Calcutta High Court
M/S. Banwarilal Pasari vs Anandilal Narendra Kumar And Ors on 28 July, 2026
Author: Sugato Majumdar
Bench: Sugato Majumdar
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IN THE HIGH COURT AT CALCUTTA
ORDINARY ORIGINAL CIVIL JURISDICTION
ORIGINAL SIDE
Present:
The Hon'ble Justice Sugato Majumdar
CS/142/2001
M/S. BANWARILAL PASARI
VS
ANANDILAL NARENDRA KUMAR AND ORS
For the Plaintiff : Mr. Abhrajit Mitra, Sr. Adv.
Mr. Sarvapriya Mukherjee, Adv.
Mr. Arif Ali, Adv.
Mr. Arnab Sardar, Adv.
For the Defendant No. 1 : Mr. Dhrubo Ghosh, Sr. Adv.
Mr. Debmalya Ghosal, Adv.
Mr. Vivek Basu, Adv.
Ms. Ajeyaa Chowdhury, Adv.
Mr. Souvik Ghosh, Adv.
For the Defendant No. 10 : Mr. Shyamal Chakraborty, Adv.
Mr. Debajyoti Mondal, Adv.
Ms. Manju Jaiswal, Adv.
Mr. P. Das, Adv.
For the Defendant No. 11 : Mr. Rishad Medora, Sr. Adv.
Ms. Priyanka Mitra, Adv.
Hearing concluded on : 11.06.2026
Judgment on : 28.07.2026
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Sugato Majumdar, J.:
The instant suit has been filed by the Plaintiff, praying for recovery of
possession, mesne-profits and other reliefs.
The Plaintiff is a partnership firm registered under the Indian Partnership Act,
1932, carrying on business at 10, India Exchange Place, Kolkata-700001.
The sum and substance of the plaint case is as follows:-
a) The Premises No. 113, Park Street, Calcutta had been promoted and
developed by the Defendant No. 2, a company registered under the
Companies’ Act 1956. The Defendant No. 2 had entered into
agreement in writing with M/s Sanchaita Investment for sale of the
entire first floor measuring about 12, 250 sq. ft. and four car parking
space, for valuable consideration. The said M/s Sanchaita Investment
paid the entire agreed amount of consideration to the Defendant No.2
and obtained possession thereon. The agreement was assigned to the
Plaintiff with consent of the Defendant No.2. The Plaintiff agreed to
pay the entire consideration money to the said M/s. Sanchaita
Investment who originally executed the aforesaid agreement for sale.
Thus the Plaintiff got possession of the entire first floor of the said
premises with four car parking spaces in the basement.
b) Subsequently, the Hon’ble Supreme Court of India appointed a
Commissioner over the said M/s Sanchaita Investment. The
Commissioner attached the first floor of the premises along with the
car parking spaces at basement. The Plaintiff raised objection before
this Hon’ble Court and in terms of an Order dated 04/07/1985 the
said attachment was removed on payment of rupees twelve lakhs. A
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cost was also assessed as Rs.2000/-. On compliance, the attachment
was released and the Plaintiff became the absolute owner.
c) The Defendant No.1 is a partnership firm registered under the Indian
Partnership Act, 1932, had its office on the top floor of the premises
no. 113, Park Street. The partners of the Defendant No. 1 were related
to the partners of the Plaintiff. The Defendant No. 1 approached the
Plaintiff permitting them to use and occupy the said property till the
Plaintiff would open a branch office thereat. Considering relationship
between the partners, the Plaintiff allowed the Defendant No. 1 to use
the said property on leave and license for short period without any
monetary consideration.
d) The Plaintiff, on or about 13/03/1992 came to learn from a real estate
agent that a portion of the said first floor was subject matter of two
decrees in favour of one M/s P. Sen Technical Services Pvt. Ltd. And
M/s P. Sen Engineering Pvt. Ltd. Those two decrees were passed in
two undefended suit filed against the Plaintiff, the Defendant No. 1
and the Defendant No. 2. Applications to set aside those decrees were
unsuccessful. Therefore, appeals were preferred which were pending
at the time of institution of the instant suit. In the said appeals the
Defendant No. 1 alleged, in affidavit filed, that there was an agreement
for sale between the Plaintiff and the Defendant No. 1 in respect of the
said property for a consideration of Rs.43, 86,375/- out of which a sum
of Rs.22, 37, 315/- had been paid. The Plaintiff refuted that
contentions and stated that the said payment was made in respect of
other business transactions.
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e) During pendency of appeals, in or about June 1993, the Defendant No.
