Gujarat High Court
Nasirhusen Aasifhusen Panwala vs Abdul Rashid Kapadiya on 16 February, 2023
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
NEUTRAL CITATION
C/SCA/22354/2022 JUDGMENT DATED: 16/02/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 22354 of 2022
With
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2023
In R/SPECIAL CIVIL APPLICATION NO. 22354 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
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1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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NASIRHUSEN AASIFHUSEN PANWALA
Versus
ABDUL RASHID KAPADIYA
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Appearance:
MR MA SAIYED with MR UMARFARUK M KHARADI(8155) for the
Petitioner(s) No. 1
MS. KRUTI M SHAH(2428) for the Respondent(s) No. 3,4
UNSERVED REFUSED (N) for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 16/02/2023
ORAL JUDGMENT
1. By way of present writ-application preferred under Article Page 1 of 63 Downloaded on : Sun Sep 17 21:56:29 IST 2023 NEUTRAL CITATION C/SCA/22354/2022 JUDGMENT DATED: 16/02/2023 undefined 227 of the Constitution of India the writ-applicant herein is aggrieved by the impugned order dated 21.10.2022 passed by the learned District Court in Misc. Civil Appeal No.11 of 2022 and the order dated 23.5.2022 passed by the learned Civil Court below Ex.5 in Regular Civil Suit No.315 of 2019 whereby both the Courts, as referred above, have rejected the application for temporary injunction filed by the writ-applicant herein - original plaintiff.
2. Being aggrieved by the same the writ-applicant has approached this Court seeking the following reliefs :-
"(A) Admit this petition;
(B) Allow this petition by quashing and setting aside the impugned order dated 21-10-2022 passed by the Ld. District Court in Miscellaneous Civil Appeal No. 11 of 2019 and further to be pleased to quashed and set aside impugned order dated 23-05-2022 passed by the Ld. Civil Court below exhibit 5 in Regular Civil Suit No. 315 of 2019 and further be pleased to allow exhibit 5 application;
(C) Pending admission herein till final disposal of the present petition, stay implementation, execution and operation of the impugned order dated 21-10-2022 passed by Ld. District Court in Miscellaneous Civil Appeal No. 11/202) and Page 2 of 63 Downloaded on : Sun Sep 17 21:56:29 IST 2023 NEUTRAL CITATION C/SCA/22354/2022 JUDGMENT DATED: 16/02/2023 undefined also order dated 23-05-2022 passed below exhibit 5 in Regular Civil Suit No. 315 of 2019 in the interest of justice.
(D) Grant such other and further relief which may be deemed fit to this Hon'ble Court in the interest of justice."
3. The brief facts leading to the filing of the present writ- application read thus :-
3.1 The writ-applicant is the original plaintiff and claims to be in possession of the suit property being a shop as tenant of grand-father of the respondent No.3 herein situated at City Survey No.2549 and 2550 Municipal No.2518. The maternal grand-father of the writ-applicant was initially tenant of the grand-father of the respondent No.3 qua the suit property from the year 1962 and used to pay rent of Rs.300/- per year.
Thereafter, the father of the writ-applicant - original plaintiff herein replaced maternal grand-father of the writ-applicant as a tenant since 1983. That since 1983 the father of the writ- applicant - original plaintiff was paying the municipal tax and other taxes of the suit property as the said property is also registered with Bhruch Nagar Seva Sadan wherein also possession of the writ-applicant - original plaintiff and his father is being reflected as a tenant.
3.2 That till date the writ-applicant - original plaintiff has Page 3 of 63 Downloaded on : Sun Sep 17 21:56:29 IST 2023 NEUTRAL CITATION C/SCA/22354/2022 JUDGMENT DATED: 16/02/2023 undefined continued to pay municipal taxes and revenue taxes and electricity bill of the suit property. That in the year 2010 the respondent No.3 had demolished the old complex, however the shop of the writ-applicant along with adjacent shop was not demolished and the writ-applicant had continued to occupy the suit property. That after demolishing the old complex the Respondent No.3 constructed new complex in 2019 and the writ-applicant was told to vacate the suit property. Against such action initiated by the Respondent No.3 the writ-applicant
- original plaintiff instituted Regular Civil Suit No.315 of 2019 before the Civil Court praying for permanent injunction against any unlawful and arbitrary action of the Respondent No.3 in vacating the suit property. That in the suit property the Court Commissioner was appointed and as per the report of the Court Commissioner at Exhibit 27 the possession of original plaintiff was also substantiated. That in the suit writ-applicant
- original plaintiff also prayed for temporary injunction below Ex.5 where in the writ-applicant has extensively relied upon the rent receipts, certificate issued by Bharuch Nagar Seva Sadan, receipts issued by Bharuch Municipality for payment of taxes and electricity bill. The copy of the Document List which was produced in Regular Civil Suit No. 315 of 2019 is duly produced at Annexure-C to the petition. The writ-applicant has also produced photographs of the suit property which are duly produced at Annexure-D. The Civil Court while rejecting Page 4 of 63 Downloaded on : Sun Sep 17 21:56:29 IST 2023 NEUTRAL CITATION C/SCA/22354/2022 JUDGMENT DATED: 16/02/2023 undefined the application seeking temporary injunction below Ex.5 rejected the same on the ground that the writ-applicant - original plaintiff failed to establish his lawful possessory rights for the suit property and therefore it was held that the writ- applicant - original plaintiff is illegal encroacher and no injunction can be granted to the illegal encroacher.
3.3 The said order was passed below Ex.5 in Regular Civil Suit No. 315 of 2019 dated 23.5.2022. The operative part of the said order reads thus :-
"(7) This is an application for temporary injunction and there are three basic principles for granting or refusing to grant temporary injunction i.e. prima facie case in favour of the party seeking injunction, balance of convenience in favour of such person and last there must be a irreparable loss which are likely to be caused to party if injunction is not granted to such person. And an injunction being an equitable remedy is always at the discretion of the court. However, such discretion must be based on sound judicial principles and guided by rules of Equity and the peculiar facts and circumstances of the case. Apart from three basic principles, the court is also required to see the conduct of party seeking equitable relief of temporary injunction.
Hon'ble High Court of Gujarat in Adani Export Ltd. Vs. Hindustan Organic" reported in 2000 (3) GLR page no-2759 case regarding establishing of prima facie case, it has been Page 5 of 63 Downloaded on : Sun Sep 17 21:56:29 IST 2023 NEUTRAL CITATION C/SCA/22354/2022 JUDGMENT DATED: 16/02/2023 undefined held in para-31 and 32 of its pronouncement that "it is well settled principles of law that the rule that before the issue of a temporary injunction, the Court must satisfy itself that the plaintiff has a prima facie case, does not mean that the Court should examine the merits of the case closely and come to a conclusion that the plaintiff has a case in which he is likely to succeed. This would amount to prejudging the case on its merits. All that the Court has to see is that on the face of it the person applying for an injunction has a case which needs consideration and which is not bound to fail by virtue of some apparent defects. (Para 31). In order to make out a prima facie case, necessary for granting an interlocutory injunction, the plaintiff need not establish his title. It is enough if he can show that he has a fair question to raise as to the existence of right which he alleged and can satisfy the Court that the property in dispute should be preserved in its present actual condition until such question is disposed of. The Court must also, before disturbing any man's legal right stripping him off any of the rights with which law has clothed him, be satisfied that the probability is in favour of his case ultimately failing in the final issue of the suit (Para 32). It is also a well settled principles of law that what the Court has to determine in granting injunction is whether there is a bona fide contest between the parties and when there is a fair and substantial question to be decided as to the rights of the parties in the suit, it is not necessary for the purpose or is it right that the Court should further examine the question in dispute or Page 6 of 63 Downloaded on : Sun Sep 17 21:56:29 IST 2023 NEUTRAL CITATION C/SCA/22354/2022 JUDGMENT DATED: 16/02/2023 undefined anticipate the decision of the question in the suit itself. (Para 32.1)."
As per the pleadings of the both sides, it is an admitted fact that the defendant no. 3 is the owner (as per the defendant she co-owner with other owners). The plaintiff contends that he is the tenant in the suit property and being tenant he must not be disposseesed without due process of law. Looking to the materials on record, it appears from the documents produced by the plaintiff as discussed above that the rent receipts produced by the plaintiff does not show that these rent receipts are issued in respect of the suit property and by the person in authority. Further, these rent receipts seems to be issued before a long time. There is no agreemnet on record as to show tenancy of maternal grandfather of plaintiff and how the father of plaintiff and plaintiff became the tenant in the suit property. As the Ld. Counsel relies upn the Vera Pavati and municipal certificate, it can not be concluded prima facie without any other independent evidence that the plaintiff is a tenant in the suit property.
(8) So considering the law laid down by the Hon'ble Apex Court in Maria Margarida Sequeria Fernandes and Others Erasmo Jack de Sequeria(Dead) through L.Rs., r eported in (2012) 5 Supreme Court Cases 370, that "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 Page 7 of 63 Downloaded on : Sun Sep 17 21:56:29 IST 2023 NEUTRAL CITATION C/SCA/22354/2022 JUDGMENT DATED: 16/02/2023 undefined 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.
So, the right of a person who has no valid subsisting rent agreemnet, lease agreement or license agreement can not be protected. As discussed above the plaintiff has failed to prove prima facie that he is a tenant.
So, in view of the aforesaid reasons, it transpires to this court that the plaintiff has not established prima facie Page 8 of 63 Downloaded on : Sun Sep 17 21:56:29 IST 2023 NEUTRAL CITATION C/SCA/22354/2022 JUDGMENT DATED: 16/02/2023 undefined case in this case and the balance of convenience is also not in his favour. Hence, this court declines to grant an application for temporary injunction filed by the plaintiff. Under such circumstances, I hereby pass following order in the interest of justice.
