise on 22.07.2005 by which the lessee agreed to vacate the leased premises under the lease deed dated 31.07.1968 on or before 15.09.2005.

(viii) On the basis of the compromise agreement, the Additional Judicial Commissioner disposed of the appeal and decree in terms of compromise was passed on 23.07.2005.

(ix) Since leased premises has not been handed over as per the undertaking given in the compromise agreement dated 22.07.2005 on or before 15.09.2005, the petitioners filed a contempt petition before the Additional Judicial Commissioner.

Since the said petition was refused to be entertained by that Court, the petitioners chose to prefer contempt petition before this Court.

This Court entertained this contempt petition and issued notice to the opposite parties-tenants. The tenants-opposite parties represented through counsel before this Court submitted that they are prepared to comply with the order. Accordingly an order was passed by this Court directing the defendants-opposite parties to hand over the possession on or before 01.08.2007.

On 02.08.2007, the opposite parties handed over the keys of the premises to the counsel for the petitioners and also filed an affidavit stating that the premises which were in their physical possession handed over to them by virtue of lease agreement dated 31.07.1968 was vacated.

Even then, the counsel for the petitioners would submit that the entire portion of the premises has not been handed over and one other portion is occupied by opposite parties'' sub-tenant Altaf Hussain and that portion also must be handed over to the petitioners as the suit for eviction would cover the entire portion of the premises.

According to the counsel for the petitioners, the lease deed dated 31.07.1968 and the compromise agreement and the affidavits filed by the parties had ultimately indicated that one Altaf Hussain was the sub-tenant of the opposite parties and the opposite parties have given undertaking in their affidavits that they would evict Altaf Hussain from that portion and then hand over the entire portion to the petitioners and since the portion in which Altaf Hussain''s legal heirs are staying has not been evicted and handed over to the petitioners, the opposite parties are liable to be proceeded with for contempt.

This contention of the counsel for the petitioners, is refuted by the counsel for the opposite parties stating that the compromise agreement and the affidavits filed on behalf of the opposite parties before the Court concerned only indicate that undertaking has been given to hand over the possession of the portion which was in their occupation and there is no undertaking in respect of the portion of the premises occupied by Altaf Hussain and as such they cannot be proceeded with for contempt.

I have considered the submissions made by the counsel for the parties.

The lease deed executed on 31.07.1968 in favour of the opposite parties by the Lessor, the father of the petitioners would clearly indicate that the said Altaf Hussain was in occupation in the portion of the premises even before the date of lease deed, i.e., 31.07.1968 as tenant of the plaintiffs-petitioners. Of course, it is true that in the said lease deed in paragraph 17 it is mentioned that Altaf Hussain will be the tenant under the lessee, who will collect the rent from him, but there is no material to show as per this recital in paragraph 17 that Altaf Hussain agreed to be tenant under the lessees and paid rents to them.

According to the opposite parties the lessee or his heirs, the; defendants-opposite parties never came into the possession of the portion of the premises occupied by said Altaf Hussain and till today the said portion is being occupied by the heirs of said Altaf Hussain.

Both, in the joint compromise petition and the affidavit, it was not stated by the petitioners that Altaf Hussain or his heirs were their tenants and they would see to it that Altaf Hussain is evicted and then possession would be handed over. The relevant portion of the joint compromise petition is being quoted hereunder:

That the appellants and respondents Nos. 6 to 11 and respondents No. 1 to 5 settled their dispute outside the court with the help of heir well wishers without any pressure from any corner in the following manners.

It has been decided the appeal be disposed of on compromise on the following terms:

(i) That Appellants and respondents No. 6 to 11 shall vacate the leased premises which was in their occupation under the lease dated 31.07.68 as described in para - 1 of this on or before 15.09.2005.

(ii) That respondents No. 1 to 5 shall not claim or demand for recovery of any dues from the appellants and Respondent No. 6 to 11 for occupation of the suit property for the period after the expiry of the period of lease in the 31.07.1988.

(iii) That the appellants have agreed to vacate the lease premises up to 15.09.2005 and handover the same to the Respondent No. 1 to 5. The appellate and respondent No. 6 to 11 have given Appellant No. 1 and 2 undertaking separately that the Defendant tenant shall be bound to hand over the vacant possession of the suit premises which was in occupation of the tenant under the lease dated 31.07.68 unto the plaintiff respondent No. 1 to 5 on or before 15.09.2005 and in no case the tenant appellant or proforma respondent No. 6 to 11 and any persons claiming under or through them, put any kind of obstruction in delivery of the vacant possession of the suit premises to the plaintiff respondents.

