# SADHURAM BANSAL v. PULIN BEHARI SARKAR & ORS - **Citation:** [1984] 3 S.C.R. 582 - **Court:** Supreme Court of India - **Decided:** 1984-04-26 - **Bench:** Fa2(Al Ali, A. Var~Darman, SABYASACHI MUKHARll - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sadhuram-bansal-v-pulin-behari-sarkar-ors-8631 - **Pages:** 41 ## Headnote ' 'Code of Civil Procedure 1908, Order XL Receiver ·appointed by Cofirt-Property in custody of receiver-Interference. with possession, not to be encouraged-No party can acquire title or right over property in possession of receiver. •. Code of Criminal Procedure 1973, Section 145 Order passed in prOceedings under this section-Does not affect titlet;Jf parlies to disputed premises-However reflects iactuin. of possesJi01t. " AdministrGtion of Justice.-Socia! Justice-Courts . no long~r merely Protector of ltgal rights-Technicalities of law dnd procedure not to be in~istecf' upon--Subst_antial ju1tice to be meted out to parties~Necessity of. In a suit filed in the High C(lurt for a declaration and relief in respect ·or several properties, the OffiCial Receiver of the High Court was appointedc Receiver. On tbe request of the parties, the Official Receiver, c!ecided to• sell one of the properties with the permission of the <;curt. 1he price of the property was fixed at Rs. 3.S lakhs. The appellant o.ffered .a sum of" ·Rs. 4 lakhs· for purchase of the property,. and by hi; advocate's letter" enclosed a. draft for.Rs. l h!kh, being 1/4 of the amount. A-mee.ting \vas.. held in the presence of the plaintiff and their counsel, an.d at the meeting the_ offer received from the appellant was consideied and· it was decided that the offer of Rs. 4 lakh by bank: draft .. The Official Rc&eiver accepted the· offer of the .appellant, ·communicated the· accep.tance ~nd ~uested the· appellant to deposit the balance amount. The Official Receiver, thereafter- moved the High Court for directions.-. ·to rem'ov,e re~pondents 1 to 4 on. the ground' that they had trespassed i.nt°'"" the property a few months earlier. Respbodents l to 4"moved an 3ppli'" cation for being impleaded in the suit and· contend,!d that .they were· residing with their fdmilies under a licence since 1975 and had coastructedi pllcca-,huts thereon and. that with the knowledge of this continuous ·possession, the parties _to .the suit -have filed the suit among themselves without.· impleadiog them (respondents 1 to 4). • 1 ' ' • • • Si\DHURAM V. )'. ll· SARKAR • The Single .Judge..,rejected the aforesaid contentions ofresPc;indent.s 1 to 4 ·and held that though they wer·e prepared to offer the sum of Rs. l · iakh more thin the appellant the property could not be sold to them. The Division Bench, however allo\\•ctJ their appeal, directed. respon .. dents I to 4 to pay to the Official Receiver a sum of Rs. 1.25 lakhs immedia,_ttY and tho balance of Rs. 3.75 lakhs theTeafter and on such payme-nt ordered sale of the disputed proPerfy. to respondents .1 to 4 and their 34 nominee~ oo the ground that the Court should do s.ocial just_ice and in doing such justice no te;hnicality of law would stand in its way. ' Dismissing the Appeal to this Court, HELD·: [P! ieJ with any condition· it m1y be gn~und for the owners and the Official" Ilec~iver no't to :iccep 0 t .his offer and refu'>e to sell the proper1y to ~im and not for respondents 1 to 4 to raise any objection. The offer has been accepted rightly or wro~gly niore than once and there. , fore the appellant.may have a right to sue for ~pecific p~rforril1nce of the contract on the basis of that acceptance by the ofii::ial Receiver given with the approval of the parries The same iS the position -in regard to the delay of about a month in paying the balance of Rs. 3 lakhs by the appellant. [6 llD-F] In lhe instant cac;e, the woperty has bee11 agreed to be so 1d bjr Private treaty and the Official Receiver has been authorised to sell the propertY ei~her by public auction Or hy private treaty. , The Court does not come into the picture in such a case and· there is no need for the Court to -apiJr"ove • fl , I • ' .. SADHURAM V. P. B. SARKAR 585 oC,?r confirm such sale; The parties who are sui juris must be dec.:ined to A bav e knov.