ORDER The application for temporary injunction is hereby dismissed (rejected). Cost shall be the cost in the cause of the suit. Pronounced today in open court on 22nd May, 2022.
3.4 Being aggrieved by the said order rejecting the application Ex.5 dated 23.5.2022 the writ-applicant - original plaintiff preferred Misc. Civil Appeal being MCA No.11 of 2022 which came to be rejected by order dated 21.10.2022. The relevant paragraph of the said order reads thus :-
"11. Heard Learned Advocates appearing for their respective parties qua the application for adducing additional evidence and have perused the same. Present appeal has been preferred under Order 43 of CPC. Rule 2 of Order 43 of CPC states that the rules of Order 41 of CPC shall apply, so far as may be, to appeals from order. The said Rule 2 of Order 43 CPC makes the factum explicitly clear that the procedure which is to be followed while adjudicating the appeals from orders, as given under Order 43 CPC shall be governed by Order 41 of CPC.
13. Now coming to the merits of present appeal, plaintiff Page 9 of 63 Downloaded on : Sun Sep 17 21:56:29 IST 2023 NEUTRAL CITATION C/SCA/22354/2022 JUDGMENT DATED: 16/02/2023 undefined has preferred the same on following grounds:
(a) Impugned order passed by Learned Trial Court is against the evidences produced on record.
(b)Impugned order passed by Learned Trial Court is against the law and illegal.
(c) Learned Trial Court has erred in appreciating the evidences produced on record.
(d) The findings of the Learned Trial Court is against the records.
(e) The impugned order of the Learned Trial Court is based on false presumptions.
(f) Learned Trial Court has not properly evaluated the pleadings.
(g) The impugned order of the Learned Trial Court is against the law and facts.
(h) The Learned Trial Court ought to have considered the fact that the person named Ismail Badami was the administrator of original owner, which is evident from record, which has been denied by defendant no.03, who has acted as administrator on behalf of owner of the property.
(i) The Learned Trial Court ought to have considered that the plaintiff has legal possession over the suit property for last 55 years which reflects in the records of Nagar Palika and other Page 10 of 63 Downloaded on : Sun Sep 17 21:56:29 IST 2023 NEUTRAL CITATION C/SCA/22354/2022 JUDGMENT DATED: 16/02/2023 undefined offices.
(j) The Learned Trial Court would have considered the fact that if the possession was illegal, then the owners of the same would have carried out necessary procedure for recovery of the same in past years.
(k) The Learned Trial Court passed its order without appreciating the evidences produced before it.
(l) The Learned Trial Court has failed to decide the issue of jurisdiction.
(m) The impugned order passed by the Learned Trial Court is against the principles of natural justice and therefore, same is deserves to be canceled.
(n) The impugned order passed by the Learned Trial Court is against the principles laid down by Hon'ble High Court and Supreme Court, therefore, also the same is deserves to be canceled.
(o) Learned Trial Court has erred in applying judicial precedents, therefore, same needs to be canceled.
(p) Learned Trial Court has arrived at a final conclusion by way of interim order.
(q) Learned Trial Court without evaluating evidences before it, merely on presumptions passed its order which is required to be canceled.Page 11 of 63 Downloaded on : Sun Sep 17 21:56:29 IST 2023
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(r) Learned Trial Court has not properly appreciated the affidavits of witnesses produced before it and has failed to evaluate the same.
(s) Learned Trial Court has failed to appreciate the facts, i.e., the respondents / defendants nos. 03 & 04 are residing at foreign land from many years, and presently also the addresses of defendant nos. 03 & 04 is at a Hotel, whose administrators are in India, therefore, the receipt of the rent could not be of owner's signature.
(t) Learned Trial Court has erred in evaluating the receipts produced by the plaintiff in which the description of old property is mentioned, which could not be falsified by defendants.
(u) The Learned Trial Court ought to have considered the receipts for the year 1996-97 and for the years 2000-2001, which shows that the plaintiff has his possession over the suit property in the capacity of tenant.
(v) Learned Trial Court ought to have considered the fact that the said receipts cannot be proved before hearing of Exh.05.
(w) Learned Trial Court ought to have considered the fact that respondents / original defendants were unaware of the facts of the case, and Learned Trial Court ought to have believed the case of the plaintiff, by not doing so, Learned Trial Court committed an error.
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(x) Learned Trial Court ought to have considered that the plaintiff is in possession of license of Nagarpalika, rent receipts, assessment of rented premises, which shows that plaintiff has infinite possession over the suit property from the year 1983, i.e., from more than 40-50 years and it is not the case of the defendants that they have carried out any proceedings for obtaining the same.
(y) Learned Trial Court ought to have considered the fact that the property which is in the legal possession of plaintiff from 50 years, if demolished, then the suit of plaintiff will be infructuous and if injunction is not granted against demolishing the said property, the plaintiff has to suffer irreparable loss which cannot be compensated in terms of money and if injunction is granted, no damage will be caused to the defendants.
(z) Learned Trial Court would have considered the fact that the plaintiff is having possession over the suit property since more than 55 years, admission of which by the respondents / defendants in the affidavits of witnesses, possession of plaintiff is duly proved, rent receipts, license issued by Nagarpalika for the property from the year 1983, assessment, electricity connection and other receipts of the taxes, which show the legal possession of the plaintiff in the disputed property and by not considering the same, Learned Trial Court has committed an error of law.
(aa) The case of Mariya, as relied by respondents does not Page 13 of 63 Downloaded on : Sun Sep 17 21:56:29 IST 2023 NEUTRAL CITATION C/SCA/22354/2022 JUDGMENT DATED: 16/02/2023 undefined apply to the present case as by non-production of rent agreement before 55 years, Learned Trial Court cannot ignore the evaluation of rent receipts, and by not appreciating rent receipts, the Learned Trial Court has committed an error.
(ab) The respondents admit the possession of plaintiff, then in what date and manner the documents of Nagarpalika are illegal is not shown herein, therefore, Learned Trial Court ought to have believed the case of the plaintiff as the pleading of defendants is evasive and opaque.
(ac) The Learned Trial Court ought to have considered that the opponent no.03 has categorically contended that she is residing out of India and she has no knowledge of the disputed property and therefore, the injunction application of the plaintiff was required to be allowed and by not doing so, the Learned Trial Court has committed an error.
(ad) The Learned Trial Court has committed a serious error in evaluating pleadings of the appellant / plaintiff.
(ae) Learned Trial Court passed its order without following the principles for grant of injunction application which needs to be canceled.
15.Appreciation of arguments and final order:
This court has heard Learned Advocates for their respective parties at length and has perused grounds taken in present appeal. This court has also pondered the reasons stated in the Page 14 of 63 Downloaded on : Sun Sep 17 21:56:29 IST 2023 NEUTRAL CITATION C/SCA/22354/2022 JUDGMENT DATED: 16/02/2023 undefined impugned order and has given calm consideration to the ratio laid down in judicial precedent relied upon by appellant herein. Upon hearing the Learned Advocates appearing for their parties, following issues have been formulated for consideration of present appeal:
i. Whether appellant herein / plaintiff proves that he has a prima facie case in his favor?
ii. Whether appellant / original plaintiff proves that he has balance of convenience in his favor and irreparable injury will be caused to him, if interim injunction under Order 39 Rule 1&2 of CPC is not granted in his favor and against the defendants?
iii. Whether the appellant has made out any case for exercise of discretion in his favor for grant of injunction application?
iv. What Final Order?
At this juncture it is pertinent to note here that as all the points of determination are interconnected with each other, therefore, same are decided herein below jointly.
To show prima facie case in his favour, plaintiff has adduced the following documents in support of his case before the Learned Trial Court, details of which are mentioned herein below:
Mark 3/1: Certificate issued by Bharuch Nagarpalika in the name of Milan Pan House showing address at A/2918, Panch Page 15 of 63 Downloaded on : Sun Sep 17 21:56:29 IST 2023 NEUTRAL CITATION C/SCA/22354/2022 JUDGMENT DATED: 16/02/2023 undefined Fanas, Bharuch.
Mark 3/2: Certificate issued by Bharuch Nagar Seva Sadan, in the name of Milan Pan House showing address at A/2918, Panch Fanas, Bharuch.
Mark 3/3: Copy of registration register of Nagarpalika, Bharuch, Mark 3/4: Copy of demand notice dated 21.02.2014 of Bharuch Nagarpalika, Mark 3/5 & 3/6: Copies of rent receipt of sum of Rs.300/-, which is alleged by plaintiff to be issued by Ismail Badami as administrator of Hazi Aadam Mahammad, Mark 3/7 & 3/8: Copies of electricity bills, Mark 3/9 & 3/10: Copies of demand notice issued by the Nagar Seva Sadan Bharuch, Mark 3/11: Akarani Yadi, 3/12 to 3/17: Copies of receipts of payment of taxes issued by Bharuch Nagarpalika, Mark 29/1: Copy of rent receipt allegedly issued by Ismail Badami as administrator of Hazi Aadam Mahmmad, Mark 29/2 to 29/7: Copies of municipal tax receipts in respect of property bearing municipal survey no.2918, Mark 29/8: Anukarmnika No.2, Page 16 of 63 Downloaded on : Sun Sep 17 21:56:29 IST 2023 NEUTRAL CITATION C/SCA/22354/2022 JUDGMENT DATED: 16/02/2023 undefined Mark 29/9 to 29/10: Affidavits of Hazi Miyanmahmad Panwala and Ismailbhai Imambhai Rasdawala, Mark 29/11: Copy of remarks of City Survey Supdt. to Collector in respect of permission for construction in City Survey No.2548, 2549, 2550, Mark 29/12 to 29/13: photographs of suit property; in support of his contentions.
