- (1.) THIS is an appeal from an order allowing execution of a decrse by derecting the defendant to deliver up vacant and peaceful possession of land measuring about 2 cottahs 2 chittacks and 24 sq. ft. being premises No. 28, creek Lane, Calcutta, if necessary, by removing therefrom huts and material belonging to the defendant.
(2.) VARIOUS defences to the order for execution have been put forward by the appellant and it is necessary to set out the facts in some detail to appreciate the points canvassed. One edward Anthony Gomes claiming to be the owner of the said land instituted a suit in this Court for evicting the defendant-appellant on September 4, 1951, alleging that the defendant was in occupation of the said land with the huts standing thereon as a monthly tenant paying rent at Rs. 20/- per month and further that the said tenancy had teen terminated by a notice to quit dated August 7, 1951. The prayers in the plaint were :- (a) vacant and peaceful possession of the land, if necessary by removing of the huts and material; and (b) mesne profits at the rate of/10/8 pies per clay until delivery of vacant possession. In the first written statement filed on November 17, 1951 by the defendant the plaintiff's ownership of the land was not denied, but it was stated that the defendant had become the owner of the huts standing on the land with right of permanent tenancy therein and as such the notice to quit was invalid. Thereafter the present decree-holder kanupada Bhowmick took a conveyance of the land from the original plaintiff and got himself substituted in the records of the suit by an order dated May 6, 1951 which also directed the amendment of the plaint and gave the defendant liberty to file an additional written statement by way of answer to the amended plaint. On June 1, 1955 the defendant filed an additional written statement. There she raised new pleas in defence without prejudice to her rights and contentions in the original written statement. These were', inter alia : (1) that the defendant had attorned tenant and paid rent to Kanupada bhowmick at the request of the original plaintiff and Kanupada Bhowmick had agreed to treat the tenancy of the defendent as subsisting and (2) the defendant was a thika tenant within the meaning of the Thika Tenancy Amendment Act, 1953. When the suit came on for hearing in February, 1958, a decree was made by consent of parties which recorded that the parties had agreed to the terms of settlement set out in the schedule to the decree directing the defendant to deliver up to the plaintiff vacant and peaceful possession of the land. The important clauses in the terms of settlement were: - (1) that there will be a decree in terms of prayer (a) of the plaint and there will be a declaration that the plaintiff is the owner of the land in suit. . . . . and the defendant is the owner of the structures thereon. (2) The defendant will purchase from the plaintiff the land in suit for a total consideration or price of rs. 10,000/- and the plaintiff will convey and transfer the said land to the defendant absolutely and free from all encumbrances upon the receipt of the said sum of Rs. 10,000/- in cash (paid and) to be paid in the manner following:- (a) out of the said sum of rs. 10,000/- a sum cf Rs. 3,500/- has teen paid in cash to the plaintiff by way of part payment of the price settled herein before the signing of these terms. (b) a further sum of Rs. 500/- will be paid in cash in part payment of the price within four months from the date of the decree. (c) the balance sum of Rs. 6,000/-will be paid by the defendent in cash to the plaintiff within three years from the date of the decree, provided always that the defendant will be at liberty to pay the said balance sum of rs. 6,000/- by instalments of not less than Rs. 1,000/- at any point of time within the said period of three years and will be entitled to an abatement of interest in respect of the amount so paid, but such payment in instalments shall not be deemed to be any obligation on the part of the defendant. (d) the sums of Rs. 500/- and rs. 6,000/- or any part thereof as may remain unpaid within the respective due dates shall carry interest at 6 per cent. (e) the defendant will prepare and cause to be registered the deed of conveyance at her own cost. . . . . . . . . . the plaintiff will execute and register the same upon receipt in full of all the aforesaid sums of money with interest within the time fixed by these terms. (3) The defendant will continue in possession of the premises during the said period of three years, but will not be liable to pay to the plaintiff any rent therefor. The defendant shall however bear and pay both the occupier's and, owner's share of municipal taxes ragularly till the execution of the said deed of conveyance and the first of such payments on account of municipal taxes shall commence from the first quarter of 1958-59. (4) In default of purchase of the said land by payment of any of the aforesaid sums of money within their respective due dates and in accordance with the terms thereof or any of the terms and conditions prescribed by these terms of settlement, the plaintiff will be entitled to execute the decree for possession and to forfeit only the said sum of Rs. 3,500/- that have been paid and also the said sum of Rs. 500/-that will be paid v/ithin four months from the date of the decree. (5) The defendant will, however, have a further period of six months as a period of grace from the date of any such default whichever may be earlier for the purpose of removing her structures. (6) The defendant will be entitled to enforce in execution of the decree the obligation of the plaintiff to transfer and convey the land in suit in her favour in accordance with the terms and conditions stated hereinbefore.