-n their interest best when 'they chose to approve the sale of. the property for Rs. 4 lakhs in favour of the appellant notwithstanding the ·-fact that re~pondents l to 4 had offered to purchase· the proJ'erty for :Rs. S !akhs. The appeal has therefore to be allowed. [6 l 2E; 61 JB] Evere;t Coal. Company d>) Ltd v. State of Bihar & Others, [1974] I SCR P. 571 at P. 513, Kayjay Industries (p) Lti. v. Asneiv Drums (P) Ltd. & Othm, [1974] 3 SCR P. 678, Jibon Krishna Mukhe.fee. v. New .Bheerbhum Coal Co. Ltd. & Anr., [!960] 2 SCR P. 198, Tarinikamal Pandit ·.a Others.v. Pra[ull" Kumar ChatierjOI!, [1979] 3 SCR P. 340, referred to. <(Per Sabyasachi M"kharji, J.l ·. J. ·The pcndency of the procceedings under Section 145 of the Code -cf Criminal Procedure and o·der, if any, pa~·ed thereon does not in ·any way affect the ti:tle.of the parties to ·the disputed premises though it rt:fl.ects 4he Lc!um or possession.[616D] Bhinka and Others v. Cirarcn Sirgh, [1959] Suppl. 2 S.C.R. P. 798 ireferreO to, .- 2. When the pi-opcrty is in custody of a receiver appointed by the .court; the property is in the custody of the court and interference with such .possession ~hould not be encouraged and no p:i.rty' ~1n acquire any title or right by coming in or ovet'the property whi-ch is iil the possess.ion of the &:ecei ver or sanction of t.he court [t» I SF] Ilalsbury's Laws of England, 4rh Edn., Vol, 39 pages 451, 452 para .. "'graph1 890, 89.1: Kerr On Recei~ers-16th Edn. p:iges 121 referred-to . • 3,· The concept of social justice is not foreign to legal juStice or -.social \Veli-being or benefit to the community rooted in the c~accpt of justice i_n the 20th. century: The ch1Jlcnge of social justice is prirnariiy a '.challenge .to th~ society at large more than· to the court immediJtely. .Social justici:Js one of the aspirations o"f our CoJstitution. But 1 h-:! c~urts, .are pledged to. administer justice as by law established. [620F] In ,1he instant cat.e, in formu13ting the c~ncept of justice, however, ~he inartku 1ate factor thit l~rge number of human be'iJlgs should not be dislodged frorn their 1)ossessio1 if it is otherwise possible to do so cannot ·~tu: be a factor which mun and should infl.u !nee the mi~ds of judg.!s. It · ·is true thJ.t {he persons who were alleged to be in possession are with ~ua~lean, haRds, bu[ they can1e for shelter and built in hutineutg. They do n6t want to be rehabilitated at competitive birgain .piice. In the circum- '1itances they-ih.ould oot be denied rehabilitation on the ground of their .originil .ilkgitimacy. l620G-H] l)J,. The felt n_ecessities or time and in this case the convenience of the Si1.uation and the 1,1eed tor. adjl!sting the rights of a larger· au nb~r of B c D E F G • 586 SUPREME COURT REPORTS [198.f] 3 S.C.R- . ,._ . ' .JI people v.'ithout deprivation. of <1riy· .accrued right of anybody would b~ justice according. to 1aw. Before social justice as something alien to legal· justice, is rejected, it. shcu'd be remembered, th.at a meaningful ·definition of the rule of law must be based on the re'} Ji ties of contemporary so.:ieti-e.sand the realities of the cOntemporary ·societies are-men are in acute shortage of living accommcdation-and if they are prepared to' bargain.. and rehabilitate tbemselv~s on competitive teyms, they should be. encouraged and no technical rules sbou1d stand in their way. That would be justice·. 'by highways' and not infiltration 'by t?e·lanes'. [6i!H-622B] CIVIL APPELLATE JURISDICTION . 1983 . Civil Appeal No. 5887 qf f . . c Appeai· by Special leave from th~ Judgment and Order d~ted G the 25.7.1983 of the Calcutta High Court in Appeal No. 271 of 1983. S.S. Ra;1, S. N. Kaker, P. K. Mullick, R. Deb, N. P. Agf{arwala 'r'• and B.P. Singh for the Appellant. G.L. Sanghi, and H.K. Puri for Respondent. Anil Dev Singh and Ashok Sil for Respondent No: 5. The Judgment of the Court was delivered by FAZAL Au. J, This ''lppeal by special leave against th,e judg-. men! of the Calcutta High Court discloses an unfortunate litigation .which proves the-well-known legal maxim "del'1y defeats justice'' . and arises out of a Will executed by the testator which was hotly contested by various rival claimanti resulting in an action which went on merrily and sprightly for almost three decades as a result of which i.n the back-waters of the long-drawn litigation most of the claimants died and their successors were interested not iu the property but in the money which the prop.erty would bring, if sold. As a result of internecine disput> between 1he heirs, an Official Receiver had to be appointed to look after the property and the I . final end of the drama seems to have begun .when the Receiver, on the request of the .parties, decided to sell the property with the permission 6f the court by a pr;vate treaty least the litigation might draw the last drop of the blood of the property rights of theuheirs. Meanwhile, some more events followed which made the task of the Receiver botb complex and complicated as the respondents put up their claim to.possession of the property e.ither as trespassers or as. license.es from some. of the hefrs. · •- ' lr SADllURAM v. P. B. SARKAR (Fazal Ali, J.) Thus, while ihe negoti.ations for the private treaty were going on a new ·upshot in the guise of the re~pondents' claim seems to nip in the bud the attempt of the owners to get the property back. During the course of the three decades, lot of changes took place in Howrah-the population rose by leaps and bounds, $. number of build.ings came up and perhaps it )Jecame next to impossible for ·the heirs to occupy the premises again. To add to this, came ilp a new lltigation in the shape of proceedings under s. 145 of the Code of C~iminal Procedure between the parties. The heirs having given up all hopes of getting vacan~-posses· sion became "sadder and wiser" to sell the property if they could get a handsome amount for the same. A bargain was, therefore, struck, with th.e approval of the Receiver, by which )he entire pro- · perty was agreed to be sold to the appellant fot a sum of Rs. 4 lakhs, u~der which he paid Rs. I lakh and promi>ed to pay the remaining amount of Rs. 3 lakhs at an early date. The appellant also expressed his willingness to ·take the. property under sale subject to the pending litigation. The matter, bowevor, did not end here because the trespassers jumped into the fray in order to stop or render the sale nugatory. When the matter came up before the court, it, on being satisfied that the sale was from all points of view in the intrest of the heirs, affirmed the said sale. The appellant contended th•t the possessions of t]je premises by the respondents did not pose any problem because they being rank tespa>Sers could be evicted summarily by tli~ Receiver under the provisfons of the Civil Procedure Code. But, we think that the matter was not so simple as that because once possession of the premises by the respondents had la•ted fOr a year or more and proceedings under s. 145 of'the Criminal I'rocedure Code bad already started, the Jaw bad to- take its normal course. So far as the criminal court "it concerned, the only ·course which could at best be taken was to declare possession of the pai;ty who . was in possession two months next before the initiation of the procee-. dings under s.145 or of the party who was found to be in poss;ssion of the property at tne relevant tilne. The relevant portion of s. 145 may be extracte"d below:· 587 ·, c F G "145. Proeedure where dispute concerning land or H water 1s likely to cause breach of peace. • • .1> SUPREME COURT REPORTS [1984] 3 S-C.R. ( 4) . The Magistrate shall then, without reference to the merits ·Or the claims of any· of the claims of any of the parties to a right to possess the subject of the dispute, peruse. the statements so put in, here the parties, receive all such evidence as may be procfuced by them, take such furthe( evidence, if any, as he thinks necessary, and, if possible,. decide whether any and which of the.parties was, at the date of the order made by him under sub-section (I), in possession of the subject of dispute : • ·' Provided that if it· appears to the Magistrate that any party has been forcibly and wrongfully dispossessed within two months next before the date· on which the report of a poHce officer or other information was recei.ved by the Magistrate, or after that rlate and before the date of his order under sub-section (I), he may treai the party so dis· possessed as if that party had been in possession on the date of his order under sub-section (!J, (6) If the Magistrate decides th~t one of the parties was, or should under the proviso to. sub-section (4) be treated as being, in such possession of the said subject, he shall issue an order declaring such party to be entitled to possession thereof until evicted therefrom in due course. of law, and forbidd1ng all disturbance.of such possession unfl such evi~tion; and when he proceeds under the proviso to sub-section ( 4), may restore to posse1sion the party forcibly and wrongfully dispossessed." With this primordial preface and institutional introduction, · we now proceed to summarise the facts