IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 3915 of 2012 For Approval and Signature:
HONOURABLE Ms. JUSTICE SONIA GOKANI ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
Whether this case involves a substantial question of law as 4 to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
========================================================= JAGJITSINGH BHAGSINGH ARORA - Petitioner(s) Versus VIBHABEN RAJPAL TYAGI & 1 - Respondent(s) ========================================================= Appearance :
MR NV GANDHI for Petitioner(s) : 1, None for Respondent(s) : 1, Ms SANGEETA PAHWA for M/S THAKKAR ASSOC. for Respondent(s) : 2, ========================================================= :
CORAM HONOURABLE Ms. JUSTICE SONIA GOKANI 2nd July 2012 ORAL JUDGMENT The petitioner is the original plaintiff who preferred HRP suit no. 352 of 2007 before the small cause court Ahmedabad for declaration to an effect that he be declared tenant of the suit premises seeking further direction of restraining the defendants from interfering with the peaceful possession and dispossessing him from the suit premises without following the due process of law.
The initial grant of the order of status quo came to be subsequently vacated, which was however continued to enable the petitioner to approach the higher forum.
Being aggrieved by such an order, the petitioner preferred an Appeal from Order no. 82 of 2007 before the Appellate Bench Small Cause Court, Ahmedabad, wherein the Appellate Bench vide its order dated 28th February 2008 dismissed the Appeal. Such an order has been challenged by way of the present petition enumerating various grounds for such a challenge.
It is the say of the petitioner that the Bungalow no. 12 of Pahelgav Bungalows of Premdeep Co-Operative Housing Society Limited was let out to the petitioner as tenant by the respondent no. 1 through the respondent no. 2 at monthly rent of Rs. 5000/-; excluding taxes and maintenance of the Society with a deposit of an amount of Rs. 50,000/- on 1st July 2001 and the petitioner and his family members are in physical possession of the suit premises till the date. The sister of the petitioner is also running a Beauty Saloon; the respondent no.
1 is residing abroad and the respondent no. 2 is the administrator and rent collector, collects the rent from the petitioner from the time the same has been rented to him.
It is the say of the petitioner that the respondent no. 2 is not issuing the rent receipts and that the rent has been paid till 31st December 2006 and in January 2007, the respondent no. 2 refused to accept the rent and demanded higher rent of Rs. 10,000/- per month.
Learned senior advocate Shri Sunit Shah appearing with Mr. N.V. Gandhi vehemently made his submissions by emphasizing the facts that the petitioner is in a continued settled legal possession. He further submitted that both the courts below have erred in not appreciating the fact that the respondent stay across the street and the petitioner runs a beauty salon and therefore, inference needs to be drawn that the respondents would be aware of the settled legal possession. He relied upon the following decisions in support of his submissions;-
[a] In case of Maria Margarida Sequeria Fernanades & Ors. v. Erasmo Jack De Sequeria (Dead) Through L.Rs., reported in 2012 STPL (Web) 181 SC;
[b] In case of Wander Limited & Anr. v. Antrox India P. Limited, reported in 1990 (Suppl) SCC 727;
[c] In case of Premji Ratansey Shah & Ors. v. Union of India, reported in [(1994) 5 SCC 547];
[d] In case of Rame Gowda (dade) by Lrs. Vs. M. Varadappa Naidu (dead) by Lrs. & Anr., reported in (2004) 1 SCC 769.
[e] In case of Hindustan Petroleum Corporation Limited
v. Sriman Narayan & Anr., reported in [(2002) 5 SCC 760;
He accordingly urged that this settled legal possession of the petitioner shall need to be protected by this court.
Learned advocate Ms. Sangeeta Pahva urged that there is no agreement nor any tenancy document nor any lease and even not a single document of the rent receipt on the record of the matter. She further urged that there is not a single document to hold the possession in favour of the petitioner. Again, she urged that this court is not required to entertain this petition as there is no error or illegality could cause grave injustice to the present petitioner.
