Karnataka High Court
Mr. T. Manoharan vs Mr Babanna on 30 September, 2024
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 30TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
R
REGULAR FIRST APPEAL NO.392 OF 2023
BETWEEN:
MR. T. MANOHARAN
AGED ABOUT 53 YEARS,
S/O MR.A.THARMALINGAM,
NO.115, (OLD NO.2), 1ST CROSS,
1ST MAIN, NAYANASHETTYPALYA,
(N.S.PALYA), BANNERGHATTA ROAD,
BENGALURU-560076.
...APPELLANT
(BY SRI NARAYAN M.R., ADVOCATE)
AND:
MR. BABANNA
AGED ABOUT 58 YEARS
S/O MR.P.MUNIVENKATAPPA
NO.1, 1ST MAIN ROAD, 7TH CROSS,
N.S.PALYA, RASHTRA KAVI KUVEMPU NAGAR,
BTM 2ND STAGE, BANNERGHATTA ROAD,
BENGALURU-560076.
OFFICE AT NO.129, 7TH MAIN, 5TH BLOCK,
JAYANAGAR, BANGALORE-560041.
...RESPONDENT
(BY SRI P.D.SURANA AND
SRI NAGESHA POOJARI, ADVOCATES FOR CAVEATOR/RESPONDENT)
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96
READ WITH ORDER 41 RULE 1 OF THE CODE OF CIVIL PROCEDURE,
1908, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED
06.02.2023 IN O.S.NO.2422/2017 PASSED BY THE XXIX
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU AND
FURTHER TO ALLOW THIS APPEAL WITH COST AND ETC.,.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT, COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
CORAM: THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
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CAV JUDGMENT
The plaintiff has filed this appeal challenging the judgment and decree passed in O.S.No.2422/2017, dated 06.02.2023, by the XXIX Addl. City Civil and Sessions Judge, Bengaluru, thereby, the suit filed for permanent injunction is dismissed and also granted the relief of possession in favour of the defendant directing the plaintiff to vacate and hand over the vacant possession of the suit schedule property to defendant.
2. The status of the parties is referred to as per their ranking before the Trial Court for easy reference and convenience.
3. Brief facts of the case are as under:
Plaintiff's case:
a) It is the case of the plaintiff that the defendant is running a construction firm in the name and style as P.M.Construction and the plaintiff was working under the defendant from 1996 as Supervisor and also the defendant started business of running and maintaining swimming pool and was appointed as Administrator and was looking all the -3- administration and management of the entire firm established by the defendant.
b) It is further pleaded that the defendant has provided a house at No.115 (old No.2) opposite to Maruti Flour Mill, situated at 1st Cross, 1st Main, Nayanashetty Palya (N.S.Palya), Bannerghatta Road, Bengaluru, as the plaintiff was employee under the defendant and the plaintiff is residing in the said house for more than twenty years along with his family members without there being any interruption.
c) Further, the defendant has established different companies in which the plaintiff was in charge of entire group of companies of the defendant and had worked hard for augmenting business performance of the defendant, for which the defendant has also appreciated the plaintiff and therefore the defendant has given a car bearing No.KA-
05/MN-6535 for exclusive use of the plaintiff considering the service that was being rendered by the plaintiff.
d) It is the further case of the plaintiff that the defendant has made the plaintiff as one of the partner in one of the firm. It is the case of the plaintiff that there were -4- some irregularities in the business of the defendant group of companies and therefore plaintiff has advised the defendant for proper management, but the defendant has not heeded, but the defendant started ill-will attitude against the plaintiff. Therefore, the plaintiff decided to come out of the defendant's business of firms and companies and for which the defendant had promised for a decent severance package and to settle all his employment dues payable as per law. The defendant had issued a letter to the plaintiff by praising the plaintiff's hard work and sincerity, dedication to the development of defendant's business, but the defendant has resiled from his promise and commitment and issued notice to the plaintiff to vacate the schedule property premises and handover the same to the defendant. Further, the defendant has taken high handed action against the plaintiff for which the plaintiff has protested. Therefore the plaintiff was constrained to file a suit for permanent injunction to protect possession over the property.
e) It is also alleged in the plaint that the defendant has tried to trespass and dispossess the plaintiff and also has done ill-will work of making disconnection of electricity, -5- water and sanitation services to the schedule property in which the plaintiff is residing. Therefore the plaintiff has filed suit for permanent injunction.
f) Further, it is the case of the plaintiff that the defendant has issued letter stating that the defendant will gift the schedule property to the plaintiff, but when this being the fact, contrary to his promise the defendant started to dispossess the plaintiff. Hence he filed the suit.