1 and the Plaintiff agreed that the Defendant No. 1, would on behalf of
the Plaintiff divide the said property into several units and would
arrange for sale of the same at a price agreeable by the Plaintiff; this
arrangement would exclude the space which were subject matter of
appeals. The Defendant No. 1 would negotiate with the occupants of
the said property who had been inducted by the Defendant No. 1 for
paying fair price to the Plaintiff on account of sale or should vacate the
same. Pursuant to such agreement, the Plaintiff authorized the
Defendant No. 1 to divide the said property into several units and to
negotiate with all the occupants.
f) The Defendant No. 3-8 are occupants of different portions, wrongfully
inducted by the Defendant No. 1.
g) The Defendant No. 1 did nothing pursuant to the said agreement. The
Plaintiff, also learned that the Defendant No. 3-8 were inducted by the
Defendant No. 1 as a part of adjustment of dues arose out of some
other transactions.
h) The Plaintiff lost faith in the Defendant No. 1 and cancelled the leave
and license by a letter dated 26/02/2001 and asked them to vacate the
said premises on or before 01/03/2001. But the Defendant No. 1
failed to hand over delivery of possession and continued wrongful
occupation.
i) Since the Defendant No. 1 failed to hand over peaceful possession, the
Plaintiff instituted the suit for recovery of possession. The Plaintiff
also claimed mense-profits against the Defendant No. 3-8 who are in
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wrongful occupation, being inducted by the Defendant No. 1. Mesne-
profit is calculated at a rate of Rs.50/- per square ft. per month for
8250 sq. ft., from 01/03/2001 till recovery of possession.
Written Statements were filed by some of the Defendants.
The contentions of the written statement filed by the Defendant No. 1 may
be summarized as follows:
a) The entire first floor of the building was purchased by M/s Sanchaita
Investments and the same was subsequently transferred to the
Plaintiff. The Commissioner of M/s Sanchaita Investment attached
inter alia the entire first floor of the building. Subsequently, pursuant
to an order passed by this Court the attachment was removed in favour
of the Plaintiff. The Plaintiff purchased the said property for valuable
consideration as stated in the written statement.
b) Sometime in the month of January, 1987, it was agreed between the
Defendant No. 1 and the Plaintiff that the Plaintiff would sell and
convey the said property, namely, the entire first floor, comprising an
area of 12, 250 sq. ft., at an aggregate consideration of Rs.43, 86,375/-.
The entire first floor would be divided into five units and shall be
assigned to the persons at considerations which are as follows:
i. Anandilal Narendra Kumar 2785 sq. ft. Rs.9,88,775/-
ii. Anandilal Narendra Kumar 1940 sq. ft. Rs.6,88,700/-
iii. R. Poddar 2774 sq. ft. Rs.9,98,640/-
iv. Akshat Poddar 2288 sq. ft. Rs.8,23,680/-
v. Avni Poddar 2463 sq. ft. Rs.8,86,680/-
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In terms of the agreement, the Plaintiff on or about the month of January 1987,
delivered and handed over vacant possession of the said first floor of the building to
the aforesaid proposed transferees who entered into possession and held the same
till such time it was transferred to their assignees.
c) The Defendant No. 1 had been allotted an area of 2785 sq. ft. A
demarcated portion thereof, admeasuring 1712 sq. ft. and the unit
2283 sq. ft. had been allotted to one Akshat Poddar who transferred
it to M/s Delite Builders, who, in turn transferred the same to M/s P.
Sen Technical Services Pvt. Ltd. and M/s P. Sen Engineering Pvt. Ltd.
These two transfers are sub-judice in this Court in Suit No. 470 of
1991 and the Suit No. 471 of 1991.
d) In respect of the two units agreed to be sold to the Defendant No. 1, a
total price of Rs.9,88,675/- was paid to the Plaintiff by cheques and a
pay order which were accepted and received by the Plaintiff. This
sum of Rs.9,88,675/- was part payment of the agreed price of
Rs.17,44,200/-.
e) In respect of the unit measuring about 2774 sq. ft. allotted to the said
R. Poddar, for a consideration amount of Rs.9,98,640/-, the entire
amount was paid to the Plaintiff by two cheques dated 05/05/1987
and 01/09/1987. But the Plaintiff neglected and failed to execute and
register any deed of transfer, committing thereby breach of
agreement.
f) In respect of the unit admeasuring 2288 sq. ft. to be transferred to
the said Akshat Poddar, out of total purchase price of Rs.8,23,680/-,
a sum of Rs.1,50,000/- had been paid to the Plaintiff by a cheque
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dated 05/05/1987. A further cheque of Rs.6,73,680/- was handed
over to the Plaintiff, to be encashed on execution and registration of
the deed of transfer. But the Plaintiff neglected and failed to execute
and register any deed of transfer for which the cheque was
dishonoured. The said proposed transferee is still now ready and
willing to pay subject to execution and registration of the deed of
transfer.
g) In respect of the unit admeasuring 2463 sq. ft. to be transferred to
Avni Poddar, part payment of Rs.1,00,000/-, the total consideration
amount being Rs.8,86,690/-, had been made by cheque dated
04/05/1987. A further cheque of Rs.7,86,680/- dated 22/08/1987
was handed over to the Plaintiff, to be encashed on execution and
transfer of a deed of transfer. But the Plaintiff neglected and failed to
execute and register any deed of transfer for which the cheque was
dishonoured. The said Avni Poddar is ready and willing to perform
till now.
h) The Defendant No. 1 denied all other allegations made in the plaint
and pleaded that the suit should be dismissed.
Written statement filed on behalf of the Defendant No. 8 may be
summarized as follows:
a) It is contended that since the month of July 1996, The Defendant No.