As can be noted, the learned Single Judge as well as the appellate bench of Small Cause Court both chose not to protect the possession of the petitioner on the ground that though the plaintiff petitioner is in physical possession of the property but he poorly failed to establish that he possesses the property as a lawful tenant, in absence of any evidence showing the tenancy of suit premises. The documentary evidence produced at the most lead to suggest according to the Courts that he was having possession of the suit premises but such documents where not sufficient to protect him under the provisions of Bombay Rent Act.
It would be worthwhile to make a mention of the judgment sought to be relied upon rendered in the case of Maria Margarida Sequeria Fernandes and others Vs. Erasmo Jack De Sequeria (dead) through L.RS. [Supra]. In this decision, reference is made of various decisions, as to be discussed hereinafter.
In case of Rame Gowda (dead) by Lrs. Vs. M. Varadappa Naidu (dead) by Lrs. & Anr., reported in (2004) 1 SCC 769, it has been observed by the Bench of three judges of the Apex Court that the plea of possession is no good against the rightful owner and assumption that the person is in peaceful possession will not work and cannot operate against the true lawful owner. Yet another decision rendered in case of Southern Roadways Ltd., Madurai Vs. S.M. Krishnan, reported in (1989) 4 SCC 603 has been referred, wherein the Supreme Court held that, “it is the settled law that agent has no possession of his own and care takers possession is the possession of the principal”. Reference is also made to the decision of Supreme Court in case of Anima Mallick Vs. Ajoy Kumar Roy and Anr., (2000) 4 SCC 119, where the sister gave possession gratuitously to the brother and the Court restored possession to the sister as it was purely on gratuitous basis holding that the sister could have reclaimed possession even without knowledge of the brother.
Case laws of Automobile Products India Limited Vs. Das John peter and Others (2010) 12 SCC 593 and Ramrameshwari devi and Others Vs. Nirmala Devi and Others (2011) 8 SCC 249 are discussed where the Apex Court has held that dilatory tactics, misconceived injunction suits create incentives for wrongdoers and held that, “truth alone has to be the foundation of justice. The entire judicial system has been created only to discern and find out the real truth. Judges at all levels have to seriously engaged themselves in a journey of discovering the truth. That is their mandate, obligation and bounden duty. The judicial system will acquire credibility only when people will be convinced that justice is based on the foundation of the truth.” Decision also referred to relied upon is of Mohanlal Shamji Soni Vs. Union of India, [1991] Supp. (1) SCC 271, where the Supreme Court reiterated need of discovering truth in every matter and deliver the parties their due they deserve in these words, “.. It is a well accepted and settled principle that a Court must discharge its statutory functions-whether discretionary or obligatory- according to law in dispensing justice because it is the duty of a Court not only to do justice but also to ensure that justice is being done. What people expect is that the court should discharge its obligation to find out where in fact the truth lies.
Right from inception of the judicial system it has been accepted that discovery, vindication and establishment of truth are the main purposes underlying the existence of the courts of justice”.
Apex Court in case of Ritesh Tewari and another Vs. State of U.P. & Ors., (2010) 10 SCC 677, has quoted often quoted quotation, which reads thus-
“ Every trial is voyage of discovery in which truth is the quest ”
and held that, “.. It would be imperative that one who claims possession must give all such details as enumerated hereunder. They are only illustrative and not exhaustive.
(a) Who is or are the owner of the property;
(b) title of the property;
( c) Who is in possession of the title documents (d ) identity of the claimant or claimants to possession;
(e) the date of entry into possession;
(f) how he came into possession-whether he purchased the property or inherited or got the same in gift or by any other method;
(g) in case he purchased the property, what is the consideration; if he has taken it on rent, how much is the rent, license fee or lease amount;
(h) If taken on rent, license fee or lease-then insist on rent deed, license deed or lease deed;
(I) who are the persons in possession/occupation or otherwise living with him, in what capacity; as family members, friends or servants etc.;
(j) subsequent conduct, i.e., any event which might have extinguished his entitlement to possession or caused shift therein; and
(k) basis of his claim that not to deliver possession but continue in possession.