Written Statement:
4. The defendant has appeared and filed written statement denying the plaint averments except the contentions admitted by the defendant. The defendant admitted that the plaintiff is an ex-employee of P.M.Granite Export Pvt. Ltd. It is pleaded that the plaintiff is guilty of suppression of facts. The following reasons according to the defendant that the plaintiff has suppressed the facts.
a) That the suit schedule property house at No.115 (old No.2), 1st Cross, 1st Main Road, N.S.Palya, Bannerghatta Road, Bengaluru, is not in existence. The number of house is -6- fictitious number. Therefore, the suit filed is without any basis and responsibilities.
b) Further the defendant pleaded that the suit schedule property is given on lease basis by the defendant to P.M.Granite Export Pvt. Ltd., and the plaintiff has not made P.M.Granite Export Pvt. Ltd., as defendant and therefore for non joinder of necessary party, the suit is not maintainable.
c) The suit schedule property was given to the plaintiff by P.M.Granite Export Pvt. Ltd., in the capacity of an employee of P.M.Granite Export Pvt. Ltd. The plaintiff has given a letter of resignation. Therefore it is incumbent upon the plaintiff to deliver and handover vacant possession of the property to the defendant. The plaintiff is not paying any rent or any consideration. Therefore, the suit is not maintainable.
d) The defendant further denied that the defendant has agreed to give the suit property as a gift to the plaintiff and therefore the suit for injunction is not maintainable.
e) The defendant has pleaded that the defendant is owner of the property bearing No.49, BTM 2nd Stage, -7- N.S.Palya, 4th Main Road, 13th A Cross, Bengaluru. The defendant has entered into an agreement with P.M.Granite Export Pvt. Ltd. Therefore, the defendant has given an authority to the P.M.Granite Export Pvt. Ltd. to use the schedule property for official purpose for its General Manager on payment of rent of Rs.50,000/- per month. The said P.M.Granite Export Pvt. Ltd. has been paying rent for several months to the defendant and therefore the defendant has given the suit schedule property on lease to the plaintiff.
f) The suit property was given by the defendant to the plaintiff as the plaintiff was working as a General Manager of P.M.Granite Export Pvt. Ltd. and the said official quarter is allotted as an incentive for looking without receiving any rentals. Therefore, the suit schedule property was given as an official accommodation to the plaintiff as an employee of P.M.Granite Export Pvt. Ltd.
g) The plaintiff has committed various frauds and therefore he has to resign from the service of P.M.Granite Export Pvt. Ltd. Therefore, the plaintiff was called upon to deliver and handover vacant possession of the suit schedule property and for that the plaintiff has sought for two months -8- time to vacate the suit property after searching alternative premises, for which the defendant agreed. But the plaintiff instead of handing over vacant possession of the suit property has threatened the defendant himself and for which a complaint was given to the police. Since the property was given to the possession of the plaintiff on the capacity as the plaintiff was an employee of P.M.Granite Export Pvt. Ltd. Therefore, after resignation he was required to quit, deliver and handover the vacant possession of the suit property to the defendant, but he did not do so, but filed the suit by stating wrong description of the property with a view to prevent use of other personal properties which is in possession of the defendant.
h) The possession of the plaintiff over the suit property is illegal and without authority of law and that too without impleading the lessee M/s. P.M.Granite Export Pvt. Ltd. Hence the suit is not maintainable. When the plaintiff has not handed over possession of the property, then P.M.Granite Export Pvt. Ltd. has initiated proceedings under section 452 of the Companies Act, which pertains to illegal possession of property belonging to the company. It is stated -9- that the learned Magistrate has taken cognizance against the plaintiff in C.C.No.236/2017 and it is pending.
i) Further the defendant pleaded that the suit is liable to be rejected for the following grounds.
As the Plaintiff has not made the Company which allotted him the said property as a party Defendant.
As the Plaintiff showing the wrong
description of the actual place and the
boundary.
As the Plaintiff not paying any rentals or
any consideration for being in possession of the property and guilty of suppressing of facts.
As Plaintiff not disclosed the true facts before this Hon'ble Court.
Conduct of Plaintiff disentitles to claim the relief.
False and baseless claim against the
Defendant.
The entry and the possession of the Plaintiff
is only an employee of the Company and
therefore he has no right to remain in the
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schedule property after submitting
resignation.
Therefore the above suit is wholly not
maintainable in law and on facts and as
such the same is required to be rejected at the threshold.
j) It is contended that the averments made in the plaint that the defendant is running his construction company in the name of P.M.Constructions, initially the plaintiff appointed in P.M.Swimming Centre, subsequently transferring the plaintiff to P.M.Granite Export Pvt. Ltd., and Kaltek Granite Private Limited, are all irrelevant in the lis. It is stated that as on the date of filing of the suit, the plaintiff has resigned as employee of P.M.Granite Export Pvt. Ltd., and therefore the salary certificate of M/s.P.M.Swimming Centre has no relevancy to decide the case in controversy.
k) The House No.115 referred in the plaint is not in existence to file a suit. The Mico Layout Police wrote a letter to the Assistant Revenue Officer, BBMP, to ascertain the claims made by the plaintiff whether he was in possession of House No.115. BBMP has issued an endorsement stating that there is no House No.115, 1st Cross, 1st Main Road,
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N.S.Palya, Bannerghatta Road, Bengaluru, as claimed by the plaintiff. It is further submitted that the suit schedule property referred in the written statement was given to the plaintiff in the capacity as the employee of the P.M.Granite Export Pvt. Ltd., as General Manager (Operations). Therefore in order to enable the other employee to takeover possession is required to vacate and handover the possession of the property. The plaintiff is not paying any rent. Therefore, he is to be evicted.