Plaintiff also relies on the report of court commissioner at Exh.27.
On the contrary, defendant nos.03 and 04 have relied upon following documents before Learned Trial Court to show that the plaintiff is a trespasser and not the lawful tenant in suit property:
Mark 21/1 to 21/3: Property cards, Mark 21/4: Map, Mark 21/5 to 21/7: Permission issued by BAUDA, Mark 21/8: Map, Mark 21/9 to 21/14: Receipts of payment of tax in respect to municipal no.A/2/2917, Mark 29/15 to 29/22: Photographs of suit property.
It is a well settled law that for grant of temporary injunction, three factors shall be the guiding principles for the court which includes prima facie case, balance of convenience and irreparable injury which need to be satisfied by the party Page 17 of 63 Downloaded on : Sun Sep 17 21:56:29 IST 2023 NEUTRAL CITATION C/SCA/22354/2022 JUDGMENT DATED: 16/02/2023 undefined seeking the said temporary injunction in his favor. The object of temporary injunction is to protect the plaintiff against any damage by way of refraining a person from violating plaintiff's right for which he could not be adequately compensated in terms of money. In Dalpatkumar Vs. Pralhad Singh, AIR 1993 Supreme Court 276, Hon'ble Apex Court had an occasion to explain the said three factors, wherein, it was observed as under:
(2) the court's interference is necessary to protect the party from the species of injury. In other words, irreparable injury or damage would ensue before the legal right would be established at trial; and (3) that the comparative hardship or mischief or inconvenience which is likely to occur from withholding the injunction will be greater than that would be likely to arise from granting it.
Further, this court is of considered view that prima facie case means that plaintiff shall not prove a full proof case at the inception of the suit, though this court is also of the view that the plaintiff shall approach the court with a prima facie contentions, requiring consideration on merits which if founded on documentary evidence, shall be placed before the court for appreciating the same and the said documentary evidence shall be in consonance with the dispute, and shall not be portrayed to be a vague document founded on thin air, on the basis of conjectures and surmises. Qua the balance of convenience, this court is mindful of fact that the case of the parties to lis is to Page 18 of 63 Downloaded on : Sun Sep 17 21:56:29 IST 2023 NEUTRAL CITATION C/SCA/22354/2022 JUDGMENT DATED: 16/02/2023 undefined be compared and the principle that the comparative mischief or inconvenience which is likely to sue from withholding the injunction will be greater than which is likely to arrive at from granting it shall be the guiding principle for the court. Similarly, qua the factor of irreparable loss, this court is conscious of the fact that the court, while adjudicating an equitable relief which includes the grant of temporary injunction shall weigh and measure the gravity of damages / injury, which will be caused to a person by refusal of a temporary injunction, as the phrase "irreparable injury" is a subjective term and temporary injunction in considered view of this court cannot be granted in favor of a person, who has failed to show a prima-facie concluded right capable of being enforced by way of injunction.
Coming to the case on hand, it is the case of plaintiff that in the year 1962-1965, his maternal grand-father has taken the suit property on annual rent of Rs.300/- from its owner late Haji Aadam Mahmmad Dudhiya through his alleged power of attorney holder, i.e., Ismail Badami for running a general store and ever since the said General Store is being run by plaintiff's maternal grandfather, thereafter, plaintiff's father and presently by plaintiff as a tenant of suit property.
On the contrary, the landlord-tenant relationship between the defendant no.03 who is undisputedly a co-owner of the suit property and plaintiff has been denied by defendant nos.03 &
04. In-fact, defendant nos.03 & 04 have come up with specific Page 19 of 63 Downloaded on : Sun Sep 17 21:56:29 IST 2023 NEUTRAL CITATION C/SCA/22354/2022 JUDGMENT DATED: 16/02/2023 undefined case that taking advantage of absence of defendant nos.03 & 04 from India as they are settled abroad, plaintiff has encroached upon the suit property.
To prima facie substantiate his claim to be the tenant in possession of the suit property, plaintiff has relied upon documents at Mark 3/1 & 3/2. Perusal of which reveals that it pertains to General Store bearing Municipal Property No.A2918. Plaintiff has failed to bring to the notice of this court any document to the effect that the said Municipal No. of General Store is the same property, as described as suit property herein above. Further, this court has also perused the copies of rent receipts at Marks 3/5, 3/6 and 29/1, alleged to be issued by Haji Aadam Mahmmad Dudhiya through his alleged power of attorney holder, i.e., Ismail Badami in favor of plaintiff's maternal grand-father. Perusal of said rent receipts reveals that the said rent receipts were without any property No. qua which same were issued. Even if for a split second, it is presumed that Ismail Badami was a power of attorney holder of late Haji Aadam Mahmmad Dudhiya as recorded as a passing reference in document at Mark 29/11 relied upon plaintiff qua some other property which has no nexus with the suit property, then also plaintiff was under a bounden duty to come with a prima facie case that said rent receipts were issued qua his tenancy in the suit property only. Further, the said rent receipts, which are relied upon by plaintiff herein are the copies and same are hardly legible in nature. Plaintiff has not produced original rent receipts before Page 20 of 63 Downloaded on : Sun Sep 17 21:56:29 IST 2023 NEUTRAL CITATION C/SCA/22354/2022 JUDGMENT DATED: 16/02/2023 undefined Learned Trial Court or before this court. Further, on putting a specific query to the Learned Advocate for the plaintiff by this court, as to where are the receipts of recent years qua the payment of rent of the suit property, to which Learned Advocate for plaintiff has replied to this court that as the defendant nos.03 & 04 were residing abroad, therefore, he had no person to pay the said rent, therefore, no rent has been paid by the plaintiff qua the suit property. The said explanation as tendered by Learned Advocate for plaintiff for non-payment of rent does not appeal to the conscious of this court, for the reason that to show his bona-fide, plaintiff could have opted to deposit the alleged rent with the court, but there is no such document to the said effect on record. Further, copy of electricity bills which are relied upon by plaintiff and alleged to be of General Store at suit property annexed vide Marks 3/7 & 3/8 fails to recite the address of suit property. Further, this court has minutely perused the affidavit annexed vide Marks 29/9 & 29/10 by plaintiff in support of his case. Perusal of said affidavit, which are duly sworn by Haji Miya Mahmmad Panwala and Ismailbhai Imambhai Rasdawala respectively qua running of General Store in suit property, this court is of considered view that the said affidavits, at a preliminary stage of adjudicating an interim application seeking temporary injunction cannot be taken into consideration by the court, as the said affidavits are subject matter of trial, which are yet to be put to the test of cross- examination. Further, it is also the case of plaintiff that there Page 21 of 63 Downloaded on : Sun Sep 17 21:56:29 IST 2023 NEUTRAL CITATION C/SCA/22354/2022 JUDGMENT DATED: 16/02/2023 undefined is no written agreement qua the alleged rent of suit property. The tax receipts and municipal certificate relied upon by plaintiff in support of his case, which in considered view of this court is not prima-facie be relied upon, as the said documents do not state the description of suit property., i.e., City Survey Nos.2549 and 2550 at Ward No.03, Bharuch. It is worth-while to mention here that the plaintiff in his plaint has averred that the suit property, i.e., City Survey Nos.2549 and 2550 at Ward No.03, Bharuch, bears Municipal No.2918 which has not been admitted by defendant nos. 03 & 04. Plaintiff is specifically contended by defendant nos.03 & 04 to be the tress-passer in the suit property and it is well settled law that the court can come to the rescue to those, who have a valid title, either by way of lease or by sale or by any other recognized legal mode. Further, relief of temporary injunction being an equitable relief, equity demands that act of the court shall prejudice none of the parties. Considering the question of balance of convenience, this court is of considered view that balance of convenience is more in favor of defendant nos.03 & 04, they being legal and rightful owner of the suit property and plaintiff has prima facie failed to show that he is legal occupant of the suit property. Further, this court is of considered view that no irreparable injury will be caused to plaintiff, if the said injunction is not granted in his favor, as the said injury is to be proved by the plaintiff on merits of the case and if proved following procedure established by law, then same can be compensated in terms of money. In fact, this Page 22 of 63 Downloaded on : Sun Sep 17 21:56:29 IST 2023 NEUTRAL CITATION C/SCA/22354/2022 JUDGMENT DATED: 16/02/2023 undefined court is of considered view that defendant no.03 will suffer great inconvenience and irreparable loss if injunction as prayed by plaintiff is granted to him.
Further, in Jasoda Indralal Vadhva case (supra), as relied upon by plaintiff herein, it has been specifically held that when a person approaching court has a plausible case, and there is a standard for ascertaining the compensation, then interlocutory order of injunction should normally be refused. The ratio laid down in said precedent when applied to case on hand, this court is of considered view that plaintiff does not have a plausible case in his favor and further, as observed herein above by this court that balance of convenience is in favor of defendant no.03, followed with possibility of compensating the plaintiff in terms of money, if he succeeds in his case, therefore, this court is of opinion that plaintiff has failed to qualify the tripod test, i.e., the prima facie case, balance of convenience and irreparable injury in his favor, hence, the impugned order passed by Learned Trial Court needs no interference being legal on question of fact and law.
Further, it is also worthwhile to note here that the prayer sought by plaintiff in his interim application at Exh.05 before Learned Trial Court, wherein, impugned order is passed by Learned Trial Court, said application had a defective and vague prayer, as plaintiff has only asked temporary injunction in said application qua the suit property during the pendency of suit, but has failed to pray for injuncting a particular act of Page 23 of 63 Downloaded on : Sun Sep 17 21:56:29 IST 2023 NEUTRAL CITATION C/SCA/22354/2022 JUDGMENT DATED: 16/02/2023 undefined defendants during the pendency of suit, for which the said application was moved by plaintiff before Learned Trial Court. It is a well settled law that the prayer sought from the court shall be specific and not vague in nature, which is the case herein.
