Karnataka High Court
Zoo Authority Of Karnataka, Mysore vs Anand on 14 January, 1999
Equivalent citations: 1999(3)KARLJ176, 1999 A I H C 3630
ORDER
1. Heard Sri B.N. Dayananda, learned Counsel for the revision petitioner.
2. This revision petition is directed against the order dated 24-2-1998 in Miscellaneous Appeal No. 51 of 1997 whereby the Appellate Court allowed the appeal and set aside the order of the Trial Court dated 5-6-1997 passed on I.A. I in Original Suit 232 of 1997 by the I Civil Judge. The Appellate Court further partly allowed I.A. filed by the plaintiff-opposite party and the operative portion of the order reads as under:
"The appeal is hereby allowed. The order dated 5-6-1997 made on I.A. I in Original Suit 232 of 1997 on the file of 2nd Additional First Civil Judge (Junior Division) Mysore is hereby set aside. I.A. I filed by the plaintiff is partly allowed restraining the defendant from forcibly dispossessing the plaintiff from the suit property except in accordance with law till the disposal of the suit. This is subject to the condition that the plaintiff shall deposit the licence fee by enhancing the earlier fee by 10% as per the resolution dated 27-12-1997 passed by the defendant. No costs".
A perusal of the order per se reveals that I.A. I has been partly allowed restraining the defendant from forcibly dispossessing the plaintiff from the suit property, except in accordance with law, till the disposal of the suit. This has been again subjected to plaintiffs depositing the licence fee by enhancing the earlier fee by 10% as per the resolution dated 27-12-1997 passed by the defendant. A perusal of the order reveals that limited injunction has been granted. It means that it has kept open to the respondent-owner that he can take steps, which are in accordance with law and procedure established by law, to get possession. But the owner will not dispossess the plaintiff-respondent from the possession of the property in dispute in any manner otherwise than in accordance with law.
3. It has restrained forcible dispossession. It has been contended by the petitioner's Counsel that the present respondent was a licensee. His licence came to an end and therefore he had no right to remain in possession. So subsequent possession was not lawful one. Therefore, the applicant-revision petitioner was entitled to take possession and to oust the plaintiff from possession. Learned Counsel contended that the order granted by the Trial Court, as such, is without jurisdiction and illegal. Learned Counsel for the revision petitioner made a reference to a Division Bench's decision of this Court in the case of M/s. Patil Exhibitors Private Limited v Corporation of the City of Bangalore.
4. I have applied my mind to contentions raised by the learned Counsels for the petitioner. I am unable to accept his contentions. It is well-settled that where a person is in settled possession of the property, his possession cannot be disturbed even if it be assumed that his possession is without title and he had no right to remain in possession. Even such persons cannot be dispossessed by the owner of the property, otherwise than the process established by law. In this connection, reference may be made to Section 6 of the Specific Relief Act. It has been provided that if a person in possession has been dispossessed in an unlawful manner and by force, then within the period of limitation mentioned therein the person, who was so dispossessed, can file a suit for recovery of possession on the basis of possession which has been illegally disturbed. In the case of Ram Rattan v State of Uttar Pradesh, their Lordships of the Supreme Court laid it down as under:
"It is well-settled that 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".
Their Lordships also referred to an earlier decision in the case of Puran Singh and Others v State of Punjab. Their Lordships also held that the right of private defence is available to a person in possession if he is dispossessed by use offeree or is attempted to be so dispossessed. In the case of Krishna Ram Mahale (deceased) by L. Rs v Mrs. Shobha Venkat Rao, their Lordships in the context of the above facts namely that a person who has entered into possession of the property in dispute therein as a licensee to conduct the business had been subsequently dispossessed by the licensor unlawfully by use of force was entitled to decree for recovery of possession against the true owner and in that context their Lordships observed as under:
"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. If any authority were needed for the proposition, we could refer to the decision of a Division Bench of this Court in Lallu Yeshwant Singh v Rao Jagdish Singh, . This Court in that judgment cited with approval the well-known passage from the leading Privy Council case of Midnapur Zamindary Company Limited v Naresh Narayan Roy, 51 IA 293 at p. 299 : AIR 1924 PC 144, where it has been observed at P. 208 of SCR : at P. 622 of AIR:
"In India persons are not permitted to take forcible possession; they must obtain such possession as they are entitled to through a Court".
9. This proposition was also accepted by a Division Bench of this Court in Ram Rattan's case, supra. The Division Bench comprising of three learned Judges held that a 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. In the present case, we may point out that there was no question of the plaintiff entering upon the premises as a trespasser at all, as she had entered into the possession of the restaurant business and the premises where it was conducted as a licensee and in due course of law. Thus, defendant 3 was not entitled to dispossess the plaintiff unlawfully and behind her back as has been done by him in the present case. It was pointed out by Mr. Tarkunde that some of the observations referred to above were in connection with a suit filed under Section 6 of the Specific Relief Act, 1963 or analogous provisions in the earlier Specific Relief Act, 1877. To our mind, this makes no difference in this case as the suit has been filed only a few weeks of the plaintiff being unlawfully deprived of possession of the said business and the premises and much before the period of six months expired. In view of the aforesaid conclusions arrived at by us, we do not propose to consider the question whether the agreement between the plaintiff and defendant 3 amounted to a licence or a sub-lease".
In this case i.e., in the case of Krishna Ram Mahale, supra, the licensee was dispossessed illegally by the true owner and in that context their Lordships opined that the licensee could not be dispossessed except in accordance with law.
5. The case cited by the learned Counsel for the revision petitioner also does not help the petitioner. In the case of M/s. Patil Exhibitors Private Limited, supra, Hon'ble Venkatachaliah, Judge, as he then was, on behalf of the Bench observed.--
"We are, therefore, of the opinion that looked at from any point of view the appellant is entitled to such a limited injunction; but on terms. Respondent is restrained from dispossessing appellant forcibly and otherwise than in accordance with law".
6. In view of the above observations of their Lordships of the Supreme Court as well as Division Bench's decision of this Court it cannot be said that order passed by the Appellate Court in the present case whereby limited injunction has been granted restraining the defendant i.e., present revision petitioner from forcibly dispossessing the plaintiff-present opposite party from the suit property and kept it open that he may take a recourse according to law and that has also been put to the conditions mentioned therein.
7. The present revision petition, as such, is dismissed as misconceived and not maintainable as no jurisdictional error is shown to have been committed by the Trial Court while passing the order impugned.
8. Learned Counsel for the revision petitioner submitted that the Court below may be directed to expeditiously dispose of the matter. There may be no objection to it from the respondent. Hence, it is ordered as under:
9. Revision, having got no merits as well as being not maintainable, is hereby dismissed. The Court below is directed to expeditiously decide the suit with the active co-operation of the Counsels and the parties. If delay is caused due to non-co-operation of the Counsels for the parties, the Court will not be responsible.