l) The averments in the plaint to the effect that the plaintiff and defendant have started different companies is irrelevant to the dispute in the present case. It is denied that the plaintiff was in charge of entire group of companies but the plaintiff was just an employee like other employees of P.M.Swimming Centre in the capacity of the administrator. It is stated that taking advantage of the trust of the defendant, the plaintiff has misappropriated large sums of money belonging to the P.M.Swimming Centre and P.M.Granite Export Pvt. Ltd., and Kaltek Granite Private Limited.
m) The defendant by raising loans in the name of P.M.Swimming Centre purchased the car No.KA-05/MN-6535
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for running business purposes of the firm but not for the use of plaintiff only. After resignation from the service of P.M.Granite Export Pvt. Ltd., the plaintiff was required to handover the car. Therefore the possession of car by the plaintiff is illegal and unauthorized one. Further, the plaintiff was made one of the partners of Upendra and Company is irrelevant to the lis. Therefore it is pleading that the plaintiff's association with companies as averred in the plaint are irrelevant to decide the lis.
n) Further it is pleaded that the plaintiff's allegation that there were financial irregularities are all false and irrelevant to the case. It is stated that the plaintiff sensing that the defendant is going to initiate criminal proceedings against the plaintiff, therefore, the plaintiff has submitted a letter of resignation without attaching any conditions. The plaintiff never demanded any compensation for submitting letter of resignation. Further it is pleaded that the defendant has agreed that transferring of schedule property and car in the name of plaintiff is totally false and baseless. It is pleaded that the plaintiff himself came to office of defendant and misbehaved with the defendant and argued and
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conducted abusive words to the defendant. The plaintiff himself has resigned from the job of the defendant by tendering resignation. Further, on 31.03.2017 when the defendant had been to the plaintiff, the plaintiff was assaulted are all false. The defendant never committed on severance package and defendant has not assaulted the plaintiff. The defendant has taken several signatures on the blank papers is denied by the defendant. It is further denied by the defendant that he is in possession of several papers, documents, bond sheets, letters, etc., are with the defendant. But the plaintiff himself has taken some blank papers and documents along with him to create fraud in the case. The defendant has taken recourse by filing a complaint under section 452 of the Companies Act to get back possession of the premises from the plaintiff.
o) The allegation that the plaintiff had come to the office of defendant and behaved smoothly are all false. It is further stated that the house claimed by the plaintiff belongs to defendant and gave it on rentals to P.M.Granite Export Pvt. Ltd., and the plaintiff was warned to vacate the schedule premises is false and baseless. The company has intended to
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take possession from the plaintiff in a legal way, thus, initiated proceedings under section 452 of the Companies Act and for seeking punishment for withholding the asset of the company.
p) The cause of action for filing the suit is incorrect and is imaginary one and therefore pleaded that there is no cause of action for filing the suit.
q) Therefore, with the above averments in the written statement, the defendant has prayed to dismiss the suit.
5. On the basis of the pleadings, the trial Court has framed the following:
ISSUES
i) Whether the plaintiff proves his lawful possession of suit property?
ii) Whether the plaintiff proves the interference of defendant in suit property?
iii) Whether the defendant proves that suit property is not identifiable as given in the plaint?
iv) Whether the plaintiff is entitled for the relief sought for?
v) What order or decree?
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6. On behalf of the plaintiff, he himself has
examined as PW.1 and got marked the documents as Ex.P.1 to P.102. The defendant himself has got examined himself as DW.1 and got marked the documents Ex.D.1 to D.36.
Reasonings of the Trial Court:
7. The trial Court has dismissed the suit of the plaintiff with cost of Rs.25,000/- and also the trial Court has directed the plaintiff to vacate the suit premises and handover the vacant possession to the defendant. The trial Court assigned reasons that the plaintiff has resigned from service of the defendant. Therefore, possession of the plaintiff has become unlawful possession. Thus, the plaintiff is not entitled for decree of perpetual injunction and also while dismissing the suit, directed the plaintiff to vacate the suit schedule property and handover vacant possession to the defendant. It is observed by the trial Court that after tendering resignation to the defendant, the plaintiff has no right to continue in possession of the suit schedule property since the relationship of employee and employer between the plaintiff and defendant respectively is ceased. The
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relationship between the plaintiff and defendant is licencee and licensor respectively. Therefore the plaintiff is in permissive possession at the behest of the defendant. But after tendering resignation, the possession has become unlawful. Therefore, the plaintiff is not entitled to continue in possession of the suit schedule property. Therefore, dismissed the suit.
8. Further observed that, from the evidence on record as well as from the Court commissioner's report the suit schedule property is House bearing No.49 and not 115 and therefore the suit schedule property is identified as House bearing No.49. Therefore, this is the reason assigned by the trial Court while dismissing the suit and further observed that as soon he tendered the resignation, the plaintiff has to vacate the premises within a reasonable period and the possession of the plaintiff is amounting to unlawful possession. Thus, issued direction to the plaintiff to vacate the premises and handover the vacant possession of the suit schedule property to the defendant. Therefore, the trial Court virtually not only dismissing the suit of the plaintiff, but also gave relief of possession in favour of the
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defendant though without there being counterclaim or suit for possession by the defendant and no prayer made in this regard by the defendant.
9. The trial Court has specifically held that the suit schedule property is identifiable one. It is the case of the plaintiff that the house property number of the suit schedule property is 115, but the defendant is contending that house number is 49 and in which number house the plaintiff is residing, and the trial Court held that the property is identifiable as House No.49 and dismissed the suit and also granted decree of possession in favour of defendant.