of the case, most of /--..; which have been reffeo~ed in what we have said above. The story of the case begin's with the execution Of a Will and testament by one Jitendra Kuniar Das on May 22,.1952 in favour of sonie .of l1is near· relations, in respect of pre,nises No. 7, Duffers Lane, Liluah, Howrall as also some premises in. No. 211, Old China Ba~ar Street, Calcutta. The suit was instituted for a . declaratfon that the aforcsa'd Will was void and . invalid, hence the legatees under the Will. had no right, title or interest. The suit went on ding·dong frC>nl one stage to another until 1973 when, according to, the ri:spondent~, two of the uwners, viz., .Smt. Malati Das and ' lr ·~ • SADHURAM v. P. B. SARKAR (Fazal Ali, J.) 58!1- · Ji~enqra Kumar Das or a.t least one of them put them (respon· A. dents) in po.ssession of the Duffers Lane property under a leave and licence. During the course of their possession the respondents constructed permlnent structures and have been regularly residing there since. 1975. · .It is alleged that.in February 1983, nre broke out in the factory adj1cent to the premises in question and .fire·brigado men entered , into the premises by .breaking a portion of the v.all to get access to the pond. It is t'h! case of the appellant tbat on March 14, 1983, respond,ent Nos. 1 to 4 ... alongwJth some miscreants forcibly entered into the land. This, however, ·is disputed and j,. the root of contro· versy in this case. It.appears that the present ~ppellant, v.ho had not yet b.ecome a purchaser, informed the Official Receiver that certain persons had entered into the premises in question. On this the Official Receiver informed the parties. On 13th May, 1983 the Offi«ial Receiver authorised the appellant 'to take steps for prote~ tion of the pr0perty. lt is difficult to appreciate !low before a con· eluded co;J.tract and a conveyance in fa1 our of the appellant, the Offici1I Rec·,iver could have authorised the present appellant to take steps for removal of respondents treating them unilaterally as trespassors. Ordoi was ·obtained on May 24, 19S3 from a learned Single Judge of the· High Court directing the police to remove the unauthorised occupants. On June 22, 1983 respondent Nos. I to 4 made an· application for being added as parties to the said pending, suit for recalling the order for police help to eject them from the premises in dispute; In the said application four of the' respondents, viz., Pulin Behari Sarkar, Manick Seel; Gope Nath Sarkar and Sudhanshu Bimal Dey, mentioned the fact that they had come to know ab'outthe appointment of the Official. Receiver from the police and they had further come to know abont the offer made by the appellant for the purchase of the ·pJemises in dispute. The said applicants (being · respondents herein) alleged thaf they .alongwith their families, with, the leave~and licence of one of the co-.owners, were residing in the premises since 1975 and had constructed pncca huts and in spite of the same, the appellant did not inform th.e Court of the.said fact before obta.ining police help against them. I.t is further alleged . that on May 2, 191!3 they had come the know th~t the appellant had obtained ex parte .order from the learned Sub-Divisional Magistrate (Executive) directing the Superintendent of Police to restore posses· sion of the disp}lted · premises, comprising ~bout six bighas of land, by' arranging police pickets. ' · :a.· .~· , I 590 SUPREME COURT REPORTS [1984) 3 S.C R. A cD , di Thereafter, the said applicants filed an application before the learned Sub-Divisional Magistrate. (Executive), Howrah, under s. 145(5) of the Code of Criminal Procedure with a prayer· to ~ecall . the ex parte Order mentioned hereinbeforc and to call for a report from the local· police and others regarding possession of the said applicants in the dispnted premises. The Sub-Divisional M1gistrate d'.d not pass any order but adjourned the said application to 7th May 1983. Though no formal older was passed, the s>id applicativn was kept on the record. After coming to know that certain other orders might be passed, the applicants moved a revision· i!pplication , under the Criminal Revisional Jurisdiction of the High Court and thereafter obtained the stay of the· Order of 26th April 1983, passed 'by the learned Sub Divisional Magistrate. This position is not disputed. So, th.e Revision application under s. 145 of the Code of Criminal Procedure is still pending before the High Court. · The learned Single Judge of the High Court did not make a deeper probe into the history. of the litigation and the fact that if the respondents were in possession even as trespassers and procee.