Considering the above made observations, this court passes the following final order:
::F I N A L O R D E R::
1. This Miscellaneous Civil Appeal No.11/2022 of the appellant is hereby stands rejected.
2. The impugned order of Learned Trial Court is hereby affirmed to be correct and legal.
3. Copy of this judgement along with R & P of Learned Trial Court be sent back to Learned Trial Court immediately.
5. File be consigned to record room after due compliance as per rules. No order as to cost.
Signed and pronounced in open court on this 21 st day of October, 2022.
3.5 Being aggrieved by the impugned orders passed by the concerned Courts the writ-applicant herein has preferred the present writ-application.
4. Heard Mr. M.M. Saiyed, the learned advocate appearing Page 24 of 63 Downloaded on : Sun Sep 17 21:56:29 IST 2023 NEUTRAL CITATION C/SCA/22354/2022 JUDGMENT DATED: 16/02/2023 undefined for Mr. Umarfaruk Kharadi, the learned advocate appearing for the writ-applicant and Ms. Kruti Shah, the learned advocate appearing for the respondents No.3 and 4. The respondents No.1 and 2 though served, have refused the service of notice.
Submissions on behalf of the writ-applicant :-
5. Mr. M.M. Saiyed, the learned advocate appearing for the writ-applicant submitted that though the writ-applicant has successfully cleared his possessory right over the disputed property by producing rent receipts and municipal tax bills however the concerned Courts below rejected the application seeking temporary injunction which is erroneous.
5.1 It was submitted that the Appellate Court ought to have considered that the writ-applicant is in occupation of the suit property since 1962 and has been paying rent regularly to the ancestor of the respondent No.3 and had paid the municipal taxes also regularly.
5.2 It was submitted that in view of the arbitrary action of the respondent No.3 which is in gross violation of Article 300A of the Constitution of India this Court may exercise its supervisory powers under Article 227 of the Constitution of India to protect the possessory right of the writ-applicant till the final outcome of the suit.
5.3 It was submitted that insistence of the concerned Court Page 25 of 63 Downloaded on : Sun Sep 17 21:56:29 IST 2023 NEUTRAL CITATION C/SCA/22354/2022 JUDGMENT DATED: 16/02/2023 undefined upon the writ-applicant to produce tenancy agreement was not justified when recent receipts were produced by the writ- applicant herein wherein the rent was paid by the writ- applicant which was accepted by the ancestor of the respondent No.3 though the tenancy was substantially proved before the concerned Court the same was not considered.
5.4 Even otherwise, the writ-applicant is in uninterrupted possession for more than six decades and has placed on record the cogent documentary evidence issued by the Government authorities to prima facie establish possessory right over the suit property which ought to have been considered by the concerned Court. It was submitted that even otherwise the impugned order and all consequential actions initiated and taken by the respondent authority being perverse are required to be quashed and set aside.
5.5 Mr. Saiyed, the learned advocate placed reliance on the documents produced by the writ-applicant - original plaintiff in the Regular Civil Suit No. 315 of 2019 which are duly produced at page-65 of the paper-book and relied on the rent receipt dated 31.1.2001 which according to the writ-applicant is in the name of Ismail Panwala and duly signed by the power of attorney holder i.e. Ismail Ali Badami, the power of attorney holder of Adam Mohamed Dudhiya and the aforesaid rent receipt was relied upon to be read with the documents Page 26 of 63 Downloaded on : Sun Sep 17 21:56:29 IST 2023 NEUTRAL CITATION C/SCA/22354/2022 JUDGMENT DATED: 16/02/2023 undefined produced at page-78 which is also forming a part of the documentary evidence submitted that the same communication addressed to the Collector by the City Survey Superintendent wherein development permission is sought for from the Collector.
5.6 Mr. Saiyed, the learned advocate appearing for the writ- applicant placed reliance on the documentary evidence produced on record and forming part of the proceedings before the trial Court as well as Appellate Court and placing reliance on the same it was submitted that the rent receipt is of the year 1974-75.
Submissions on behalf of the respondents No.3 and 4 :-
6. Heard Ms. Kruti Shah, the learned advocate appearing for the respondents No.3 and 4. Ms. Shah the learned advocate submitted that the writ-applicant herein - original plaintiff is falsely claiming the tenancy right over the property in question i.e. property No.2549 and 2550 situated in City Survey Ward No.3 situated at Bharuch. It is submitted that the respondent no.4 has nothing to do with the suit property, however inspite of aforesaid fact, the respondent No.4 has been joined as defendant no.4 in the suit proceedings. The respondent no.4 is husband of the respondent no.3.
Page 27 of 63 Downloaded on : Sun Sep 17 21:56:29 IST 2023NEUTRAL CITATION C/SCA/22354/2022 JUDGMENT DATED: 16/02/2023 undefined 6.1 It was submitted that the suit property bearing i.e. property No.2549 and 2550 as well as City Survey No.2548 are inherited by the respondent no.3 Zulekhaben d/o. Haji Adam Mohammad Dudhia and she is not the only legal heir and representative of the original owner because other legal heirs are her brothers, namely Mohammad Ali Adam Dudhia, Yusuf Ali Adam Dudhia, Aayesha d/o. Ali Adam Dudhia, widow of Ismail Adam Dudhia i.e. Memunaben and her son Shakil Ismail Adam Dudhia. Except the respondent no.3 no other legal heirs and representatives are not joined in the suit proceedings and thus the suit itself is not maintainable for non joinder and mis- joinder of parties.
6.2 It is submitted that the defendant no.1 Abdul Rasid is not an administrator of the suit properties and the defendant No.1 was never given any authority to deal with the suit proprieties in any manner and he being a friend of respondent no.3 and 4 used to extend help whenever the respondents No.3 and 4 came to be India and the defendant no.1 is in no way connected with the suit properties.
6.3 It was submitted that the construction over City Survey Nos. 2548, 2549 and 2550 is complete as per the development permission granted by the Bharuch Urban Development authority and in fact all the three aforesaid properties Page 28 of 63 Downloaded on : Sun Sep 17 21:56:29 IST 2023 NEUTRAL CITATION C/SCA/22354/2022 JUDGMENT DATED: 16/02/2023 undefined Nos.2548, 2549 and 2550 are in one line and in fact the construction of new building is also comprised of the properties.
6.4 It was submitted that it was wrongly stated by the writ- applicant - original plaintiff that deceased Adam Mohammad Dudhia is father of the defendant no.3 because in fact he is grand father of the defendant no.3 and died in the year 1969 and it is specifically denied that the writ-applicant - original plaintiff was ever tenant of Survey Nos.2548, 2549 and 2550 and this fact is concocted to bring the suit before the Trial Court and the averments with regard to tenancy rights over City Survey No.2549 and 2550 and that the proceedings initiated by the writ-applicant - original plaintiff are also false, fabricated and without any substance.
6.5 It was submitted that in fact Milan Pan Center has nothing to do with the suit property and the four sides of the suit property narrated in the suit are also denied. It was submitted that the facts of tenancy created by the grand father of defendant no. 3 namely Adam Mohammad Dudhia in favor of maternal grand father of the writ-applicant - original plaintiff namely Ismail Panwala, of City Survey Nos. 2549 and 2550, for yearly rent of Rs. 300/ -, are false and that grand father of the defendant no. 3 expired in the year 1969 and Page 29 of 63 Downloaded on : Sun Sep 17 21:56:29 IST 2023 NEUTRAL CITATION C/SCA/22354/2022 JUDGMENT DATED: 16/02/2023 undefined therefore considering the averments made in the plaint regarding running the said shop from the year 1983 are misleading and in fact the municipal receipts produced by the plaintiff have nothing to do with City Survey Nos.2548, 2549 and 2550 which is given property No.A/2/2917 and in fact the writ-applicant - original plaintiff has encroached on the public road by putting up Pangalla, without any authority of law.
6.6 It was submitted that Ismail Badami was administering all the properties of the deceased Adam Dudhia, situated in Panchbatti area and he used to give receipts after collecting Rs.300/- per year in fact the defendant no.3 does not know any person namely Ismail Badami and it is specifically denied that any such person was administering or collecting rent for the properties of the deceased Adam Dudhia.
6.7 It was submitted that the new Building has been constructed upon all the 3 City Survey Nos. 2548, 2549 and 2550, after demolishing the old building before 10 years and after demolition some of the part of the property was covered with iron sheets and thereafter the procedure of getting construction permission from Bharuch Urban Development Authority was undertaken in the year 2018. It was submitted that the said Pangalla is situated on the approach road which is to be used for entry and exit to the newly constructed Page 30 of 63 Downloaded on : Sun Sep 17 21:56:29 IST 2023 NEUTRAL CITATION C/SCA/22354/2022 JUDGMENT DATED: 16/02/2023 undefined building as per the plan approved by Bharuch Urban Development Authority and the writ-applicant - original plaintiff being aware of the aforesaid facts has tried to create false tenancy rights over the properties in question, which is in fact to be used for the place as entry and exit of the new building.
