JUSTICE MASUD ON GARCHA GURUDWARA

Suit No.94 of 1930

IN THE HIGH COURT OF JUDICATURE

AT FORT WILLIAM IN BENGAL

Ordinary Criminal Civil Jurisdiction

Shamlal Singh, Hindu Land Holder

residing at No.73/1, Cotton Street in

the town of Calcutta.

--Versus--

Hira Singh, Hindu Land Holder also residing at No. 73/1, Cotton Street,

in the town of Calcutta.

            Suit No. 94 of 1930

            IN THE HIGH COURT AT CALCUTTA

            Ordinary Original Civil Jurisdiction.

            Present:

            The Hon’ble Mr. Justice

                                        MASUD

                    September 20, 1968.

Sri Guru Granth Sahib and Ors.

Versus

Ganeshi Bibi and Others.

The Court: This is an application to vacate the orders of Dutta J. dated July 13,1966 and May 29, 1967 whereby the Learned Judge has directed the Commissioner of partition to give delivery of possession of No.4 Garcha First Lane, Calcutta-19 to the respondent Surjee Devi Saraf, if necessary, with police assistance, if there is resistance to such delivery of possession by the tresspassers in the said premises. There is a long history of legal proceedings in connection with the said premises No.4, Garcha First Lane. It is not necessary for me to discuss in details the merits of such legal proceedings. But in order to appreciate the background of the present application the following facts may be briefly stated.

On December 8, 1926 one Baldeo Narayan and others instituted a suit (Suit No.2313 of 1926) against Ram Gopal Singh in this Court for partition of the said premises No.4, Garcha First Lane as ancestral property. Ram Gopal Singh, however, in his written statement in the said suit has stated that he has been in possession of the said premises as his self-acquired property. One Hiru Singh, son of Ram Gopal also filed a written statement in the said suit supporting his father. The Suit was, however settled on September 23, 1928 and the Consent Decree was passed whereby the said property was declared to be exclusive property of Ram Gopal’s heirs. On  January 13, 1930 Shyamlal, another son of Ram Gopal instituted a suit (Suit No.94 of 1930) in this Court for partition of the property of the said premises No.4,  Garcha First Lane and another contiguous property No.22, Garcha Lane. In the said Suit Mr. K.C. Mukherjee, Barrister-at-Law was appointed Receiver on January 27, 1930 and took possession of the said premises No.4, Garcha First Lane. On November 20, 1934 the partition Court declared that the entire suit properties belong to Shyamlal and Hiru Singh in equal shares. On December 18, 1941 Mr. M.A. Huq, Barrister-at-Law was appointed Receiver and took possession of the said premises. Shyamlal Singh died on February 1, 1950 leaving widow Ganeshi Bibi, whose name was substitute in place of Shyamlal in the present suit. On July 1951 Ganeshi Bibi executed a Conveyance in respect of her husband’s share in No.4 Garcha First Lane to Surjee Devi Saraf, the main contestant in the present application. On March 13, 1953 the said Surjee Devi has been added as party defendant to the suit. Late Mr. S.N. Bannerjee Registrar, Original side took formal possession of the said premises as Commissioner of partition on April 25, 1954. The Commissioner of partition submitted returns allotting some properties including the said premises No.4 Garcha First Lane to Surjee Devi alone. On May 10, 1955 the Receiver is discharged and Commissioner of partition is directed to make over possession of the said premises to Surjee Devi. Correspondence started between Mr. R. Mitra, Solicitor of Surjee Devi to verious persons including Guru Singh Sabha (Respondent No.2). The Commissioner of partition submitted the report in pursuance of the order dated 10th May, 1955 stating that the said premises could not be given possession as Guru Singh Sabha claimed it to be a part of Gurudwara. On August 2, 1955 P.B. Mukherji, J. directed the Commissioner of partition to give possession to Surjee Devi with the help of armed police. On July 20, 1956 Guru Singh Sabha applied for vacating the said order of P.B. Mukherji, J. granting police help to the Commissioner of partition for putting the parties into possession of the said property. On May 12, 1958 G.K. Mitter, J. dismissed the application of Guru Singh Sabha. On May 19, 1959 Sri Bikash Chandra Ghosh was appointed the Commissioner of partition by Mullick, J. in place of S.N. Bannerjee. On June 1, 1959 Baba Balwant Singh, Baldeva Singh Garewal, S. Mota Singh Sandhu, S. Iswar Singh Mangal, the last two representing Sikh Community under O.1 R.8 of the Code of Civil Procedure, and through Guru Sikh Sabha instituted a Title Suit in the Alipore Court (T.S. No246 of 1959) against Surjee Devi and Ors. The said suit has been dismissed with regard of No.4 Garcha First Lane, but decreed with regard to 22, Garcha Second Lane. On September 3, 1962  the injunction order passed by the Alipore Court on June 8, 1959 was also vacated. Thereafter on March 23, 1963 an appeal was preferred against the said decision before the Additional District Judge, Alipore, bit the same was dismissed on February 26, 1965. One day prior to the dismissal of the said appeal a second suit was instituted (Suit No.11 of 1965) by Guru Granth Saheb, Garcha Sikh Sangat, both being represented by through Guru Singh Sabha in the Court of 2nd Sub Judge, Alipore. On May 29, 1965 an injunction was granted by the Alipore Court in the said Suit restraining Surjee Devi from taking possession of the said premises No.4 Garcha First Lane. On June 29, 1965 Surjee Devi appealed against the said order (F.M.A. No.354 of 1965) to this Court. On September 29, 1965 the said appeal was allowed with costs by P. Chatterjee & Gupta,  J.J. and injunction order obtained by the present petitioner was vacated. Another attempt was made to modify the said order of the Appeal Court dated September 29, 1965 but the Division Bench refused to modify their previous order. In the meantime, T.Bannerjee & Co., Solicitor for the present petitioners started writing to the Commissioner of partition stating that the present petitioners are in possession of the said premises No.4, Garcha First Lane. The letters of T. Bannerjee & Co. were placed before Datta , J. who has passed an order, the relevant portion are stated as follows:-