8 has been carrying on business from an office space, in its
occupation, in a portion of Block-B, 1st Floor of the premises no. 113,
Park Street, Kolkata-700016. The registered office of the Defendant
No. 8 is situated threat.
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b) By and under a letter dated 15/03/1988, the Defendant No. 1
assigned a portion of the Block-B of the said property, admeasuring
2060 sq. ft. in favour of Ms. Kiran Arya, Ms. Meeta Arya, Ms. Renu
Singhal and Ms. Santosh Singhal on terms and conditions contained
in the said letter. The said persons were given possession which was
duly recorded. Subsequently, by and under an agreement dated
03/08/1990, the said Aryas and Singhals transferred in favour of
M/s Dheklapara Tea Co. Ltd. the aforesaid portion for valuable
consideration. Possession was also handed over. Thereafter, the said
M/s Dheklapara Tea Co. Ltd., in terms of an agreement dated
29/03/1995, assigned in favour of M/s Bengal Tanning Industries the
said part of the premises for valuable consideration followed by
handing over possession.
c) By and under an agreement dated 17/07/1996, the said M/s Bengal
Tanning Industries transferred its rights, title and interest in favour
of the Defendant No. 8 for valuable consideration. Pursuant to that
agreement, the Defendant No. 8 had been put into possession and is
in continuous possession till now.
d) It is contended that the Defendant No. 8 is in lawful occupation and
has been paying all the outgoing charges including property taxes
payable to the Kolkata Municipal Corporation.
e) It is further averred that the Plaintiff is well aware of, has knowledge,
and notice and has due consent of possession of the Defendant No. 8,
of the office space as mentioned at the outset.
f) The Defendant No. 8 denies the allegations made in the plaint.
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The sum and substance of the written statement filed on behalf of the
Defendant No. 10 may be summarized as follows:
a) On 05/01/2002, prior to institution of the instant suit and
pursuant to an order passed by this Court in Company Petition No.
19 of 1999, the assets, properties rights and obligation of the
Defendant No. 2 stood vested in M/s Jaypee Estate Pvt. Ltd. As a
result, the Defendant No. 2 has ceased to exist. Since the said M/s
Jaypee Estate Pvt. Ltd. is not made a party, the instant suit is bad
for non-joinder of necessary party and mis-joinder of parties.
b) As averred in the plaint, Sanchaita Investment entered into an
agreement for sale with the Defendant No.2 and thereafter on
21/04/1982, the said Sanchaita Investments nominated the
Plaintiff as purchaser of the first floor along with four car parking
spaces. By the admission of the Plaintiff, the said M/s Sanchaita
Investment at best had an agreement for sale without the same
being crystalized into any execution of deed of conveyance. Thus
the Plaintiff is a nominee of the said Sanchaita Investment and as
such, cannot seek to enforce any right or claim in respect of the
said property. Since, the said Sanchaita Investment did not
acquire any ownership of the said property, the Plaintiff, claiming
through the said Sanchaita Investments could not have acquire
any ownership, as averred.
c) It is averred in the plaint that the Plaintiff allowed the Defendant
No. 1 to use the first floor on leave and license basis without any
monetary consideration. The very fact that no money was ever
paid by the Defendant No. 1 to the Plaintiff or received by the
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Plaintiff from the Defendant No. 1, demonstrate that the entire
story of leave and license is a gratuitous one. The Plaintiff having
granted license to the Defendant No. 1 in the year of 1987 no
explanation has been given by the Plaintiff as to why the Plaintiff
waited for a period of almost 14 years to institute the suit. As such
the suit is barred by the laws of limitation.
d) The Plaintiff averred in the plaint that it came to learn the sale of a
portion of the first floor of the said premises on 13/03/1992, On
that day, the Plaintiff must have knowledge of occupation of
portion of the first floor of the said premises by the Defendant No.
3 to 8. In the circumstances, the very fact that the Plaintiff waited
till 22/-3/2001, that is for a period of nine years to institute the
suit disentitles the Plaintiff to get relief. The suit is barred by law
of limitation.
e) From the contents of para.8 of the plaint, it appears that the
Defendant No. 1 is claiming the entitlement of the first floor of the
said premises on the basis of an agreement for sale. It is admitted
in Para. 8 of the plaint that a sum of Rs.22,37,315/- was received
by the Plaintiff from the Defendant No. 1. In the circumstances,
the Plaintiff has no right to institute the instant suit.
f) It is admitted in Para.9 of the plaint that disputes and differences
between the Plaintiff and the Defendant No. 1 arose on
01/04/1993. In Para. 10 it was contended that there was a
settlement between the Plaintiff and the Defendant No. 1 in the
month of June, 1993. The present suit was instituted on
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22/03/2001, almost after 8 years. Therefore, the suit is barred by
the law of limitation.
g) It was averred Para 1o (c) and 11 of the plaint that the Defendant
No. 1 had been negotiating with the occupants of the first floor.
