BINA BASAK & ORS.versusSRI BIPUL KANTI BASAK & ORS.

                 [2024] 3 S.C.R. 1281 : 2024 INSC 279

                           Bina Basak & Ors.
                                   v.
                      Sri Bipul Kanti Basak & Ors.
                       (Civil Appeal No. 5525 of 2016)
                                 21 March 2024
           [Vikram Nath* and Satish Chandra Sharma, JJ.]

                            Issue for Consideration
       Whether the High Court erred in disallowing the right to title and
       possession of the family members in the suit property that was
       allotted by the government as part of rehabilitation programme
       to the displaced/migrant family as a unit during partition of India?

                                   Headnotes
       Welfare Rehabilitation Scheme – Object of, Explained
       Held: The rehabilitation programmes are introduced by the
       Government with the sole aim of re-establishment of the displaced/
       migrant families and not for the benefit of any individual – As a part
       of such welfare policies, the property is recorded in the name of
       one family member for the purpose of convenience even though
       the ensuing welfare is meant to be enjoyed by all the family
       members equally. (Para 1)
       Welfare Legislation – Abuse of – Suit for Permanent Injunction
       filed maliciously by the Respondent/Head of the family
       against the rightful claim of other family members/younger
       brothers for usurping the entire allotment – Classic example
       of misuse/abuse of the welfare legislations by the beneficiaries
       for personal advantage – High Court erred by ignoring the
       affidavits and communication between the office of the
       Sub-Divisional Officer, the Deputy Commissioner and the
       Respondents which is admitted record – The record and
       admitted facts make it clear that the suit property was allotted
       under the policy of the Government for the displaced family
       and not for the individual
       Held: The record shows that the elder brother/Head of the family,
       admittedly, gave statement before the concerned authorities
       during proceedings relating to allotment, in which he admitted

* Author
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    that he along with his family members had migrated from East
    Pakistan to India, and the construction over the plot in question
    was made out of the joint income of the three brothers, and
    from the produce of the crops of the land that they held in East
    Pakistan – It was clearly mentioned that they lived jointly on
    the suit property and all members contributed proportionately –
    The Respondents cannot now turn around to claim the entire
    allotment made treating the family as a unit for rehabilitation
    to the exclusion of Appellants, by filing the malicious suit.
    (Paras 3.5, 8 & 9)
    Suit – Dismissal of – High Court failed to consider that the
    suit in question ought to have been dismissed once the suit
    filed by the Respondents to challenge the cancellation of lease
    deed in the exclusive name of Smt. Hem Prova Basak was
    withdrawn – The very basis of filing the suit for permanent
    injunction was no longer in existence.
    Held: The Respondents laid challenge to the cancellation of the
    03.11.1975 lease deed by the Sub-Divisional Officer, Siliguri,
    who allowed the request of Appellants herein for inclusion of
    their names in the lease deed along with the Respondents –
    The High Court failed to consider that the suit for permanent
    injunction was liable to be dismissed given that the suit filed by the
    Respondent(s) to declare aforesaid cancellation as null, void and
    illegal was withdrawn during the pendency of the second appeal,
    as the very basis of filing the suit in question stood eliminated.
    (Paras 3.7, 3.8, 4, 10)

                                List of Acts
    Code of Civil Procedure, 1908.

                             List of Keywords
    Rehabilitation Programmes, Abuse of Welfare Legislation,
    Malicious Suit, Grab entire allotment, Rehabilitation, Welfare
    Legislation

                            Case Arising From
    CIVIL APPELLATE JURISDICTION: Civil Appeal No.5525 of 2016
    From the Judgment and Order dated 18.12.2013 of the High Court
    of Calcutta in SA No. 518 of 2008
[2024] 3 S.C.R.                                                      1283

           Bina Basak & Ors. v. Sri Bipul Kanti Basak & Ors.


                        Appearances for Parties
     Pallav Shishodia, Sr. Adv., Danish Zubair Khan, Dr. Lokendra Malik,
     Advs. for the Appellants.
     Uday Gupta, Sr. Adv., Chandra Bhushan Prasad, Advs. for the
     Respondents.
                Judgment / Order of the Supreme Court

