Himachal Pradesh High Court
Kamal Kishore Gupta And Ors. vs Smt. Prem Lata And Anr. on 3 November, 2006
Equivalent citations: 2006(3)SHIMLC40
Author: Surjit Singh
Bench: Surjit Singh
JUDGMENT Surjit Singh, J.
1. This second appeal against the judgment and decree of the first appellate Court (District Judge) was admitted on the following substantial questions of law, vide order dated 11.9.2000:
1. Whether the suit as laid was maintainable under the law?
2. Whether the lower appellate Court has erred in rejecting the application made by the defendant/appellant for permission to lead additional evidence?
3. Whether the lower appellate Court has erred in rejecting the application made by the defendant/ appellant for the amendment of the written statement?
2. The appeal was finally heard on 18th and 19th October, 2006. Facts relevant for the disposal of the appeal may be summed up thus. Respondent Prem Lata, hereinafter called plaintiff, filed a suit on 3.12.1986, for possession of the suit premises consisting of two rooms, kitchen, bathroom, store and latrine, alleging that she was a tenant in the aforesaid premises under the present appellants who were impleaded as defendants No. 2 to 6 and that for some personal reasons, she had not been staying in Shimla where the premises are situated and directed her neighbour, proforma respondent No. 2 Rajesh Sood to look after the property in her absence and that when on 20.11.1986 she came to Shimla, the premises were found to be in possession of the defendants, i.e. appellants and proforma defendant No. 2. When the plaintiff questioned the defendants as to how they came to occupy the premises during the subsistence of her tenancy, appellants/defendants No. 2 to 6 told that they had taken possession of the premises from defendant No. 1 and thereafter the wife of defendant No. 1 locked the premises and disappeared. The plaintiff had come to Shimla on the aforesaid date to attend the hearing, on the next following day, of an eviction petition filed by the appellants against her and defendant No. 1 for her eviction from the premises on the ground that she had sub-let the premises to defendant No. 1 and that when she went to the Court of Rent Controller on the next following day, the appellants-defendants did not appear and that petition was dismissed in default. With these allegations, she sued for the restoration of possession and also for mandatory injunction directing the defendants to handover her belongings, which she had kept in the premises.
3. The appellants as also the defendant No. 1 (proforma respondent No. 2) took the plea that the plaintiff herself had surrendered the tenancy on 14.6.1982 in favour of defendant No. 1 (respondent No. 2) and immediately thereafter defendant No. 1 attorned in favour of the appellants and the latter started receiving rent from him and accepted him as their tenant. They also raised the objections that the suit was not maintainable, plaintiff had no locus-standi to sue, she was estopped from filing the suit by her acts, deeds and conduct and that the suit was barred by time.
4. The trial Court found all the material issues in favour of the plaintiff and passed a decree for possession of the premises in her favour and against all the defendants. Appeal filed by the appellants and proforma respondents in the Court of District Judge, stands dismissed.