“It is ordered that the time with the said Commissioner of Partition for such return and de delivery of possession of No.4, Garcha First Lane with police help to the defendant No.2 Surjee Devi Saraf in this Suit to be and the same is hereby extended till the 17th day of September next………………………….”

The said order was intimated to T. Bannerjee & Co. by the Commissioner of

Partition.  Thereafter, the Court’s attention was drawn to the resistance offered to the Commissioner of Partition by present petitioners and Datta, J. passed an order on May 29, 1967 some portion of which are stated below:

“………It is further ordered that the Commissioner of Police, Calcutta do render whatever police assistance is needed in view of likely resistance of the trespassers in the said premises No.4 Garcha First Lane, Calcutta-19 or by any other person whatsoever……..”

Thereafter on August 21, 1967 the present application has been made to vacate the said order of Datta, J.

                Mr. A.C. Bhabra, Counsel for Surjee Devi has strenuously argued that the present application has not been made bonafide, in as much as all attemps of the petitioners to get their legal rights recognized in law Courts have failed in the past. The same right which is being asserted in the present application has been rejected by several Courts in the past and the petitioners’ main objective is to delay delivery of possession to Surjee Devi, whose right to the possession of the said premises No.4, Garcha First Lane has been recognised by different orders of this Court in the present suit. He has argued in elaborate details the grounds on the basis of which present application should be rejected. According to him Guru Singh Sabha and the members of the Sikh community agitated their possessory title or the said premises in a representative suit in the Court of 2nd Munsif, Alipore on June 1, 1959 (T.S. No.246 of 1959) against Surjee Devi and Ganeshi Bibi and her predecessor’s-in-interest. On September 3, 1962 the said suit was dismissed in respect of the said premises No.4, Garcha First Lane. The plaintiff in that Suit appealed against the decree of the Munsiff’s Court, but the said appeal was also dismissed with cost on February 26, 1965. The plaintiffs, both before the Munsif Court and before the Court of the District Judge, Alipore, obtained interim injunction restraining Surjee Devi from taking possession of the said premises. All these injunctions were duly vacated. The plaintiffs having failed to get any possessory title in respect of the said premise instituted another Suit (Suit No.11 of 1965) on February 25, 1965 in the Court of Second Sub Judge, Alipore, to avoid technical points of law and to circumvent the law relating to res-judicata. The second suit has been instituted in the name of Guru Grantha Sahib, Gurudwara Garcha Sikh Sangat, who were not parties in the first suit. But it appear that in  the second suit it is stated that Guru Granth Sahib and Gurdwara Garcha Sikh Sangat are being represented by the sme Guru Singh Sabha who was the plaintiff in the earlier suit. However, the second suit has also been instituted as a representative suit and the necessary formalities under O.1 R.8 of the Code of Civil Procedure have been complied with. In the present suit the members of the sikh community have successsfully obtained a temporary injunction against Surjee Devi on May 29, 1965. But Surjee Debi’s appeal (Appeal No.354 of 1965) against the said injunction  has been allowed with costs by P.Chatterjee, and Gupta, J.J., whereby the injunction order has been vacated. Another attempt has been made before the said Bench to modify the injunction order but that also has failed on