Sandhya Shaw vs Durgaprasad Kanu @ Shaw

Bibek Chaudhuri, J

CAN 3775 of 2017 is an application filed by the appellant/petitioner praying for stay of all further proceedings and/or operation of the judgement and decree dated 18th January, 2017 passed by the learned Civil Judge (Senior Division), Third Court at Howrah in Title Appeal No. 141 of 2012 till the disposal of the instant appeal.

It is alleged by the petitioner that he is in actual physical possession of the suit property on the strength of a deed of lease dated 3rd May, 2002. The plaintiff filed Title Suit No. 14 of 2005 for a declaration that the said deed of lease is obtained by fraud and accordingly invalid, inoperative and a sham document. The defendant has no right to construct boundary around the suit property and also had no authority to erect iron gate covering the suit property. Therefore, along with the prayer for declaration, the plaintiff prayed for permanent, perpetual as well as mandatory injunction against the defendant. Initially, the said suit was dismissed by the Trial Court which compelled the plaintiff/opposite party to prefer Title Appeal No. 141 of 2012 before the learned Lower Appellate Court. By a judgement and decree dated 18th January, 2017 the said appeal was allowed. Judgement and decree of dismissal of the suit was set aside and consequently, the suit was decreed against the defendant/appellant. Against the said judgement and decree passed by the Lower Appellate Court the plaintiff has preferred the instant appeal.

The said appeal was admitted for hearing on 21st December, 2018 by the Division Bench of this Court.

Since the appeal is pending for hearing on substantial question of law formulated by the Division Bench of this Court while admitting the appeal, the defendant/appellant has prayed for stay of operation of the judgement and decree passed by the learned First Appellate Court in Title Appeal No. 141 of 2012.

It is on record that on admission of appeal the Division Bench passed an interim order of stay of operation of the judgement and decree of the First Appellate Court for a limited period of time.

The respondent/opposite party has filed an affidavit-in-opposition against the aforesaid application. At the outset, a technical objection was made by the opposite party to the effect that the opposite party filed caveat but without serving notice to him the petitioner obtained an order of stay of operation of the impugned judgement and decree by the Division Bench of this Court which cannot be sustained at all. Besides the technical objection, it is the specific case of the opposite party that the purported deed of lease dated 3rd May, 2002 allegedly executed by the opposite party in favour of the appellant/petitioner is illegal per se because of the fact that the suit property is a thika tenanted property and thika land cannot be transferred by executing a long-term lease in favour of the petition. It is submitted by Mr. Roy, learned Advocate for the respondent/opposite party that no person can claim any equitable relief on the basis of an illegal and void document. In support of his contention Mr. Roy asserts to a decision of the Hon'ble Supreme Court in the case of Smt. Narayanamma & Anr.Etc. Etc. -V-.- Sri Govindappa & Ors. Etc. Etc., reported in 2019 Supreme (SC) 1074. Mr. Roy draws my attention to paragraph 25 of the aforesaid report to submit that the plaintiff cannot rest his claim relying on some illegal transaction. In the said report plaintiff claimed right over the property on the basis of a deed of gift, execution of which was barred by Section 61 of Karnataka Land Reforms Act, 1961. Coming to the instant case it is submitted by Mr. Roy that in this case the defendant/appellant is claiming right of possession over the suit property on the basis of a deed of lease allegedly executed on 3rd May, 2002 in respect of thika land. Thika land cannot be transferred under the provision of Sections 6(3) and 7(1) of the Calcutta Thika and Other Tenancies and Lands (Acquisition and Regulation) Act, 1981. Since the defendant's prayer is based on the deed of lease which was held to be a void document by the First Appellate Court, the operation of the impugned judgement and decree cannot be stayed.

The appellant/petitioner has filed an affidavit-in-reply controverting the allegation made out against him by the respondent/opposite party. Subsequently by filing a supplementary affidavit on 6th June, 2019 the opposite party has filed all documents including the copy of the impugned deed of lease and the judgements passed by the learned Trial Court as well as the First Appellate Court for consideration by this Court.

Having heard the submission made by the learned Counsels appearing for the parties, I like to record at the outset that at this stage I am not in a position to consider as to whether the Division Bench of this Court passed an interim order of stay or not without directing the appellant/petitioner to comply with the provision under Section 148A of the Code of Civil Procedure because of the fact that at this stage the instant application is being heard on merit.

I have carefully perused the judgement of the Hon'ble Supreme Court in the case of Smt. Narayanamma (Supra). There cannot be any second opinion on the question that a party cannot lay his claim on the basis of an illegal and void document. The learned Counsel for the respondent/opposite party failed to appreciate that the judgement of the Hon'ble Supreme Court in the case of Smt. Narayanamma (Supra) was passed after final hearing of the appeal. In the appeal the Hon'ble Supreme Court had the opportunity to consider the deed of conveyance on the basis of which the plaintiff wanted to claim his right over the suit property. While considering such deed of conveyance, the Hon'ble Supreme Court found that the said deed was hit by Karnataka Land Reforms Act, 1961.

At this interlocutory stage, this Court is not in a position to come to a final finding holding the impugned deed of lease an illegal and void document.

It is not disputed that the defendant/petitioner is in possession of the suit property. During the pendency of the instant appeal status quo in respect of the possession over the suit property is required to be protected, failing which the instant appeal will be infructuous.

At the same time I am not unmindful to note that the petitioner has been occupying the suit property measuring about 555 sq. ft. The opposite party has filed the certificate issued by the Directorate of Registration and Stamp Revenue showing the present market value of the suit property as well as the commercial value and prevalent rate of rent. The petitioner has suffered decree in the Lower Appellate Court. Therefore, the petitioner is under obligation to pay occupational charges for his possession over the suit property as a condition precedent of an order of stay of operation of the impugned judgement and decree passed by the Lower Appellate Court.

For the reasons stated above, the instant application is allowed on contest. The impugned judgement and decree passed in Title Appeal No. 141 of 2012 be stayed till the disposal of the instant appeal on condition that the petitioner shall go on paying and/or depositing occupational charges at the rate of Rs.2,000/- per month from the date of this order till the disposal of the instant appeal.

The application is thus disposed of.