71. Apart from these pleadings, the Court must insist on documentary proof in support of the pleadings. All those documents would be relevant which come into existence after the transfer of title or possession or the encumbrance as is claimed. While dealing with the civil suits, at the threshold, the Court must carefully and critically examine pleadings and documents.
72. The court will examine the pleadings for specificity as also the supporting material for sufficiency and then pass appropriate orders.
Discovery and production of documents and answers to interrogatories, together with an approach of considering what in ordinary course of human affairs is more likely to have been the probability, will prevent many a false claim or defences from sailing beyond the stage for issues.
84. False claims and defences are really serious problems with real estated litigation, predominantly because of ever escalating prices of the real estate. Litigation pertaining to valuable real estate properties is dragged on by unscrupulous litigants in the hope that the other party will tire out and ultimately would settled with them by paying a huge amount. This happens because of the enormous delay in adjudication of cases in our Courts. If pragmatic approach is adopted, then this problem can be minimized to a large extent.
97.This Court in Puran singh Vs. The State of Punjab (1975) 4 SCC 518 held that an occupation of the property by a person as an agent or a servant at the instance of the owner will not amount to actual physical possession.
101. Principles of law which emerge in this case are crystallized as under :-
1. No one acquires title to the property if he or she was allowed to stay in the premises gratuitously. Even by long possession of years or decades such person would not acquire any right or interest in the said property.
2. Caretaker, watchman or servant can never acquire interest in the property irrespective of his long possession. The caretaker or servant has to give possession forthwith on demand.
3. The Courts are not justified in protecting the possession of a caretaker, servant or any person who was allowed to live in the premises for some time either as a friend, relative, caretaker or as servant.
4. The protection of the Court can only be granted or extended to the person who has valid, subsisting rent agreement, lease agreement or license agreement in his favour.
The caretaker or agent holds property of the principal only on behalf of the principal. He acquires no right or interest whatsoever for himself in such property irrespective of his long stay or possession.
She has also relied upon the decision of Supreme Court in case of Wander Ltd. & Anr. Vs. Antox India P. Ltd., reported in 1990 (Supp) Supreme Court Cases 727. where the court has the discretionary relief – when it should be granted and the factors which needs to be considered at the time of grant of such relief.
In case of Premji Ratansey Shah & others Vs. Union of India & others, reported in (1994) 5 Supreme Court Cases 547, the Court held that no injunction can be issued in favour of a trespasser or a person who gained unlawful possession as against the true owner because it is a discretionary and equitable relief.
Both the sides sought reliance in case of Rame Gowda (dead) by Lrs. Vs. M. Varadappa Naidu (dead) by Lrs. & Anr., [Supra] which speaks of concept of settled possession of an occupant who cannot be dispossessed without recourse to law. In this decision the court reiterated the test laid down in case of Puran Singh Vs. State of Punjab.,l reported in (1975) 4 SCC 518. It would be worthwhile to reproduce observations of the Supreme Court made in case of Rame Goowda [Supra], which reads thus -
“8. It is thus clear that so far as the Indian law is concerned the person in peaceful possession is entitled to retain his possession and in order to protect such possession he may even use reasonable force to keep out a trespasser. A rightful owner who has been wrongfully dispossessed of land may retake possession if he can do so peacefully and without the use of unreasonable force. If the trespasser is in settled possession of the property belonging to the rightful owner, the rightful owner shall have to take recourse to law; he cannot take the law in his own hands and evict the trespasser or interfere with his possession. The law will come to the aid of a person in peaceful and settled possession by injuncting even a rightful owner from using force or taking law in his own hands, and also by restoring him in possession even from the rightful owner (of course subject to the law of Limitation), if the latter has dispossessed the prior possessor by use of force. In the absence of proof of better title, possession or prior peaceful settled possession is itself evidence of title. Law presumes the possession to go with the title unless rebutted. The owner of any property may prevent even by using reasonable force a trespasser from an attempted trespass, when it is in the process of being committed, or is of a filmsy character, or recurring, intermittent, stray or casual in nature or has just been committed, while the rightful owner did not have enough time to have recourse to law. In the last of the cases, the possession of the trespasser, just entered into would not be called as one acquiesced to by the true owner.