While stating that no negotiation had ever been held by the
Defendant No. 1 with the Defendant No. 3 to 8, there remains a
tacit admission of the fact that the Plaintiff was aware of the
occupation of the said premises by the Defendant No. 3 to 8 at
least from the month of June 1993. But the Plaintiff waited till
22/03/2001 to institute the suit. As such, the suit is barred by
acquiescence, waiver and/or the laws of limitation. The Plaintiff
did not explain why the Plaintiff did not negotiate with the
occupants of the first floor. Neither the Plaintiff nor N. K. Poddar
nor the Defendant No. 1 ever approached the Defendant No. 10 to
negotiate.
h) The premises no. 113, Park Street is presently owned by Sri Bijan
Behari Mallick. The said premises has been let out on lease to the
erstwhile Defendant No. 2 who had caused a multi storied building
to be constructed thereon. On or about 10/12/1987, the Defendant
No. 1 sold 2100 sq. ft. on the first floor together with two car
parking spaces to one N. K. Balakrishnan Nair with liberty to let
out or grant lease or sell or assign the said portion without any
further consent of the Defendant No. 2. As a result, the said
Balakrishnan Nair became the sole and absolute owner in respect
of that portion. Initially, the said Balakrishnan Nair ran business
from the said portion. Subsequently, by an agreement of
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assignment dated 11/02/1994 he assigned his right, title and
interests in respect of the said portion to the Defendant No. 10 for
valuable consideration. Peaceful and vacant possession was also
handed over to the Defendant No. 10.
i) On application of Poddar Point Owners & Occupiers Association in
C.S. No. 842 of 1989, Single Bench of this High Court directed the
Administrator to record the change of ownership in case of
transfer of any office flat. Pursuant to the direction, the
Administrator recorded the change of ownership in favour of the
Defendant No. 10. The Defendant No. 10 has been paying all the
outgoing to the Administration without any default.
j) By a deed of lease dated 08/04/1997, the Defendant No. 10
granted lease in favour of one P.S.A Estate & Investment Ltd. for a
term of 50 years ending on 15/10/2047, commencing from
16/10/1996. By another deed of sub-lease dated 02/06/1997, the
said P.S.A Estates & Investment Ltd. granted sub-lease in favour of
the State Bank of Hyderabad, being the Defendant No.5.
k) By an Order dated 05/01/2000, passed by this Court, in Company
Petition No. 19 of 1999, the entire assets, properties, rights and
obligations of the Defendant No. 2 vested in Jaypee Estate Pvt.
Ltd. By a memorandum of understanding dated 18/01/2001
made between the said Jaypee Estate Private Ltd. and the
Defendant No. 10, the former acknowledged the Defendant No.
10’s entitlement over and in respect of the said portion. In terms
of the said MoU, the Defendant No.10 paid a sum of Rs.5,25,000/-
to the said Jaypee Estate Pvt. Ltd. In addition to the entitlement
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of the Defendant No.10 over and in respect of the said portion for
the unexpired period of lease, granted by the Defendant No. 2 and
or the said Jaypee Estate Pvt. Ltd. the owners of the premises, by
an agreement dated 15/02/1994 agreed to sell the said unit to the
Defendant No.10. The Defendant No.10 paid the entire
consideration money to Smt. Jogeshwari Mullick and Shri Bijan
Behari Mullick and also confirmed that the said unit would be
registered and conveyed in favour of the Defendant No.10.
l) It is further averred by the Defendant No.10 that neither the
Plaintiff nor the Defendant No.1 has any right, title or interest in
the said property.
m) The Defendant No.10 denied all other allegations.
Sum and substance of the written statement filed on behalf of the Defendant
No.11 is as follows:
a) The premises no. 113, Park Street, Kolkata-700016 is presently
owned by Shri Bijan Behari Mullick. The suit is bad for non-joinder
of the said Bijan Behari Mullick.
b) The premises no. 113, Park Street was let out on lease to the
Defendant No. 2 who caused to be constructed a multi-storied
building. By an agreement dated 07/01/1989, executed between
Smt. Ruchira Poddar, the Defendant No. 11 and the Defendant No. 2,
the said Ruchira Poddar out of her allocation, transferred her right,
title, interest and benefits of an office area admeasuring 940 sq. ft.
situated at the middle portion of the first floor to the Defendant No.
11, for valuable consideration. By a letter dated 11/01/1989, the
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Defendant No. 2 recorded allotment of one open car parking space in
the said building for consideration of sum of Rs.10,000/-, in favour
of the Defendant No. 11. The Defendant No. 2 became the owner of
the said portion with effect from 07/01/1989 and the car parking
space, with effect from 11/01/1989.
c) The Defendant No. 11 inducted the Defendant No. 3 as monthly
tenant in respect of the said portion and the car parking space in
terms of an agreement dated 18/09/1989.
d) On application by Poddar Point Owners’& Occupiers’ Association in
C.S. No. 842 of 1989 and under direction passed in the said suit, the
Administrator appointed, duly recorded the change of ownership of
the said portion as well as the car parking space. The Defendant No.
