Gujarat High Court
Revaben Balabhai Makwana vs Shri Kanaiyalal Ratilal Acharya on 29 September, 2023
NEUTRAL CITATION
C/SCA/25611/2022 JUDGMENT DATED: 29/09/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 25611 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI
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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 ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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REVABEN BALABHAI MAKWANA
Versus
SHRI KANAIYALAL RATILAL ACHARYA
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Appearance:
HCLS COMMITTEE(4998) for the Petitioner(s) No. 1
MR DHRUV K DAVE(6928) for the Petitioner(s) No. 1
MR MITUL SHELAT for MR. HARDIK B KORADIYA(9955) for the
Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 29/09/2023
ORAL JUDGMENT
1. Rule. Learned advocate Mr. HB Koradiya waives service of notice of rule for the respondent.
2. Heard learned advocate Mr. Dhruv K. Dave for the Page 1 of 10 Downloaded on : Fri Sep 29 20:46:08 IST 2023 NEUTRAL CITATION C/SCA/25611/2022 JUDGMENT DATED: 29/09/2023 undefined petitioner and learned advocate Mr. Mitul Shelat assisted by learned advocate Mr. Hardik Koradiya for the respondent.
3. By way of this petition under Article 227 of the Constitution of India, the petitioner has challenged the concurrent findings passed by the learned courts below; firstly order dated 9.4.2021 passed by the learned 4 th Additional Senior Civil Judge, Bhavnagar below Exh.5 in Regular Civil Suit No.325 of 2021 and secondly, order dated 21.7.2022 passed by the learned Principal District Judge, Bhavnagar in Misc. Civil Appeal No.11 of 2021.
4. Succinctly stated facts of the case are that the petitioner in capacity of the plaintiff has filed Regular Civil Suit No.325 of 2021 against the respondent herein for declaration and permanent/perpetual injunction claiming that she is in possession of the disputed property since last 58 years and she has been given possession by the erstwhile owner of the disputed property, as the erstwhile owner was treating her as daughter. She pleaded that since the respondent herein was trying to remove her from the possession without following due procecure of law, she filed the suit for declaration and perpetual injunction that she may not be dispossessed without due process of law and also asked for the relief of perpetual injunction on the same tune. The petitioner has also filed interim application Exh.5 under Order 39 Rule 1 and 2 r/w section 151 of the Civil Procedure Code, 1908 (in short "CPC") seeking relief of protection to her possession over the disputed property for the interregnum period of proceedings filed under the suit.
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5. The learned trial Court after giving opportunity of hearing to both the sides passed reasoned order and rejected the injunction application believing that three golden principles of granting or refusing injunction application i.e. prima facie case, balance of convenience and irreparable loss are not lying in favour of the petitioner.
6. The order passed below Exh.5 has been carried to challenge by way of filing Misc. Civil Appeal No.11 of 2021 before the District Court, Bhavnagar, who vide judgment and order dated 21.7.2022 dismissed the appeal.
7. Hence, present petition.
8. Learned advocate Mr. Dhruv Dave for the petitioner would submit that the petitioner is in settled and legal possession of the disputed property since last 58 years. This is undisputed aspect and since the petitioner is holding the possession under permissive but possessory title, she cannot be dispossessed without due process of law at least until she could advance her grievance, which can be decided on merit after leading evidence. He would further submit that the learned courts below have committed serious error in disbelieving the legal nature of possession. Relying upon the judgment in case of Maria Margarida Sequeira Fernandez and others Vs. Erasmo Jack De Sequeira (Dead) through legal heirs reported in (2012) 5 SCC 370, learned advocate Mr. Dave would contend that it is a permissive possession and it cannot be unsettled without due process of law and therefore, he submits that patent illegality has been committed by both the courts below and therefore, the Page 3 of 10 Downloaded on : Fri Sep 29 20:46:08 IST 2023 NEUTRAL CITATION C/SCA/25611/2022 JUDGMENT DATED: 29/09/2023 undefined petition deserves consideration and requires to be allowed.