6.8 It was submitted that total measurement of City Survey Nos.2548, 2549 and 2550 is 405.35 sq. meters i.e. 4336.15 sq. foot, out of this total measurement, the individual measurement of all the 3 survey No is stated thus :-
(1) 2548 401.15 sq. meters i.e. 4317.94 sq. foot (2) 1.96 sq. meters i.e. 21.09 sq. foot (3) 2.24 sq. meters i.e. 24.11 sq. foot It was submitted that one godown was situated over City Survey No. 2549 and 2550 and the property No. A/2/2917 and at the western side of the said building, public road is passing from Northern to Southern side and the said road is passing touching the traffic point on the said road and the property in question is situated on the Eastern side of the said road and it was reiterated that the old building as well as godown were demolished before 10 years and the area of the Godown was covered by Iron sheets and in fact the new construction had Page 31 of 63 Downloaded on : Sun Sep 17 21:56:29 IST 2023 NEUTRAL CITATION C/SCA/22354/2022 JUDGMENT DATED: 16/02/2023 undefined already been completed for which the defendant no.3 and other co-owners have spent Lakhs of Rupees and as per the permission granted by Bharuch Urban Development Authority the owners have to leave 3 meter space from two sides of the building and the BAUDA has given access way from the Southern side of the old building towards Eastern - Western side which leads to the main public road and in fact the said Pangalla is put up on the said road by blocking the way of access to the building and the said Pangalla is encroaching footpath to the tune of 6 to 7 foot.
6.9 Ms. Shah, the learned advocate placed reliance on the photographs which are produced by the respondent No.3 which clearly suggests that the writ-applicant -original plaintiff has put Pangalla adjacent to the wall of the new building constructed and which is also on the footpath causing hindrance for general public to use the public road.
6.10 It was submitted that the defendant no.3 is permanent resident of Zimbabwe and NRI and the writ-applicant -original plaintiff has encroached upon the right of way and has also made encroachment upon the footpath on the main road and the case of encroachment has been tried to be converted into the case based on tenancy by producing false and fabricated documents and though the plaintiff has agreed to remove the Page 32 of 63 Downloaded on : Sun Sep 17 21:56:29 IST 2023 NEUTRAL CITATION C/SCA/22354/2022 JUDGMENT DATED: 16/02/2023 undefined said Pangalla, has subsequently filed the suit with false facts.
6.11 It was submitted that the Trial Court at the time of deciding Exh.5 application clearly held that the rent receipts produced by the plaintiff do not show that these rent receipts are issued in respect of the suit properties and by the person in authority and the same seems to be issued before a long time and there is no agreement on record as to show tenancy of the suit property between maternal grand father of plaintiff and grand father of defendant no.3 and how the father of plaintiff became tenant in the suit property. The Trial Court has also specifically held that Vera Pavti and Municipal Certificate would not establish any tenancy right of the plaintiff in the suit property.
6.12 It was submitted that the Appellate Court also gave findings on the basis of the material produced on record and the Court was constrained to deal in detail the facts of the case as after filing of the appeal by the plaintiff, he moved an application Exh.14 seeking permission of the Court to adduce additional evidence in the appeal and that application Exh. 14 which was disallowed by the Appellate Court. Placing reliance on the aforesaid Mr. Shah, the learned advocate appearing for the respondents No.3 and 4 vehemently submitted that when the plaintiff pleads landlord-tenant relationship, the Court is Page 33 of 63 Downloaded on : Sun Sep 17 21:56:29 IST 2023 NEUTRAL CITATION C/SCA/22354/2022 JUDGMENT DATED: 16/02/2023 undefined obliged under the Law to deal with the averments made in the plaint as well as the documents produced on record. Whether prima facie case, balance of convenience and irreparable injury is in favor of the plaintiff and for dealing with the same the Appellate Court went into the merits of the case and held that present petitioner was not a tenant in the property or was an encroacher and there was a specific findings regarding rent receipts that none of the rent receipts reveal any property Number and it was further observed by the Court that the copies of the rent receipts are hardly legible and even the original rent receipts were not produced and upon the query put by the Court of having rent receipts of recent years, it was stated by the plaintiff that the plaintiff did not produce anything by saying that defendant no.3 and 4 are residing abroad. The Court also specifically observed that the electricity bill does not reflect the address of the suit property and that the plaintiff has not even produced any written agreement establishing his rights of tenancy.
6.13 Placing reliance on the aforesaid it was submitted by Ms. Shah, the learned advocate appearing for the respondents No.3 and 4 that both the Courts have concurrently held against the writ-applicant and denied to grant interim injunction application below Ex.5 which came to be confirmed by order in appeal and, therefore, this Court may not exercise discretion Page 34 of 63 Downloaded on : Sun Sep 17 21:56:29 IST 2023 NEUTRAL CITATION C/SCA/22354/2022 JUDGMENT DATED: 16/02/2023 undefined under Article 227 of the Constitution of India and this Court may not re-appreciate the evidence. Placing reliance on the aforesaid it was submitted that the writ-application be dismissed in limine.
Analysis :-
7. Heard the learned advocates appearing for the respective parties. While issuing notice status-quo came to be granted by way of ad-interim relief with regard to the suit property.
8. Considered the documents which have been relied upon by the writ-applicant - original plaintiff, forming part of the record and considered the reply filed by the respondents No.3 and 4 herein. The list of documents relied upon by the writ- applicant reads thus :-
List of documentary evidence for the original plaintiff Sr. Particular Date Remarks No. 1 Registration certificate of the 15/04/2011 disputed shop 2 Registration certificate of the 16/02/2008 disputed shop dated 16/02/2018 3 Copy of registration certificate 11/11/1983 given by Gumasta Inspector 4 Demand bill of professional tax 21/02/2014 of the disputed shop Page 35 of 63 Downloaded on : Sun Sep 17 21:56:29 IST 2023 NEUTRAL CITATION C/SCA/22354/2022 JUDGMENT DATED: 16/02/2023 undefined 6 Rent slip of the disputed shop 09/12/1997 from 01/01/1996 to 30/12/1996 7 Electricity bill of the disputed shop for July/ August-2019 8 Electricity bill of the disputed shop for March/ April-2019 9 Tax bill of the disputed shop 22/11/2011 for the year 2011-12 10 Tax bill of the disputed shop 19/01/2011 for the year 2010-11 11 Assessment list of the disputed 17/10/2019 shop for the year 2019-2020 at Bharuch Nagarpalika 12 Receipt for paying tax of the 20/01/2002 disputed shop for the year 2012-2013 13 Receipt for paying tax of the 30/10/2013 disputed shop for the year 2013-2014 14 Receipt for paying tax of the 17/03/2016 disputed shop for the year 2015-2016 15 Receipt for paying tax of the 23/12/2016 disputed shop for the year 2016-2017 16 Receipt for paying tax of the 03/10/2047 disputed shop for the year 2017-2018 17 Receipt for paying tax of the 30/11/2018 disputed shop for the year 2018-2019 While denying equitable relief to the writ-applicant the Page 36 of 63 Downloaded on : Sun Sep 17 21:56:29 IST 2023 NEUTRAL CITATION C/SCA/22354/2022 JUDGMENT DATED: 16/02/2023 undefined Courts below at the stage of considering Ex.5 held as under :-
(a) that the writ-applicant has not produced any rent receipt.
(b) that the writ-applicant was not in a position to answer a query with regard to the rent receipt of recent year qua the payment of the rent of the suit property :
To which the learned advocate for the plaintiff replied that the defendants No.3 and 4 were residing abroad and that there was no reason to pay the said rent and, therefore, the rent has not been paid by the plaintiff qua the suit property.
(c) It was also held that the explanation rendered by the learned advocate for the plaintiff for non-payment of rent does not appeal to the conscious of the Court. The plaintiff to show bonafide, could have opted to deposit the rent with the Court but no such document is produced on record.
(d) The electricity bills which are relied upon by the plaintiff and alleged to be of general store at suit property vide Ex.3/7 and 3/8 do not recite the address of the suit property and having minutely perused the affidavit vide Mark 29/9 and 29/10 by the plaintiff, in support of his case duly sworn in by Hazi Miyanmahmad Panwala and Ismailbhai Imambhai Rasdawala respectively qua running general store in the suit property, it was held that temporary injunction could not be granted as the affidavits are subject matter of trial and are yet Page 37 of 63 Downloaded on : Sun Sep 17 21:56:29 IST 2023 NEUTRAL CITATION C/SCA/22354/2022 JUDGMENT DATED: 16/02/2023 undefined to be put to cross-examination.
(e) It was the case of the plaintiff that there was no written agreement qua the alleged rent of the suit property. The tax receipt and municipal certificate relied upon by the plaintiff in support of his case, do not form prima facie case in favour of the plaintiff and the documents describe the suit property i.e. Survey No.2549 and 2550 at Ward No.3 Bharuch. The said averments by the plaintiff is not admitted by the defendants No.3 and 4.
(f) The plaintiff as specifically contended by the defendants No.3 and 4, to be trespasser in the suit property and it is well settled position of law that Court can come to rescue who have valid title either by lease or by sale or by other recognized legal mode.
9. Being aggrieved by the impugned order dated 21-10-2022 passed by the learned District Court in Miscellaneous Civil Appeal No.11 of 2019 confirming the order dated 23-05-2022 passed by the Ld. Civil Court below exhibit 5 in Regular Civil Suit No. 315 of 2019 denying the temporary injunction the writ-applicant approached this Court invoking Article 227 of the Constitution of India. While issuing notice by order dated 8.11.2022 status-quo came to be granted by way of ad-interim relief with regard to the suit property. The order dated 8.11.2022 reads thus :-
Page 38 of 63 Downloaded on : Sun Sep 17 21:56:29 IST 2023NEUTRAL CITATION C/SCA/22354/2022 JUDGMENT DATED: 16/02/2023 undefined "1. Heard learned Advocate Mr. Umarfaruk M. Kharadi for the petitioner.
2. Learned Advocate Mr. Kharadi tenders a draft amendment.
The same is granted. To be carried out forthwith.
3. By way of this petition, the petitioner challenges orders dated 21.10.2022 passed by the learned 5th Additional District Judge, Bharuch in Misc. Civil Appeal No. 11 of 2022 confirming order below Exh. 5 passed by the learned Additional Civil Judge, Bharuch, dated 23.05.2022 in Regular Civil Suit No. 315 of 2019.