11 has been paying all the outgoings, without default, to the
Administrator.
e) By an Order dated 05/01/2000, passed by this Court in Company
Petition No. 19 of 1999, the entire asset, properties, rights and
obligations of the Defendant No. 2 vested in Jaypee Estate Private
Ltd. and the Defendant No. 2 ceased to exist. The suit is, therefore,
bad for non-joinder of the said Jaypee Estate Pvt. Ltd.
f) The Plaintiff, as averred in the plaint, acquired interest in the first
floor and four car parking spaces on 21/04/1982. As averred in the
plaint, on 13/03/1992, the Plaintiff came to learn that P. Sen
Technical Services Pvt. Ltd. and P. Sen Engineering Pvt. Ltd. had
acquired a portion of the first floor of the alleged property. It is also
averred in the plaint that the Plaintiff in the month of June, 1993,
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came to learn that the Defendant No. 1 wrongfully inducted the
Defendant No. 3 to 8 in the said property. The suit was instituted on
22/03/2001. Therefore, the suit is barred by the law of limitation.
g) It is also averred that neither Sanchaita Investment nor the
Commissioner of Sanchaita Investment is made party herein.
Therefore, the suit is bad for non-joinder of necessary party.
h) The Plaintiff has no deed of conveyance or sale deed in his favour in
respect of the said property as well as the car parking space.
Therefore, the Plaintiff cannot assert any right of ownership.
i) It is averred in the plaint that the Plaintiff granted leave and lincence
in favour of the Defendant No. 1 without any monetary consideration.
It is impossible that an area of 12250 sq. ft. and four car parking
spaces in one premier commercial area of Kolkata would be let out
for a period of 14 years without monetary consideration.
j) The Plaintiff claimed its alleged right of ownership on the basis of the
Order dated 04/07/1985. The said Order was not based in presence
of the predecessor-in-interest of the Defendant No. 11. Consequently,
objection could not be raised for the passing of the Order dated
04/07/1985. As a result, the right of the Defendant No. 11 could not
be said to be affected.
k) In nutshell, denying all the allegations contained in the plaint, the
Defendant No. 11 pleaded that the suit should be dismissed.
On the basis of rival pleadings, following issues are recast as follows:
1. Whether the suit is barred by law of limitation or any other law?
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2. Whether the Plaintiff can institute the instant suit?
3. Whether the suit is bad for non-joinder of necessary party or mis-
joinder of party?
4. Whether there was leave and licence agreement between the
Plaintiff and the Defendant no.1? If so, whether the said licence
was validly terminated or determined?
5. Whether the Defendant nos. 3 to 8 are trespasser or have any
possessory title for occupying the suit premises?
6. Whether the Plaintiff is entitled to decree of eviction against all or
some of the Defendants at all?
7. Whether the Plaintiff is entitled to relief, prayed for?
8. Whether the Plaintiff is entitled to mesne profit? If so, at what
rate?
The Learned Senior Counsel for the Plaintiff, Mr. Mitra submitted that there is
no claim against the Defendant No. 2 by the Plaintiff. The Plaintiff has not claimed
any right of possession against the Defendant No.2.
Argument against Defendant No.1:
Mr. Mitra, Learned Senior Counsel, argued that although a plea has been taken
that there was an agreement for sale between the Plaintiff and the Defendant No.1.
No iota of evidence has been produced. There is no evidence that P.D. Pasari was
authorized to enter into any agreement for sale on behalf of Plaintiff. It was further
argued that the Defendant No.1 got no title to the suit property but derived its
possession in the suit property from the Plaintiff which he subsequently parted with
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to his alleged assignees. Furthermore, there was no documentary evidence in supportof assignment and nomination. An assignment can only be made by registered
instrument which is missing here to substantiate his point. The Learned Counsel
referred to Punjab National Bank Vs. Sanchaita Instrument & Ors. (89
CWN 509), In Re: Jugal Kishore Yadav & Ors. [(2014) 5 CHN 379].
According to Mr. Mitra, there is no evidence of transfer by Defendant No. 1 to any of
its alleged assignee. The crux of argument was that the Defendant No. 1 got
possession of the entire suit premises from the Plaintiff. The Defendant No.1 could
not establish any other right. Subsequent transfer or assignments could not be
established as no registered deed of assignment is on record.
Next, Mr. Mitra refuted the argument and plea that the suit is not
maintainable in view of non-registration of firm which offended Section 69 of the
Partnership Act, 1932. According to Mr. Mitra, the Learned Senior Counsel, Ext. K
shows that Plaintiff firm had been registered. Referring to the ratio of Raptakos
Brett & Co. Ltd. Vs. Ganesh Prop. [(1998) 7 SCC 184], it was argued that
claim for recovery of possession of the suit property is neither offending to nor is
barred by Section 69 (2) of the Partnership Act, 1932.
Next, referring to the argument of the Defendant No.1, that the Plaintiff has no
right to the suit property, it was argued by Mr. Mitra that the Defendant No. 1 derived
its right in the suit property from the Plaintiff. It is Defendant No. 1’s case that he
was put in possession of the suit property by the Plaintiff and he orally agreed to
purchase the property from him. The Defendant No. 1 as a licensee is estopped under
Section 116 of the Indian Evidence Act, 1872 to dispute the title of the licensor. This
apart, there was no dispute on the title of the Plaintiff in the written statement. More
so, this is not a suit for declaration of Plaintiff’s title in the suit property but for
recovery of possession from person/persons who got their possession from the
P a g e | 18Plaintiff directly or indirectly. Therefore, there is no onus on the Plaintiff to prove2026:CHC-OS:328
histitle.
