1.This matter pertains to right to title and possession of a property that was allotted by the Relief and Rehabilitation Department of Government of West Bengal to a family which had come to Siliguri from the then East Pakistan in 1950. Before moving forward with the facts of the case, it is imperative for us to mention that such rehabilitation programmes are introduced by the government with the sole aim of re-establishment of the displaced/ migrant families and not for the benefit of any individual. As a part of such welfare policies, Neetu Khajuria the property is usually recorded in the name of one family member for the purpose of convenience even though the ensuing welfare is meant to be enjoyed by the all the family members equally. However unfortunately, in the instant case greed got better of the de facto head of the family who has been claiming herself as the absolute owner of the property. The matter is a prime example where the plaintiff attempted to defeat the rightful claims of family members with the intention of usurping the entire property. We cannot emphasize enough that this Court highly deprecates such malpractices where the welfare legislations are misused/abused by beneficiaries for personal advantage, thereby defeating the very objective of such policies.
2.This appeal assails the correctness of the judgment and order dated 18.12.2013 passed by the Calcutta High Court dismissing the Second Appeal No.518 of 2008 filed by the appellants herein confirming the judgment and decree of the First Appellate Court dated 11.04.2003 whereby it had reversed the judgment and decree of the Trial Court dated 16.09.1999 dismissing the suit of the present respondents and allowing the counter claim filed by the present appellants in Original Civil Suit No.16 of 1983.
3.Brief facts giving rise to the present appeal are summarized hereunder: 3.1. Late Krishna Behari Basak had three sons namely Benode Behari Basak, Bimal Kanti Basak and Benoy Krishna Basak. Late Krishna Behari Basak was a resident of East Pakistan and his family had migrated to India in 1950 soon after the partition. The eldest son Benode Behari Basak was employed in the Collectorate, Darjeeling since 01.03.1945 and at the relevant time he was working in the office of Deputy Commissioner, Darjeeling. Benode Behari Basak applied (supported by affidavit) for allotment of land in his name for the benefit of the refugee family which comprised of the following seven members namely: S.No. Name Relation Age 1. Sri Bimal Kanti Basak Brother 24 years 2. Sri Benoy Krishna Brother 13 Basak years 3. Srimati Hem Prova Wife 20 Basak years
4.Sri Bipul Kanti Basak Son 6 years
5.Sjta. Drabanmayee Grand 85 Basak mother years
6.Sriman Ajit Kumar Nephew 9 years Basak
7.Srimati Kamala Basak Sister 27 years
3.2. In the said affidavit dated 30.12.1952, it is
clearly stated that the deponent was
residing at Darjeeling and was in
occupation as a government servant; that
he had a permanent house in village
Sailabari, Post Office Khosabari,
District Pabna which has since become a
part of eastern Pakistan; the family
members were compelled to leave the
native place in July 1950 due to partition
of India; all family members have decided
to settle in the Indian Union; he was
working in the office of the Deputy
Commissioner since 1945 and had opted
to serve under the West Bengal
Government.
3.3. Another affidavit was filed by Smt. Hem
Prova Basak wife of Benode Behari Basak
dated 13.11.1953. In the said affidavit it
was stated that they had to leave their
house and properties in Pakistan worth
about Rs.50,000/-, on account of
communal disturbance; she along with the
whole family consisting of five family
members had come to West Bengal in July
1950 with the object of permanently
residing in the Union of India; that she was
a bona fide refugee and now a domicile and
a national of the Indian Dominion; that
she had not taken any loan or advance
from the Central or Provincial
Governments.
3.4. Based on the said applications supported
by affidavits as stated above, the Deputy
Commissioner, Darjeeling on 04.12.1953
forwarded the same to the Sub-Divisional
Officer, Siliguri enclosing also along with it
an order passed by the Deputy
Commissioner, Darjeeling on 03.12.1953
for taking appropriate action. The order
passed by the Deputy Commissioner on
03.12.1953 recorded that the family had
lost their house in Pakistan as such
allotment of plot in question be made in
favour of Smt. Hem Prova Basak in place
of her husband Benode Behari Basak.
3.5. Even before the final allotment could be
made and lease could be executed, the
family started constructing the house over
the plot in question. However, before the
construction could be completed on
07.02.1975, the said Benode Behari Basak
recorded his statement before the
authorities in which he admitted that he
along with his family members, had
migrated from East Pakistan to India; gave
details of the property held in East
Pakistan; that how he collected funds for
construction of the house. The
construction was made out of the joint
income of three brothers and also from the
produce of the crops of the land that they
held. It was also mentioned that they all
lived jointly and all members contributed
proportionately.
