JUDGMENT S.N. Srivastava, J.
1. Subject matter of impugnment in this second appeal is the judgment and decree dated 18.10.1986 passed by 2nd Addl. Civil Judge, Saharanpur whereby Civil Appeal No. 102 of 1985 was allowed and judgment and decree passed by the trial court dated 30.11.1985 in Original Suit No. 268 of 1982, Premwati v. Jagdish and Ors..
2. The dispute erupted and escalated into institution of Original Suit No. 268 of 1982 when defendant No. 1 threatened plaintiff with eviction from the house, i.e., house No. 6/1011 situated in Mohalla Nai Basti. Saharanpur. The plaintiffs case as unfolded in the plaint is that plaintiffs husband namely, Hukam Singh and Jagdish Prasad were full blooded brothers and the house in question was jointly purchased by the father-in-law of the plaintiff. Initially, the entire family were residing in their ancestral village, e.g., Baheda, Sandal Singh and after acquisition of the said property, the entire family shifted to the house in question in the year 1960 and ever since then, plaintiff and other members had been residing in the house in question. It is further alleged in the plaint that the husband of the plaintiff was dim-witted with weak intellect and his whereabouts are not traceable for the last several years. It is further alleged that the defendants played foul with his brother Hukam Singh in getting the property registered in their names excluding Hukam Singh and soon thereafter, he disappeared and there is no trace of his whereabouts. It is further alleged that the defendant No. 1 threatened the plaintiff with eviction from a portion of the house in her possession which necessitated the institution of aforestated suit. In the written statement, the defendant repudiated the plaintiff's case claiming that the house in question was acquired exclusively by him which he purchased through six sale deeds executed between July, 1956 to 1961 and in consequence, claimed exclusive ownership by possession. The defendant also denied possession of the plaintiff and sought dismissal of the plaint.
3. The trial court upon appraisal of evidence on record decreed the suit for injunction and restrained the defendant from interfering with the possession of the plaintiff. In appeal preferred against the verdict of trial court, the appellate court reversed the finding and dismissed the suit while setting aside the decree. From a perusal of the finding recorded by the appellate court, it would appear that the appellate court upturned the finding on two grounds firstly that the claim of the plaintiff of co-ownership is not proved from the evidence on record and secondly that the plaintiffs possession cannot be said to be valid possession and hence no injunction could be granted. In the Second appeal, the Court referred to question No. 5 as substantial question and also distilled following question as substantial question for consideration and determination. The question framed by the Court may be quoted below :
"Whether the plaintiff appellant being in settled possession of the house in question, any decree for injunction could be passed in her favour and appellate court erred in law in dismissing the suit ?"
4. According to Sri A.K. Singh, who appeared as Amicus Curiae in this case, the ground Nos. 12 and 15 as urged in the second appeal, raise substantial questions which may be considered and adjudicated upon. The ground Nos. 12 and 15 may usefully be quoted hereinbelow :
"12. Because the lower appellate court has also erred in law in falling to invoke presumption of the family of the plaintiff's husband and his brother being joint family particularly when there is no denial of the said fact from the side of the defendant No. 1. This also conclusively proved the plaintiff-appellant's claim.
15. Because in view of the fact that plaintiff-appellant has no other place of abode coupled with the fact that she has been living in the disputed property since long, it was more reasonable and justified to protect the appellant's possession by decreeing the suit in saving the lady appellant from the riguor (sic) of his absence in the circumstances for which the defendant No. 1 is responsible."
The learned counsel also canvassed that in view of the finding of the trial court that plaintiff was in possession, she cannot be evicted and therefore it was lastly submitted, the suit for permanent injunction may be decreed. The learned counsel also urged that the trial court rightly decreed the suit upon appraisal of materials on record and the lower appellate court erroneously reversed the finding and set aside the decree without any valid basis. The learned counsel also placed credence on a decision of Apex Court in Rame Gowda (dead) by L.Rs. v. M. Varadappa Naidu (dead) by L.Rs. in support of his case.
5. Before dwelling on the merits of the case, it is noticeable that there is no appearance for the opp. parties. From a perusal of the order-sheet, it would transpire that the case appeared on board on several dates and it was even taken up but it had to be passed over directing Sri A. K. Singh who represented plaintiff as Amicus Curiae to give written notice to Sri S. K. Srivastava and Sri V. K. Srivastava attended with further direction to place the matter on board for hearing on 28.9.2000. It would further transpire that notices were again given to Sri V. K. Srivastava and Sri S. K. Srivastava on 23.9.2004 and 24.9.2004 respectively. On 29.9.2004, again there was no appearance for opp. parties and this Court directed the office on 30.9.2004 to list the case in the next week. Today, the case is again on board but there is no appearance for opp. parties, In view of the fact that the learned counsel shown to be presenting the opp. parties were notified by written notice, the Court is of the view that it would serve no useful purpose to keep the matter pending and it should be disposed of accordingly.