5. As regards the first substantial question formulated by this Court, i.e. about the maintainability of the suit, the learned Counsel for the appellants submitted that the only remedy available to the respondent-plaintiff was to have filed a suit for recovery of possession, under Section 6 of the Specific Relief Act, within six months of her alleged dispossession and that a regular suit for possession after the expiry of period of six months was not maintainable. In support of this contention, he placed reliance upon a judgment of a Single Bench of this Court in Hari Chand v. Ramesh Lal 1993 (2) SLJ 1354. The facts of the case were that the plaintiff claiming himself to be a tenant, sued for possession of a tenanted premises on the ground that he had been forcibly dispossessed. The suit was dismissed by the Sub-Judge. The District Judge, in appeal, reversed the decree of Sub-Judge and decreed the suit. The learned Single Bench accepted the appeal against the decree of the District Judge and held that the only remedy available to the plaintiff was to have filed a suit, under Section 6 of the Specific Relief Act. For holding this view, the learned Single Bench placed reliance upon two Supreme Court judgments, i.e. Nair Service Society Ltd. v. K.C. Alexander and Ors. and Somnath Berman v. Dr. S.P. Raju and Anr. . In holding the aforesaid view, following portion of the judgment of the Hon'ble Supreme Court in Nair Service Society Ltd. v. K.C. Alexander and Ors. case, was reproduced in the judgment and relied upon by the learned Single Bench:
The Limitation Act before its recent amendment provided a period of twelve years as limitation to recover possession of immovable property when the plaintiff while in possession of the property was dispossessed or had discontinued possession and the period was calculated from the date of dispossession or discontinuance. Mr. Nambiar argues that there cannot be two periods of limitation, namely, 6 months and 12 years for suits based on possession alone and that the longer period of limitation requires proof of title by the plaintiff. We do not agree. No doubt there are a few old cases in which this view was expressed but they have since been either overruled or dissented from. The uniform view of the Courts is that if Section 9 of the Specific Relief Act is utilized, the plaintiff need not prove title and the title of the defendant does not avail him. When, however, the period of 6 months has passed questions of title can be raised by the defendant and if he does so the plaintiff must establish a better title or fail. In other words, the right is only restricted to possession only in a suit under Section 9 of the Specific Relief Act but that does not bar a suit on prior possession within 12 years and title need not be proved unless the defendant can prove one. The present amended Articles 64 and 65 bring out this difference. Article 64 enables a suit within 12 years from dispossession, for possession of immovable property based on possession and not on title, when the plaintiff while in possession of the property has been dispossessed. Article 65 is for possession of immovable property or any interest therein based on title. The amendment is not remedial but declaratory of the law. In our judgment the suit was competent.
6. As regards the judgment in Somnath Berman's case supra, the learned Single Judge has relied upon the observation made therein that possessory title is a good title as against everybody other than the lawful owner. The learned Single Judge took the view that since the defendant was the owner of the property and the plaintiff only a tenant, the former had a better title and hence the only remedy available to the plaintiff was to have sued, under Section 6 of the Specific Relief Act, within six months of her dispossession.
7. With utmost regards to the learned Single Judge, I may say that the judgment is per incuriam. The learned Judge did not notice the provisions of Section 5 of the Specific Relief Act, which says in no uncertain terms that a person entitle to the possession of specific immovable property, may recover it in the manner provided by the Code of Civil Procedure, 1908. That means, the remedy provided by Section 6 of the Specific Relief Act, which can be availed of on the mere assertion and proof of the fact that the plaintiff was in possession within six months of the institution of the suit, is in addition to the remedy available to the aggrieved person under the Common Law, which can be enforced in the manner provided by the Code of Civil Procedure. The remedy provided by Section 6 of the Specific Relief Act, can be availed of even by a trespasser, who is not entitled to possession, but a person who is entitled to possession, may avail of either of the two remedies, i.e. one under Section 6 of the Specific Relief Act and the other under Section 5. In the present case, the two Courts below have returned concurrent finding that the plaintiff was a tenant. She had never surrendered the tenancy and that she had been unlawfully and illegally dispossessed by the appellants and proforma defendant No. 2. The findings are based upon proper and correct appreciation of the evidence on record. Now, if the plaintiff was a tenant, there cannot be any manner of doubt that she was entitled to possession being tenant and, therefore, she could maintain a suit in the manner provided for by the Code of Civil Procedure, under Section 5 of the Specific Relief Act, even against the owners, who on account of having illegally obtained the possession were no better than trespassers.