3.6. A letter was issued by the Government of
West Bengal on 28.09.1975 calling upon
Smt. Hem Prova Basak to appear in the
office of the Sub-Divisional Officer on
24.09.1975 in connection with the
conferment of right, title and interest of the
plot in question and also to produce
documents relating to allotment of plot
No.41.
3.7. Another letter was issued by the office of
Sub-Divisional Officer, Siliguri on
25.09.1975 to Shri Benode Behari Basak
stating that his two brothers had also
applied for inclusion of their names along
with name of his wife in the lease deed so
that he could clarify in respect thereof. It
appears that the lease deed was executed
on 03.11.1975 in the name of Smt. Hem
Prova Basak only.
3.8. The two brothers Bimal Kanti Basak and
Benoy Kumar Basak represented for
inclusion of their names which was
appropriately dealt with by the concerned
department and in the order sheet it was
recorded on 03.08.1979 that the names of
Bimal Kanti Basak and Benoy Kumar
Basak be also included and there was no
legal bar in inclusion of their names. The
Sub-Divisional Officer passed an order on
07.11.1979 that the request made for
inclusion of their names is allowed and
their names will be included at the time of
execution of the deed along with Smt. Hem
Prova Basak in respect to the plot in
question being Plot No.41, Dabgram
Colony No.II, College Para, Siliguri.
3.9. Further, another order was passed on
23.08.1983 that in the lease deed of
03.11.1975, the rectification be allowed to
the extent of adding the names of Bimal
Kanti Basak and Benoy Kumar Basak
being family members of Smt. Hem Prova
Basak as apparent from the original
affidavit filed that they were family
members taking into consideration the
Government Orders dated 02.07.1981 and
23.04.1981. Accordingly, a fresh lease
deed be executed.
3.10. In the meantime, Smt. Hem Prova Basak
filed a suit for permanent injunction to
restrain the families of Bimal Kanti Basak
and Benoy Kumar Basak from changing
the character of the suit property and from
entering the same. By the time the suit
was filed, Bimal Kanti Basak had died as
such his legal heirs being his widow, two
sons and a daughter were impleaded as
defendants 1-A, 1-B, 1-C and 1-D and
Benoy Kumar Basak as defendant No.2. In
the said suit Smt. Hem Prova claimed that
she was the sole lessee of the plot in
question and that the said land had been
allotted to her exclusively and that she had
constructed the house which is recorded
in her name as absolute owner. The
defendants being brothers of her husband
and not having any independent house of
their own to live, nor were they employed
as such were permitted to live in a portion
of the said house. Later on, they have been
employed, have their independent
separate families and as such they being
licensees only, they must vacate the
portion of the premises in their possession.
The families of the three brothers had
grown as such there was shortage of
space. Also there were regular disputes
between the usage of the property and
common amenities and as such it became
necessary to file a suit for their eviction.
3.11. The defendants to the suit filed written
statement along with counterclaim
praying for a decree that the lease deed
dated 03.11.1975 be declared as invalid
and inoperative in law and for appropriate
injunction against the plaintiff. The
written statement and the counterclaim
were based on the fact that the three
brothers constituted the joint family; the
policy of the Government was to provide
rehabilitation to the entire family and not
to the individual; the request of the
defendants to include their names in the
lease deed had been positively considered
by the Government; the house was
constructed from the joint fund from the
income of all the three brothers.
3.12. During the pendency of the suit, the
Government had come up with policy of
freehold and had accordingly issued
freehold title deeds separately with respect
to the family of the three brothers. It had
further canceled the lease deed dated
03.11.1975 and the same was duly
communicated to Smt. Hem Prova Basak
vide communication dated 25.05.1995. In
the said letter, it was clearly stated that as
the freehold title deeds are going to be
issued to the eligible beneficiaries, the
lease deed No.7658 of 03.11.1975 has
been cancelled and as such she was
required to submit the original lease deed.
3.13. Smt. Hem Prova Basak instituted an
Original Civil Suit No.68 of 1995
impleading the State of West Bengal and
its officers as defendants challenging the
cancellation of the lease deed No.7685.
The relief claimed in the said suit was that
a declaration be made that the notice
dated 25.05.1995 issued by the office of
Sub-Divisional Officer, Siliguri, as illegal,
invalid and without jurisdiction with the
further relief of permanent injunction
against the defendants restraining them to
act upon the said notice.
3.14. After a detailed inquiry, it was held that
fresh freehold title deeds be issued as per
calculation in paragraph ‘C’ of the said
report in favour of the family members of
all the brothers. The defendants to the suit
of 1983 filed an amendment application
under Order VI Rule 17, Code of Civil
Procedure, 1908, seeking amendment in
the written statement in order to
incorporate the subsequent development
regarding the cancellation of lease deed as
also to issue freehold title deeds.
