BENGAL AMBUJA HOUSING DEVELOPMENT LIMITED Vs. PRAMILA SANFUI AND ORS.

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BENGAL AMBUJA HOUSING DEVELOPMENT LIMITED Vs. PRAMILA SANFUI AND ORS. REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS.7209-7210 OF 2015 (Arising Out of SLP (C) Nos.5902-5903 of 2015) BENGAL AMBUJA HOUSING DEVELOPMENT LTD. APPELLANT Vs. PRAMILA SANFUI AND ORS. RESPONDENTS WITH CIVIL APPEAL NOS. 7211-7212 OF 2015 (Arising Out of SLP (C) Nos.5906-5907 of 2015) WEST BENGAL HOUSING BOARD APPELLANT Vs. PRAMILA SANFUI AND ORS. RESPONDENTS J U D G M E N T V. GOPALA GOWDA, J. Leave granted in all Special Leave Petitions. The present appeals, filed separately, arise from impugned judgment and order dated 21.11.2014 passed in R.V.W. No.78 of 2013 and judgment and final order dated 19.12.2012 passed in C.O. No.709/2010 by High Court of judicature at Calcutta, whereby High Court refused to interfere with impugned judgments rein. The appeals arising out of S.L.P. (C) Nos.5902-5903 of 2015 have been preferred by Bengal Ambuja Housing Development Ltd., whereas appeals arising out of S.L.P. (C) Nos. 59065907 of 2015 have been preferred by West Bengal Housing Board. Both sets of appeals are being disposed of by this common judgment. As facts in both appeals are common, for sake we refer to facts of appeals arising out of S.L.P. 5907 of 2015, which are stated in brief hereunder: of convenience, (C) Nos. 5906- The appellant, West Bengal Housing Board (hereinafter Housing Board ) is a statutory body constituted under West Bengal Housing Board Page 1/20

Act, 1972 with objective of providing affordable housing in State of West Bengal. The appellant is current owner of suit property in question in present appeals. The predecessor-in-interest of appellant, late Gangadas Pal was owner of suit land measuring 20.184 acres of land. A suit for partition being Title Suit No. 43 of 1956 was instituted in land adjacent to said land among co-owners namely, Sanfui, Naskar, Mondal and Sardar family in year 1956 before learned Civil Judge (Senior Division), Alipore, said suit was renumbered subsequently as Title Suit No. 121 of 1962. Gangadas Pal was not a party to said suit at its inception. He was impleaded as Defendant No. 54 vide order of learned Trial Court dated 14.08.1957. Gangadas Pal died in June 1958. One Mr. Ranjit Kumar Ganguly was appointed as Receiver over said suit properties and he took possession of entire suit properties on November 30, 1958. After Gangadas Pal died, defendant No.1 in suit No. 121 of 1962, filed an application before learned Subordinate Judge, Alipore, intimating that among ors, defendant no. 54 (Gangadas Pal) had died during pendency of suit, following which suit had abated against m, as per provisions of Order XXII, Rules 3 and 4, Code of Civil Procedure, 1908. The learned Subordinate Judge, vide order and judgment dated 30.11.1973 dismissed entire suit under Order XXII of Code of Civil Procedure, 1908 holding that suit had abated as against deceased defendants (including Gangadas Pal) and right to sue did not survive as against or surviving defendants. The learned Subordinate Judge held as under: There is authority to hold that no formal order of abatement need be made as a suit or appeal abates automatically if no application for substitution is made within prescribed time, i.e. within ninety days from date of death and not from date of knowledge. In that view of matter, order of abatement as recorded above by order no. 337, dated 15.9.73 was a mere formality. Sub-Rule 3 of Rule 4 of Order 22 CPC provides that suit shall abate as against deceased defendant in case no application is made under Sub-Rule 1 within time allowed by law. Abatement takes place by operation of law and it is this crystal clear that suit has abated against deceased defendant nos. 9, 39,54,55,57,60,62,63 in due course of law... Aggrieved by same, plaintiffs rein filed Title Appeal No. 117 of 1974 before learned District Judge, Alipore. The learned District Judge, vide order dated 20.09.1977 held that order passed by learned Subordinate Judge was improper and not justified, and remanded matter back to be considered afresh. The learned Civil Judge (Sr. Divn.) after considering matter afresh held that plaintiffs had not made out any sufficient ground for delay in filing of application and refused to condone delay and rejected application of plaintiffs rein. The learned Civil Judge (Sr. Divn.) held as under: It is an established principal of law that suit abates on and from date of death of a party to suit. From order no. 315 dated 28.02.73 it is seen that petition giving information of death of defendants in question. The petitioners waited without any lawful exercise upon 4.4.73. On 4.4.73 y asked for letter particulars on grounds mentioned in Petition. By order no. 329 dated 18.3.73 court directed defendant no.1 to furnish particulars as regards names and addresses of deceased defendants nos. 9,39,40,54,55,57,60,62 and 63 by 11.6.73. From order no. 330 dated 4.6.73, it is seen that defendant no.1 complied wih direction of court, From all of se developments, it is palpably clear that petitioners were in know of death of defendants in question right from 28.2.73. At any rate when all particulars were furnished to m on 11.6.73, petitioners ought to have filed application for setting aside abatement at least within 60 days from date of abatement or order of dismissal Page 2/20

