Rashmoy Das Vs Rajashree Enclave Pvt. Ltd. and Others

@JUDGMENTTAG-ORDER

Patherya, J.@mdashThis is an application filed under Order 7 Rule 11 of the CPC for rejection of the plaint and for revocation of leave granted under Clause 12 of the Letters Patent.

2. The case of the petitioner defendant Nos. 1 and 2 is that C. S. 144 of 2008 has been filed for a declaration for cancellation of the Deed of Conveyance dated 28th May, 2008 and for perpetual injunction from taking any steps in respect of such deed, as the Deed of Conveyance executed in 2008 is in respect of premises No. P-82, Lake Road, Calcutta which is admittedly outside the jurisdiction of this Court. As the suit is for land this Court will have no jurisdiction to entertain the same and leave granted under Clause 12 of the Letters Patent be revoked and the plaint be returned to the appropriate Court. Reliance is placed on Hindusthan Gas and Industries Ltd. and Another Vs. Adhish Chandra Sinha, and the unreported judgment in C. S. 275 of 2007 M/s. Vikash Metal & Power Ltd. v. M/s. Niranjan Hi-tech Ltd. & Ors..

3. From the deed of conveyance certain rights flow with regard to the enjoyment and possession of the said land. The said Deed also provides for receipt of rent and profits including the right to have the property mutated. This will render the same to be a suit for land, as not only by virtue thereof rights have been vested in the purchaser, cancellation of such rights will affect the possession of not only the purchaser of the suit premises but will give possession so also restore title in favour of the plaintiff respondent which at present by virtue of the Deed of Conveyance is vested in the purchaser. Paragraph 22 of the plaint has also recognised the invasion of the plaintiff''s right to enjoyment of the property by reason of the said Deed of Conveyance. Any decision taken in the suit is likely to affect the title and possession of the purchaser, which by virtue of Section 55(1)(f) of the Transfer of Property Act will be decided, therefore, possession which is incidental to conveyance will be affected. This, therefore, renders the instant, suit as a suit for land and this Court in view of lack of jurisdiction ought to return the plaint to the appropriate forum.

4. The only ground on the basis of which leave under Clause 12 of the Letters Patent has been sought is the execution of the deed of conveyance at the office of the Registrar of Assurances, Kolkata. This will not give rise to any cause of action within the jurisdiction of this Court. Reliance is also placed on Section 33(1) of the Specific Relief Act. Therefore, orders as sought be passed and the plaint be returned.

5. Opposing the said application counsel for the plaintiff respondent submits that by virtue of cancellation of the deed of conveyance no adjudication of title or possession is sought. In view of the order of status quo, no transfer of share can be effected. It is only in view of the order of status quo passed and the transfer of share effected that the instant suit has been filed. The decree for perpetual injunction is consequential to prayer (a) whereby cancellation is sought of the deed of conveyance. As held in 2001 VII AD 513 (SC) a suit which does not warrant adjudication of title will not be hit by Order 7 Rule 10. Therefore, the suit is maintainable. Reliance is placed on (2007) 1 CLT 656 for the proposition that ancillary relief is not the guiding factor. Therefore, this Court has jurisdiction to entertain the instant suit as held in Sm. Parimal Mitra and Others Vs. Paresh Chandra Hazra and Others, and Tridandeeswami Bhakti Kusum Sraman Maharaj and Others Vs. Mayapore Sree Chaitanya Math and Others, The same will not render the suit as a suit for land as cancellation is sought only in the light of the agreement which is in violation of the order of status quo. For such purpose paragraphs 11, 16 and 20 of the plaint ought to be considered. Courts within whose jurisdiction documents have been executed and registered will have the jurisdiction to entertain the suit and for the said proposition reliance is placed on Sm. Rajlakshmi Dassi and Others Vs. Banamali Sen and Another, The agreement, in view of the order of status quo, is a nullity. Therefore, cancellation is sought. It is only when adjudication of title or consequential relief is sought will the suit be one for land. Reliance is placed on Debendra Nath Chowdhury Vs. Southern Bank Ltd.,

6. Section 55(1)(f) of the Transfer of Property Act has no application as by the said suit possession is not sought and the deed of conveyance specifically mentions that the premises has been given to the purchaser. Section 33(1) of the Specific Relief Act has no application. For all the said reasons no order be passed.

