SOHANLAL DUGAR Vs. DWARKA NATH JHA

JUDGEMENT

(1.) This is an application of the plaintiff for appointment of receiver over premises Nos. 42A, 42B and 41/1, at Jawaharlal Nehru Road, Calcutta (hereafter referred to as the "said property"), injunction restraining the defendants from selling, making any construction on or parting with possession of the said property, injunction restraining the defendants from registering any convenience relating to said property, obtaining any sanction for construction thereon and for an order of maintenance of status quo regarding the said property. This application has been made in a suit for specific performance of an agreement dated 28th December, 1991 for sale of the said property and for recovery of damages in addition to specific performance of the agreement for sale dated 28th December, 1991.

(2.) Before going into the merits of the case and respective submissions of the parties, I would like to state the undisputed facts relating to the property in question. The property in question originally belonged to Maharaja Dhiraj Shri Kameshwara Singh Bahadur, who died leaving a Will, which has since been probated by this Court. By that Will the Late Maharaja vested the entire residue of his estate in a Board of Trustees for the benefit of the persons named in the Will and ultimately 1/3rd thereof on the demise of his two wives for public charitable purposes. It appears that after the demise of the Late Maharaja, various suits and proceedings were initiated in various Courts for obtaining control of the estate of the Late Maharaja. All such litigations came to an end by filing a compromise petition and a memorandum of correction before the Supreme Court of India on 15th October, 1987. The said compromise provided that for the purpose of meeting the tax liabilities of the estate the trustees of the residuary estate of the Late Maharaja will sell the said property. In the mean time, the name of one Ram Prasad Mahato, being the defendant No. 5 in this suit, who has not appeared before me, was mutated in the records of the Calcutta Municipal Corporation in relation to the said property. To set aside the said mutation the trustees instituted suit No. 156 of 1989 wherein an interlocutory application being made a receiver was appointed for the purpose of collection of rents, issues and profits of the said property. The trustees referred an appeal against the said order which was registered as Appeal No. 262 of 1990. The Division Bench of this Court dealing with the said appeal by a judgment and order dated l5th June, 1992 concluded that Ram Prasad Mahato has failed to show prima facie title to the said property and the document dated 13th May, 1946 purporting to be the deed of gift on which reliance was placed by Ram Prasad Mahato appears to be a fabricated document on the fact of it and therefore, allowed the appeal. The Division Bench, however, observed "we, however, make it clear that sale of the disputed property will be subject to confirmation by the Court". On 21st January, 1993 the trustees applied in Appeal No. 262 of 1980 for confirmation of sale of the said premises at a price of Rs.10.40 crores in favour of defendant Nos. 6 to 19. With the application an agreement dated 18th January, 1993 entered between the trustees and the defendant Nos. 6 to 19 for sale of the said premises was annexed. When the said application was pending one Raman Bhai Shah and one S. N. Dutta and Co. appeared before the Division Bench and proposed to purchase the said 1 premises. The Appeal Court directed Raman Bhai Shah and S. N. Dutta and Co. to make certain deposits, while Raman Bhai Shah failed to make any such deposit. S. N. Dutta and Co. after obtaining extension of time made a deposit as was directed. Thereafter, S. N. Dutta and Co. applied for confirmation of sale of the said premises in favour of Star Industrial Development Co. Pvt. Ltd. However, on 8th April, 1993 when the matters were taken up for consideration by the Division Bench, S. N. Dutta and Co. submitted that they are not interested to proceed further in the matter and as such the Division Bench tentatively approved the sale of the said property by the trustees in favour of the defendant Nos. 6 to 19 and the money deposited by S. N. Dutta and Co. was directed to be refunded to them. S. N. Dutta and Co. thereupon applied for recalling of the order dated 8th April, 1993 and for confirmation of sale of the said property in favour of Star Industrial Development Co. Pvt. Ltd. One Atiur Rahaman also made an application for being added to the said disposed of appeal. S. N. Dutta and Co. thereafter, made a fresh application for filing Vakalatnama through a different Advocate and for withdrawal of the application made for recalling of the order dated 8th April, 1993. In that application it was contended by S. N. Dutta and Co. that the arrangement made by them with Star Industrial Development Co. Pvt. Ltd. has been cancelled or determined. The Division Bench thereupon considered all the said applications and by its order dated 11th June, 1993 rejected the application of Atiur Rahaman for being added as a party to the disposed of appeal, permitted S. N. Dutta and Co. to withdraw its application for recalling of the order dated 8th April, 1993 and refused to go into the internal disputes between S. N. Dutta and Co., and Star Industrial Development Co. Pvt. Ltd. The Division Bench thereupon by the said order dated 11th June, 1993 itself allowed the application of the trustees made for confirmation of sale of the said property in favour of the defendant Nos. 6 to 19 on various terms and conditions contained in the said order itself. Subsequently thereto by an order dated 9th April, 1993 passed by consent of the parties the Division Bench modified to some extent its earlier order dated 11th June, 1993. Star Industrial Development Co. Pvt. Ltd. filed a special leave petition before the Supreme Court against the order dated 1lth June, 1993 wherein Kailash Chandra Srivastava, being defendant No. 4 in this suit, made an application dated 23rd November, 1993 for leave to intervene. The Supreme Court on 26th November, 1993 dismissed the special leave petition of Star Industrial Development Co. Pvt. Ltd. and also rejected the application of Srivastava for leave to intervene in the said special leave petition. In the mean time on 20th September, 1993 Sohanlal Dugar, the plaintiff in this suit, filed a writ petition in the Allahabad High Court for a writ of mandamus against the Land Ceiling Authority, Allahabad, not to grant permission for sale of the said property in favour of defendant No. 6 and to grant permission for sale of the said property in favour of Sohanlal Dugar. On 12th December, 1993 Kailash Chandra Srivastava, being defendant No. 4 in this suit, also filed a writ petition in the Allahabad High Court for a writ of mandamus directing the Land Ceiling Authority, Allahabad, not to grant permission for sale of the said property to the defendant No. 6 and to grant permission for sale of the said property in favour of the plaintiff. In October, 1993 both the said writ petitions were dismissed by the Allahabad High Court, Sohanlal Dugar thereupon filed a special leave petition against the order of dismissal passed by the Allahabad High Court. The Supreme Court dismissed the said special leave petition by an order dated 18th February, 1994. Thereafter, on 25th April, 1994 Kailash Chandra Srivastava applied in appeal No. 262 of 1990 for recalling of the order dated 1lth June, 1993 when the Division Bench of this Court dismissed the said application. On 28th July, 1994 Sohanlal Dugar, the plaintiff above named, applied in Appeal No. 262 of 1990 for recalling of the order dated 11th June, 1993 which application is still pending and has not been disposed of. On l5th September, 1994 Kailash Chandra Srivastava filed an application for review of the order dated 25th 2 April, 1994 which was dismissed with liberty to make a fresh application. On 2nd January, 1995, the instant suit was filed. On the same day i.e. 2nd January, 1995 Kailash Chandra Srivastava filed another application for review of the said order dated 25th April, 1995. The said application too was dismissed. Kailash Chandra Srivastava filed a special leave petition against the order of dismissal which was dismissed by the Supreme Court by an order dated 20th November, 1995.

(3.) The material averments in the plaint relating to claim of the plaintiff, Sohanlal Dugar, for specific performance of the agreement for sale dated 28th December, 1991 are as follows :- (Para-3)