6. From the materials on record, it brooks no dispute nor has it been repudiated that the plaintiff being widow of the own brother of the defendant was residing in the same house since the year 1960. It also clearly transpires from the evidence on record that Hukam Singh was dim-witted and man of weak intellect. Besides from a close scrutiny of the finding recorded by the Courts below and also from a punctilious reading of the materials on record, it is clearly established that the plaintiff was in actual physical possession of the house in dispute by reason of her being widow of own brother of defendant No. 1. In the perspective of established facts (supra), it leaves no manner of doubt that the plaintiff was not a trespasser and the appellate court erroneously held the status of plaintiff as trespasser. Before probing into the matter further, it would be apt to quote the wise observations of Hon. Ramaswamy, J., in the East India Hotels Ltd. v. Syndicate Bank, 1992 Supp (2) SCC 29, 50.
"There is no special charm or magic in the words "settled possession" nor is it a ritualistic formula which can be confined in a straitjacket but it has been used to mean such clear and effective possession of a person, even if he is a trespasser, who gets the right under the criminal law to defend his property against attack even by the true owner. The possession must be within the knowledge either express or implied, of the owner or without any attempt at concealment and which contains an element of animus possidendi. The true owner has every right to dispossess or throw out a trespasser while he is in the act or process of trespassing but this right is not available to the true owner if the trespasser has been successful in accomplishing his possession to the knowledge of the true owner. In such circumstances, the law requires that the true owner should dispossess the trespasser by taking recourse to the remedies under the law."
"A rank trespasser is one who does not stand in any contractual relationship with the owner of the premises. A trespasser is also one who lawfully enters into but unlawfully remains in possession of the property without the consent or acquiescence of the owner. If one goes into possession of the property of another with invitation or permission for instance to a shop or cinema theatre, or marriage hall to celebrate a marriage his initial entry is lawful but if he refuses to leave that place and unlawfully squats on it, he becomes a trespasser of a transient origin with no vestige of right. The initial entry into possession is obviously for short duration with a specified purpose. But if he enters upon the land under a contract and uses the land or premises and does continuous business therein for well over a long period peacefully and uninterruptedly and continues to do the same even after the expiry or termination of licence, the important question arises whether he is a rank trespasser without any protection of law."
11. Though in the instant case, question for determination is circumscribed to the question of restraining the defendant from interfering with the possession of the plaintiff with part of property in question, still the Court feels called to dwell and expatiate on the aspect whether the plaintiffs status would be that of a trespasser as held by the lower appellate court. As discussed above, one is not a trespasser whose possession is within the knowledge either express or implied of the owner or without any attempt at concealment. A recent or concealed possession does not enable a trespasser to defend his possession. Though there is scarcely any indicium on record to prove the title of the plaintiff or her husband over the property in question, but it bears no dispute that the property was acquired during life time of Radhey Lal, father-in-law of the plaintiff and it has been alleged that it was Radhey Lal who had funded the purchase of land and construction of the house thereon though this claim has been emphatically denied by the defendant. Since this Court is not seized of the question of title, it leaves that question to be determined in appropriate forum. It is established from the record that plaintiff and her husband had been residing in the said property since very inception and in the circumstances, the plaintiff cannot be despoiled of her right to live in peace in the said house being in settled possession. In Indian culture, such a woman has always been held in high esteem deserving sympathetic and soft approaches. It would be quite unholy and forbidden by our culture to throw an old widow on streets particularly when she is bedeviled by misfortune of losing her husband. It would be a very iniquitous situation if plaintiff, a widow of the own brother of defendant Jagdish Prasad is thrown out to fend for herself particularly when it is established on record that she had been residing in the house in question for the last 40 years and by all reckoning, is in a settled state of possession. Being widow and being in settled possession for the last 40 years, it would hardly matter if she has failed to establish her title in the circumstances discussed above. Since law and moral interacts like joints and bolts, it would not constitute transgression on the part of this Court if it be observed that it is the moral duty of the defendant not to interfere with the occupation of the widow of his own brother in a part of property which she claims to have been in occupation since the very inception.
12. As held by the lower appellate court, the mere fact that the appellant had not been able to establish her claim of co-ownership, she cannot be dispossessed from the house in question inasmuch as she had been able to accomplish her possession to the knowledge of the defendant No. 1.
13. In view of the above discussion, I am of the view that the lower appellate court acted erroneously while reversing the judgment and decree passed by the trial court treating the plaintiff as trespasser. Therefore, the question framed by the Court is answered in favour of the plaintiff.
14. In the above conspectus, the second appeal is allowed and the judgment and decree dated 18.10.1986, passed by lower appellate court dismissing the suit are set aside and the judgment and decree passed by the trial court is affirmed.
15. In the facts and circumstances, there would be no order as to costs.