9. It is the settled possession or effective possession of a person without title which would entitle him to protect his possession even as against the true owner. The concept of settled possession and the right of the possessor to protect his possession against the owner has come to be settled by a catena of decisions. Illustratively, we may refer to Munshi Ram and Ors. v. Delhi Administration, (1968) 2 SCR 455, Puran Singh and Ors. v. The State of Punjab, (1975) 4 SCC 518 and Ram Rattan and Ors. v. State of Uttar Pradesh, (1977) 1 SCC 188. The authorities need not be multiplied. In Munshi Ram and Ors.'s case (supra), it was held that no one, including the true owner, has a right to dispossess the trespasser by force if the trespasser is in settled possession of the land and in such a case unless he is evicted in the due course of law, he is entitled to defend his possession even against the rightful owner. But merely stray or even intermittent acts of trespass do not give such a right against the true owner. The possession which a trespasser is entitled to defend against the right owner must be settled possession, extending over a sufficiently long period of time and acquiesced to by the true owner. A casual act of possession would not have the effect of interrupting the possession of the rightful owner. The rightful owner may re-enter and re- instate himself provided he does not use more force than is necessary. Such entry will be viewed only as resistance to an intrusion upon his possession which has never been lost. A stray act of trespass, or a possession which has not matured into settled possession, can be obstructed or removed by the true owner even by using necessary force. In Puran Singh and Ors.'s case (supra) , the Court clarified that it is difficult to lay down any hard and fast rule as to when the possession of a trespasser can mature into settled possession. The 'settled possession' must be (i) effective, (ii) undisturbed, and (iii) to the knowledge of the owner or without any attempt and concealment by the trespasser. The phrase settled possession does not carry any special charm of magic in it, nor is it a ritualistic formula which can be confined in a strait- jacket. An occupation of the property by a person as an agent or a servant acting at the instance of the owner will not amount to actual physical possession. The Court laid down the following tests which may be adopted as a working rule for determining the attributes of 'settled possession' :
1. (i) that the trespasser must be in actual physical possession of the property over a sufficiently long period;
2. (ii) that the possession must be to the knowledge (either express of implied) of the owner or without any attempt at concealment by the trespasser and which contains an element of animus possidendi. The nature of possession of the trespasser would however, be a matter to be decided on the facts and circumstances of each case.
3. (iii) the process of dispossession of the true owner by the trespasser must be complete and final and must be acquiesced to by the true owner; and
4. (iv) that one of the usual tests to determine the quality of settled possession, in the case of cultivable land, would be whether or not the trespasser, after having taken possession, had grown any crop. If the crop had been grown by the trespasser, then even the true owner has no right to destroy the crop grown by the trespasser and take forcible possession.
10. In the cases of Munshi Ram and Ors. (supra) and Puran Singh and Ors. (supra), the Court has approved the statement of law made in Horam v. Rex, AIR 1949 All 564, wherein a distinction was drawn between the trespasser in the process of acquiring possession and the trespasser who had already accomplished or completed his possession wherein the true owner may be treated to have acquiesced in while the former can be obstructed and turned out by the true owner even by using reasonable force, the latter, may be dispossessed by the true owner only by having recourse to the due process of law for re-acquiring possession over his property.”
Thus, crux of this judgment as could be discerned is that the possession of a trespasser could mature into the settled possession which must be effected in disturbing and to the knowledge of the owner. Therefore, the question that would arise is as to whether the person claiming the possession even if is a trespasser is in equilibrium of the property over a sufficiently long period and whether such possession is to the knowledge of the owner and process of dispossession of the true owner by a trespasser has been final and equilibrium to by the true owner. Some of the other decisions sought to be relied upon by the petitioner are as follows :-
{1} In case of Tulsi Vs. Smt. Paro (dead), reported in 1997 (I) RCR p. 281 {2} In case of R. Venkataswami Naidu v. M/s. South India Viscose Limited, Coimbatore, reported in AIR 1985 Madras 257;
{3} Smt. Rajnibai alia Mannubai v. Smt. Kamla Devi & Ors., reported in AIR 1996 SC 1946;
{4} Sukkha Singh & Anr. vs. Mahal Singh & Anr., reported in AIR 2003 Rajasthan 21;
{5} In case of Prataprai N. Kothari Vs. John Braganza, reported in AIR 1999 Supreme Court, p. 1666.