                                  Order
     Vikram Nath, J.
1.   This matter pertains to right to title and possession of a property
     that was allotted by the Relief and Rehabilitation Department of
     Government of West Bengal to a family which had come to Siliguri
     from the then East Pakistan in 1950. Before moving forward with
     the facts of the case, it is imperative for us to mention that such
     rehabilitation programmes are introduced by the government with
     the sole aim of re-establishment of the displaced/ migrant families
     and not for the benefit of any individual. As a part of such welfare
     policies, the property is usually recorded in the name of one family
     member for the purpose of convenience even though the ensuing
     welfare is meant to be enjoyed by the all the family members
     equally. However unfortunately, in the instant case greed got better
     of the de facto head of the family who has been claiming herself as
     the absolute owner of the property. The matter is a prime example
     where the plaintiff attempted to defeat the rightful claims of family
     members with the intention of usurping the entire property. We
     cannot emphasize enough that this Court highly deprecates such
     malpractices where the welfare legislations are misused/abused by
     beneficiaries for personal advantage, thereby defeating the very
     objective of such policies.
2.   This appeal assails the correctness of the judgment and order dated
     18.12.2013 passed by the Calcutta High Court dismissing the Second
     Appeal No.518 of 2008 filed by the appellants herein confirming the
     judgment and decree of the First Appellate Court dated 11.04.2003
     whereby it had reversed the judgment and decree of the Trial Court
     dated 16.09.1999 dismissing the suit of the present respondents and
     allowing the counter claim filed by the present appellants in Original
     Civil Suit No.16 of 1983.
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3.   Brief facts giving rise to the present appeal are summarized hereunder:
     3.1. Late Krishna Behari Basak had three sons namely Benode
          Behari Basak, Bimal Kanti Basak and Benoy Krishna Basak.
          Late Krishna Behari Basak was a resident of East Pakistan and
          his family had migrated to India in 1950 soon after the partition.
          The eldest son Benode Behari Basak was employed in the
          Collectorate, Darjeeling since 01.03.1945 and at the relevant
          time he was working in the office of Deputy Commissioner,
          Darjeeling. Benode Behari Basak applied (supported by affidavit)
          for allotment of land in his name for the benefit of the refugee
          family which comprised of the following seven members namely:

            S.No. Name                             Relation         Age
            1.     Sri Bimal Kanti Basak           Brother          24 years
            2.     Sri Benoy Krishna Basak         Brother          13 years
            3.     Srimati Hem Prova Basak         Wife             20 years
            4.     Sri Bipul Kanti Basak           Son              6 years
            5.     Sjta. Drabanmayee Basak         Grand mother     85 years
            6.     Sriman Ajit Kumar Basak         Nephew           9 years
            7.     Srimati Kamala Basak            Sister           27 years
     3.2. In the said affidavit dated 30.12.1952, it is clearly stated that the
          deponent was residing at Darjeeling and was in occupation as a
          government servant; that he had a permanent house in village
          Sailabari, Post Office Khosabari, District Pabna which has
          since become a part of eastern Pakistan; the family members
          were compelled to leave the native place in July 1950 due to
          partition of India; all family members have decided to settle in
          the Indian Union; he was working in the office of the Deputy
          Commissioner since 1945 and had opted to serve under the
          West Bengal Government.
     3.3. Another affidavit was filed by Smt. Hem Prova Basak wife of
          Benode Behari Basak dated 13.11.1953. In the said affidavit
          it was stated that they had to leave their house and properties
          in Pakistan worth about Rs.50,000/-, on account of communal
          disturbance; she along with the whole family consisting of
          five family members had come to West Bengal in July 1950
          with the object of permanently residing in the Union of India;
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           Bina Basak & Ors. v. Sri Bipul Kanti Basak & Ors.