10. The trial Court while dealing with issues No.2 and 4 regarding whether the plaintiff proves the interference of defendant in suit schedule property and whether the plaintiff is entitled for the relief sought for, on these two issues the trial Court has observed that whether the plaintiff is permitted to continue to stay and whether his possession be protected by injunction. The trial Court while considering the decision of Madras High Court in the case of General Merchant Association rep. by Secretary and Treasurer and others vs. The Corporation of Chennai, rep. by its
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Commissioner, Chennai, reported in 2000(III) CTC 565, wherein it is held that licencee has no right to remain in possession after termination of licence, therefore, directed the plaintiff to handover vacant possession of the suit schedule property to the defendant. Further the trial Court has considered the decisions of this Court in W.P.No.2581/2015 connected with W.P.No.3740/2015 dated 01.06.2015, the judgment in the case of Associated Hotels of India Ltd., vs. R.N.Kapoor, reported in AIR 1951 SC 1262, judgment in the case of Maria Margarida Sequeira Fernandes & others vs. Erasmo Jack Defendant Sequeira (Dead) through L.Rs., reported in (2012) 5 SCC 370, judgment in the case of A.Shanmugam vs. Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam, rep. by its President and Others, reported in (2012) 6 SCC 430, judgment in the case of Himalaya Vintrade Pvt. Ltd., vs. Md.Zahid and another, reported in 2021 SCC Online SC 744 and the judgment of Delhi High Court in the case of Thomas Cook (India) Ltd., vs. Hotel Imperial and others, reported in 2006 (88) DRJ 545. Upon considering these judgments the trial Court held that the defendant is
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entitled for vacant possession of the property and for which further there is no separate proceeding is necessary. Therefore, on the principle that when the plaintiff has filed suit for permanent injunction and that the defendant is licensor and the plaintiff being a licencee and licence is terminated, thus possession of the plaintiff has become unlawful. Under these circumstances, the defendant need not file either suit or any other proceedings, but the defendant is entitled to get back possession of the property though there is no counterclaim by the defendant and relief of possession is not asked by the defendant. Therefore on this principle the trial Court while dismissing the suit also has passed order that the plaintiff shall vacate the premises and handover vacant possession of the suit schedule property to the defendant.
Grounds raised in the appeal:
11. Being aggrieved by this, the plaintiff has preferred the present appeal by raising various grounds which are as follows:
a) The Trial Court has committed an error in holding that the plaintiff is in possession as a licensee. But the
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plaintiff is in settled possession. When suit is not filed for possession or counterclaim by the defendant, the Court ought not to have decreed in favour of defendant for possession in absence of counterclaim or separate suit for possession.
b) The condition precedent that to declare a person as a licensor, the licensor should prove that he is owner of the property. But the defendant has not produced any relevant document to prove that he is owner.
c) The revenue records are not source of title.
d) The Trial Court has committed an error in relying on the letter written by the Revenue Inspector, when he has not produced Revenue Inspector's report, on the basis of which the letter in question was retained and when tax paid receipts indicating payment of tax and that all through post dated cheque, to decide the ownership of the property.
e) The defendant has not produced any licence deed hence, committed an error in holding that the plaintiff is as a licencee. The Trial Court has failed to appreciate the various deceitful facts done by the defendant. The Trial Court has
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failed to appreciate that the property is identifiable one and the Court Commissioner has not given boundaries of property No.49, thus, the commissioner's report is incomplete; the Commissioner's has not evaluated properly; the defendant had approached different Courts and took contradictory stand, therefore, the defendant has not approached the Court with clean hands which is lost sight by the Trial Court. Hence, prays to allow the appeal.
f) The plaintiff has produced many documents to prove that he is staying in house No.115 (old No.2), First Cross, First Main, Nayanashetti Palya (N.S. Palya), Banneraghatta Road, Bengaluru, but were not considered by the Trial Court, but believed the version of defendant that the property number is 49, but no boundaries are shown by the defendant; therefore, the plaintiff prays to set aside the judgment and decree passed by the Trial Court.
Submissions of counsel for the appellant/plaintiff:
12. Learned counsel for the plaintiff/appellant submitted that the plaintiff was an employee of the defendant and the defendant has given a residential house to the plaintiff and the plaintiff has been residing therein.
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Therefore, the possession of the plaintiff is settled possession, therefore his possession is to be protected as the defendant has started to cause interference to the possession of the plaintiff. Therefore, the plaintiff is entitled for the relief of permanent injunction. Further submitted that the plaintiff is in settled possession of the suit schedule property as permitted by the defendant for more than twenty years. Therefore, his possession be necessarily protected and the defendant shall not take any coercive steps, but has taken. Therefore the possession is to be protected by grant of decree of permanent injunction and accordingly prayed for the relief.