· dings under s. 145 were pending aild had not been quashed, they could not have been summarily ejected. The learned Judge further noted that the tesponcfent~ .h~d offered to pay R.s. 1 .lakh more for purchase of the premises in dispute· but the learned Judge was· of the view tha1·the said offer cannot and should not be accepted.· The Division Bench, however, was of the view that the offer made on behalf of .respondents 1 to 4 should be accepted as there was no conc\Uded .contract of sale in favour of the appellant and hence the.re was no completed sale yet. The Division Bench further noted thus: "On the other hand, we find .that 38 families have been residing fo the disputed land. \tis submitted by Mr. Bhabra that these persons are all trespassers without any vestige of title. It is, however, the case of the .petitioners that they have been residing in the disputed land by making certain structures under the. leave and licence of two of the owners of the said premises although one of the owners, Smt. Malati Das, . who is alleged to 'have granted the iicence, has denied granting land of such'licence. If the disputed land is sold to the respondent No. 2, then 38 families who have· been residing therein would be evicted with police help. In . . . r • SADHURAM V. p, B. SARKAR (Fazal Ali, J:Y -0ur opinion, the Court should do social justice .and in doing such justice ai,y t~chnicality of law will not stand in its way. Social justice require.s that the disputed land should be sold to the petitioners and others residing on the disputed land. Moreover, the petitioners have offered to pay the price of Rs. 5,00,0CO, that is to say· Rs. 1,00,COO more than the offer of the respond,nt No. 2." · At this stage, it may be necessary to notice the terms and . . -conditions under "which the owners agreed to sell the properties to => • properties subject to the vendor's making out a good and marketable title free from encumbrances but this does not appear to have found favour with one of the owners .becaine irrevocable. In these circumstances the Division Bench directed that Rs. !,25,000 sho~ld be paid by the present respondents 1 to 4 on or before !st August 1983, which it may be noted has been paid; and thereafter pay the balance sum ofRs. 3,75,000 by 29th August 1983, · which could not be paid because in the' meantime .special leave to appeal was granted by this Court and a stay was obtained. The Division Bench flirther directed that in case payments were made within the time, the property in question should be conveyed to the persons named in the said Order. It was. furthe~ directed that- in case respondents 1 to 4 committed default in paying the purchase pric~ Within the stipulated ti111e, the S!>id order 11c.11ld stand· \aeat(d B c D B F G H 59.4 SUPRH!Ji COURT REPORTS (1984] 3 S.C.R. A and the Order of the Learned Single Jtidge would stand confirmed, i:e., the sale would be made in favour of the appellant. B c D E Corning .back tci the facts, the respondents' claimed before. the learnetl trial Judge for mvestigation of their right to be in possession of the disputed premises by virtue of the leave or licence granted by OI)e or two of' the co-owners. The·. investigation of that point on evidence did not take place though there are passing observations· in. the decision of the learned Single 1!idge that Smt. Malati Da&and Jitendr&.Kumar .Das bad no title or interest to create any licence in their favour. and that one of them further denied hiiving given any such licence. It has te be borne in mind that there has· been no in.vestigation of the respondents' right to be in the premises; even a. trespasser cannot .be· thrown "out of his occupation or posse.ssion, except by due process of law. The. owners.appeared in these proceedings and supported. the appellant. In fact, In the affidavit filed - on behalf of the Receiver it has been made clear that theY leave the matter to this H on'ble Court. • The appellant's rights which have not yet crystallised would not be hampered. court's dominipn civer:the property is still tliere. The Official. Receiver is after all an agent of the . Court. as has ·been held by this Court in a number of cases. ' ' ' .. ' f ' In the case of Ev~rest Coal Company (P) Ltd. v. State of. Bihar .. k F G H & Ors.