Additionally, the plaintiff also sought
amendment in the relief clause to the
extent that the declaration be made that
the freehold title deeds in favour of the
defendants is not valid. They were void and
not binding on the plaintiff. Both the
amendments were allowed.
4. The Trial Court, after considering the material
on record, dismissed the Original Civil Suit
No.16 of 1983 and partially allowed the
counterclaim declaring that the lease deed
dated 03.11.1975 in favour of the plaintiff was
illegal, inoperative, and invalid. The plaintiff
preferred first appeal registered as Original
Civil Appeal No. 19(s) of 1999. The said first
appeal came to be allowed vide judgment dated
11.04.2003. Aggrieved by the same, the
present appellants preferred a second appeal
before the High Court. During the pendency of
the second appeal the plaintiff Smt. Hem Prova
Basak withdraw the Original Civil Suit No.68 of
1995 on 08.12.2003. These facts and material
were placed before the High Court, however,
the High Court despite noticing such facts vide
impugned order dated 18.12.2013 dismissed
the second appeal filed by the present
appellants.
5. While issuing notice in the present appeal on
29.10.2014, both parties were directed to
maintain status quo with regard to possession
prevailing as on date. Later on, by order dated
01.07.2016, leave was granted. The fact
remains that the possession of the family
members of three brothers in the house has
continued.
6. Shri Pallav Sisodia, learned senior counsel
appearing for the appellant, apart from
drawing our attention to the various affidavits,
applications and orders passed on the file of
the Sub-Divisional Officer and the Deputy
Commissioner to show that the allotment had
been made for the benefit of the family and not
for one brother or his wife exclusively and that
freehold title deeds have been subsequently
executed in favour of the family members of all
the three brothers, made a legal submission
that once the lease itself had been cancelled in
1995 and the suit filed by Smt. Hem Prova
Basak to declare the said cancellation as
illegal, null and void having been withdrawn,
the suit of the plaintiff for eviction and
injunction was liable to be dismissed as the
very basis for filing the suit stood eliminated.
7. On the other hand, learned senior counsel for
the respondent Shri Uday Gupta vehemently
urged that the First Appellate Court and the
High Court have examined and considered the
material on record while decreeing the suit and
dismissing the counterclaim, as such this
Court may not interfere with the same under
Article 136 of the Constitution of India and
accordingly, dismiss this appeal.
8.Having given serious consideration to the material on record and the submissions advanced, we are convinced that the suit was filed maliciously in order to grab the entire allotment and also the house constructed with the joint income of the three brothers. Some noticeable facts in this regard are summarized hereunderi) Binode Behari Basak, the eldest brother was working as Upper Division Assistant in the office of Deputy Commissioner, Siliguri and therefore had all the access in the local administration to favour himself and his wife. Initially, he had applied for allotment to be made in his name but apparently for the reason that he was already a government servant in the state of West Bengal since 1945 prior to the partition and migration no allotment would be made in his favour, he therefore setup his wife to become the applicant for the allotment. ii) The affidavits and the communications between the office of the Sub-Divisional Officer, the Deputy Commissioner and Binode Behari Basak and his wife Smt. Hem Prova Basak, are neither disputed nor denied. If that is so then it was more than clear that under the policy of the Government the allotment was being made for the family and not for the individual.
9.Binode Behari Basak and Hem Prova Basak both having admitted the said fact could not turn around to claim that it was their exclusive property. The High Court has gone completely wrong in ignoring these affidavits and communications giving the reason that they were given in a different proceeding and therefore would not be of relevance and any help to the defendants.
10.The lease deed in the exclusive name of Smt. Hem Prova Basak dated 03.11.1975 having been cancelled and the challenge to the said cancellation by way of a Civil Suit No.68 of 1995 having been withdrawn, the suit itself ought to have been dismissed, as the very basis of filing the suit was no longer in existence. The High Court failed to take into consideration this aspect of the matter thereby committing an error.
11.From a perusal of the plaint, it appears that there has been bickering amongst the family members of the brothers and there were cases registered for maintaining tranquillity and peace, appears to be the reason for filing of the suit to deprive the two younger brothers from the benefit of the allotment made treating the family as a unit for rehabilitation.
12.For all the reasons recorded above, the impugned orders passed by the High Court and the First Appellate Court are set aside and that of the Trial Court is restored. The appeal is allowed accordingly. (VIKRAM NATH) (SATISH CHANDRA SHARMA) NEW DELHI MARCH 21, 2024