Refuting the contention of the Defendant No. 1 that the later parted with the
possession of the suit property as far back as in the year 1981 to different persons
debarring the Plaintiff to claim any relief against such persons, Mr. Mitra submitted
that the decree of recovery of possession against the Defendant No.1 would
automatically be binding on all the persons who got possession from the Defendant
No. 1 directly or indirectly.
Next limb of argument of Mr. Mitra was that the Defendant No. 1 claimed in
the written statement that for some unit, despite receiving of the entire consideration,
the Plaintiff failed to register deeds with respect of the same; the Defendant No. 1
and/or his alleged nominees attempted to make payment of the balance
consideration but the same was refused by the Plaintiff. According to Mr. Mitra, this
argument cannot be accepted as these are beyond the scope of pleading.
Plaintiff’s Argument against Defendant No.8:
It was argued that the Defendant No. 1, by a letter, assigned 2060 sq. ft. super
built up area in favour of one Kiran Arya, Meeta Arya, Renu Singhal and Santosh
Singhal. This letter was no exhibited. These persons subsequently, as alleged,
transferred their right, title, interest to another company in terms of an unregistered
and unstamped document which had not been adduced in evidence. Thereafter,
subsequent transfer of an assignment took place in terms of unregistered and
unstamped documents which are not in evidence. The Defendant No. 8 derived its
right, title and interest in 2060 sq. ft. super built up area from one Bengal Tang
Industries in terms of an alleged agreement which is Ext. 3. It was argued that the
document is unstamped and unregistered and is, therefore, liable to be impounded
P a g e | 19and to be sent to the Collector under Section 33 and 38 read with Section 40 of 2026:CHC-OS:328
the
It was pleaded by the Defendant No. 8 that there was a deed of conveyance
from one Bijon Bihari Mallick in favour of the Defendant No. 8 purported to transfer
the said 2060 sq. ft. super built up area for valuable consideration this is Ext. 7. It
was argued that the fact that the Defendant No.8 acquired title from the Mallicks, is
not in their pleading. Since there is no pleading that cannot be any evidence or
argument. Mr. Mitra referred to Bachhaj Nahar Vs. Nilima Mandal & Anr.
[(2008) 17 SCC 491], Arikala Narasa Reddy Vs. Venkata Ram Reddy
Reddygari & Anr. [(2014) 5 SCC 312]. The Defendant No. 2 having accepted to
the Plaintiff as the owner in terms of Ext. C, could not have purported to transfer the
property to anyone else. Being a photocopy, this document is inadmissible in
evidence. It was argued that the Mallicks cannot create any right in the property unto
persons/entities deriving their rights directly or indirectly from the lessee, namely,
the Defendant No. 2. References were made to Kamini Kapoor Vs. Punjab
National Bank [AIR 2013 Cal 206, CV 112], S.K. Sarma Vs. Mahesh Verma
[(2002) 7 SCC 505].
Plaintiff’s argument against Defendant No.10:
It was argued by Mr. Mitra by Senior Counsel that the Defendant No. 2 sold
2100 sq. ft. to one Balakrishna Nayar in terms of a letter signed by the Director of the
Defendant No.2 who handed over possession of the said part of the premises to the
Defendant No. 10 in terms of document marked as Ext. 8 and alleged agreement for
sale was executed between the Mallick and Defendant No.10. Though pleaded, no
document was produced. There is dearth of documentary evidence to establish the
chain of title which subsequently behoved on the Defendant No. 10. Ext. 27 is a letter
from the Mallicks to the Defendant No. 10 which stated that conveyance should be
P a g e | 20executed in favour of the Defendant No. 10 which suggests that the Defendant No.2026:CHC-OS:328
10was not owner. Without in any manner, admitting the Mallick’s right to convey any
part of the built up area during the subsistence of registered lease cum development
deed dated 6th May, 1960 in favour of the Defendant No. 2, the Mallicks never, in fact,
executed any deed of conveyance in favour of the Defendant No.10.
It was further argued that the Defendant No. 2 was transformed into J.P.
Estate Pvt. Ltd., the Defendant No. 9, by way of a sanctioned scheme. No document
is there on record. Memorandum of understanding was executed between the
Defendant No. 9 and 10 which was unstamped and unregistered. It was further
argued that mutation in the records of Municipal Corporation does not create any
title on the property. Pratima Ghosh & Ors. Vs. Binapani Paul & Ors.
[(2004) 1 CHN 185] was relied upon.
In nutshell, Mr. Mitra argued that the Defendant No. 2 having transferred the
subject suit property by registered instrument dated 24/03/1981 (Ext. B) to
Sanchaita Investment and also having confirmed and accepted the Plaintiff as the
transferee from the Sanchaita Investment, could not have thereafter dealt with the
same property. Plaintiff has a superior title to the suit property of registered
instrument dated 24/03/1981 as well as order of Division Bench dated 4th July, 1985.
Therefore, the Plaintiff has a better title to recover passion of the suit part from the
Defendant No. 10.