4. Having regard to the submissions made by learned Advocate Mr. Kharadi and having perused the orders passed by the learned Courts below and the report of the City Survey Superintendent as the Court Commissioner, it prima facie appears that the property in question is in possession and occupation of the present petitioner. It also prima facie appears that the present petitioner as original plaintiff has claimed tenancy rights upon the property in question and whereas in addition to the report of the Court Commissioner, the petitioner-plaintiff had also relied upon various documents including the Registration Certificate issued by the Bharuch Municipality under the Shops and Establishments Act as well as documents to show that the petitioner was paying property tax and whereas certain receipts, whereby rent had been paid to the authorized person of respondent-defendant Nos. 3 and 4 was also produce on record. It appears that both the Page 39 of 63 Downloaded on : Sun Sep 17 21:56:29 IST 2023 NEUTRAL CITATION C/SCA/22354/2022 JUDGMENT DATED: 16/02/2023 undefined learned Trial Court as well as the Appellate Court, had at the interim stage, entered into a broad discussion as regards the right of the plaintiff to occupy the property as a tenant and whereas the learned Courts below have prima facie come to a conclusion that the present petitioner was not a tenant and whereas he was an encroacher. In the considered opinion of this Court, such an exercise by the learned Courts below at the stage of hearing an application for interim injunction was neither permissible nor called for. As discussed by both the learned Courts below, more particularly relying upon the decisions of the Hon'ble Apex Court as well as this Court, at the stage of considering an application for interim injunction, the Courts are required to be satisfied as to whether the plaintiff has a prima facie case or not. The Courts are not required to enter into an exercise to find out whether the plaintiff has a case in which he is likely to succeed at the end of the trial. In the instant case, in the considered opinion of this Court, the fact of the plaintiff being in possession of the property since approximately 30 years, as per the documents produced by the petitioner-plaintiff and further considering the fact that the present petitioner-plaintiff had also produced some material in support of his claim that he was a tenant in the property in question, was good enough case for having granted an interim injunction in favour of the petitioner, more particularly the above aspects, having made out a prima faice case for interference.
5. It appears that inspite of the present petitioner having Page 40 of 63 Downloaded on : Sun Sep 17 21:56:29 IST 2023 NEUTRAL CITATION C/SCA/22354/2022 JUDGMENT DATED: 16/02/2023 undefined made out a prima facie case as discussed hereinabove, the learned Courts below, have gone into the aspect of whether the present petitioner was a tenant in the property or was an encroacher, and prima faice holding against the present petitioner, without leading of evidence, the learned Courts below have come to a conclusion that the present petitioner was an encroacher. In the considered opinion of this Court, as observed hereinabove, such an exercise by the learned Courts below was uncalled for.
6. In view of above prima faice observations, at this stage, this Court deems it appropriate to protect the present petitioner. Hence, issue Notice to the respondents returnable on 06.12.2022.
7. By way of interim relief, it is directed that status quo with regard to the suit property shall be maintained.
8. Direct service is permitted. Insofar as the respondent Nos. 3 and 4 are concerned, direct service of this order, upon their learned Advocate appearing before the learned Courts below, is also permitted."
10. Considered the report by the City Surveyor dated 12.4.2022 which is duly forming a part of the record produced at page-73 and considering the other documents which prima facie establishes the possession of the writ-applicant qua the suit property. The learned advocate appearing for the Page 41 of 63 Downloaded on : Sun Sep 17 21:56:29 IST 2023 NEUTRAL CITATION C/SCA/22354/2022 JUDGMENT DATED: 16/02/2023 undefined respondents was not in position to controvert the aforesaid fact that the writ-applicant herein is prima facie in possession of the suit property. Considering the fact that both the Courts below have concurrently arrived at the conclusion while declining the application below Ex.5 filed by the writ-applicant on the ground that the documents produced on record failed to establish the legal right of the writ-applicant as a tenant in the suit property. The Courts below while coming to the aforesaid conclusion failed to consider the fact that the possession of the writ-applicant qua the suit property is prima facie established considering the documents on record and the Courts below have concurrently proceeded to hold that the writ-applicant not having a valid legal title either by way of sale, lease or by any other recognized legal mode would not be entitled to any equitable relief. Consequently the prayer of the writ-applicant seeking temporary injunction was denied and it was held that prima facie balance of convenience was not in favour of the writ-applicant and, therefore, would not result in irreparable injury to the writ-applicant in absence of temporary injunction.
10.1 At this stage, it is apposite to refer to the ratio as laid down by the Hon'ble Supreme Court in the following decisions wherein ratio with regard to the rights of a person in possession are considered which read thus :-
(a) In the case of Ram Rattan Versus State Of Uttar Pradesh, Page 42 of 63 Downloaded on : Sun Sep 17 21:56:29 IST 2023 NEUTRAL CITATION C/SCA/22354/2022 JUDGMENT DATED: 16/02/2023 undefined reported in (1977) 1 SCC 188, Paragraph-4 :-
"4. Both the courts below have come to a concurrent finding of fact that the occurrence took place as alleged by the prosecution and that the accused persons were the aggressors and had opened the assault on the deceased. The Trial Court as also the High Court have concurrently found, on a full and complete appreciation of the evidence, that although the place of occurrence was a part of the Chak road, yet the complainant Ram Khelawan had encroached on the same and some time before the occurrence had brought the land under cultivation over which he had grown paddy crop. The evidence of the Sub-Inspector who visited the spot clearly shows that he found paddy crop grown at the height of 4 or 8 digits. The learned counsel for the appellants has not been able to show that the concurrent finding of fact arrived at by the Sessions Judge and the High Court on this point is in any way not borne out by the evidence. The learned counsel for the appellants submitted two points before us. In the first place, he submitted that the finding of the High Court impliedly shows that the accused were trying to assert their lawful right over the Chak Road which was wrongfully occupied by the complainant and was in possession of the villagers. The accused, therefore, had every right to throw out the complainants' party who were trespassers by force. The accused were, therefore, acting in the exercise of their right of private defence of person and property and were justified in Page 43 of 63 Downloaded on : Sun Sep 17 21:56:29 IST 2023 NEUTRAL CITATION C/SCA/22354/2022 JUDGMENT DATED: 16/02/2023 undefined causing the death of the deceased, particularly in view of the serious injuries received by three of the party of the accused. Reliance was placed, particularly on the Injury Reports of Ram Samujh, Harnam and Ram Ratan. It appears that Ram Samujh received two injuries one being a lacerated wound 3 cm x 3/4 cm x 1 cm deep on the posterior part of head and a contusion on the right side of the head, while Harnam had four contusions and Ram Ratan had two lacerated wounds, in the region of the ear, one punctured wound in the left forearm and one contusion. It was submitted that in view of the serious injuries, some of which were inflicted by sharp-cutting weapons, it could not be said that the appellants had exceeded their right of private defence. The argument is no doubt attractive, but on closer scrutiny we find that it is not tenable. In view of the clear finding of the High Court and the Sessions Judge that the land in dispute was in the settled possession of the complainant Ram Khelawan who rightly or wrongly encroached upon the road and converted it into his cultivable land the accused had no right to throw the complainant by force. In fact the Sessions Judge found thus:
"There is also no doubt that from the evidence on record adduced by the prosecution and the defence, it appears that the Chak Road, if any was existing, was encroached upon by Ram Khelawan and his family members. ... .. So far as the question whether the Chak Road was encroached upon, there was hardly any discrepancy between the statements of the prosecution witnesses and the defence. It has been admitted Page 44 of 63 Downloaded on : Sun Sep 17 21:56:29 IST 2023 NEUTRAL CITATION C/SCA/22354/2022 JUDGMENT DATED: 16/02/2023 undefined by Ram Khelawan Prosecution witness 1 that before the occurrence Ram Ratan and several other villagers whose Chaks are situated in the east of Ram Khelawan Chak used to say that he had encroached upon the Chak Road, and that in the absence of that Chak Road, from where they should take their bullocks to their Chaks. ... .. From these admissions also it is amply proved that in fact there was a Chak Road but it was later encroached upon by the complainant Ram Khelawan."
The High Court also found:
"It is thus clear that assuming that the consolidation authorities had formed a Chak Road adjoining the Chak of Ram Khelawan, it had been taken possession of by Ram Khelawan included in his Chak ploughed by him and paddy crop had been sown therein. It is thus obvious that Ram Khelawan had established his possession over the land where the incident took place and had been in peaceful possession thereof for 2 to 3 weeks at least before the occurrence took place."
It is well settled that a true owner has every right to dispossess or throw out a trespasser, while the trespasser is in the act or process of trespassing, and has not accomplished his possession, 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 Page 45 of 63 Downloaded on : Sun Sep 17 21:56:29 IST 2023 NEUTRAL CITATION C/SCA/22354/2022 JUDGMENT DATED: 16/02/2023 undefined dispossess the trespasser by taking recourse to the remedies available under the law. In view of the clear finding of the High Court that the complainant Ram Khelawan even after encroachment had established his possession over the land in dispute for two to three weeks before the occurrence, for the purpose of criminal law, the complainant must be treated to be in actual physical possession of the land so as to have a right of private defence to defend his possession even against the true owner. While it may not be possible to lay down a rule of universal application as to when the possession of a trespasser becomes complete and accomplished, yet, as this court has indicated recently, one of the tests is to find out who had grown the crop on the land in dispute. In Puran Singh V/s. State of Punjab. (1975) Supp SCR 299 this matter was comprehensively considered and one of us (Fazl Ali, J.) who spoke for the Court observed as follows:
"We, however, think that this is not what this Court meant in defining the nature of the settled possession. It is indeed difficult to lay down any hard and fast rule as to when the possession of a trespasser can mature into a settled possession. But what this Court really meant was that the possession of a trespasser must be effective, undisturbed and to the knowledge of the owner or without any attempt at concealment. For instance a stray or a casual act of possession would not amount to settled possession. There is no special charm or magic in the word 'settled possession' nor is it a ritualistic formula which can be confined in a strait-Page 46 of 63 Downloaded on : Sun Sep 17 21:56:29 IST 2023
NEUTRAL CITATION C/SCA/22354/2022 JUDGMENT DATED: 16/02/2023 undefined jacket 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... .... Thus in our opinion the nature of possession in such cases which may entitle a trespasser to exercise the right of private defence of property and person should contain the following attributes:
(i) that the trespasser must be in actual physical possession of 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 and which contains an element of animus possidendi. The nature of possession of the trespasser would however be a matter to be decided on 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 in by the true owner; and
(iv) that one of the usual tests to determine the quality of settled possession, in the case of culturable 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 the true owner has no right to destroy the crop grown by the trespasser and take forcible possession, in which case the trespasser will have a right of private defence and the true owner will have no right of private Page 47 of 63 Downloaded on : Sun Sep 17 21:56:29 IST 2023 NEUTRAL CITATION C/SCA/22354/2022 JUDGMENT DATED: 16/02/2023 undefined defence."