           that she was a bona fide refugee and now a domicile and a
           national of the Indian Dominion; that she had not taken any
           loan or advance from the Central or Provincial Governments.
     3.4. Based on the said applications supported by affidavits as stated
          above, the Deputy Commissioner, Darjeeling on 04.12.1953
          forwarded the same to the Sub-Divisional Officer, Siliguri
          enclosing also along with it an order passed by the Deputy
          Commissioner, Darjeeling on 03.12.1953 for taking appropriate
          action. The order passed by the Deputy Commissioner on
          03.12.1953 recorded that the family had lost their house in
          Pakistan as such allotment of plot in question be made in
          favour of Smt. Hem Prova Basak in place of her husband
          Benode Behari Basak.
     3.5. Even before the final allotment could be made and lease could
          be executed, the family started constructing the house over
          the plot in question. However, before the construction could
          be completed on 07.02.1975, the said Benode Behari Basak
          recorded his statement before the authorities in which he
          admitted that he along with his family members, had migrated
          from East Pakistan to India; gave details of the property held in
          East Pakistan; that how he collected funds for construction of
          the house. The construction was made out of the joint income
          of three brothers and also from the produce of the crops of the
          land that they held. It was also mentioned that they all lived
          jointly and all members contributed proportionately.
     3.6. A letter was issued by the Government of West Bengal on
          28.09.1975 calling upon Smt. Hem Prova Basak to appear
          in the office of the Sub-Divisional Officer on 24.09.1975 in
          connection with the conferment of right, title and interest of
          the plot in question and also to produce documents relating
          to allotment of plot No.41.
     3.7. Another letter was issued by the office of Sub-Divisional Officer,
          Siliguri on 25.09.1975 to Shri Benode Behari Basak stating
          that his two brothers had also applied for inclusion of their
          names along with name of his wife in the lease deed so that
          he could clarify in respect thereof. It appears that the lease
          deed was executed on 03.11.1975 in the name of Smt. Hem
          Prova Basak only.
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    3.8. The two brothers Bimal Kanti Basak and Benoy Kumar Basak
         represented for inclusion of their names which was appropriately
         dealt with by the concerned department and in the order sheet
         it was recorded on 03.08.1979 that the names of Bimal Kanti
         Basak and Benoy Kumar Basak be also included and there
         was no legal bar in inclusion of their names. The Sub-Divisional
         Officer passed an order on 07.11.1979 that the request made
         for inclusion of their names is allowed and their names will be
         included at the time of execution of the deed along with Smt.
         Hem Prova Basak in respect to the plot in question being Plot
         No.41, Dabgram Colony No.II, College Para, Siliguri.
    3.9. Further, another order was passed on 23.08.1983 that in the
         lease deed of 03.11.1975, the rectification be allowed to the
         extent of adding the names of Bimal Kanti Basak and Benoy
         Kumar Basak being family members of Smt. Hem Prova Basak
         as apparent from the original affidavit filed that they were family
         members taking into consideration the Government Orders
         dated 02.07.1981 and 23.04.1981. Accordingly, a fresh lease
         deed be executed.
    3.10. In the meantime, Smt. Hem Prova Basak filed a suit for
          permanent injunction to restrain the families of Bimal Kanti
          Basak and Benoy Kumar Basak from changing the character
          of the suit property and from entering the same. By the time
          the suit was filed, Bimal Kanti Basak had died as such his
          legal heirs being his widow, two sons and a daughter were
          impleaded as defendants 1-A, 1-B, 1-C and 1-D and Benoy
          Kumar Basak as defendant No.2. In the said suit Smt. Hem
          Prova claimed that she was the sole lessee of the plot in question
          and that the said land had been allotted to her exclusively and
          that she had constructed the house which is recorded in her
          name as absolute owner. The defendants being brothers of
          her husband and not having any independent house of their
          own to live, nor were they employed as such were permitted
          to live in a portion of the said house. Later on, they have been
          employed, have their independent separate families and as
          such they being licensees only, they must vacate the portion
          of the premises in their possession. The families of the three
          brothers had grown as such there was shortage of space. Also
          there were regular disputes between the usage of the property
[2024] 3 S.C.R.                                                           1287

           Bina Basak & Ors. v. Sri Bipul Kanti Basak & Ors.


           and common amenities and as such it became necessary to
           file a suit for their eviction.
     3.11. The defendants to the suit filed written statement along with
           counterclaim praying for a decree that the lease deed dated
           03.11.1975 be declared as invalid and inoperative in law and
           for appropriate injunction against the plaintiff. The written
           statement and the counterclaim were based on the fact that
           the three brothers constituted the joint family; the policy of the
           Government was to provide rehabilitation to the entire family and
           not to the individual; the request of the defendants to include
           their names in the lease deed had been positively considered
           by the Government; the house was constructed from the joint
           fund from the income of all the three brothers.
     3.12. During the pendency of the suit, the Government had come up
           with policy of freehold and had accordingly issued freehold title
           deeds separately with respect to the family of the three brothers.
           It had further canceled the lease deed dated 03.11.1975 and
           the same was duly communicated to Smt. Hem Prova Basak
           vide communication dated 25.05.1995. In the said letter, it was
           clearly stated that as the freehold title deeds are going to be
           issued to the eligible beneficiaries, the lease deed No.7658 of
           03.11.1975 has been cancelled and as such she was required
           to submit the original lease deed.
     3.13. Smt. Hem Prova Basak instituted an Original Civil Suit No.68
           of 1995 impleading the State of West Bengal and its officers
           as defendants challenging the cancellation of the lease
           deed No.7685. The relief claimed in the said suit was that a
           declaration be made that the notice dated 25.05.1995 issued
           by the office of Sub-Divisional Officer, Siliguri, as illegal, invalid
           and without jurisdiction with the further relief of permanent
           injunction against the defendants restraining them to act upon
           the said notice.
     3.14. After a detailed inquiry, it was held that fresh freehold title
           deeds be issued as per calculation in paragraph ‘C’ of the said
           report in favour of the family members of all the brothers. The
           defendants to the suit of 1983 filed an amendment application
           under Order VI Rule 17, Code of Civil Procedure, 1908, seeking
           amendment in the written statement in order to incorporate the
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          subsequent development regarding the cancellation of lease
          deed as also to issue freehold title deeds. Additionally, the
          plaintiff also sought amendment in the relief clause to the extent
          that the declaration be made that the freehold title deeds in
          favour of the defendants is not valid. They were void and not
          binding on the plaintiff. Both the amendments were allowed.
4.   The Trial Court, after considering the material on record, dismissed the
     Original Civil Suit No.16 of 1983 and partially allowed the counterclaim
     declaring that the lease deed dated 03.11.1975 in favour of the
     plaintiff was illegal, inoperative, and invalid. The plaintiff preferred
     first appeal registered as Original Civil Appeal No. 19(s) of 1999. The
     said first appeal came to be allowed vide judgment dated 11.04.2003.
     Aggrieved by the same, the present appellants preferred a second
     appeal before the High Court. During the pendency of the second
     appeal the plaintiff Smt. Hem Prova Basak withdraw the Original
     Civil Suit No.68 of 1995 on 08.12.2003. These facts and material
     were placed before the High Court, however, the High Court despite
     noticing such facts vide impugned order dated 18.12.2013 dismissed
     the second appeal filed by the present appellants.
5.   While issuing notice in the present appeal on 29.10.2014, both parties
     were directed to maintain status quo with regard to possession
     prevailing as on date. Later on, by order dated 01.07.2016, leave
     was granted. The fact remains that the possession of the family
     members of three brothers in the house has continued.
6.   Shri Pallav Sisodia, learned senior counsel appearing for the
     appellant, apart from drawing our attention to the various affidavits,
     applications and orders passed on the file of the Sub-Divisional Officer
     and the Deputy Commissioner to show that the allotment had been
     made for the benefit of the family and not for one brother or his wife
     exclusively and that freehold title deeds have been subsequently
     executed in favour of the family members of all the three brothers,
     made a legal submission that once the lease itself had been cancelled
     in 1995 and the suit filed by Smt. Hem Prova Basak to declare the
     said cancellation as illegal, null and void having been withdrawn,
     the suit of the plaintiff for eviction and injunction was liable to be
     dismissed as the very basis for filing the suit stood eliminated.
7.   On the other hand, learned senior counsel for the respondent Shri
     Uday Gupta vehemently urged that the First Appellate Court and the
[2024] 3 S.C.R.                                                         1289