Plaintiff’s argument against Defendant No. 11:
Mr. Mitra, Learned Senior Counsel, submitted that as on record, the earlier
Defendant No. 11 was M/s. Prakash Air Freight. By way of conveyance M/s P. Sen
(Engineering Pvt. Ltd.) got the possessory title in respect of the area occupied by the
Defendant No. 11. M/s. Prakash Air Freight was substituted by an order dated 5th
P a g e | 21July, 2013 by the said M/s. P. Sen (Engineering Pvt. Ltd.) who was compelled2026:CHC-OS:328
toaccept the written statement filed by the earlier Defendant No. 11, M/s. Prakash Air
Freight. Division Bench recorded the fact that the M/s P. Sen (Engineering Pvt. Ltd.)
had acquired title from the original Defendant No. 11 which is a admitted fact that the
original Defendant No. 11 did not itself have any legal right in the suit property. The
original Defendant No. 11 acquired title by way of agreement dated 7 th January, 1989
from one Ruchra Poddar who was an assignee and family member of the Defendant
No. 1 in course of evidence the new Defendant No. 11 had tender a deed of conveyance
dated 08/12/2004 from Mallick to M/s. P. Sen (Ext. 28). It was argued that this is
completely a new case beyond pleading which cannot be looked into.
Next it was argued that as a transferee from the Defendant No. 1 via Ruchira
Poddar, the Defendant No. 11 cannot claim a better right than the Defendant No. 1
had. This is apart from the fact that the Defendant No. 11 has failed to prove the
purported transfer from the Defendant No. 1 to Ruchira Poddar and then to the
Defendant No. 11.
The Learned Counsel also argued at length on the point of mesne profit.
Argument of Defendant No.1:
The Learned Counsel for the Defendant No. 1 Mr. Ghosh, the Learned Senior
Counsel, argued firstly on the maintainability of the suit alleging non-registration. It
was in the argument that PW-1 was neither a partner nor an employee of the Plaintiff
firm. No document was produced by PW-1 to demonstrate that the firm authorized
him to depose. Neither the PW-1 disclose any registration number of the firm nor
could he disclose any registration. On behalf of the Plaintiff the witness was
reexamined and document purported to be certificate issued by the register of firm
was adduced but marked for identification far from being proved. Therefore, Mr.
P a g e | 22Ghosh, the Learned Senior Counsel, contended that registration of the firm is 2026:CHC-OS:328
notproved. Referring to Section 58, 63, 68, 69 and 72 of the Indian Partnership Act,
1932, Mr. Ghosh submitted that the suit is not maintainable and is liable to
dismissed.
Next, it was argued that alleged negotiation for letting out the premises on
leave and licence basis was made by B. L. Pasari expired in the year 1999. There is no
evidence to show who conducted subsequent negotiation on the issue of purported
termination notice in February 2001. Therefore, the contention of the Plaintiff, as
pleaded, has not been established and the suit is liable to be dismissed.
Argument on behalf of the Defendant No.10:
The first limb of argument of the Learned Counsel for the Defendant No. 10
was that the Defendant No. 10 had never been inducted nor had been given
possession by Defendant No. 1 at any point of time. There is no privity of contract
between the Defendant No. 10 on the one hand and the Plaintiff or the Defendant No.
1 on the other hand.
It was further argued that Bon Bihari Mallick being the owner of premises no.
1/13, Park Street, Kolkata-700016, executed a deed of lease in favour of the
Defendant No. 2 for a period of 75 years, on 06/05/1960, with a right to construct a
new building. After construction of 10 storied building in two blocks, the Defendant
No. 2 sub-leased the constructed area to various persons. The Defendant No. 2 sub-
leased a built up area of 2100 sq. ft. on the super built up area in favour of B. K. Nair
as on 10/12/1987 on receipt of consideration. This receipt was issued by the
Defendant No. 2. Interestingly the receipt was issued by Narendra Kumar Poddar as
Director of Defendant No. 2 who is the sole proprietor of the Defendant No. 1. B. K.
Nair the sub-lessee assigned its residual rights of sub-lease to the Defendant No. 10.
P a g e | 23
The said deed of assignment was marked as Ext. 25. Since then the Defendant No.2026:CHC-OS:328
10
has been paying regularly outgoing charges name of Defendant No. 10 has also been
mutated in the office of Kolkata Municipal Corporation.
Next, it was argued, in the line of Defendant No. 1 that the Plaintiff being not
registered under the Indian Partnership Act, 1932, the suit is barred by Section 69 (2)
of the Act.
Next, it was argued that the suit is barred by limitation. B.K. Nair acquired
right and possession over built up 2100 sq. ft. area on the first floor of the premises
with effect from 10/12/1987 but the suit was filed in the year 2001 and the Defendant
No. 10 has been impleaded in terms of order dated 27/03/2002. In view of this fact
the suit filed by the Plaintiff is hopelessly barred by limitation within twelve years
from the date of coming into occupation by the Defendant No. 10 and its predecessor.
It was also argued that in the plaint it was averred that the Plaintiff on or about 13 th
March, 1992 came to learn that M/s. P. Sen Technical Services Pvt. Ltd. and M/s. P.