in terms of provisions of articles 171 and 172 of old Limitation They filed petition on 13.11.73 for lapse of 90 days plus 60 even period is calculated, from 11.6.73. Act. days This order of abatement has attained finality preferred by parties against same. been as no appeal has In meanwhile, land of late Gangadas Pal was acquired by State Government, and came to be vested in m, vide order dated 16.09.1971 passed in Big Raiyat Case No.5 of 1967. In 1991, order of vesting was challenged by heirs of Gangadas Pal, by way of a Writ Petition C.O. No. 11731 (W) of 1991. The learned single judge allowed Writ Petition and quashed order of vesting dated 16.09.1971. Aggrieved of order passed in above Writ Petition, State Government preferred Writ Appeal before Hon ble Division Bench against decision of learned single judge. The learned Division Bench dismissed appeal and affirmed decision of learned single judge, vide judgment and order dated 18.04.1996. The State Government n preferred Civil Appeal No. 442 of 1998 before this Court, which was dismissed vide judgment and order dated 16.04.2003 in case of West Bengal Government Employees (Food and Supplies) Cooperative Housing Society Ltd. and Ors. v. Sulekha Pal (Dey) & Ors. reported in (2003) 9 SCC 253, when this Court held as under: 21. So far as case on hand is concerned, it is seen from materials on record that effective, actual and physical possession of properties appears to have continued with intermediary in question and subsequently in possession of his heirs and Collector/Revenue Officer could not be said to have eir dispossessed m or taken over physical or khas possession of estate and rights comprised rein in manner statutorily mandated and provided for under Section 10(2) of Act and Rule 7 of Rules made reunder. The learned Single Judge and Division Bench of High court recorded concurrently that khas possession continued with intermediary and after him his heirs and we find nothing contra concretely to disturb same. The professed taking over of possession seems to be a mere entry on paper but not in conformity with mandatory procedure necessarily to be observed before such possession could be lawfully carried out. We are not concerned with internal controversy between Cooperative Housing Society of its claim to have been given with possession pursuant to agreement of sale since for purposes of Act, it is dispossession by Collector/Revenue Officer in manner envisaged in statutory provisions under Rules made reunder that alone could get legitimatised for determining rights of parties. Consequently, order of learned Single Judge as well as order of Division Bench, insofar as y sustained right in respondents herein to express ir choice of retention, cannot be said to suffer from any infirmity in law so as to call for our interference. As a matter of fact, it is seen from materials placed on record that after order of learned Single Judge, on respondents exercising ir choice, an order dated 2.8.1994 came to be passed by Revenue Officer allowing retention of 25 acres of agricultural land, 10.16 acres of non-agricultural land and 0.06 acres of homestead land as per "B" Schedule to said proceedings and declaring that 27.95 acres of agricultural land and 0.14 acres of homestead land as per details contained in "C" Schedule to said proceedings stood vested in State. This order, which appears to have been made subject to result of appeal has to be construed in that manner and rights of parties reunder could and ought to be only in terms of and subject to modified order of Division Bench and nothing more... The vesting is total and complete once Notification is issued under Section 4 and got published by combined operation of Sections 4 and 5 of Act and what is secured under Section 6 is right to hold on to possession, subject to limits prescribed in Page 3/20

statute by option for retention of same before khas possession properties have been taken over as envisaged under Section 10(3) Act. The ownership of plot of land was thus retained by Gangadas Pal as intermediaries as provided under Section Bengal Estates Acquisition, Act 1953. legal 6 of of of heirs of West On 08.06.2006, plaintiff-respondents herein filed an application under Order XXXIX Rules 1 and 2, Code of Civil Procedure, 1908, in Title Suit No. 121 of 1962, seeking for grant of a temporary injunction restraining parties from alienating, encumbering or creating third party interest on scheduled properties. The learned Subordinate Judge, Alipore vide order dated 16.06.2006, allowed application for temporary injunction, and passed purported consent order even though legal heirs of late Gangadas Pal had not given ir consent, directing parties to maintain status quo with respect to suit properties, and restrained m from selling, transferring, alienating inter party or with any third party or in any manner whatsoever from changing nature and character of suit property till disposal of suit. On 03.07.2006, learned Trial Court, at instance of plaintiffs-respondents directed Officer in charge, Purba Jadavpur, Police Station to ensure compliance of order dated 16.06.2006. On 07.07.2006, learned Subordinate Judge, Alipore allowed amendment application dated 28.01.2003, by which inter alia, plot of land belonging to heirs of Gangadas Pal was added to suit schedule properties appended to plaint. While passing order, learned Subordinate Judge held as under: On perusal of instant applications under consideration and after hearing submissions of learned advocates court comes to conclusion that amendment is formal in nature and would not change nature and character of suit, neir would it prejudice any of parties. Besides, it is even observed by Court that, instant suit cannot proceed without amendment be allowed. It is important to note at this stage that heirs of late Gangadas were not heard during proceedings, as y were not parties to suit. Pal On 19.08.2008, appellant Housing Board acquired ownership of property by way of five registered conveyance deeds title and possession of said 20.184 acres of land from successors-in-interest of late Gangadas Pal. On 19.12.2009, one of plaintiffs (respondents herein) filed a petition before learned Subordinate Judge, Alipore, praying that Superintendent of Police, South 24 Paraganas and Officer in Charge of Purba Jadavpur be directed to ensure compliance with orders of temporary injunction passed by Trial Court on 16.06.2006 and 03.07.2006 in respect of property in dispute. The learned Subordinate Judge vide order dated 13.01.2010, directed Superintendent of Police to see that consent order of temporary injunction granted by Civil Court in favour of plaintiffs-respondents in original suit in respect of suit properties in dispute was maintained by parties. Aggrieved by said order Bengal Ambuja Housing Development Ltd. (appellant herein) filed an application, C.O. No. 709 of 2010 before Hon ble High Court under Article 227 of Constitution of India questioning correctness of same. The High Court, vide its judgment and order dated 19.12.2012 dismissed same. The High Court held that third party (appellant Housing Board) had purchased suit property lis pendens, and that no permission was taken from court for same. Thus, provisions of Section 52 of Transfer of Property Act, 1882 Page 4/20