February 28, 1966 when the said Bench has refused to impose any injunction order against Surjee Devi. Mr. Bhabra has drawn my attention to the plaintiffs have failed to substantiate any prima facie case against Surjee Devi before Alipore Court and also before the Division Bench of this Court and that is one of the grounds why the injunction orders have been repeatedly vacated in the previous proceedings. The plaintiffs possessory title, if any, was based on two grounds. According to them the said property along with Premises No.22 Garcha Second Lane, Calcutta is a property dedicated to Guru Granth Sahib by Madan Gopal Singh and his brother Ram Gopal Singh as early as 1909 and thus the said premises No.4, Garcha First Lane is the property of Guru Granth Sahib. Secondly, even assuming the dedication of the premises No.4 Garcha First Lane, is not valid in law, Guru Granth Sahib and the Sikh Community have acquired the title in the said property by adverse possession. Both the grounds have been rejected by the 2nd Munsif, Alipore in the earlier Title Suit No.246 of 1959 on September 3, 1962 and by Appeal Court on February 26, 1965. Similarly, in the second suit, the learned Judges of this Court in the Appellate jurisdiction have also come to the same conclusion that the plaintiffs have no prima facie case for injunction. Mr. Bhabra has also contended that Guru Granth Sahib and Gurudwara Garcha Sikh Sangat are not juristic person and as such the second Alipore Suit is not maintainable. In any event, Guru Granth Sahib and the members of the Sikh community having already lost their case in the earlier suit, the plaintiffs claim in the second Alipore suit is barred by principles of res judicata.

                In my view there is force in Mr. Bhabra’s contention. It is obvious from the admitted facts in this case that the plaintiffs have failed to make out any prima facie case for their right of possession in the said premises No.4, Garcha First Lane. The Division Bench of the High Court have examined large number of documents and after evaluating the evidence have come to the conclusion that on the materials before them, there is no merit in the case of the plaintiffs. It is very unfortunate that the partition suit was instituted as early as 1930 between Shyamlal and Hiru Singh. Premises No.4 Garcha First Lane was allotted by the Commissioner of partition to Surjee Devi, the purchaser of Shyamlal’s interests. On May 10, 1956 Sarkar, J. directed the Commissioner of Partition to make over possession of the said premises to Surjee Devi. On August 2, 1955 P.B. Mukherji J. also passed an order directing the Commissioner of Partition to give possession to Surjee Devi with the help of armed police. Similarly, on May 12, 1955 Guru Singh Sabha’s application for injunction against Surjee Devi was also dismissed. Mallick, J. also passed an order directing the Commissioner of Partition to deliver possession with armed Police help on May 19, 1959. Lastly on September 29, 1965 and on February 28, 1966 the Division Bench of this Court also were not satisfied with the plaintiffs’ claim of possession in respect of the premises. For all these reasons I accept Mr. Bhabra’s contention that there is no merit in the plaintiffs’ alleged claim on premises No.4 Garcha First Lane.

                But inspite of the fact that I, am not satisfied with the plaintiff’s claim in respect of the said disputed property, I find difficulties in rejecting the present application. Chatterjee and Gupta. J.J., in the said appeal No.354 of 1965 have delivered a long Judgement in allowing Surjee Devi’s appeal on September 29, 1965. In their judgement the following observations have been made:

