ORDER S.N. Srivastava, J.
1. Impugned herein in the judgment dated 25th May 2004 passed, by Addl. District Judge (Varanasi (Court No. 1). By means of the impugned order passed in Civil Misc. Appeal No. 29 of 2004, the appellate Court, set aside the order of the trial Court i.e. Civil Judge (J.D.) City Varanasi, granting interim injunction in favour of the plaintiff.
2. The factual matrix in its essentials may be stated. The plaintiff instituted a suit for the relief of permanent injunction seeking to restraint the. defendants from interfering with the possession of the house in question i.e. House No. S-18/205 situated in Mohalla Raja Bazar in the City of Varanasi. The grounds set out in the plaint were that the plaintiff was a joint tenant along with one Mustafa but the rent was paid in the name of Mustafa for the last 60 years. Mustafa breathed his last and his sons subsequently vacated the portions of premises in their possession and the entire house including vacated portions of the premises was taken possession of by the plaintiff and his family. It has been set out in the plaint that the plaintiff cannot be ejected otherwise than in accordance with law. It is also stated in the plaint that the plaintiff is willing and ready to pay rent or in the alternative, to purchase the premises in question.
3. While instituting suit, the plaintiff also filed application for injunction attended with an affidavit, which embodies self-same allegations as contained in the plaint. In the counter-affidavit to the affidavit filed in support of injunction application, it was specifically pleaded by the defendants that Mustafa alone was tenant and plaintiff was merely caretaker /servant of Mustafa and that Mustafa and his family have already vacated the premises. It was further stated that after the death of Mustafa, his son became tenant who paid rent but thereafter they vacated the premises on 21-2-2003. It was further stated that the plaintiff who was a mere caretaker/servant in the said house, refused to hand-over possession and instead instituted the suit for permanent injunction. It was further stated that the house in question was being used by the tenant and plaintiff for residential purposes and the grandsons of the plaintiff started a venture dealing in batteries which has resulted in corrosion and substantial damage to the house in question. It was further stated that the plaintiff was neither tenant nor he paid any rent and he was occupying the premises as trespasser. It was also stated that on vacation of the premises by original tenant, he began occupying those portions vacated by the sons of Mustafa which he had no right to retain with him as trespasser.
4. I have heard learned counsel for the parties. The learned counsel for the petitioner canvassed that the injunction was rightly granted by the trial Court and appellate Court erred In law in reversing the same. He further canvassed that though the rent was paid in the name of Mustafa and his sons but the petitioner was a joint tenant. It was also submitted that even if it be assumed that the petitioner was not a joint tenant, it brooks no dispute that he has been in settled possession for the last 60 years and therefore, he cannot be evicted except in accordance with law.
5. The questions that surface for determination are (1) whether the petitioner was a tenant along with Mustafa and (2) whether the plaintiff could be deemed to be in settled possession on the date of suit.
6. Before coming to grips with the above question, it. would be appropriate to delve into the meaning of the word "tenant". The word "tenant", in relation to a building, as defined in Section 3 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 means a person by whom its rent is payable, and on the tenant's death (1) in the case of a residential building, such only of his heirs as normally resided with him in the building at the time of his death. In the perspective of above meaning, I now proceed to examine the status of the peti- tioner in the premises in question. Concededly, the petitioner has not paid any rent and the entire rent was always paid by Mustafa and his descendants/heirs. There is nothing on the record to show that the petitioner was either a member of the family of Mustafa nor he claimed to be heirs of Mustafa after his death and as such, it is beyond the pale of doubt that the rent was never paid by him. It was subsequently that he began claiming joint tenancy for the last 60 years. Coming to the finding of the appellate Court, reference has been made by the appellate Court to Paragraph 5 of the plaintiff in which plaintiff soon after vacation of the portions of the premises in occupation of Mustafa, the plaintiff petitioner began occupying the same in phased manner. This factum is further borne out from Paragraph 6 of the affidavit (Annexure 1 to the writ petition) in which it is stated by the plaintiff that he began occupying the portions of the premises as soon as they were vacated by the outgoing tenants. Indisputably, the rent was always paid by Mustafa and thereafter by his sons/heirs. It also transpires from the pleading of the defendant that the plaintiff was residing with Mustafa as mere caretaker/servant who did not hand over the premises in question even after vacation of the building by the heirs of Mustafa on 31-10-2003 though while leaving the premises they had executed a written note of vacation of the disputed premises. In view of the above, it is explicit that the petitioner occupied the premises in question even after vacation of the accommodation by the heirs of Mustafa and that he was living with Mustafa and subsequently with the heirs of Mustafa as servant. It is also explicit from the record that the petitioner never claimed any joint tenancy nor paid any rent to the landlord as tenant and he entered into occupation of the accommodation after its vacation by the tenant and by this reckoning, his possession shall not be deemed to be a lawful possession. The law in this connection is well enunciated that no injunction could be granted in favour of a person who is in unlawful possession having no right to seek injunction against its true owner See (1995) All CJ 474 (SC) : 1995 AIR SCW 1439. In view of the above, the first question is decided on the lines that the petitioner was not tenant in the premises in question and therefore, his case of joint tenancy also falls to the ground and therefore, it cannot be said that he had made out a prima facie case in favour of grant of interim injunction.