13. Further, submitted that the Trial Court has committed grave error not only dismissing the suit for permanent injunction but also granted relief of possession in favour of the defendant directing the plaintiff to handover vacant possession of the suit house to the defendant without there being any suit or counterclaim by the defendant for seeking relief of possession. Therefore, submitted that if at all the Trial Court wanted to dismiss the suit, let the Trial Court dismiss the suit, but grant of decree for possession in
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favour of the defendant without any suit or counterclaim by the defendant is wholly erroneous and against the principle of law. If at all the defendant wanted to take possession from the plaintiff, then the defendant ought to have filed either suit or counterclaim for seeking relief of possession, but without doing so, grant of relief of possession by the Trial Court is not correct. If the defendant files suit, then that has to be computed for payment of the Court fee for the relief of possession and evidence is to be led on the relief of possession to decide whether there is a lease or licence or possession is lawful or unlawful, all these ought to have been considered in case suit for possession or counterclaim is filed; therefore, grant of relief of possession in favour of the defendant is without jurisdiction and legally nonest. Therefore, sum and substance of the total argument by the counsel for appellant-plaintiff is that, when the plaintiff has filed suit for permanent injunction at the most, it is discretion of the Trial Court to grant decree for permanent injunction or to dismiss the suit, but, in the suit for permanent injunction filed by the plaintiff without there being any suit for possession or counterclaim by the defendant granting relief of decree of possession in favour of
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the defendant is wholly erroneous, legally nonest and without jurisdiction. Therefore, prays to allow the appeal and prayed for grant of decree for permanent injunction.
14. Learned counsel for the appellant places reliance on the following judgments.
i) M.Kallappa Setty v/s M.V. Lakshminarayana Rao (AIR 1972 SC 2299).
ii) Motilal & Anr v/s Jaswant Singh & others (AIR 1964 Rajasthan 11).
iii) Amrao Singh & others v/s Sanatan Dharam Sabha.Chandigarh (AIR 1985 Panjab & Haryana 195).
iv) Maria Margarida Sequeria Fernandes and Ors vs Erasmo Jack De Sequeria (Dead) (AIR 2012 SC 1727).
v) The Corporation of Calicut vs K.Sreenivasan (AIR 2002 SC 2051).
vi) Bachhag Nahar v/s Nilim Mandal & others (AIR 2009 SC 1103).
vii) Payal Vision Ltd., vs Radhika Coudhary reported in AIR 2012 SC 723.
viii) Uttam Singh Dugaland Co., Ltd., vs Union Bank of India and Ors reported in (AIR 2000 SC 2740).
ix) C.M.Beena and another vs
P.M.Ramachandra Rao (AIR 2004 SC 2103).
x) S.Ramaiah's case reported in
2015(1)Kar.L.R.(Civ)122.
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Submissions of counsel for respondent/defendant:
15. On the other hand, learned counsel for defendant/respondent submitted that the relationship between the plaintiff and defendant is licencee and licensor respectively and the plaintiff has tendered resignation. Therefore the plaintiff is not entitled for protection of possession as he has to handover vacant possession of the premises to the defendant and this is rightly considered by the trial Court in the judgment. Therefore, he prays not to interfere with the judgment and decree passed by the trial Court. Further submitted that the plaintiff being an employee of the defendant is in permissive possession and when the permission is withdrawn, that means the licence is revoked and the plaintiff being licencee is terminated. Therefore, possession of the plaintiff is unauthorized one and is not lawful and it is correctly observed by the trial Court and accordingly dismissed the suit and granted decree of possession in favour of the defendant by considering the principle of law laid down by the Hon'ble Supreme Court in catena of decisions. Therefore, he justified the judgment and decree passed by the trial Court.
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16. Further submitted that though the defendant has not filed any separate suit for possession and has not filed counter claim in the instant suit, but there is no necessity for the defendant to file suit for possession as in the suit filed by the plaintiff the relief of possession sought for by the defendant is also considered as per principle of law laid down by the Hon'ble Supreme Court, by Madras High Court, by this Court and by High Court of Delhi. Therefore, there is no necessity of instituting a separate suit by the defendant as this is correctly observed by the trial Court upon following the principle of law laid down by the Supreme Court, this Court, High Court of Madras and High Court of Delhi referred below. Therefore, he justified dismissal of suit for permanent injunction and issuance of direction to the plaintiff to vacate and handover vacant possession of the suit schedule property to the defendant. Therefore, prays to dismiss the appeal.
17. Learned counsel for the defendant/respondent places reliance on the following judgments.
i) Himalaya Vintrade Pvt Ltd., vs Zahid (2021 SCC online SC 744).
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ii) Maria Margadia Seqeria vs Erasmo Jack De Sequeira (2012 (5) SCC 370).
iii) A Shanmugam vs Ariya K.R.K.M.N.P (2012(6) SCC 430). iv) Padhiyar Prahladji Chenaji Vs Maniben Jagmaldhi (2022 live Law (SC 241). v) G.Raja vs The Government of Karnataka & Ors (W.P.No.2581/2015) Hon'ble High Court of Karnataka. vi) K.S.R.T.C. vs Gayathri (RSA No.1000/2007) Hon'ble High Court of Karnataka. vii) The Managing Director of KSRTC vs N. Rajarathnam (W.A.No.6614/2001).
viii) Chandu Lal vs Municipal Corporation of Delhi (AIR 1978 Del 174).
ix) General Merchant Association vs The Corporation of Chennai (2000 III CTC 565).
x) Thomas Cook (India) Limited vs Hotel Imperial & Ors (2006 (88) DRJ 545).
xi) Associated Hotels of India Ltd., vs R.N. Kapoor (AIR 1959 SC 1262).