{6} Mohd. Sharif v. ADJ No. 2 Sikar & Anr., reported in AIR 2004 Rajasthan 58;
{7} Ramji Rai & Anr. v. Jagdish Mallah (Dead) thro. L.Rs & Anr., reported in AIR 2007 SC 900;
By and large, the decisions are in respect of the suit for permanent injunction for protection of possession, based on long possession where the Court held that the title is not an issue. Dismissal of the suit on the ground that the defendant did not prove his title and on determining that possession as held to be improper, the Courts have held that what requires to be considered is prima facie case which cannot be confused with prima facie title.
In light of aforementioned background, whether any interference is warranted in exercise of supervisory jurisdiction requires to be determined.
It would be necessary to profitably remember the decision of Apex Court rendered in case of Kokkanda B. Poondacha & Ors. Vs. K.D. Ganapathi & Anr., reported in (2011) 2012 SCC 600, wherein the Apex Court was examining the powers of the High Courts interference with the interlocutory orders of the subordinate court and held that the same is required when the trial court acted without jurisdiction or access of jurisdiction and order resulted in failure of justice. In case of State of West Bengal & Ors. Vs. Samar Kumar Sarkar, reported in (2009) 15 SCC 444 also, it is held that “power of superintendent conferred upon an High Court under Article 227 is not as extensive as power conferred by Article 226 of the constitution”. Ordinarily, it is open to the High Court exercising its power of superintendents, only to consider whether there is an error of jurisdiction in the decision of court or tribunal subject to is superintendents.
As can be considered by a near grants at the order of the trial court as that the lower Appellate Court of Small Cause that both courts have exhaustively considered the factually and legal aspects. The main thrust of reasoning appear to be none availability of any document indicating prima facie any relationship between tenant and that of the owner. From the beginning, The petitioner herein pleaded oral lease and have also further insisted upon protection of their legal possession. The petitioner also went to an extent of urging that the legal possession requires protection and in such circumstances, both the courts found that the remedy of the petitioner lie else where in asmuch as there is no substantiating document worth the name to uphold such pleadings and therefore, they both denied equitable relief in favour of the petitioner. Keeping in mind the scope of article 227 of the constitution and the catena of decisions with laid down the ratio in the regard, nowhere the petitioner put point out any jurisdictional error or access of jurisdiction warranting interference.
Independently examining the case of the petitioner also, the aspect of possession emerges from the record and other side has also not disputed the possession of the petitioner. However, the oral lease has been challenged by respondent herein. In such circumstances, this court also inquired from the petitioner as to whether there was any semblance of the evidence to support the theory of oral lease, no document is forthcoming. The amount of Rs. 5000/= by way of rent is averred to have been paid to the respondent for the number of years there is no document worth the name to support this say. Believing it for the moment that the respondents were wary of issuing any went receives and acknowledge relationship of a tenant, it is for the petitioner to establish payment of such rent by some means. Neither from any document issued by the respondent nor from even the Bank Account, regular payment towards such oral lease is forthcoming. This was one of the principle grounds the small cause courts and its appellate bench in appeal questioned the very maintainability on the ground of jurisdiction. Many of these issues, of course may require trial but at the same time, when the party approaches the court with a request of equitable relief, it is expected to approach the right forum as also establish prima facie case for those forum to accept such a request. For want of any jurisdictional error or illegality in the order impugned causing grave injustice, no interference under Article 227 of the Constitution of India is warranted in the present writ petition.
Resultantly, this petition fails and the same is dismissed with no order as to costs.
{Ms. Sonia Gokani, J.} Prakash*