8. The Hon'ble Supreme Court in S.R. Ejaz v. T.N. Handloom Weavers' Co-operative Society Ltd. , where a tenant had been forcibly dispossessed, has held as follows, vide para-8, at page 141:
In our view, if such actions by the mighty or powerful are condoned in a democratic country, nobody would be safe nor can the citizens protect their properties. Law frowns upon such conduct. The Court accords legitimacy and legality only to possession taken in the course of i If such actions are condoned, the fundamental rights guaranteed under the Constitution of India or the legal rights would be given a go-by either by the authority or by rich and influential persons or by musclemen. Law of jungle will prevail and 'might would be right' instead of 'right being might'. This Court in State of U.P. v. Maharaja Dharmander Prasad Singh dealt with the provisions of the Transfer of Property Act and observed that a lessor, with the best of title, has no right to resume possession extra-judicially by use of force, from a lessee, even after the expiry of earlier termination of the lease by forfeiture or otherwise. Under law, the possession of a lessee, even after the expiry or its earlier termination is juridical possession and forcible dispossession is prohibited. The Court also held that there is no question of the Government withdrawing or appropriating to it an extra-judicial right of re-entry and the possession of the property can be resumed by the Government only in a manner known to or recognized by law.
9. There is one direct authority on the point. The citation is 31.C.647, Tamizuddin v. Ashrub Ali decided by Full Bench of Calcutta High Court, wherein it has been held that remedy indicated in Section 9 of the Specific Relief Act, 1877 (corresponding to Section 6 of the Specific Relief Act, 1963) is not the only remedy which the Legislature has provided to a non-occupancy raiyat, who has been dispossessed otherwise than in due course of law by the landlord and that he can file a suit within the time limited by Articles 120 and 140 of the Limitation Act, 1877.
10. A Single Bench of Rajasthan High Court in Hari Shanker v. Chandra Prakash 1996 A.I.H.C. 4952, has held that where a tenant is wrongfully dispossessed by the landlord, he is entitled to file a suit on the strength of a possessory title, under Section 5 of the Specific Relief Act, 1963.
11. As a result of the above stated position, question No. 1, is answered in the affirmative.
12. Coming to question No. 2, the appellants made an application seeking the leave of the Court to lead additional evidence to the effect that the plaintiff- respondent No. 1 herself had stated in reply to an ejectment petition filed against her by the appellants that she had given the premises to respondent No. 2 for being looked after in her absence. It was alleged that the aforesaid evidence could not be led due to inadvertence of the Counsel. Leave was sought to place on record the copies of the said ejectment petition and the reply thereto filed by respondent No. 1. The aforesaid evidence was not relevant for deciding the case on merits. As already noticed, the defendants including the appellants had taken a specific stand that the plaintiff had surrendered the possession of the premises to respondent No. 2 in June, 1982 and in the same year respondent No. 2 attorned in favour of the appellants. But the petition and the reply to that petition, copies whereof were intended to be adduced in evidence, were filed in July, 1985. (Copies of the petition and the order passed therein are available on the record of the first appellate Court).
13. For the foregoing reasons, question No. 2 is answered in the negative.
14. The appellants sought the leave of the first appellate Court to amend the written statement, alleging that they wanted to elaborate the plea of estoppal already raised. It was stated that a petition for ejectment on the ground of non-payment of rent filed against the respondent-plaintiff in the year 1985 by the appellants had been decided in their favour on 19.6.1986 and that the plaintiff-respondent No. 1 having not deposited the amount due within 30 days of the passing of the said order, was estopped to file the suit and had also ceased to have locus-standi to file the suit. The appellants could not have been allowed to raise even this plea when in the original written statement they had very categorically stated that respondent No. 1/plaintiff had surrendered the tenancy in favour of respondent No. 2 in June, 1982 and the latter had attorned in favour of the appellants. Moreover, the plea of passing of the aforesaid order and the plaintiff's failure to pay the amount due within time, as alleged even if assumed to be correct did not entitle the appellants to forcibly dispossess the plaintiff-respondent No. 1. It has been held by the Hon'ble Supreme Court in State of U.P. v. Maharaja Dharmander Prasad Singh , that the lessor has no right to resume the possession extra-judicially by use of force even after the expiry or termination of lease by forfeiture or otherwise and that the possession of a lessee even after the expiry or termination of lease is juridical possession and forcible dispossession is prohibited. For these reasons, question No. 3 is also answered in the negative.
15. No other point was urged.
16. As a sequal to the above discussion, the appeal is dismissed.