would govern transaction. The High Court, while dismissing application filed by Bengal Ambuja Housing Development Ltd., held as under: The present mater is confined to implementation of an order of injunction passed on consent. As recorded above, upon hearing both parties, an order of status quo was passed directing parties not to change nature and character of suit property. When applicant tried to intervene in said order of status quo, steps for rendering police help for learned Receiver was taken and I think since an order of status quo was passed in consent was prevailing, learned Court was justified for giving necessary directions upon concerned police authority to take appropriate steps for preservation and protection of suit property and Court was also competent to give directions to police authority to render possible help s that possession taken by present Receiver, namely, Sri Ashoke Ray be maintained. From above facts, it is clear that third-party/ petitioner herein had purchased suit property lis pendens and that no permission was sought for from Court to purchase suit property. So, principle of lis pendens as provided in Section 52 of of Property Act shall govern issue. Transfer The learned Trial judge is justified to pass impugned order. Record does not show that petitioners had obtained any permission from Court to purchase a portion of suit property. They had purchased a portion of suit property at ir own risk while said suit was pending and property was in possession of learned Receiver. Aggrieved by order, appellant Bengal Ambuja Housing Development Ltd. filed an S.L.P. (C) No. 8049 of 2013 before this Court challenging legality of said order, which petition was dismissed as withdrawn, by granting liberty to file appropriate application before High Court. The abovesaid appellant n filed a Review Application, R.V.W. No. 78 of 2013 before High Court of Calcutta to review judgment and order passed in C.O. No. 709 of 2010 urging various tenable grounds. The High Court by its judgment and order dated 21.11.2014 has dismissed Review Application. The High Court held that grounds urged by appellant in Review Petition did not warrant a review of its judgment dated 19.12.2012. The High Court furr held that it must be considered that judge who rendered judgment was no longer available with Court and that liberty that a judge has to correct himself upon his mistake being brought to his notice, is not available to anor judge hearing review and refore Review Petition was rejected by passing order which is also impugned in this appeal. Hence present appeals were filed by above appellants. We have heard learned senior counsel for both parties. On basis of factual evidence on record produced before us, circumstances of case and also in light of rival legal contentions urged by learned senior counsel for both parties, we have broadly framed following points which require our attention and consideration:wher appeals filed by appellant Housing Board are maintainable in view of fact that earlier SLP filed by appellant Bengal Ambuja Housing Development Ltd. was dismissed with liberty accorded to it to file appropriate petition before High Court? Wher order of temporary injunction dated 16.06.2006 passed by learned Subordinate Judge, Alipore, passed in respect of suit property Page 5/20

without impleading vendors and appellant Housing Board, which had acquired right, title, interest upon same can be enforced against m through jurisdictional police as has been granted by learned Subordinate Judge, Alipore, though sale deed in favour of Board is not challenged by plaintiffs-respondents and said order can be enforced against appellants through jurisdictional police by an order dated 13.01.2010 passed in Title Suit? Wher inclusion of property of Housing Board to suit instituted in Civil Court by way of an amendment by plaintiffsrespondents which property was conferred upon legal heirs of late Gangadas Pal as intermediary right holder under Section 6 of West Bengal Acquisition of Estates Act, 1953 and institution of suit for partition by contesting respondents is barred by provisions of Sections 57 - B (2)(a), (b) and (c) of Act of 1953? What order? Answer to Point No. 1 Mr. J.P. Cama, learned senior counsel appearing on behalf of some of plaintiffs-respondents strongly made submission that since earlier SLP of appellant- Bengal Ambuja Housing Development Ltd. was dismissed as withdrawn by an order of this Court dated 13.02.2013 in case of Bengal Ambuja Housing Development Limited & Anr. v. Pramila Sanfui & Ors., it is no longer open to said appellant to challenge correctness of original order passed by High Court by way of filing or SLPs again. In support of above legal submissions, learned senior counsel has placed reliance on decision of this Court in case of Kumaran Silk Trade (P.) Ltd. v. Devendra & Ors.[1], wherein it has been held as under: Since petition for special leave to appeal has already been dismissed by this Court, it is no more open to petitioner to seek challenge to challenge original order in this Court again by invoking Article 136 of Constitution of India......It is not open to petitioner to challenge original order again in this Court after withdrawing earlier appeal, reserving only a liberty in itself of seeking a review of original order. The learned senior counsel also contends that an appeal is not maintainable against decision of a court in a Review Petition. He places reliance on decision of this Court in case of Shanker Motiram Nale v. Shiolalsing Gannusing Rajput[2], wherein it has been held as under: This appeal is obviously incompetent. It is against an order of a Division Bench of High Court rejecting application for review of a judgment and decree passed by a learned Single Judge, who seems to have retired in meantime. It is not against basic judgment. Order 47 Rule 7 of CPC bars an appeal against order of court rejecting review. On this basis, we reject appeal. Page 6/20