(b) In the case of Nagar Palika, Jind Versus Jagat Singh , reported in (1995) 3 SCC 426, Paragraph-8 :-
"8. Faced with this situation, the learned counsel for the respondent, took a stand that even if the respondent had failed to prove his title, the suit filed on behalf of the respondent, should be treated as a suit based on possession and dispossession in terms of Section 6 of the Specific Relief Act , 1963. Once a suit has been filed by the respondent claiming to be the owner and being in possession of the land in question, how that suit can be treated as a suit based on possession and dispossession without reference to title- Section 6 of the Specific Relief Act, 1963 says that if any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may, by suit recover possession thereof, notwithstanding any other title that may be set up in such suit. Section 6 is a corresponding provision to Section 9 of the Specific Relief Act, 1877. Section 9 of the earlier Act, which has been retained with some changes in the Specific Relief Act, 1963 is based on the principle that even a trespasser is entitled to protect his possession except against a true owner and purports to protect a person in possession from being dispossessed except in due course of law. Section 6 provides a summary remedy for a person who being in possession of immovable property is ousted therefrom. In such Page 48 of 63 Downloaded on : Sun Sep 17 21:56:29 IST 2023 NEUTRAL CITATION C/SCA/22354/2022 JUDGMENT DATED: 16/02/2023 undefined circumstances, it is possible that the person so dispossessed may pursue summary and speedy remedy through the medium of the Civil Court for restoration of possession. It has been said that this Section is a reproduction of provision of the Roman Law under which by an interdictum de vi a person wrongfully dispossessed from property could recover it by proving previous possession, without being required to prove his title. Disputed questions of title are to be decided by due process of law but the peaceful possession is to be protected from a trespasser under Section 6 of the Act without regard to the question of the origin of the possession. Such suit can be entertained and decreed, only where both the plaintiff and the defendant have no title to the suit land, but as the plaintiff proves his prior possession, because of that he is entitled to a decree for possession against the defendant who has dispossessed him. The plaint of such a suit must aver only previous possession and dispossession by the defendant, otherwise than in due course of law. In the case of Parry V/s. Clissold, 1907 AC 73, it was said:-
"It cannot be disputed that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. And if the rightful owner does not come forward and assert his title by the process of law within the period prescribed by the provisions of the statute of Limitation applicable to the case, his right is for ever extinguished and the possessory owner acquires an Page 49 of 63 Downloaded on : Sun Sep 17 21:56:29 IST 2023 NEUTRAL CITATION C/SCA/22354/2022 JUDGMENT DATED: 16/02/2023 undefined absolute title. The aforesaid view was approved by this Court in the case of Nair Service Society V/s. K. C. Alexander, AIR 1968 SC 1165 : (1968) 3 SCR 163. This Court said in connection with the plaintiff of that case that he being in peaceful possession was entitled to remain in possession and only the State could evict him. It was further said that the action of the Society was a violent invasion over the possession of the plaintiff. It was pointed out :--
"... the law as it stands in India the plaintiff could maintain a possessory suit under the provisions of the Specific Relief Act in which title would be immaterial or a suit for possession within 12 years in which the question of title could be raised."
(c) In the case of M.C.Chockalingam Versus V.Manickavasagam, reported in (1974) 1 SCC 48, Paragraph- 15:-
"15. Turning to Rule 13, even in the first part if the applicant for the licence is the owner of the property he has to produce before the licensing authority the necessary records not only relating to his ownership but also regarding his possession. It is implicit, that the owner having a title to the property, if he can satisfy the licensing authority with regard to his possession also, will indeed be in 'lawful possession', although the word 'lawful' is not used in the first part. It is in that context that the word 'possession' is even not necessary to be qualified by 'lawful' in the first part of Rule 13. If, however, Page 50 of 63 Downloaded on : Sun Sep 17 21:56:29 IST 2023 NEUTRAL CITATION C/SCA/22354/2022 JUDGMENT DATED: 16/02/2023 undefined the applicant for the licence is not the owner, there is no question of his showing title to the property and the only requirement of the law is to produce to the satisfaction of the authority documentary evidence with regard to his lawful possession of the property. The word 'lawful', therefore, naturally assumes significance in the second part while it was not even necessary in the first part. The fact that after expiry of the lease the tenant will be able to continue in possession of the property by resisting a suit for eviction, does not establish a case in law to answer the requirement of lawful possession of the property within the meaning of Rule 13. Lawful possession cannot be established without the concomitant existence of a lawful relationship between the landlord and the tenant. This relationship cannot be established against the consent of the landlord unless, however, in view of a special law, his consent becomes irrelevant. Lawful possession is not litigious possession and must have some foundation in a legal right to possess the property which cannot be equated with a temporary right to enforce recovery of the property in case a person is wrongfully or forcibly dispossessed from it. This Court in Lallu Yeshwant Singh's case, (1968) 2 SCR 203 (supra) had not to consider whether juridical possession in that case was also lawful possession. We are clearly of opinion that juridical possession is possession protected by law against wrongful dispossession but cannot per se always be equated with lawful possession."
(d) In the case of Sopan Sukhdeo Sable Versus Assistant Page 51 of 63 Downloaded on : Sun Sep 17 21:56:29 IST 2023 NEUTRAL CITATION C/SCA/22354/2022 JUDGMENT DATED: 16/02/2023 undefined Charity Commissioner, reported in (2004) 3 SCC 137, Paragraph-24:-
"24. There are two different sets of principles which have to be borne in mind regarding course to be adopted in case of forcible dispossession. Taking up the first aspect, it is true that where a person is in settled possession of property, even on the assumption that he has no right to remain in property, he cannot be disposed by the owner except by recourse of law. This principle is laid down in section 6 of the Specific Relief Act, 1963 . That section says that if any person is dispossessed without his consent from immovable property other wise than in due course of law, he or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit. That a person without title but in "settled" possession as against mere fugitive possession can get back possession if forcibly dispossessed or rather, if dispossessed otherwise than by due process of law, has been laid down in several cases. It was so held by this Court in Yashwant Singh V/s. Jagdish Singh, Krishna Ram Mohate V/s. Mrs. Shobha Venkata Rao, Ram Rattan V/s. State of Uttar Pradesh and State of U.P. V/s. Maharaja Dharmender Prasad Singh. The leading decision quoted in these rulings is the decision of the Bombay High Court in K.K. Verma V/s. Union of India."
(e) In the case of Rame Gowda (D) By Lrs. Versus Varadappa Naidu (D) By Lrs., reported in (2004) 1 SCC 769, Page 52 of 63 Downloaded on : Sun Sep 17 21:56:29 IST 2023 NEUTRAL CITATION C/SCA/22354/2022 JUDGMENT DATED: 16/02/2023 undefined Paragraph-9:-
9. It is the settled possession or effective possession of a person without title which would entitle him to protect his possession even as against the true owner. The concept of settled possession and the right of the possessor to protect his possession against the owner has come to be settled by a catena of decisions. Illustratively, we may refer to Munshi Ram and Ors. V/s. Delhi Administration, 1968 2 SCR 455, Puran Singh and Ors. V/s. The State of Punjab, 1975 4 SCC 518 and Ram Rattan and Ors. V/s. State of Uttar Pradesh, 1977 1 SCC 188. The authorities need not be multiplied. In Munshi Ram & Ors.'s case (supra), it was held that no one, including the true owner, has a right to dispossess the trespasser by force if the trespasser is in settled possession of the land and in such a case unless he is evicted in the due course of law, he is entitled to defend his possession even against the rightful owner. But merely stray or even intermittent acts of trespass do not give such a right against the true owner. The possession which a trespasser is entitled to defend against the rightful owner must be settled possession, extending over a sufficiently long period of time and acquiesced to by the true owner. A casual act of possession would not have the effect of interrupting the possession of the rightful owner. The rightful owner may re-
enter and re- instate himself provided he does not use more force than is necessary. Such entry will be viewed only as Page 53 of 63 Downloaded on : Sun Sep 17 21:56:29 IST 2023 NEUTRAL CITATION C/SCA/22354/2022 JUDGMENT DATED: 16/02/2023 undefined resistance to an intrusion upon his possession which has never been lost. A stray act of trespass, or a possession which has not matured into settled possession, can be obstructed or removed by the true owner even by using necessary force. In Puran Singh and Ors.'s case (supra), the Court clarified that it is difficult to lay down any hard and fast rule as to when the possession of a trespasser can mature into settled possession. 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 strait-jacket. 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 court laid down the following tests which may be adopted as a working rule for determining the attributes of 'settled possession' :
i) 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 Page 54 of 63 Downloaded on : Sun Sep 17 21:56:29 IST 2023 NEUTRAL CITATION C/SCA/22354/2022 JUDGMENT DATED: 16/02/2023 undefined 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 culturable 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 the true owner has no right to destroy the crop grown by the trespasser and take forcible possession."