9. On the other hand, learned advocate Mr. Mitul Shelat appearing with learned advocate Mr. Koradiya for the respondent would submit that the status of the petitioner is no more than the caretaker and she has no independent and unqualified right to remain in possession against the wish of the title holder. He would further submit that since the pleading of the petitioner itself suggests and indicates that she is caretaker and she has no independent and absolute right to live in the disputed property, she cannot ask relief for protecting possession against true owner. He would further submit that case of Maria Margarida Sequeira Fernandez (supra) is rather supporting the defence of the respondent herein, who is defendant of the suit. He has relied upon the judgment in case of Maria Margarida Sequeira Fernandez (supra) and also in case of Behram Tejani and others Vs. Azeem Jagani reported in (2017) 2 SCC 759. He would further submit that since the petitioner had no independent or absolute right to remain in possession and as her grievance has already been heard by both the courts, due procedure of law is followed, now the petitioner cannot ask for relief that she may be protected till final disposal of the suit.
10. Learned advocate Mr. Shelat for the respondent has also relied upon judgment in case of Garment Crafts Vs. Prakash Chand Goel reported in (2022) 4 SCC 181 to argue that this Court should exercise the power under Article 227 of the Constitution of India sparingly and only in an appropriate case when there is no evidence at all to justify, or the finding is so perverse that no reasonable person can possibly come to such a Page 4 of 10 Downloaded on : Fri Sep 29 20:46:08 IST 2023 NEUTRAL CITATION C/SCA/25611/2022 JUDGMENT DATED: 29/09/2023 undefined conclusion that the court has come to. He would further submit that the petitioner has failed to put his case into this category and therefore, under Article 227 of the Constitution of India, this Court should not interfere with the impugned discretionary orders. This has been canvassed to dismiss the petition.
11. Having heard learned advocates for both the sides and after paying anxious thoughts to the pleadings as well as both the impugned orders, what prima facie appears that the petitioner has not averred about her title, which is necessary for protecting the possession. The petitioner has pleaded that she is in possession of the disputed property as the erstwhile title holder had put her into the possession. It indicates that her possession over the disputed property was no more than the possession of the caretaker. In view of this pleading, the petitioner's possession appears as permissive in nature. The petitioner had also asked that she may not be dispossessed without due process of law as she is in possession.
12. The term "due process of law" has been discussed in case of Maria Margarida Sequeira Fernandez (supra) in para 79 and 80, which reads as under:-
"79. Due process of law means nobody ought to be condemned unheard. The due process of law means a person in settled possession will not be dispossessed except by due process of law. Due process means an opportunity for the defendant to file pleadings including written statement and documents before the Court of law. It does not mean the whole trial. Due process of law is satisfied the moment rights of the parties are adjudicated by a competent Court.
80. The High Court of Delhi in a case Thomas Cook (India) Limited v. Hotel Imperial 2006 (88) DRJ 545 held as under:Page 5 of 10 Downloaded on : Fri Sep 29 20:46:08 IST 2023
NEUTRAL CITATION C/SCA/25611/2022 JUDGMENT DATED: 29/09/2023 undefined "28. The expressions `due process of law', `due course of law' and `recourse to law' have been interchangeably used in the decisions referred to above which say that the settled possession of even a person in unlawful possession cannot be disturbed `forcibly' by the true owner taking law in his own hands. All these expressions, however, mean the same thing -- ejectment from settled possession can only be had by recourse to a court of law. Clearly, `due process of law' or `due course of law', here, simply mean that a person in settled possession cannot be ejected without a court of law having adjudicated upon his rights qua the true owner.
Now, this `due process' or `due course' condition is satisfied the moment the rights of the parties are adjudicated upon by a court of competent jurisdiction. It does not matter who brought the action to court. It could be the owner in an action for enforcement of his right to eject the person in unlawful possession. It could be the person who is sought to be ejected, in an action preventing the owner from ejecting him. Whether the action is for enforcement of a right (recovery of possession) or protection of a right (injunction against dispossession), is not of much consequence. What is important is that in either event it is an action before the court and the court adjudicates upon it. If that is done then, the `bare minimum' requirement of `due process' or `due course' of law would stand satisfied as recourse to law would have been taken. In this context, when a party approaches a court seeking a protective remedy such as an injunction and it fails in setting up a good case, can it then say that the other party must now institute an action in a court of law for enforcing his rights i.e., for taking back something from the first party who holds it unlawfully, and, till such time, the court hearing the injunction action must grant an injunction anyway? I would think not. In any event, the `recourse to law' stipulation stands satisfied when a judicial determination is made with regard to the first party's protective action. Thus, in the present case, the plaintiff's failure to make out a case for an injunction does not mean that its consequent cessation of user of the said two rooms would have been brought about without recourse to law."
We approve the findings of the High Court of Delhi on this issue in the aforesaid case.