This case has been relied upon by this Court in cases of Vinod v. State of Goa[3] and M.N Haider v. Kendriya Vidyalaya Sangathan[4] Kapoor The learned senior counsel on behalf of respondents submits that earlier SLP filed by Bengal Ambuja Housing Development Ltd. was dismissed as withdrawn with liberty to file an appropriate petition before High Court to review its order questioned in earlier SLPs. Since liberty was not given to it to challenge that very same impugned order once again by filing SLPs in event of review petition being dismissed, appeals filed by Bengal Ambuja Housing Development Ltd. once again challenging very same order is not legally permissible. This contention has been very vehemently disputed by learned Attorney General, Mr. Rohatgi, who contends that impugned order was not challenged by appellant Housing Board before this Court, and that interim order of temporary injunction and order dated 13.01.2010 directing jurisdictional police to enforce order of temporary injunction are not binding and cannot be enforced against it, as it was not a party to original suit proceedings at any point of time. It is furr contended that it has acquired valid interest and title upon property in dispute as legal heirs of late Gangadas Pal have executed sale deed of property in its favour, which land stood retained by m, in terms of decision of this Court in case of Sulekha Pal referred to supra. Thus, order of temporary injunction passed in original suit proceedings in respect of property in dispute without impleading eir vendors of appellant Housing Board or heirs of late Gangadas Pal to original suit proceedings cannot be said to have a binding effect on appellant Housing Board. Therefore, learned Subordinate Judge ought to have taken this aspect of matter into consideration while directing Superintendent of Police, South 24 Paraganas to enforce interim order of temporary injunction against Bengal Ambuja Housing Development Ltd., which is lease holder as Board has granted lease hold rights in its favour to develop property by joint venture to provide residential accommodation to economically weaker sections of society, which is a laudable object of Board under statutory provisions of West Bengal Housing Board Act, 1972. Thus, aforesaid decisions of this Court upon which reliance has been placed by learned senior counsel appearing on behalf of some of plaintiffs-respondents cannot be applied eir against appellant Housing Board or its lessee or any or person claiming through it, as it was not a party to proceedings and it did not challenge said order earlier before this Court and refore Civil Appeals filed by it are maintainable. Answer to Point Nos.2 and 3 The learned Trial Court passed an order of status quo on 16.06.2006, restraining defendants rein from selling, transferring, creating third party interest or orwise disposing of suit scheduled properties. The said interim order of temporary injunction was purportedly a consent order. On 07.07.2006, though legal heirs of late Gangadas Pal were not brought on record, learned Trial Court allowed amendment application dated 28.01.2003, to amend suit schedule properties. Mr. Mukul Rohatgi, learned Attorney General and Mr. Dushyant Dave, learned senior counsel appearing on behalf of appellants contend that High Court failed to consider that neir appellants herein nor predecessor-in-interest of appellants were parties to Suit No. 121 of 1962 before learned Subordinate Judge, Alipore, and thus, y were not aware of order of temporary injunction that had been passed in said suit proceedings. The learned senior counsel furr contend that Page 7/20

High Court erred in not appreciating fact that said plot of land was not a part of suit scheduled property originally. It appears to have been included in suit schedule as one of properties after death of Ganga Das Pal and abatement of suit proceedings against him without bringing his legal heirs on record. The status quo order passed in original suit sought to be enforced against appellants was passed after suit was abated against late Gangadas Pal and without bringing his legal heirs on record. The original suit had abated against him by order dated 30.11.1973, suit being Title Suit No. 121 of 1962. Furr, land of late Gangadas Pal was only included in suit properties on 07.07.2006, that too without making heirs of late Gangadas Pal as parties to said proceedings, or informing m about same. It was furr contended that by learned senior counsel that High Court failed to appreciate that neir appellants, nor ir predecessors in title and interest ( legal heirs of late Gangadas Pal) upon property involved in se proceedings were made parties to suit and refore question of giving consent by m to interim orders dated 16.06.2006 and 13.01.2010 does not and cannot arise, especially in light of fact that order of abatement of original suit proceedings as against late Gangadas Pal had attained finality. It was furr contended by Mr. Dushyant Dave, learned senior counsel appearing on behalf of appellant, Bengal Ambuja Housing Development Ltd. that High Court had failed to consider scope of principle of lis pendens under Section 52 of Transfer of Property Act, 1882. The property which has been purchased by appellant Housing Board was not transferred by any party to Title Suit No. 121 of 1962. The Information Slip issued by Alipore Court makes it clear that names of heirs of late Gangadas Pal were not included as parties to Title Suit No. 121 of 1962. On or hand, Mr. Sanjay Hegde, learned senior counsel appearing on behalf of respondent- Receiver contends that appellants presently do not have locus standi to challenge any subsequent orders passed in Title Suit No. 121 of 1962. The property in dispute, upon which claim is made by m, being a portion of suit property is governed by principle of lis pendens as provided under Transfer of Property Act, 1882. The learned senior counsel furr contends that High Court has righty observed that no serious prejudice has been occasioned to appellants on account of order passed by learned Subordinate Judge to enforce interim order of temporary injunction through jurisdictional police. An order of status quo had been passed by Trial Court as far back as 16.06.2006. The parties were restrained from selling, transferring, alienating or orwise disposing of suit property to any third party in any manner whatsoever. There was also an order of temporary injunction restraining parties from changing nature and character of suit property. The property in question being a part of suit property could not have been transferred in favour of appellant Housing Board during pendency of restrain order. Therefore, it is urged by learned senior counsel that no indulgence ought to be shown to appellants in any manner whatsoever to interfere with impugned orders by this Court in exercise of its appellate jurisdiction. We have heard Mr. Mukul Rohatgi, learned Attorney General and Mr. Dushyant Dave, learned senior counsel appearing on behalf of appellant and Mr. Sanjay Hegde and Mr. J.P. Cama, learned senior counsel appearing on behalf of respondents and have perused documents produced before us in Civil Appeals in support of ir respective claims to consider rival legal contentions urged on behalf of parties and answer points that are framed in se appeals. We agree with contentions advanced by learned senior counsel appearing on behalf of appellants. The original suit instituted by plaintiff-respondents against late Gangadas Pal had abated vide order of Page 8/20