7. The second question that crops up for consideration is whether the possession of the plaintiff would be deemed to be a settled possession and he was entitled to get any injunction at all on the basis of his possession as care-taker/servant. In connection with question of 'settled possession", the learned counsel for the petitioner relied upon decisions of the Apex Court reported in Samir Sobhan Sanyal v. Tracks Trade Pvt. Ltd., AIR 1996 SC 2102, Rahmullah v. The District Judge, Siddharth Nagar, 1999 Rev Dec 10 and Krishna Ram Mahale v. Shobha Venkat Rao, AIR 1989 SC 2097. In Kirshna Ram Mahale's case (supra), the Apex Court held that it is well-settled law In this country that where a person is in settled possession of property, even on the assumption that he had no right to remain on the property, he cannot be dispossessed by the owner of the property except by recourse to law. In Rahmullah's case (supra), the Apex Court quintessentially held that to make out a prima facie case for injunction, it is not required that the plaintiff should establish his title but it is enough if he can show that he has a fair question to raise as to the existence of the right alleged and the property in the meantime be preserved in status quo.
8. Whether the plaintiff has any prima facie case, balance of convenience or irreparable injury has to be seen from the point of view where the plaintiff is in settled possession or before filing the suit, he was in the process of taking possession otherwise than in accordance with law. It has also to be seen whether existence of prima facie title and prima face case is altogether different things. Prima facie title has to be established on evidence at the trial while prima facie case needs investigation at the stage of consideration of injunction/stay matter. This aspect was considered by the Apex Court in Dalpat Kumar v. Prahalad, (1992) 1 SCC 719 : AIR 1993 SC 276 where the distinction between the prima facie right and prima facie case has been dealt with. In a recent case in Rame Gowda v. M. Varadappa Naidu, (2004 AIR SCW 4205 : AIR 2004 SC 4609) the Apex Court was seized of the question of settled possession" where it laid down the test to be adopted as working for determining the attributes of "settled possession". The tests laid down by the Apex Court may be excerpted below (Para 11 of AIR).
"(1) that the trespasser must be in actual physical possession of the property over a sufficiently long period : (ii) that the possession must be to the knowledge (either express or 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; (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 (iv) that one of the usual tests to determine the quality of settled possession in the case of cultural 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 thus true owner has no right to destroy the crop grown by the trespasser and take forcible possession. Therefore when title of either party was not proved and plaintiff was found to be in settled possession he would be entitled to relief of injunction restraining defendant from interfering with his possession."
Reverting to the facts of the present case, it is quite obtrusively noticeable from the finding of the Court below and also from the materials on record that the plaintiff petitioner trespassed into the portions of the property Immediately before filing of the suit after the tenant had vacated the premises and the plaintiff had resided with the tenant as care--Laker/servant and not as Joint tenant and further the plaintiffs claim that he was in settled possession for the last 60 years in the capacity of a joint tenant is not borne out from the record. It is amply established on the record that the plaintiff entered into possession in a phased manner as soon as the tenant vacated the premises and also taking into consideration that the outgoing tenant had scribed a written note attesting to vacation of the premises but the plaintiff did not passed on the key and stayed back In possession as care-taker and by this reckoning one of the tests that trespasser must be in actual physical possession of the property over a sufficiently long period, is not satisfied. Even if one proceeds on the assumption that the plaintiff ultimately succeeds in establishing his possession over the property prior to the date of vacation of the premises by the tenant impinging upon his claim as joint tenant and by this reckoning, the tenancy cannot be said to have devolved upon him or any of the family members inasmuch as it is conceded and admitted on record that the rent was paid by Mustafa and subsequently by his sons/heirs.
9. From a close scrutiny of the materials on record, it brooks no dispute that defendants are the true owners. It is also explicit that the cause of action arose immediately when the tenant vacated the premises who gave in writing attesting to vacation of the premises. The plaintiff who resided with the tenant entered into possession over the portions in a phased manner as admitted by him in the plaint referred to above as and when they were vacated by the tenants and retained possession thereof. It has been clearly set out by the defendants that plaintiff was not a tenant and he illegally entered into possession by reason of residing in the premises along with the tenant and instead of parting with possession and removing household effects which he forced into the vacated portions and filed suit immediately thereafter. In this perspective, if the true owner was handed over possession by the outgoing tenant and the plaintiff who was merely a care-taker living along with the tenant trespassed into the vacated portions, it would not be assumed that the trespass was complete and final into which the true owner had acquiesced. In connection with it, reference be made to the observations of the Court in Para 9 of the decision in Ram Gowda's ease, AIR 2004 SC 4609 (supra) to the effect that "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 same principle can be called in aid for application to the present case insofar as question of occupation of the property by the petitioner is concerned. The principle established by the above-quoted precedent is that any person who is occupying a tenanted portion as agent or servant does not amount to actual physical possession of a tenant. In the facts and circumstances, it is amply proved that possession of the plaintiff as care-taker/servant was, as a matter of fact, an occupation as an agent or a servant of the original tenant and by this reckoning his possession cannot amount to actual physical possession by a tenant and therefore, the appellate Court rightly reversed the impugned order of the trial Court granting injunction to the plaintiff. In my considered view, the appellate Court committed (sic) an error apparent on the face of the record nor the finding recorded the appellate Court is impaired by any infirmity which go into its roots to vitiate the same.
10. As a result of foregoing discussion, the Writ Petition fails and is dismissed. There would be no order as to costs.