13. The final conclusion, principles of law, which was noted by the Hon'ble Apex Court, is in para 97 of the said judgment, Page 6 of 10 Downloaded on : Fri Sep 29 20:46:08 IST 2023 NEUTRAL CITATION C/SCA/25611/2022 JUDGMENT DATED: 29/09/2023 undefined which reads as under:-
"97. 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 a 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.
5. 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."
14. In view of above, if the petitioner is allowed to remain in the disputed property gratuitously, even if it is long, cannot believe to have acquired any right, title or interest in the disputed property and which can be protected. Caretaker, watchman or servant can never acquire interest in the property irrespective of his/her long possession.
15. In the present case, the petitioner has failed to put her case above the conclusion crystallized by the Hon'ble Apex Court in case of Maria Margarida Sequeira Fernandez (supra). This judgment has been followed in Behram Tejani (supra). Para 11 to 14 are relevant, which reads as under:-
"11.Having gone through the record, the submission of the Page 7 of 10 Downloaded on : Fri Sep 29 20:46:08 IST 2023 NEUTRAL CITATION C/SCA/25611/2022 JUDGMENT DATED: 29/09/2023 undefined appellants that the grand-mother of the respondent though did not have any right qua the premises was permitted to occupy purely out of love and affection is not without merit. The status of the grand-mother is thus of a gratuitous licensee and that of the respondent is purely of a relative staying with such gratuitous licensee.
12. Rame Gowda (supra) was a case in which two adjoining owners were claiming independent right of ownership in respect of a strip of land in between their holdings. That piece of land was in possession of the plaintiff and as such while dealing with the controversy, this Court held that a person in peaceful possession is entitled to retain his possession. However, while dealing with the concept of "settled possession" it was observed in paragraph 9 as under:
"9. "The "settled possession" must be (i) effective, (ii) undisturbed, and (iii) to the knowledge of the owner or without any attempt at concealment by the trespasser. The phrase "settled possession" does not carry any special charm or magic in it; nor is it a ritualistic formula which can be confined in a straitjacket. 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."
13. The matter was further elaborated in subsequent decision of this Court in Maria Margarida (Supra) as under:
"97. 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 a 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.
5. 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."
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14. Thus, a person holding the premises gratuitously or in the capacity as a caretaker or a servant would not acquire any right or interest in the property and even long possession in that capacity would be of no legal consequences. In the circumstances City Civil Court was right and justified in rejecting the prayer for interim injunction and that decision ought not to have been set aside by the High Court. We therefore, allow the appeal, set aside the judgment under appeal and restore the Order dated 29.04.2013 passed by the Bombay City Civil Court in Notice of Motion No.344 of 2013 in Suit No.408 of 2013."
16. For the foregoing reasons, the petitioner has failed to make out a case. Even if she is in possession. But, her possession is without any right, title or interest and she cannot seek protection to her possession against the true owner. It is not the case of the petitioner that she was not heard before passing the impugned orders. There is no gainsaying that recourse of law would be completed once party seeking relief has been given opportunity of hearing.
17. What further requires to be observed that challenge is made to the discretionary orders passed by both the courts below under the discretionary jurisdiction. The Court at the first instance i.e. learned trial Court has passed the order under Order 39 Rule 1 and 2 r/w section 151 of the CPC. The jurisdiction of the Court at the first instance to pass such order lies upon the equilibrium of three golden principles of granting or refusing injunction application i.e. prima facie case, balance of convenience and irreparable loss. The Court at the first instance decided the issue of interim injunction on touchstone of these three principles exercising the discretion. Under Order 43 Rule 1(r) of the CPC, the first appellate Court enjoys a very limited jurisdiction to interfere with the discretionary order Page 9 of 10 Downloaded on : Fri Sep 29 20:46:08 IST 2023 NEUTRAL CITATION C/SCA/25611/2022 JUDGMENT DATED: 29/09/2023 undefined passed by the Court at the first instance. This Court, under Article 227 of the Constitution of India, enjoys further circumscribed jurisdiction. The petitioner, who is challenging the concurrent discretionary orders, has to establish before this Court that there is a patent illegality and the finding arrived at by the courts below is so perverse that no reasonable person can possibly come to such conclusion. In the present case, the petitioner is failed to establish such case.
18. In the result, present petition sans merit and is accordingly dismissed. Rule discharged. Interim relief, if any, stands vacated forthwith.
(J. C. DOSHI,J) SHEKHAR P. BARVE Page 10 of 10 Downloaded on : Fri Sep 29 20:46:08 IST 2023