learned subordinate judge, Alipore dated 30.11.1973. The said order has attained finality as no appeal has been filed questioning correctness of same. By order dated 07.07.2006 passed by learned Subordinate Judge, property in question of late Gangadas Pal was added as part to suit schedule properties by way of an amendment to plaint by time his legal heirs had already acquired intermediary rights under Section 6 of West Bengal Estates Acquisition Act, 1953. The heirs of late Gangadas Pal were not made parties to said Title Suit proceedings. On 03.07.2006, learned subordinate judge passed an order granting temporary injunction restraining parties to suit from alienating or transferring suit property. A perusal of Annexure P/10 which is Information Slip dated 17.02.2010 issued by office of learned Trial Court in Title Suit No. 121 of 1962, makes it amply clear that heirs of late Gangadas Pal were not made parties to suit. The appellant Housing Board purchased land in question from heirs of late Gangadas Pal on 19.08.2008, as is evidenced from conveyance deed Annexure P-9. The appellant Housing Board was not a party to Title Suit at any point of time. It has purchased land in question from its owners. This property was included in suit schedule properties by way of amendment to plaint after an application was allowed by order dated 07.07.2006. The plaintiffs-respondents herein did not have any right to get said land included as part of suit schedule properties for partition, and learned Subordinate Judge erred in allowing application to amend suit schedule to include property in question. The learned Subordinate Judge has erred in passing order of temporary injunction under Order XXXIX Rules 1 and 2 of Code of Civil Procedure, 1908, in respect of property in question after it was included to suit schedule as order of temporary injunction can be granted against only parties to suit property. Furr, grant of police protection without impleading appellants to original suit proceedings is also not legally permissible and refore said order is liable to be set aside. The High Court ought to have considered relevant fact that appellants were not parties to suit, and suit had abated as against late Gangadas Pal. Thus, order of temporary injunction passed by learned Subordinate Judge on 03.07.2006 does not apply to land in question which was sold to appellant Housing Board. Furr, in instant case, order of temporary injunction dated 03.07.2006 was purportedly granted by consent is also not sustainable in law. The question of consent being given by eir appellant Housing Board or predecessors in interest who are its vendors did not arise as y were not parties to said suit. It is a well settled principle of law that eir temporary or permanent injunction can be granted only against parties to a suit. Furr purported consent order in terms of Order XXXIX of Code of Civil Procedure is only binding as against parties to suit. In such a case, order of Subordinate Judge to grant police protection against appellant Housing Board which is enjoying property is erroneous in law and is liable to be set aside. The original owner in instant case, late Gangadas Pal was an intermediary in khas possession of land in question in terms of Section 6 of West Bengal Estates Acquisition Act, 1953. Thus, learned Subordinate Judge did not have jurisdiction to entertain any suit with respect to said property, in light of provision of Section 57B (2)(a), (b) and (c) of West Bengal Estates Acquisition Act, 1953, which states as under: Page 9/20

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS.7209-7210 OF 2015 (Arising Out of SLP (C) Nos.5902-5903 of 2015) BENGAL AMBUJA HOUSING DEVELOPMENT LTD. APPELLANT Vs. PRAMILA SANFUI AND ORS. RESPONDENTS WITH CIVIL APPEAL NOS. 7211-7212 OF 2015 (Arising Out of SLP (C) Nos.5906-5907 of 2015) WEST BENGAL HOUSING BOARD APPELLANT Vs. PRAMILA SANFUI AND ORS. RESPONDENTS J U D G M E N T V. GOPALA GOWDA, J. Leave granted in all Special Leave Petitions. The present appeals, filed separately, arise from impugned judgment and order dated 21.11.2014 passed in R.V.W. No.78 of 2013 and judgment and final order dated 19.12.2012 passed in C.O. No.709/2010 by High Court of judicature at Calcutta, whereby High Court refused to interfere with impugned judgments rein. The appeals arising out of S.L.P. (C) Nos.5902-5903 of 2015 have been preferred by Bengal Ambuja Housing Development Ltd., whereas appeals arising out of S.L.P. (C) Nos. 59065907 of 2015 have been preferred by West Bengal Housing Board. Both sets of appeals are being disposed of by this common judgment. As facts in both appeals are common, for sake we refer to facts of appeals arising out of S.L.P. 5907 of 2015, which are stated in brief hereunder: of convenience, (C) Nos. 5906- The appellant, West Bengal Housing Board (hereinafter Housing Board ) is a statutory body constituted under West Bengal Housing Board Act, 1972 with objective of providing affordable housing in State of West Bengal. The appellant is current owner of suit property in question in present appeals. The predecessor-in-interest of appellant, late Gangadas Pal was owner of suit land measuring 20.184 Page 10/20