Points for consideration:
18. Upon hearing the learned counsel for the plaintiff/appellant and the defendant/respondent, the points that arise for consideration are as follows:
i) Whether, under the facts and circumstances involved in the case, the trial Court is justified in holding that soon after tendering resignation by the plaintiff to the defendant, the possession has become unlawful
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possession, thus is not entitled for decree of permanent injunction?
ii) Whether, under the facts and circumstances involved in the case, the trial Court is justified in issuing direction to the plaintiff to vacate and handover vacant possession of the suit schedule property in favour of defendant though there is no counter claim by the defendant in the suit or there is no proceedings by the defendant for seeking possession, thus whether in the suit filed for permanent injunction simplicitor filed by the plaintiff issuance of such direction directing the plaintiff to vacate the premises and handover vacant possession of the suit schedule property, is justified?
Analysis:
19. The plaintiff has filed the suit for permanent injunction simplicitor on the ground that the plaintiff is in settled possession of the suit property for a long period and his possession is lawful under settled possession. The defendant has filed written statement and resisted the suit by contending that the plaintiff is in permissive possession till the time the plaintiff was an employee under the defendant, and after termination of the plaintiff from the employment under the defendant, his possession has become unlawful possession; therefore, he is entitled for relief of possession, and accordingly, the defendant justified the judgment and decree passed by the Trial Court.
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20. The following are admitted facts emerged which are useful in deciding the case:
i. The plaintiff was an employee under the defendant and the defendant has permitted the plaintiff to occupy and use the suit property for his residential purpose.
ii. The suit property was given by the defendant to the plaintiff as plaintiff was working as General Manager of P. M. Granite Export Private Ltd., and said official quarters is allotted as an incentive for looking after the business affairs of the defendant without receiving any rent amount.
iii. The plaintiff is in possession of residential house for more than twenty years.
21. Learned counsel appearing for the plaintiff- appellant is unable to say before the Trial Court whether the plaintiff's possession over the suit property is on the basis of lease or licence or in permissive possession. In order to ascertain nature of possession of the plaintiff over the suit property, Ex.P-1 is to be looked into. It is not disputed that the defendant has given the suit property to the plaintiff for occupation to use the premises as residential house in favour of the plaintiff, and the plaintiff is in possession of the suit property for more than twenty years. Ex.P-1 is the letter
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issued by the defendant in favour of the plaintiff praising the service rendered by the plaintiff to the defendant. The defendant has retrenched the plaintiff from the service of company owned by the defendant. This fact is not disputed by the defendant. The defendant has dispensed with the service of the plaintiff after the plaintiff gave resignation. In order to give severance compensation to the plaintiff, the defendant has addressed the latter as per Ex.P-1 to the plaintiff, stating that the car which is given to the plaintiff for use on behalf of the company could be retained by the plaintiff, and also the suit property which is given as quarters to the plaintiff could be transferred as gift in favour of the plaintiff. Though this factum is disputed by the defendant but when Ex.P-1 is tested with forensic expert it is proved the signature is found to be of defendant. The plaintiff is in possession over the suit property for more than twenty years as the plaintiff was an employee in the companies owned by the defendant. The plaintiff is in possession over the suit property for more than twenty years is not disputed by the defendant. It was intention expressed by the defendant that the defendant would transfer the property in favour of the plaintiff as a gift to the plaintiff, but this is not materialized
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in transferring the property in favour of the plaintiff. Therefore, under these circumstances, whether the plaintiff is termed as in settled possession over the suit property or not is the question to be considered in this case, entitling the plaintiff to make a claim for permanent injunction.
22. Admittedly, the plaintiff was an employee under the defendant, and the plaintiff has tendered resignation to the defendant, and after tendering resignation to the defendant, whether the possession of the plaintiff can be termed as unlawful possession or considering possession of the plaintiff is in settled possession is to be considered. Whether the possession of plaintiff is as per licence or lease or permissive possession or settled possession is to be considered.
23. Section 52 of the Easement Act, stipulates as follows:
"52. "License" defined.--Where one person grants to another, or to a definite number of other persons, a right to do, or continue to do, in or upon the immovable property of the grantor, something which would, in the absence of such right, be unlawful, and such right does not amount to an easement or an interest in the property, the right is called a license."
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24. Section 105 of the Transfer of property Act, stipulates as follows:
"105. "Lease" defined.--A lease of immoveable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms."
25. There is a difference between lease and licence which are as follows:
Sl. Lease Licence
No.
1. A lease is a transfer of the A licence is permission to
right to use and occupy use someone else's
immovable property for a property without
specified period. transferring ownership or
exclusive possession.
2. The lessee (tenant) has The licensor (property
exclusive possession and owner) retains control and
control over the property. possession.
3. The lessor (landlord) The licencee (user) has
retains ownership but limited rights, subject to
transfers the right to use the licensor's terms.
the property.
4. Lease agreements Licence agreements often
typically involve payment involve payment of fees or
of rent. royalties.
5. Leases can be terminated Licences can be revoked
by either party with by the licensor at any
notice. time.
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26. Key difference between the lease and licence are as follows:
Exclusive Possession: Lease grants exclusive possession, while licence does not.