           Bina Basak & Ors. v. Sri Bipul Kanti Basak & Ors.


     High Court have examined and considered the material on record
     while decreeing the suit and dismissing the counterclaim, as such
     this Court may not interfere with the same under Article 136 of the
     Constitution of India and accordingly, dismiss this appeal.
8.   Having given serious consideration to the material on record and
     the submissions advanced, we are convinced that the suit was
     filed maliciously in order to grab the entire allotment and also the
     house constructed with the joint income of the three brothers. Some
     noticeable facts in this regard are summarized hereunder-
     i)    Binode Behari Basak, the eldest brother was working as Upper
           Division Assistant in the office of Deputy Commissioner, Siliguri
           and therefore had all the access in the local administration to
           favour himself and his wife. Initially, he had applied for allotment
           to be made in his name but apparently for the reason that he
           was already a government servant in the state of West Bengal
           since 1945 prior to the partition and migration no allotment would
           be made in his favour, he therefore setup his wife to become
           the applicant for the allotment.
     ii)   The affidavits and the communications between the office of the
           Sub-Divisional Officer, the Deputy Commissioner and Binode
           Behari Basak and his wife Smt. Hem Prova Basak, are neither
           disputed nor denied. If that is so then it was more than clear
           that under the policy of the Government the allotment was being
           made for the family and not for the individual.
9.   Binode Behari Basak and Hem Prova Basak both having admitted
     the said fact could not turn around to claim that it was their exclusive
     property. The High Court has gone completely wrong in ignoring
     these affidavits and communications giving the reason that they
     were given in a different proceeding and therefore would not be of
     relevance and any help to the defendants.
10. The lease deed in the exclusive name of Smt. Hem Prova Basak
    dated 03.11.1975 having been cancelled and the challenge to the
    said cancellation by way of a Civil Suit No.68 of 1995 having been
    withdrawn, the suit itself ought to have been dismissed, as the very
    basis of filing the suit was no longer in existence. The High Court
    failed to take into consideration this aspect of the matter thereby
    committing an error.
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11. From a perusal of the plaint, it appears that there has been bickering
    amongst the family members of the brothers and there were cases
    registered for maintaining tranquillity and peace, appears to be the
    reason for filing of the suit to deprive the two younger brothers from
    the benefit of the allotment made treating the family as a unit for
    rehabilitation.
12. For all the reasons recorded above, the impugned orders passed
    by the High Court and the First Appellate Court are set aside and
    that of the Trial Court is restored. The appeal is allowed accordingly.


     Headnotes prepared by:                              Result of the case:
     Raghav Bhatia, Hony. Associate Editor                 Appeal allowed.
     (Verified by: Liz Mathew, Sr. Adv.)