“Mr. Mukherjee on behalf on behalf of the appellant (Surjee Devi) assures us that Surjee Devi, defendant No.9, the decree holder does not want to interfere with the plaintiffs’ possession in any manner except by executing the Decree in the partition suit and by taking delivery of possession of the shares allotted to her and assures us that she would not take the law in her own hands. We, therefore, do not think that the latter part of the prayer need to be considered. In fact, the latter part of the prayer is for injunction restraining the decree holder of the decree in Title Suit No.94 of 1930 from executing that decree. The appellants are not parties to the said suit. If they were parties in the said suit the suit itself would have been barred under Section 47 of the Code of Procedure. If they are not parties to the suit, the decree could not be executed against them if the plaintiffs have the right of possession. In case there is an attempt to dispossess them the provisions of the code of Civil Procedure beginning with O.21 R.97 of the code of Civil Procedure are sufficient to protect the interest of the appellants. In case the decree holder choose to avoid O.21 R.97 of the code of Civil Procedure and defend the purpose of the code, the decision of this Court are clear to show what are the duties of the executing Court.”

                Mr. Sabyasachi Mukherjee, Counsel for the petitioner, has submitted that inspite of the assurance given by the learned advocate on behalf of Surjee Devi before the Appellate Court on September 29, 1965 Datta, J., has passed ex-parte orders on July13, 1966 and May 29, 1967 directing the Commissioner of Partition to deliver possession to Surjee Devi with the Armed Police help. The said order should not have been made without notice to the plaintiffs. Further rightly or wrongly, the plaintiffs are in possession of the said property. It is true that the plaintiffs are not necessary parties, in the partition suit in which the said orders have been made. But, even then when there were so many proceedings in the past whereby the plaintiffs have seriously contending that they are in the physical possession of the said premises, any order without notice to them would entirely be ineffective. The plaintiffs had no other alternative but to make this application for vacating the ex-parte orders. Relying on Deo Karan Agarwalla vs. Satyendra Ghoshal & Ors. A.I.R. 1956 Cal.621, Dudhamoy Basu v. Rajaram Ramsamaj Singh 93 C.L.J. 369 he has argued that even if his clients are trespassers in the said property, Surjee Devi cannot get possession without institution of another suit. In my view the principles laid down in the said two decisions of B.K. Guha, J. are not much of assistance to Mr. Mukherjee because in both these decisions, there had been no previous proceedings whereby the possessory right were agitated and determined. The facts in the present case are clearly distinguishable as much as there has been a definite representation before the Appeal Court that the possession of the plaintiffs would not be disturbed except in execution proceedings. It is extra ordinary that the Appeal Court has been led to believe that there has been a final decree in the matter. It strikes me for the first time that no decree having yet been passed the question of executing the decree has not yet arisen. O.21 R.97 of the Code of Civil Procedure read with S.100 contemplates existence of a decree. It seems to me that everybody was under the impression that possession of the petitioners would not be disturbed except in execution proceedings under the code in the partition suit. I have pointed out to the Counsel for both the parties that no final decree has yet been passed in the partition suit and as such the question of executing the decree has not yet arisen. Be that as it may, the point to be decided is whether the alleged possession of the petitioners should be disturbed or not.