Ownership: Lease involves transfer of ownership rights, while licence does not.
Control: Lessor retains control in a licence, while licence has control in a lease.
Termination: Lease requires notice for termination, while licence can be revoked at will.
27. In order to appreciate the difference between the lease and licence, it is beneficial to refer the judgment of the Hon'ble Supreme Court in the case of ASSOCIATED HOTELS OF INDIA LTD., VS. R. N. KAPOOR reported in AIR 1959 SC 1262, at Para No.27 which reads as follows:
"(27) There is a marked distinction between a lease and a licence. S. 105 of the Transfer of Property Act defines a lease of immoveable property as a transfer of a right to enjoy such property made for a certain time in consideration for a price paid or promised. Under S. 108 of the said Act, the lessee is entitled to be put in possession of the property. A lease is therefore a transfer of an interest in land.
The interest transferred is called the leasehold interest. The lessor parts with his right to enjoy the property during the term of the lease, and it follows from it that the lessee gets that right to the exclusion of the lessor. Whereas S. 52 of the Indian Easements Act defines a licence thus:
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"Where one person grants to another, or to a definite number of other persons, a right to do or continue to do, in or upon the immoveable property of the grantor, something which would, in the absence of such right, be unlawful, and such right does not amount to an easement or an interest in the property, the right is called a licence."
Under the aforesaid section, if a document gives only a right to use the property in a particular way or under certain terms while it remains in possession and control of the owner thereof, it will be a licence.l The legal possession, therefore, continues to be with the owner of the property, but the licencee is permitted to make use of the premises for a particular purpose. But for the permission, his occupation would be unlawful. It does not create in his favour any estate or interest in the property. There is, therefore, clear distinction between the two concepts. The dividing line is clear though some times it becomes very thin or even blurred. At one time it was thought that the test of exclusive possession was infallible and if a person was given exclusive possession of a premises, it would conclusively establish that the he was a lessee. But there was a change and the recent trend of judicial opinion is reflected in Errington v. Errington, 1952-1 All ER 149, wherein Lord Denning reviewing the case law on the subject summarizes the result of his discussion thus at p. 155:
"The result of all these cases is that, although a person who is let into exclusive possession is, 'prima facie', to be considered to be tenant, nevertheless he will not be held to be so if the circumstances negative any intention to create a tenancy."
The Court of Appeal again in Cobb v. Lane, 1952-1 All ER 1199, considered the legal position and laid down that the intention of the parties was the real test for ascertaining the character of a document. At p. 1201, Somervell L. J., stated :
"...............the solution that would seem to have been found is, as one would expect, that it must depend on the intention of the parties."
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Denning L. J. said much to the same effect at p. 1202:
"The question in all these cases is one of intention:
Did the circumstances and the conduct of the parties show that all that was intended was that the occupier should have a personal privilege with no interest in the land?"
The following propositions may, therefore, be taken as well-established: (1) To ascertain whether a document creates a licence or lease, the substance of the document must be preferred to the form; (2) the real test is the intention of the parties -- whether they intended to create a lease or a licence; (3) if the document creates an interest in the property, it is a lease; but, if it only permits another to make use of the property, of which the legal possession continues with the owner, it is a licence; and (4) if under the document a party gets exclusive possession of the property, 'prima facie', he is considered to be a tenant, but circumstances may be established which negative the intention to create a lease. Judged by the said tests, it is not possible to hold that the document is one of licence. Certainly it does not confer only a bare personal privilege on the respondent to make use of the rooms. It puts him in exclusive possession of them, untrammelled by the control and free from the directions of the appellants. The covenants are those that are usually found or expected to be included in a lease deed. The right of the respondent to transfer his interest under the document, although with the consent of the appellants, is destructive of any theory of licence. The solitary circumstance that the rooms let out in the present case or situated in a building wherein a hotel is run cannot make any difference in the character of the holding. The intention of the parties is clearly manifest, and the clever phraseology used or the ingenuity of the document-writer hardly conceals the real intent. I, therefore, hold that under the document there was transfer of a right to enjoy the two rooms, and, therefore, it created a tenancy in favour of the respondent.
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28. In order to appreciate whether, the plaintiff is in settled possession or not, Ex.P-1-letter can be referred. Also whether, Ex.P-1 document is lease or licence and whether, the plaintiff is in possession over the property as a lessee or licencee. The contents in Ex.P-1 letter can be referred to as follows:
"By separate relieving Letter we are dispensing with your services after office hour today. You have raised the issue of a substantial severance compensation, in view of your long service and due to the fact that it would be difficult for you to serve any suitable job at an advanced age, considering the same and in view of cash crunch faced by the group an offer which was made to you earlier is confirmed as follows:
1.Tata Indica Vista car bearing Registration No. KA 05 MN 6535 can be retained by you on clearance of loan liability thereon the car will be transferred in your name by executing necessary transfer documents with the RTO before 18 months from this date.
2. House property bearing No. 115, 1st Cross, 1st Main Road, N.S. Palya, BTM II Stage, Bannerghatta Road, Bangalore - 560 076, which was provided you quarters over 20 years can be retained by you and this will be transferred as Gift by the requested owner to your name within a period of one year from this date.
The above two items will form part of severance pay and it will be insured that name shall interfere with your possession and enjoyment thereof, by you and your family till transfer by completing legal formalities."