(3.) IT appears that the sum of rs. 300/- was duly paid by the defendant. Thereafter, however, no further steps to obtain the conveyance were taken until November 30, 1960, when the solicitors for the defendant wrote to the solicitors for the plaintiff to the effect that the defendant would pay up the entire balance of the decretal amount and would get the conveyance in her favour. By the letter the title deeds of the property were also asked for. As there was no immediate reply thereto, the defendant's solicitors wrote again to the plaintiff's solicitors to the effect that title deeds had not been sent to enable them to investigae. A reminder was also seat on December 9, 1960. On December 13, 1960, the plaintiff himself wrote to the defendant's solicitors enclosing three documents of title, namely, (1)original conveyance dated July 12, 1954 between Edward Anthony Gomes and himself, (2) original mortgage deed dated September 11, 1951, from Edward anthony Gomes to Karan Kumar mukherjee and (3) original reconveyance dated October 13, 1958, between karan Kumar Mukherjee and the plaintiff. On January 6, 1961, the defendant's solicitors wrote to the plaintiff sending a number of requisitions on title. These were no less than 22 in number with various sub-clauses under each requisition enquiring inter-alia, who was the original owner of the property and calling upon the plaintiff to trace out a good and marketable title to the land from the said original owner. The defendant further wanted to know who were the tenants of the property and whether there were any sub-tenants. On January 18, 1961, the plaintiff wrote back to say that the defendant was not entitled to send the requisiions in terms of the consent decree and that all she could ask was to have the property transferred free from encumbrances. The plaintiff also sent back the requisitions for necessary amendment. On January 24, 1961, the defendant's solicitors sent back the requisitions on title for being answered by the plaintiff. On February 14, 1961, the defendant's solicitors recorded by letter that the plaintiff had. taken inspection of the rate bills from the first quarter 1958-59 to the first quarter 1960-61. On February 16, 1961, the plaintiff complained that the defendant had not paid the municipal taxes regularly within the time prescribed by the Calcutta Municipal Act and that the municipal taxes for the second to fourth quarters of 1960-61 had remained unpaid and as such she had committed default of the terms of settlement as per Clause (3)thereof. He also put on record that in the circumstances clause (4) of the terms had become operative and the question of answering requisitions on title did not arise. On March 13, 1961, the plaintiff's solicitors wrote to the defendent's solicitors to say that by reason of the default committed by the defendant the plaintiff had become entitled to execute the decree for possession and to forfeit all sums already paid in terms of the decree. The writers further called upon the defendant to dismantle and remove the structures and to give up possession of the premises 23, Creek Lane, Calcutta, cm the expiry on the month of March, 1. 961. The same solicitors wrote again an April 4, 1961, that as there had been a failure to give up possession, mesne profits at the rate of Rs. 3 - per diem would be charged until such possession was given. On July 30, 1964, the plaintiff decree-holder filed a tabular statement for execution of the decree for possession by removal of the huts and structures belonging to the defendant. This was supported by an affidavit in which the relevant facts were stated. The defendant filed her affidavit-in-opposition on November 30, 1964. She annexed copies of the rate bills for the second, third and fourth quarters of 1960-61 to her affidavit. These go to show that the bills for the second and third quarters were paid on February 27, 1961, while the bill for the fourth quarter, 1960-61 was paid on June 25, 1961.;