acres of land. A suit for partition being Title Suit No. 43 of 1956 was instituted in land adjacent to said land among co-owners namely, Sanfui, Naskar, Mondal and Sardar family in year 1956 before learned Civil Judge (Senior Division), Alipore, said suit was renumbered subsequently as Title Suit No. 121 of 1962. Gangadas Pal was not a party to said suit at its inception. He was impleaded as Defendant No. 54 vide order of learned Trial Court dated 14.08.1957. Gangadas Pal died in June 1958. One Mr. Ranjit Kumar Ganguly was appointed as Receiver over said suit properties and he took possession of entire suit properties on November 30, 1958. After Gangadas Pal died, defendant No.1 in suit No. 121 of 1962, filed an application before learned Subordinate Judge, Alipore, intimating that among ors, defendant no. 54 (Gangadas Pal) had died during pendency of suit, following which suit had abated against m, as per provisions of Order XXII, Rules 3 and 4, Code of Civil Procedure, 1908. The learned Subordinate Judge, vide order and judgment dated 30.11.1973 dismissed entire suit under Order XXII of Code of Civil Procedure, 1908 holding that suit had abated as against deceased defendants (including Gangadas Pal) and right to sue did not survive as against or surviving defendants. The learned Subordinate Judge held as under: There is authority to hold that no formal order of abatement need be made as a suit or appeal abates automatically if no application for substitution is made within prescribed time, i.e. within ninety days from date of death and not from date of knowledge. In that view of matter, order of abatement as recorded above by order no. 337, dated 15.9.73 was a mere formality. Sub-Rule 3 of Rule 4 of Order 22 CPC provides that suit shall abate as against deceased defendant in case no application is made under Sub-Rule 1 within time allowed by law. Abatement takes place by operation of law and it is this crystal clear that suit has abated against deceased defendant nos. 9, 39,54,55,57,60,62,63 in due course of law... Aggrieved by same, plaintiffs rein filed Title Appeal No. 117 of 1974 before learned District Judge, Alipore. The learned District Judge, vide order dated 20.09.1977 held that order passed by learned Subordinate Judge was improper and not justified, and remanded matter back to be considered afresh. The learned Civil Judge (Sr. Divn.) after considering matter afresh held that plaintiffs had not made out any sufficient ground for delay in filing of application and refused to condone delay and rejected application of plaintiffs rein. The learned Civil Judge (Sr. Divn.) held as under: It is an established principal of law that suit abates on and from date of death of a party to suit. From order no. 315 dated 28.02.73 it is seen that petition giving information of death of defendants in question. The petitioners waited without any lawful exercise upon 4.4.73. On 4.4.73 y asked for letter particulars on grounds mentioned in Petition. By order no. 329 dated 18.3.73 court directed defendant no.1 to furnish particulars as regards names and addresses of deceased defendants nos. 9,39,40,54,55,57,60,62 and 63 by 11.6.73. From order no. 330 dated 4.6.73, it is seen that defendant no.1 complied wih direction of court, From all of se developments, it is palpably clear that petitioners were in know of death of defendants in question right from 28.2.73. At any rate when all particulars were furnished to m on 11.6.73, petitioners ought to have filed application for setting aside abatement at least within 60 days from date of abatement or order of dismissal in terms of provisions of articles 171 and 172 of old Limitation Act. They filed petition on 13.11.73 for lapse of 90 days plus 60 days even period is calculated, from 11.6.73. Page 11/20

This order of abatement has attained finality preferred by parties against same. as no appeal has been In meanwhile, land of late Gangadas Pal was acquired by State Government, and came to be vested in m, vide order dated 16.09.1971 passed in Big Raiyat Case No.5 of 1967. In 1991, order of vesting was challenged by heirs of Gangadas Pal, by way of a Writ Petition C.O. No. 11731 (W) of 1991. The learned single judge allowed Writ Petition and quashed order of vesting dated 16.09.1971. Aggrieved of order passed in above Writ Petition, State Government preferred Writ Appeal before Hon ble Division Bench against decision of learned single judge. The learned Division Bench dismissed appeal and affirmed decision of learned single judge, vide judgment and order dated 18.04.1996. The State Government n preferred Civil Appeal No. 442 of 1998 before this Court, which was dismissed vide judgment and order dated 16.04.2003 in case of West Bengal Government Employees (Food and Supplies) Cooperative Housing Society Ltd. and Ors. v. Sulekha Pal (Dey) & Ors. reported in (2003) 9 SCC 253, when this Court held as under: 21. So far as case on hand is concerned, it is seen from materials on record that effective, actual and physical possession of properties appears to have continued with intermediary in question and subsequently in possession of his heirs and Collector/Revenue Officer could not be said to have eir dispossessed m or taken over physical or khas possession of estate and rights comprised rein in manner statutorily mandated and provided for under Section 10(2) of Act and Rule 7 of Rules made reunder. The learned Single Judge and Division Bench of High court recorded concurrently that khas possession continued with intermediary and after him his heirs and we find nothing contra concretely to disturb same. The professed taking over of possession seems to be a mere entry on paper but not in conformity with mandatory procedure necessarily to be observed before such possession could be lawfully carried out. We are not concerned with internal controversy between Cooperative Housing Society of its claim to have been given with possession pursuant to agreement of sale since for purposes of Act, it is dispossession by Collector/Revenue Officer in manner envisaged in statutory provisions under Rules made reunder that alone could get legitimatised for determining rights of parties. Consequently, order of learned Single Judge as well as order of Division Bench, insofar as y sustained right in respondents herein to express ir choice of retention, cannot be said to suffer from any infirmity in law so as to call for our interference. As a matter of fact, it is seen from materials placed on record that after order of learned Single Judge, on respondents exercising ir choice, an order dated 2.8.1994 came to be passed by Revenue Officer allowing retention of 25 acres of agricultural land, 10.16 acres of non-agricultural land and 0.06 acres of homestead land as per "B" Schedule to said proceedings and declaring that 27.95 acres of agricultural land and 0.14 acres of homestead land as per details contained in "C" Schedule to said proceedings stood vested in State. This order, which appears to have been made subject to result of appeal has to be construed in that manner and rights of parties reunder could and ought to be only in terms of and subject to modified order of Division Bench and nothing more... The vesting is total and complete once Notification is issued under Section 4 and got published by combined operation of Sections 4 and 5 of Act and what is secured under Section 6 is right to hold on to possession, subject to limits prescribed in statute by option for retention of same before khas possession of properties have been taken over as envisaged under Section 10(3) of Act. Page 12/20