(iv) That the respondent No. 1 to 5 have to give shop in the ground floor as per sanctioned plan on the cost of construction price after construction of Market Complex within 21/2 years from the date of compromise/or date of delivery of vacat possession i.e. 15.09.2005 to the Appellants No. 1 and 2 on the terms and condition as agreed between the parties.

That if the respondent Nos. 1 to 5 failed to give the shop to the appellant No. 1 and 2 within the stipulated period then the Appellant No. 1 and 2 shall have the right to obtain the shop through process of the Court and may also claim damage.

That appeal may be order to be compromised.

That the parties shall bear their own cost.

The affidavit of undertaking filed on behalf of the appellants (opposite parties) in Title Appeal No. 119 of 2004 reads as under:

Affidavit on behalf of the appellants No. 1 giving undertaking to vacate the suit Property on or before 15.09.2005

I, Rajendra Prasad Sahu son of Late Ram Prasad Sahu, resident of Lake Road, Near (Sic) Talab, P.S. - Kotwali, Ranchi hereby solemnly affirm and state as follows:

That I am the Appellant No. 1 in this title appeal and as such I am well acquainted with the facts and circumstances of the case.

That the appellant Nos. 1 and 2 and Respondent Nos. 1 to 5 and 6 to 11 have compromised the case outside the court. The appellant and respondent Nos. 6 to 11 give undertaking to vacate the suit property and give vacant possession of schedule - Shop which was delivered to the original lessee to the plaintiff decree holder on or before 15.09.2005. The properties described as follows:

North: Holding No. 20 of Dasai Sahu

East: Boundary wall of St. Xavier College

South: Holding No. 22

West: Main Road, Ranchi.

That the deponent further undertakes that the deponent will deliver peaceful vacant possession of lease property before 15.09.2005 which is in his possession of Respondent Nos. 1 to 5 and in breach of undertaking shall be given a right to the decree holder to proceed against the judgment debtor for initiation of competent proceeding.

That this Affidavit is made in bonafide.

The above joint compromise petition and the affidavit do not indicate that an undertaking was given in respect of the portion in which Altaf Hussain''s heirs are staying.

As a matter of fact, it is contended by the opposite parties before the Appellate Court in Appeal No. 15 of 1985 the demolition of the premises and construction is not possible unless Altaf Hussain''s heirs are evicted from the portion they are in occupation and Altaf Hussain being the tenant of the petitioners have to be evicted first. In reply to the same, the counsel for the petitioners conceded before the appellate Court that they would request and persuade Altaf Hussain to vacate the portion occupied by him.

The stand taken by the plaintiffs-petitioners before the Appellate Court was that they would request Altaf Hussain to vacate the portion so that construction could be made in the premises, but the present stand of the petitioners is that the opposite parties gave undertaking that they will hand over the possession of the entire portion including the portion occupied by Altaf Hussain. The present stand by the petitioners is not correct in view of the fact that, neither in the joint compromise petition nor in the affidavit filed by them, such an undertaking was given by the opposite parties. They have merely stated in the joint petition as well as the affidavit that they would hand over the possession of the premises which was in their occupation, which was delivered to them on the date of lease.

It is pointed out that there is a finding in Title Appeal No. 15 of 1985 by the Appellate Court that Altaf Hussain was in possession in part of the premises and he was tenant of the petitioners. Further, from the very beginning the attempt made by Altaf Hussain and his heirs to implead themselves to be the party in the suit had been opposed by the petitioners stating that they are not necessary parties as the plaintiffs-petitioners have not sought for any relief as against Altaf Hussain.

The counsel for the petitioners would submit that since the suit premises would include the other portion also, it must be presumed that such an undertaking has been given by the opposite parties for handing over the possession of not only the portion occupied by the opposite parties, but also the premises occupied by Altaf Hussain''s heirs. This submission, in my view, is untenable. Admittedly, Altaf Hussain or his heirs were not a party either in the compromise agreement dated 22.07.2005 nor in the compromise decree.

Therefore, it has to be held that the decree passed by the Appellate Court on the basis of the joint compromise petition would only bind the opposite parties who were parties to the suit in respect of portion occupied by them and not others who were not parties to the suit.

As indicated above, this Court is of the considered view that the undertaking which has been given by the opposite parties in respect of the portions which were in their occupation has been complied with and, as such, there is no contempt. Accordingly, this contempt proceeding is dropped.