7. Counsel for the petitioner in reply submits that cancellation of one''s title will lead to possession of another. Paragraph 18 of the plaint highlights some features of the deed of conveyance which seeks adjudication of title, therefore, the instant suit is a suit for land. The cases cited are distinguishable as in Sm. Rajlakshmi Dassi and Others Vs. Banamali Sen and Another, some moveable property was within the jurisdiction of the Sealdah Court, therefore, the Court had jurisdiction to entertain the suit therein. Debendra Nath Chowdhury Vs. Southern Bank Ltd., is also distinguishable as the suit was for specific performance while Tridandeeswami Bhakti Kusum Sraman Maharaj and Others Vs. Mayapore Sree Chaitanya Math and Others, and 2001 VII AD 513 (SC) also support the petitioner''s case. Therefore, orders be passed as sought.

8. Having considered the submission of the parties, the plaintiff in C. S. 144 of the 2008 seeks cancellation of the deed of conveyance dated 28th May, 2008 and for perpetual injunction restraining the defendant No. 1 from exercising any rights in terms thereof.

9. The Deed of Conveyance dated 28th May, 2008 deals with premises P-82, Lake Road, Calcutta (said premises). By the said Deed of Conveyance the vendors (the defendants) who were possessed, seized and entitled to part, sold their share to third parties. The purchaser (defendant No. 1) by virtue of the said Deed is possessed of the said premises and entitled to its enjoyment. The relief sought in C. S. 144 of 2008 is-

(a) Declaration that the deed of conveyance dated 28th May, 2008 executed by and between the Defendant Nos. 3 to 5 and the Defendant No. 1 is null and void;

(b) Perpetual injunction do issue restraining the defendants either by themselves or through their servants, agents, assigns from taking any steps and/or exercising any rights pursuant to and in terms of the deed of conveyance dated 28th May, 2008.

10. In the event the relief is granted, the said would entail cancellation of the Deed of Conveyance and, therefore, deprive the purchaser therein of possession and enjoyment of the premises. It would also amount to handing over possession of the said premises and as held in Sm. Parimal Mitra and Others Vs. Paresh Chandra Hazra and Others, where adjudication of title or possession is in issue, will render the suit as one for land.

11. By the second schedule all the right, title and interest of the vendors has been transferred to the purchaser and cancellation will deprive the purchaser of the same, therefore, questions of title will be in issue.

12. As cancellation will entail adjudication of title and possession C. S. 144 of the 2008 is a suit for land and this Court lacks jurisdiction to entertain or try the said suit. The tests applied in Tridandeeswami Bhakti Kusum Sraman Maharaj and Others Vs. Mayapore Sree Chaitanya Math and Others, aids the petitioner defendants and not the respondent.

13. The cases cited by the plaintiff respondent is not applicable to the facts of this case as in (2007) 1 CLT 656 the complaint was restricted to breach of obligation arising out of contract. In the instant case invasion or threatened invasion of the plaintiff respondent''s right to enjoyment of the premises by virtue of the Deed of Conveyance has been pleaded. It will not be out of place to mention that in the said decision it has also been held that declaration of title is required when a particular person''s right is denied by the defendants as in the instant case.

14. The execution of the Deed of Conveyance will affect the petitioner defendant''s share in the premises outside the jurisdiction, therefore, Sm. Rajlakshmi Dassi and Others Vs. Banamali Sen and Another, will not apply to the facts of this case.

15. Debendra Nath Chowdhury Vs. Southern Bank Ltd., is distinguishable on facts as it was a case where simpliciter specific performance of agreement was sought without seeking possession. In this instant case, cancellation sought will require adjudication of Title and will affect the possessory right of the petitioner defendant more so in view of prayer (b) of the Plaint. Clause (iii) of the Deed of Conveyance dated 28-5-2008 entitles the respondent defendant to quietly possess and enjoy the premises. On cancellation of the Deed the respondent defendant will be deprived of such possession and enjoyment.

16. Accordingly, this application is allowed, leave granted under Clause 12 of the Letters Patent revoked and the plaint returned to the plaintiff for presentation before the appropriate forum.