('), this Court reiterated that when a court placed a Receiver ·· in possession of property, the ·property came under the custody of the court, .th.e Receiver being merely an officer or agent of the court. In Kayjay Industries (P) Lid. v. Asnew Drums (P) Ltd. & Ors.c' this Court reiterated the court's obligation to exercise discretion to 'make out a fair sale out of a bargain. In Tari~ikamal Pandrt & Ors. v. Prafull Kumar Chatterjee (dead) by Lrs (') th1~ Court reiterated (at p. '.153) that the receiver was appointed under Order 40 Rule I and a property could be, sold . by the receiver on the directiqn of the Court ev.en by private negotiations. ·' (!) (1978] 1 S.C.R .. 511. (2) (1974) 3.S.C.R. 678. (3).(1979)) S.C.R. 340 .. • ; ,,... . "' . I SADHURAM v. P. Jl. SARKAR (Faza/ Ali, J.) 59~ {_ ~ ·~ if in these circumstance~ ihc court directs that on payme.n.t of. ' ' ' ' . - a '1riglier . sum of money for· the benefit of the owner, and w1thi:mt any br~ach· of any tegal right cif the intending purchaser, the property:· can be conveyed .to persons in occupation with large number. ~r. families, the Court acts properly and with social wellbeing in mind. ':Mr. S, S. ·Ray, appearing for the appi1Iant, submitted .that . ' • . the entite question was a legal 'issue and there was no warrant for the le'irnea Judges'ofthe Higt C~\irtto r cvi,-imported the eloctri~e '-·~· , . of secial justice. fo ·our opinion, there· app:ea:ts"to· be som~ misapprehension about )Vhat actually .social justi\:e. is .• Th,efe Ml ~o ritualistic formula or any magical charm, i.n the concept of social justice. All thatit means is.that as beiween two part;es if 3" deal is made with orie party without serious de\riment.to the other, then the Court would.lean infav<)ur of the weaker sec,tion of the society, Social justice is the recognition of greater good to larger number without d~privation ofaccrued legal rights of anybody. ·1r' such a thing can be dorie then indeed social justice musfjirev~il ov~r any · technical rule. It is in respom1e to the felt necessities of time and situalion · in. order to do greater good to a larger : number· even thciugh it might deiract frbm some technical rule in· favour of·· a party. Living ac~ommodation is a human proJ?lem ·for vast millions : in-Our.country. The owners, in this case, are getting legally Rs~ 1.·: lai,hmore. We must remember that in administering justice-sopial pr legal· jurisprudence has shifted away from ;llnespuri technicalities and abstract rules to recognition of human·being as bU:inan beiiljlS, and as human. needs and if th~se can be . fulfilled without . .deprivation Of existing lega!'rights of any party concerned, courts must .lean to· wards that and if the Division Bench .. Gf the. H;gb Court, in the facts atid circumstances of the case, has leaned towards that, it is improper ·for this Court in exercise of the. discretion :vested. under Aft. f.36 of the Constitution fo interfere with that decision;' -.w~ would do. well to remember that justice~soCial, economic ·and p9li· tical~is preamble to our Constitution. Administration of justice can no longer be merely. protector of legal rights but must whenever possibl1;.be dispenser of·social justice. . . - . . 'Call it s9cial justice or solving a socio.economic problem or give it any other name or nonienclature, ihe fact of t])e matter is that this was the best course in the circumstances that could hav~ . . . . B c .\_~· E J ., G. H • ''t'. '" B C. E 11. G H I SUPREME COURT REPORTS [1984) 3 s.c.R. been adopted by the court, Unfortunately, the Single Judge completely ignored the following .. important facts which have been indicated by me earlier:_; (l) that.a bulk of the con·sideration money, viz., Rs. 3 · Lakhs out of Rs. 4 Lakhs, was not paid by the appellant even until the time when tJie learned Single Judge had passed the order nor was it paid even when t.he mi!jter was in ·the Higli Court, and · (2) the leai=ned Single Judge overlooked the (act . that an . owner ajso has a right to impose certain conditions and in · exercise of that he had imposed. the condition that the purchaser would have t(i buy the land subject to the pending litigation whereas in ·the offer made by the purchaser he had placed the onus on the owners to give him a good market· able title free from litigation. . . Thus, there was a clear.cut contradiction on this point wJiich ·doe1 not appear to have been notice