                As stated earlier admittedly Datta, J. passed the order on July 13, 1966 and May 29, 1967 without any notice to the petitioners. The petitioners’ suit before the Alipore Court is pending. The petitioners’ possessory title to the said property is being agitated a new in the second suit. I should not anticipate the oral and documentary evidence which might be adduced in the second suit. Although the second Suit has been framed more or less in the same way as the first suit, it may be argued that the scope of the two suits is not exactly the same. Even the Learned Judges in Appeal court have kept open the question of res Judicata. In the earlier suit the members of the Sikh community were represented and one of the reasons why the earlier suit was dismissed is that the worshippers of the Guru Granth Sahib were not represented there. In the second representative suit the members of the Sikh community have been added as the plaintiffs. Thus it is possible to argue that the provisions of Section 11 of the Code would not strictly apply to the second suit is not the same as their status of the plaintiffs in the second suit is not the same as the status of the plaintiffs in the second suit is not the same as their status in the earlier suit vide Sheo Sagar Singh & ors. Vs. Sitaram Singh & Ors. 24 I.A. 50, 54, 58. Further it should be remembered that the first suit was filed in the Munsif Court whereas the second suit has been instituted in the Court of the Subordinate Judge. Thus the courts where the earlier and the pending suits have been filed are not courts where the earlier and the pending suits has been filed are not courts of co-ordinate jurisdiction. Further it is obvious that the petitioners are in the physical possession of the said premises. I have been also told that some structures rightly or wrongly been constructed at the instance of the petitioners. It is true that Datta, J. did not pass the said two orders on the applications of Surjee Devi and therefore, strictly speaking it cannot be said that the said orders were obtained in execution proceeding at the instance of Surjee Debi in terms of the assurances given by her lawyer before the Appeal Court. But the fact remains that as a result of the said two orders the possession of the petitioners has been threatened to be disturbed. I am assuming that till today the petitioners have failed to prove their possessory title in respect of the premises. But even then the title suit filed by them has not yet been finally disposed of. I am told by Mr. Bhabra that the attention of the learned Judge was drawn to the Judgement of the Appellate Court when he passed the said orders. Admittedly, the said two orders were passed in the presence of Surjee Debi. A definite representation has been made by the learned Advocate for Surjee Devi before the Appellate Court to the effect that the possession of the petitioners will not be disturbed except in execution proceedings in the partition suit and it is one of the main grounds on the basis of which appeal against the injunction order has been disposed of by the Appel Court. In my view, this is a proper case where the orders should have been made on notice to the petitioners. Ordinarily the trespasser is ejected by a suit or in execution proceedings under the Code. A judge who deals with partition case has certainly got the jurisdiction to direct the Commissioner of Partition to deliver possession of suit properties to party or parties. But in case where strenuous resistance is being made by a large section of the people representing a religious organisation, any order in the absence of persons in possession is bound to be ineffective, and may give rise to disturbances of peace in the locality. In this connection reliance may be placed on Gopal Chandra Sadhukhan v. Sheikh Jamsed & Anr.(AIR 1965 Cal.51). It is argued that as the petitioners are not before me and long arguments in support of and against the petitioners’ right have been forcefully argued by the respective counsel for both the parties the order of Datta, J. should not be revoked on the ground that no notice was given to the petitioners or that there was denial of principles of natural justice. But although I am not satisfied with the merits of the petitioners’ title in the said properties, in view of the assurance given before the Appellate Court on the part of advocate for Surjee Devi and the observations of the Appeal Court in the judgement as stated above, I am constrained to accept the position that the possession of the petitioners could not be disturbed except in execution proceedings in the partition suit. Further Mr. Bhabra relying on Kedar Nath Bothra v. Baijnath Bothra & Ors. (AIR 1939 Cal.494) has argued that the principles underlying O.21 R.21, R.97 of the Code should also apply to the present case where orders for possession have been made by several judges of this Court. But as discussed earlier, the said orders having been passed in the absence of the petitioners and the said assurances having been given by Surjee Devi’s Advocate, this application cannot be rejected.

                Lastly, Mr. Mukherjee has relied upon Newton Hickle v. The Official Trustee of W. Bengal (58 CWN 891) in support of his contention that the issues between the petitioners and Surjee Devi have not yet been heard and finally determined within the meaning of Section 11 of the Code. The Principles of law laid down in the said decision cannot be disputed but Mr. Mukherjee has relied upon the fact that the appeal from the jurisdiction of the Munsif Court in the earlier suit was not pressed and as such dismissed as withdrawn. He has argued that the judgements of the trial court in the first Appeal Court have been discussed in the Judgement of the Appeal Court in the second suit and the Court has disposed of the appeal without going into the merits of the case. In my view, the facts in the Calcutta decision are clearly distinguishable from the facts in the present case. In the present case I find that substantially it is the petitioners, though in different names, who have failed to prove the possessory title in respect of the said premises No.4, Garcha First Lane in previous proceedings. Further  in my opinion when the second appeal was dismissed in the earlier suit, it cannot be said that the judgement of the first Appeal Court is not revived. I am not inclined to accept Mr. Mukherjee’s contention on this point. But in any event, the appeal Court in their said judgement has left the question of Res Judicata open.

                For the reasons stated above, taking into consideration all the facts and circumstances in this case, I must allow this application with the orders in terms of prayer ‘A’. This is without prejudice to the contention of Surjee Devi that the petitioner have no lawful right to remain in possession of the said premises No.4, Garcha First Lane. Surjee Devi has not got possession of the said premises for about 13 years, although five learned Judges have directed the Commissioner of Partition to deliver possession to her since May 10, 1955. Further the petitioners’ conduct has always been obstructing and vexatious and accordingly parties should bear their own costs.

                                                                                                                Sd/- S.A. Masud, J.