Sen Engineering Pvt. Ltd. instituted the suits being 470 of 1991 and 471 of 1991
against the present Plaintiff and obtained decree in the suit. The Plaintiff could not
explain and justify why immediately no suit was filed but the Plaintiff but waited till
2001. According to the Learned Counsel for the Defendant No. 10, the suit must fail
and is liable to be dismissed with compensatory costs.
Issue No.1:
Although the point of limitation was pleaded in the written statement of the
Defendant No. 11, the Learned Counsels for the Defendants vehemently argued that
the suit is barred under Section 69 (2) of the Indian Partnership Act, 1932. Since, this
argument touches the maintainability of the suit the same should be addressed first.
Section 69 (2) of the Indian Partnership Act, 1932 stated as follow:
P a g e | 24
2026:CHC-OS:328
“69. Effect of non-registration.–
(2) No suit to enforce a tight arising from a contract shall be instituted
in any Court by or on behalf of a firm against any third party unless the
firm is registered and the persons suing are or have been shown in the
Register of Firms as partners in the firm.”
In this case Ext. K shows that originally the firm had been registered. It is not a case
that the firm had never been registered. The partnership is not produce before this
Court. It is not known who are the partners. It is admitted by PW-1 that one of the
partners Banwarilal Pasari expired long before the year 2000. It was stated by PW-1
that the information of death of the said Banwarilal Pasari had been intimated to the
register of firms, but the document purported to show such communication was
marked as ‘X’ for identification. Therefore, there is no evidence that the information
of death of the said Banwarilal Pasari have been communicated to the register of firm.
Ext. K, the certificate of registration does not show who were the partners at that
material point of time. PW-1 could not say who were the other partners of the firm
after the death of the said Banwarilal Pasari. Therefore, it cannot be said with
certainty whether the person who signed the plaint was a partner or who are the
partners running the firm. There is another aspect. In case of two partners the
partnership firm death of one automatically dissolved the firm. Alternatively there
can be a stipulation in the partnership agreement that in spite of death of one partner
the partnership business could dissolve or could continue. There is no evidence
neither oral nor documentary, from which this Court can come to a conclusion who
are the other partners and whether such partners are running the partnership
business at present. This Court cannot come to any opinion as to whether the present
partners, if any, are on the record of the registered of firms.
P a g e | 25
2026:CHC-OS:328
Mr. Mitra, the Learned Senior Counsel for the Plaintiff referred to the initial
registration of the firm but that argument does not help him. The issue is, in terms of
clear provision of Section 69 (2) of the Indian Partnership Act, 1932 as on the date,
when the suit was filed, who were the partners of the firm as per the relevant entries
in the register of firms. In other words whether the person suing, namely, the current
partner or partners, as on the date of institution of the suit, were shown as a partner
of a registered of firm. In M/s Shreeram Finance Corporation Vs. Yasin
Khan & Ors. [(1989) 3 SCC 476], the Supreme Court of India stressed on this
contingency.
In that case the firm was originally a registered one. Subsequently
composition of partnership was changed; two original partners retired and one new
partner joined and two minors were admitted to the benefits of the partnership firm.
But at the time of suing on an agreement the names of the two new partners were not
shown as partners in the relevant entries in the register of firms. The Supreme Court
of India held that the suit was barred under Section 69 (2) of the Indian Partnership
Act, 1932.
The Section 69 (2) of the Indian Partnership Act, 1932 has several
contingencies. Requirement of Section 69 (2) is not only the registration of the firm
but also the persons suing are or have been shown in the Register of Firms as
partners in the firm. In this case, the partnership deed is absent in evidence.
Plaintiff’s witness no.1 could not state, after death of Banwarilal Pasari who were the
other partners. Nothing is there in evidence that the person suing the instant suit
was a partner and his name was shown in the Register of Firms as a partner.
Therefore, the twin requirements of the provision are not satisfied.
Admittedly, as the plaint case is the Defendant No. 1 approached the Plaintiff
permitting them to use occupy the property in question to which the Plaintiff agreed
P a g e | 26
and allowed. The relationship, taking the plaint case as gospel truth, is based2026:CHC-OS:328
on
agreement. It is neither statutory right nor common law right. Ratio of Raptakos
Brett & Co. Ltd. Vs. Ganesh Prop. [(1998) 7 SCC 184] (supra), referred to by
Mr. Mitra is not applicable since the decision is applicable and referred to statutory
or common law right. Rights exerted herein, is based on mutual agreement.
As stated above, there is no evidence as to who are the present partner and
whether the present partner suing is in the record of register of firms also, as
discussed above, the right sought to be exerted here is based on agreement.
Therefore, Section 69 (2) of the Indian Partnership Act, 1932 is applicable in this case
and the suit is not maintainable in view of the clear provision of the Section 69 (2) of
the Indian Partnership Act, 1932.
This issue is decided against the Plaintiff.
Accordingly, since the suit is not maintainable the substantive the issue need
not be gone into.
In nutshell, the instant suit is not maintainable, hence dismissed without any
costs along with all pending applications.
Let the decree be drawn up.
(Sugato Majumdar, J.)
