Himalaya Vintrade Pvt. Ltd. vs Md. Zahid on 16 September, 2021


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Supreme Court of India

Himalaya Vintrade Pvt. Ltd. vs Md. Zahid on 16 September, 2021

Author: Ajay Rastogi

Bench: Ajay Rastogi, Abhay S. Oka

                                                        1

                                       IN THE SUPREME COURT OF INDIA

                                       CIVIL APPELLATE JURISDICTION


                                      CIVIL APPEAL NO. 5779   OF 2021
                                  (arising out of SLP(C)No.5730 of 2021)


                         HIMALAYA VINTRADE PVT. LTD.                     APPELLANT(S)

                                                       VERSUS

                         MD. ZAHID & ANR.                                RESPONDENT(S)



                                                  O R D E R

Leave granted.

The appellant-defendant has approached to this Court

assailing the order passed by Ld.Trial Judge and confirmed

by the High Court on the application filed at his instance

under Order VII Rule 11, Civil Procedure Code, 1908.

The facts on record are not in dispute. The appellant-

defendant initially entered into an agreement to sell of

the subject property in question on 23.02.2018 and after a

formal deed of conveyance finally a sale deed was executed

on 30.09.2019 and his right of ownership over the subject

property in question became absolute.

The respondent no.1-plaintiff filed a suit with the

following prayer:

Signature Not Verified

a) for a declaration that the plaintiff is a
Digitally signed by
NEETU KHAJURIA
Date: 2021.09.20
16:27:32 IST
Reason:

lawful occupier as caretaker/servant of the sole
owner of the A schedule property and occupier and
adverse possessor of the B Schedule property.

2

b) for the permanent injunction restraining
defendant to disturb or evict the peaceful
possession of the plaintiff otherwise then the
due course of law.

Schedule A of property
All that an area of land admeasuring 16 kh. 3 ch.
4 sq.ft. be the same and a little more or less
with three storied residential building have each
floor are 5000 Sq.ft. more or less and some
vacant possession lying and situated at premises
no.217, Lower Circular Road and now known as 217
A.J.C.Bose Road, Kolkata-700017 P.S.Beniapukur,
Dist-South 24 pargans

Schedule B property
All that three rooms and one godown along with
some vacant land at premises no.217, Lower
Circular Road and now known as 217 A.J.C.Bose
Road, Kolkata-700017 P.S.Beniapukur.

It was a specific case of the respondent no.1-

plaintiff that he was in possession of the subject property

as a caretaker/servant. Para nos.2, 4 and 6 of the plaint

are reproduced hereunder:

2. That the plaintiff is a servant/caretaker of
the “A” schedule property appointed by the Mirza
Habibullah Khaleeli and the said sole owners of
the said property allow the plaintiff for used
and residing all that three rooms and one godown
along with some vacant land which is more fully
and particularly described in the “B” schedule
below lying and situated at premises no.217,
Lower Circular Road and now known as 217
3

A.J.C.Bose Road, Kolkata-700017 P.S.Beniapukur is
the subject matter of the suit within the
jurisdiction of this ld.Court.

4. That on all a sudden the defendants and their
men and agents with other antisocial elements
trying to take or enter into the plaintiff’s
rooms i.e. B schedule Property with an ulterior
motive they trying to dispossess the plaintiff
from his lawful occupation as servant/caretaker
with a view to grab the occupation/residence but
the defendant is not success to fulfill their ill
desired, for the intervention of the local people
and their strong support the defendants could not
succeed there to oust and dispossess the
plaintiff.

6. That the right title interested possession of
the plaintiff in the suit property as well as
lawful right of servant and caretaker and
claiming as adverse possessor of the B schedule
property even thus been clouded for unlawful act
of the defendants so the plaintiff is compelled
instituted the instant suit against the defendant
for declaration that the defendant be not ousted
from the B schedule property i.e. suit property
other than due process of law and for permanent
injunction against the defendant not to disturb
the peaceful possession of the suit property and
also not disturb or the egress and ingress of the
suit property.

After the notice was served. The application under

Order VII Rule 11, CPC came to be filed at the behest of
4

the present appellant-defendant with an objection that the

suit proceedings at the instance of the respondent no.1-

plaintiff who had pleaded himself to be a

caretaker/servant, acquires no interest in the subject

property irrespective of his long possession, is not

maintainable under the law and as regards the plea of

adverse possession is concerned, it lacks material

particulars.

The Trial Judge dismissed the application on the

premise that these are the subject matter of disputes which

can be examined only after the written statement being

filed at the behest of the present appellant-defendant and

is not within the scope of Order VII Rule 11, CPC and order

of Trial Judge came to be confirmed by the High Court by

the impugned order assailed in the present proceedings.

After we heard counsel for the parties and taking into

consideration the material on record, in our considered

view, the Trail Court has committed a manifest error in

appreciating the pleadings on record from the plaint filed

at the instance of respondent no.1-plaintiff who as a

caretaker/servant can never acquire interest in the

property irrespective of his long possession and the

caretaker/servant has to give possession forthwith on

demand and so far as the plea of adverse possession is

concerned as it lacks material particulars and the plaint

does not discloses the cause of action for institution of

the suit.

5

In our considered view, the order of the Ld. Trial

Judge which has been confirmed by the High Court impugned

in the instant proceeding is not sustainable on the first

principles of law.

Consequently, the appeal succeeds and is allowed. The

order of the High Court is, hereby, quashed and set aside.

The plaint no.T.S.150/2019, on the file of Ld.2nd Civil

Judge(Jr.Div) at Sealdah is, accordingly, rejected.

Since we have rejected the plaint in reference to the

proceeding initiated, we direct the respondent no.1-

plaintiff to handover, vacant and peaceful possession of

the subject property in question free from all encumbrances

within three months.

If the respondent no.1-plaintiff fails to handover

possession, the appellant-defendant will be at liberty to

take the recourse as known to the law.

Pending application(s), if any, shall stand disposed

of.

…………… J.

(AJAY RASTOGI)

…………… J.

(ABHAY S OKA)
NEW DELHI
SEPTEMBER 16, 2021



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