(f) In the case of Krishna Ram Mahale (Dead), By His Lrs.
Versus Shobha Venkat Rao, reported in (1989) 4 SCC 131, Paragraph-9:-
"9. This proposition was also accepted by a Division Bench of this Court in Rain Rattan V/s. State of Uttar Pradesh (1977) 2 SCR 232 . 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 Page 55 of 63 Downloaded on : Sun Sep 17 21:56:29 IST 2023 NEUTRAL CITATION C/SCA/22354/2022 JUDGMENT DATED: 16/02/2023 undefined possession of the restaurant business and the premises where it was conducted as a licensee and in due course of law. Thus, defendant No. 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 u/s. 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 No. 3 amounted to a licence or a sub-lease."
(g) In the case of Poona Ram Versus Moti Ram(D), reported in (2019) 11 SCC 309, Paragraphs-11 to 15 :-
"11. The law in India, as it has developed, accords with jurisprudential thought as propounded by luminaries like Salmond. Salmond on Jurisprudence (12 Edn. at paras 59-60) states:-
"These two concepts of ownership and possession, therefore, may be used to distinguish between the de facto possessor of an object and its de jure owner, between the man who actually has it and the man who ought to have it. They serve Page 56 of 63 Downloaded on : Sun Sep 17 21:56:29 IST 2023 NEUTRAL CITATION C/SCA/22354/2022 JUDGMENT DATED: 16/02/2023 undefined also to contract the position of one whose rights are ultimate, permanent and residual with that of one whose rights are only of a temporary nature.
x x x x x In English law possession is a good title of right against any one who cannot show a better. A wrongful possessor has the rights of an owner with respect to all persons except earlier possessors and except the true owner himself. Many other legal systems, however, go much further than this, and treat possession as a provisional or temporary title even against the true owner himself. Even a wrongdoer, who is deprived of his possession, can recover it from any person whatever, simply on the ground of his possession. Even the true owner, who takes his own, may be forced in this way to restore it to the wrongdoer, and will not be permitted to set up his own superior title to it. He must first give up possession, and then proceed in due course of law for the recovery of the thing on the ground of his ownership. The intention of the law is that every possessor shall be entitled to retain and recover his possession, until deprived of it by a judgment according to law.
Legal remedies thus appointed for the protection of possession even against ownership are called possessory, while those available for the protection of ownership itself may be distinguished as proprietary. In the modern and medieval civil law the distinction is expressed by the contrasted terms Page 57 of 63 Downloaded on : Sun Sep 17 21:56:29 IST 2023 NEUTRAL CITATION C/SCA/22354/2022 JUDGMENT DATED: 16/02/2023 undefined petitorium (a proprietary suit) and possessorium (a possessory suit)."
12. As far back as 1924, in the case of Midnapur Zamindary Co. Ltd. v. Naresh Narayan Roy, AIR 1924 PC 144, the learned Judge observed that in India, persons are not permitted to take forcible possession; they must obtain such possession as they are entitled to through a court. Later, in the case of Nair Service Society Ltd. v. K.C. Alexander, AIR 1968 SC 1165, this Court ruled that when the facts disclose no title in either party, possession alone decides. It was further held that if Section 9 of the Specific Relief Act, 1877 (corresponding to the present Section 6) is employed, the plaintiff need not prove title and the title of the defendant does not avail him. When, however, the period of six 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, such a right is only restricted to possession in a suit under Section 9 of the Specific Relief Act (corresponding to the present Section 6) but does not bar a suit on prior possession within 12 years from the date of dispossession, and title need not be proved unless the defendant can provide one.
13. It was also observed by this Court in Nair Service Society Ltd (supra) that a person in possession of land in assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against Page 58 of 63 Downloaded on : Sun Sep 17 21:56:29 IST 2023 NEUTRAL CITATION C/SCA/22354/2022 JUDGMENT DATED: 16/02/2023 undefined the entire world except the rightful owner. In such a case, the defendant must show in himself or his predecessor a valid legal title and probably a possession prior to the plaintiff's, and thus be able to raise a presumption prior in time.
14. In the case of Rame Gowda (dead) by Lrs. v. M. Varadappa Naidu (dead) by Lrs. and another, (2004) 1 SCC 769, a three-Judge Bench of this Court, while discussing the Indian law on the subject, observed as under:-
"8. It is thus clear that so far as the Indian law is concerned the person in peaceful possession is entitled to retain his possession and in order to protect such possession he may even use reasonable force to keep out a trespasser. A rightful owner who has been wrongfully dispossessed of land may retake possession if he can do so peacefully and without the use of unreasonable force. If the trespasser is in settled possession of the property belonging to the rightful owner, the rightful owner shall have to take recourse to law; he cannot take the law in his own hands and evict the trespasser or interfere with his possession. The law will come to the aid of a person in peaceful and settled possession by injuncting even a rightful owner from using force or taking law in his own hands, and also by restoring him in possession even from the rightful owner (of course subject to the law of limitation), if the latter has dispossessed the prior possessor by use of force. In the absence of proof of better title, Page 59 of 63 Downloaded on : Sun Sep 17 21:56:29 IST 2023 NEUTRAL CITATION C/SCA/22354/2022 JUDGMENT DATED: 16/02/2023 undefined possession or prior peaceful settled possession is itself evidence of title. Law presumes the possession to go with the title unless rebutted. The owner of any property may prevent even by using reasonable force a trespasser from an attempted trespass, when it is in the process of being committed, or is of a flimsy character, or recurring, intermittent, stray or casual in nature, or has just been committed, while the rightful owner did not have enough time to have recourse to law. In the last of the cases, the possession of the trespasser, just entered into would not be called as one acquiesced to by the true owner."
15. The crux of the matter is that a person who asserts possessory title over a particular property will have to show that he is under settled or established possession of the said property. But merely stray or intermittent acts of trespass do not give such a right against the true owner. Settled possession means such possession over the property which has existed for a sufficiently long period of time, and has been acquiesced to by the true owner. A casual act of possession does not have the effect of interrupting the possession of the rightful owner. A stray act of trespass, or a possession which has not matured into settled possession, can be obstructed or removed by the true owner even by using necessary force. 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. There cannot be a straitjacket Page 60 of 63 Downloaded on : Sun Sep 17 21:56:29 IST 2023 NEUTRAL CITATION C/SCA/22354/2022 JUDGMENT DATED: 16/02/2023 undefined formula to determine settled possession. Occupation of a property by a person as an agent or a servant acting at the instance of the owner will not amount to actual legal possession. The possession should contain an element of animus possidendi. The nature of possession of the trespasser is to be decided based on the facts and circumstances of each case."
10.2 Placing reliance on the position of law as referred above it is well settled proposition of law that the true owner has every right to dispossess or throw out the trespasser while the trespasser is in act or process of trespassing and has not accomplished his possession, but this right is not available to the true owner, if the trespasser has been successful in establishing his possession to the knowledge of the true owner. In such circumstances, law requires that the true owner should dispossess the trespasser by taking recourse to the remedy available under the law.
11. Considering the aforesaid ratio as discussed above and in the facts of the present case, clearly the possession of the writ-applicant is prima facie established considering the documentary evidence and the true owner i.e. the respondents No.3 and 4 herein are aware of the said possession of the writ-applicant herein qua the suit property. In the aforesaid set of facts, prima facie case is established in favour of the writ-
Page 61 of 63 Downloaded on : Sun Sep 17 21:56:29 IST 2023NEUTRAL CITATION C/SCA/22354/2022 JUDGMENT DATED: 16/02/2023 undefined applicant having been in possession of the suit property either as tenant or as trespasser. Consequently dispossessing the writ- applicant without following due procedure of law would result in irreparable loss for the reason that prima facie having established possession without crystallizing the rights, the writ- applicant may be dispossessed and the same would cause irreparable injury to the writ-applicant. Considering the aforesaid ratio as laid down by the Hon'ble Apex Court, the impugned order dated 21-10-2022 passed by the learned District Court in Miscellaneous Civil Appeal No.11 of 2019 confirming the order dated 23-05-2022 passed by the Ld. Civil Court below exhibit 5 in Regular Civil Suit No. 315 of 2019 are hereby quashed and set aside.
12. The direction of status-quo passed by order dated 8.11.2022 does not survive in view of the direction by this Court that the true owner i.e. respondents No.3 and 4 herein shall not evict the writ-applicant i.e. original plaintiff save and except in accordance with the procedure established by law. The present writ-application stands allowed in terms of the aforesaid directions. Consequential the civil application stands disposed of.
13. Considering the facts and circumstances of the present Page 62 of 63 Downloaded on : Sun Sep 17 21:56:29 IST 2023 NEUTRAL CITATION C/SCA/22354/2022 JUDGMENT DATED: 16/02/2023 undefined case, more particularly the case of the respondents No.3 and 4 that the construction over City Survey Nos. 2548, 2549 and 2550 is complete as per the development permission granted by the Bharuch Urban Development authority and in fact the construction of new building is also comprises of the aforesaid properties and the objections raised by the respondents No.3 and 4 with respect to the maintainability of the suit as stated by the learned advocate appearing for the respondents No.3 and 4, the suit be expedited and the same be decided within a period of one year independently on its own merits after giving an opportunity of hearing to the respective parties and the respective parties expected to cooperate in the suit proceedings.
(VAIBHAVI D. NANAVATI,J) K.K. SAIYED Page 63 of 63 Downloaded on : Sun Sep 17 21:56:29 IST 2023