The ownership of plot of land was thus retained by Gangadas Pal as intermediaries as provided under Section Bengal Estates Acquisition, Act 1953. legal 6 of heirs of West On 08.06.2006, plaintiff-respondents herein filed an application under Order XXXIX Rules 1 and 2, Code of Civil Procedure, 1908, in Title Suit No. 121 of 1962, seeking for grant of a temporary injunction restraining parties from alienating, encumbering or creating third party interest on scheduled properties. The learned Subordinate Judge, Alipore vide order dated 16.06.2006, allowed application for temporary injunction, and passed purported consent order even though legal heirs of late Gangadas Pal had not given ir consent, directing parties to maintain status quo with respect to suit properties, and restrained m from selling, transferring, alienating inter party or with any third party or in any manner whatsoever from changing nature and character of suit property till disposal of suit. On 03.07.2006, learned Trial Court, at instance of plaintiffs-respondents directed Officer in charge, Purba Jadavpur, Police Station to ensure compliance of order dated 16.06.2006. On 07.07.2006, learned Subordinate Judge, Alipore allowed amendment application dated 28.01.2003, by which inter alia, plot of land belonging to heirs of Gangadas Pal was added to suit schedule properties appended to plaint. While passing order, learned Subordinate Judge held as under: On perusal of instant applications under consideration and after hearing submissions of learned advocates court comes to conclusion that amendment is formal in nature and would not change nature and character of suit, neir would it prejudice any of parties. Besides, it is even observed by Court that, instant suit cannot proceed without amendment be allowed. It is important to note at this stage that heirs of late Gangadas were not heard during proceedings, as y were not parties to suit. Pal On 19.08.2008, appellant Housing Board acquired ownership of property by way of five registered conveyance deeds title and possession of said 20.184 acres of land from successors-in-interest of late Gangadas Pal. On 19.12.2009, one of plaintiffs (respondents herein) filed a petition before learned Subordinate Judge, Alipore, praying that Superintendent of Police, South 24 Paraganas and Officer in Charge of Purba Jadavpur be directed to ensure compliance with orders of temporary injunction passed by Trial Court on 16.06.2006 and 03.07.2006 in respect of property in dispute. The learned Subordinate Judge vide order dated 13.01.2010, directed Superintendent of Police to see that consent order of temporary injunction granted by Civil Court in favour of plaintiffs-respondents in original suit in respect of suit properties in dispute was maintained by parties. Aggrieved by said order Bengal Ambuja Housing Development Ltd. (appellant herein) filed an application, C.O. No. 709 of 2010 before Hon ble High Court under Article 227 of Constitution of India questioning correctness of same. The High Court, vide its judgment and order dated 19.12.2012 dismissed same. The High Court held that third party (appellant Housing Board) had purchased suit property lis pendens, and that no permission was taken from court for same. Thus, provisions of Section 52 of Transfer of Property Act, 1882 would govern transaction. The High Court, while dismissing application filed by Bengal Ambuja Housing Development Ltd., held as under: Page 13/20

The present mater is confined to implementation of an order of injunction passed on consent. As recorded above, upon hearing both parties, an order of status quo was passed directing parties not to change nature and character of suit property. When applicant tried to intervene in said order of status quo, steps for rendering police help for learned Receiver was taken and I think since an order of status quo was passed in consent was prevailing, learned Court was justified for giving necessary directions upon concerned police authority to take appropriate steps for preservation and protection of suit property and Court was also competent to give directions to police authority to render possible help s that possession taken by present Receiver, namely, Sri Ashoke Ray be maintained. From above facts, it is clear that third-party/ petitioner herein had purchased suit property lis pendens and that no permission was sought for from Court to purchase suit property. So, principle of lis pendens as provided in Section 52 of of Property Act shall govern issue. Transfer The learned Trial judge is justified to pass impugned order. Record does not show that petitioners had obtained any permission from Court to purchase a portion of suit property. They had purchased a portion of suit property at ir own risk while said suit was pending and property was in possession of learned Receiver. Aggrieved by order, appellant Bengal Ambuja Housing Development Ltd. filed an S.L.P. (C) No. 8049 of 2013 before this Court challenging legality of said order, which petition was dismissed as withdrawn, by granting liberty to file appropriate application before High Court. The abovesaid appellant n filed a Review Application, R.V.W. No. 78 of 2013 before High Court of Calcutta to review judgment and order passed in C.O. No. 709 of 2010 urging various tenable grounds. The High Court by its judgment and order dated 21.11.2014 has dismissed Review Application. The High Court held that grounds urged by appellant in Review Petition did not warrant a review of its judgment dated 19.12.2012. The High Court furr held that it must be considered that judge who rendered judgment was no longer available with Court and that liberty that a judge has to correct himself upon his mistake being brought to his notice, is not available to anor judge hearing review and refore Review Petition was rejected by passing order which is also impugned in this appeal. Hence present appeals were filed by above appellants. We have heard learned senior counsel for both parties. On basis of factual evidence on record produced before us, circumstances of case and also in light of rival legal contentions urged by learned senior counsel for both parties, we have broadly framed following points which require our attention and consideration:wher appeals filed by appellant Housing Board are maintainable in view of fact that earlier SLP filed by appellant Bengal Ambuja Housing Development Ltd. was dismissed with liberty accorded to it to file appropriate petition before High Court? Wher order of temporary injunction dated 16.06.2006 passed by learned Subordinate Judge, Alipore, passed in respect of suit property without impleading vendors and appellant Housing Board, which had acquired right, title, interest upon same can be enforced against m through jurisdictional police as has been granted by learned Subordinate Judge, Alipore, though sale deed in favour of Board is Page 14/20

not challenged by plaintiffs-respondents and said order can be enforced against appellants through jurisdictional police by an order dated 13.01.2010 passed in Title Suit? Wher inclusion of property of Housing Board to suit instituted in Civil Court by way of an amendment by plaintiffsrespondents which property was conferred upon legal heirs of late Gangadas Pal as intermediary right holder under Section 6 of West Bengal Acquisition of Estates Act, 1953 and institution of suit for partition by contesting respondents is barred by provisions of Sections 57 - B (2)(a), (b) and (c) of Act of 1953? What order? Answer to Point No. 1 Mr. J.P. Cama, learned senior counsel appearing on behalf of some of plaintiffs-respondents strongly made submission that since earlier SLP of appellant- Bengal Ambuja Housing Development Ltd. was dismissed as withdrawn by an order of this Court dated 13.02.2013 in case of Bengal Ambuja Housing Development Limited & Anr. v. Pramila Sanfui & Ors., it is no longer open to said appellant to challenge correctness of original order passed by High Court by way of filing or SLPs again. In support of above legal submissions, learned senior counsel has placed reliance on decision of this Court in case of Kumaran Silk Trade (P.) Ltd. v. Devendra & Ors.[1], wherein it has been held as under: Since petition for special leave to appeal has already been dismissed by this Court, it is no more open to petitioner to seek challenge to challenge original order in this Court again by invoking Article 136 of Constitution of India......It is not open to petitioner to challenge original order again in this Court after withdrawing earlier appeal, reserving only a liberty in itself of seeking a review of original order. The learned senior counsel also contends that an appeal is not maintainable against decision of a court in a Review Petition. He places reliance on decision of this Court in case of Shanker Motiram Nale v. Shiolalsing Gannusing Rajput[2], wherein it has been held as under: This appeal is obviously incompetent. It is against an order of a Division Bench of High Court rejecting application for review of a judgment and decree passed by a learned Single Judge, who seems to have retired in meantime. It is not against basic judgment. Order 47 Rule 7 of CPC bars an appeal against order of court rejecting review. On this basis, we reject appeal. This case has been relied upon by this Court in cases of Vinod v. State of Goa[3] and M.N Haider v. Kendriya Vidyalaya Sangathan[4] Kapoor Page 15/20

The learned senior counsel on behalf of respondents submits that earlier SLP filed by Bengal Ambuja Housing Development Ltd. was dismissed as withdrawn with liberty to file an appropriate petition before High Court to review its order questioned in earlier SLPs. Since liberty was not given to it to challenge that very same impugned order once again by filing SLPs in event of review petition being dismissed, appeals filed by Bengal Ambuja Housing Development Ltd. once again challenging very same order is not legally permissible. This contention has been very vehemently disputed by learned Attorney General, Mr. Rohatgi, who contends that impugned order was not challenged by appellant Housing Board before this Court, and that interim order of temporary injunction and order dated 13.01.2010 directing jurisdictional police to enforce order of temporary injunction are not binding and cannot be enforced against it, as it was not a party to original suit proceedings at any point of time. It is furr contended that it has acquired valid interest and title upon property in dispute as legal heirs of late Gangadas Pal have executed sale deed of property in its favour, which land stood retained by m, in terms of decision of this Court in case of Sulekha Pal referred to supra. Thus, order of temporary injunction passed in original suit proceedings in respect of property in dispute without impleading eir vendors of appellant Housing Board or heirs of late Gangadas Pal to original suit proceedings cannot be said to have a binding effect on appellant Housing Board. Therefore, learned Subordinate Judge ought to have taken this aspect of matter into consideration while directing Superintendent of Police, South 24 Paraganas to enforce interim order of temporary injunction against Bengal Ambuja Housing Development Ltd., which is lease holder as Board has granted lease hold rights in its favour to develop property by joint venture to provide residential accommodation to economically weaker sections of society, which is a laudable object of Board under statutory provisions of West Bengal Housing Board Act, 1972. Thus, aforesaid decisions of this Court upon which reliance has been placed by learned senior counsel appearing on behalf of some of plaintiffs-respondents cannot be applied eir against appellant Housing Board or its lessee or any or person claiming through it, as it was not a party to proceedings and it did not challenge said order earlier before this Court and refore Civil Appeals filed by it are maintainable. Answer to Point Nos.2 and 3 The learned Trial Court passed an order of status quo on 16.06.2006, restraining defendants rein from selling, transferring, creating third party interest or orwise disposing of suit scheduled properties. The said interim order of temporary injunction was purportedly a consent order. On 07.07.2006, though legal heirs of late Gangadas Pal were not brought on record, learned Trial Court allowed amendment application dated 28.01.2003, to amend suit schedule properties. Mr. Mukul Rohatgi, learned Attorney General and Mr. Dushyant Dave, learned senior counsel appearing on behalf of appellants contend that High Court failed to consider that neir appellants herein nor predecessor-in-interest of appellants were parties to Suit No. 121 of 1962 before learned Subordinate Judge, Alipore, and thus, y were not aware of order of temporary injunction that had been passed in said suit proceedings. The learned senior counsel furr contend that High Court erred in not appreciating fact that said plot of land was not a part of suit scheduled property originally. It appears to have been included in suit schedule as one of properties after death of Ganga Das Pal and abatement of suit proceedings against him Page 16/20