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29. There is no evidence either for the parties, though the above mentioned severance compensation was materialized in transferring the properties in favour of the plaintiff, but, Ex.P-1 is the letter showing the intention of the defendant to part away the suit schedule property in favour of the plaintiff. Furthermore, in the very same letter, intention is expressed by the defendant that he would part away the suit schedule property in favour of the plaintiff by expressing to make deed of gift; therefore, an interest is created in favour of the plaintiff by the defendant. There is no document executed either lease or licence between the plaintiff and defendant, but the nature of transaction to show that the plaintiff is in settled possession is proved. It is not disputed that the plaintiff is in possession over the suit schedule property for more than twenty years and the plaintiff is the employee of the company owned by the defendant. The defendant had initiated the proceedings against the plaintiff under the provisions of Companies Act, 2013 for getting back possession from the plaintiff but has failed. It is also not disputed by the plaintiff that the defendant is owner of the suit schedule property. Therefore, when the nature of Ex.P-1-letter is appreciated, the
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defendant has intention to create a right on the plaintiff over the suit schedule property by saying that the defendant would part away the property by way of gift in favour of the plaintiff. Therefore, Ex.P-1-letter is neither lease deed nor a licence. From the very nature of possession of the plaintiff over the property is concerned, the possession of the plaintiff is found to be settled possession. Therefore, the possession of the plaintiff cannot be termed as unlawful possession just because he has given resignation to the defendant.
30. Below are the principles holding that a person is in settled possession:
Physical possession: Actual occupation and control over the property.
Intention to hold: Intent to possess the property as one's possession.
Peaceful possession: No disputes or challenges to possession.
Uninterrupted possession: Continuous possession without breaks or interruptions.
Long period of possession: Lengthy period of possession (varies case-to-case).
31. Though the defendant is owner of the suit schedule property but the plaintiff is proved to be in settled
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possession, the possession of the plaintiff over the suit schedule property cannot be termed as possession on the basis of licence. Therefore, the nature of possession in this case could be gathered. The relationship between the plaintiff and defendant, long period of possession, intention on part of the defendant in what way the plaintiff has occupied and he is in possession of the property, and the subsequent conduct of the defendant after resignation of the plaintiff to the companies owned by the defendant are all these decisive factors to consider in what manner the plaintiff is in possession over the suit schedule property. Therefore, considering the above mentioned factors as revealed in the present case, the plaintiff's possession is proved to be a settled possession.
32. The Trial Court gave finding that the plaintiff as a licencee is in possession, and after resignation tendered by the plaintiff to the defendant-company, then, the possession of the plaintiff became unlawful possession. Therefore, gave finding that the plaintiff is not entitled for relief of injunction. Though there is no document to show that lease or licence has been executed, but the fact remains, it is proved that the
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plaintiff is in possession of the suit property for more than twenty years continuously, without obstruction and with consent of the defendant as an employee of the defendant- company. It is an admitted fact that the defendant has given the suit property to the plaintiff for the residence purpose, on the ground that the plaintiff was an employee under the defendant-company as he was working under various capacities in the companies owned by the defendant. Though the possession of the plaintiff is permissive possession, then the possession of the plaintiff is not mere caretaker or looking after the premises of the suit schedule property. The possession of the plaintiff is based on the factor that the plaintiff was working in the companies owned by the defendant in various capacities as Supervisor, Manager etc., in that cadre to look after the affairs of the companies owned by the defendant. Hence, the possession of the plaintiff is not mere caretaker or to look after the schedule house or licensee or as lessee. Therefore, the question is, just because after resignation tendered by the plaintiff to the defendant-company, can the possession be termed as unlawful possession without entitling the relief of injunction is the question for consideration. Considering the
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characteristic of possession of the plaintiff is concerned, certainly the plaintiff is not a mere licencee and the possession of the plaintiff is more than twenty years standing with high pedestal than mere licencee, certainly the possession of plaintiff cannot be termed as a lessee. It is worthwhile to refer Ex.P-1-letter issued by the defendant to the plaintiff when, in reply to the plaintiff's request for substantial severance compensation, it is observed by the defendant in the said letter that he recognized long service of the plaintiff tendered to the defendant-company and long period of possession by the plaintiff on the suit schedule property. This letter shows intention of the defendant to part away a car and the suit schedule property in favour of the plaintiff. Though there is no evidence that the intention of the defendant, which materialized in favour of the plaintiff, but the fact remains proved that the defendant had intention to part away the suit schedule property through gift in favour of the plaintiff. Therefore, this intention of the defendant coupled with long-standing possession of the plaintiff over the suit schedule property proved the fact that the possession of the plaintiff is not mere as a licencee, but he is in settled possession.
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33. Just because the plaintiff has tendered resignation to the defendant-company, the possession of the plaintiff does not become unlawful possession. It may be correct by virtue of mere licencee and after termination of licence, the possession may be termed as unlawful possession. But here, considering the possession of the plaintiff is neither lessee nor licencee. But considering the animus of the defendant, though transfer of property is not materialized with gift, as long-standing possession of the plaintiff over the suit property is concerned, possession of the plaintiff is certainly can be termed as settled possession. In this regard, it is worthwhile to refer the judgment regarding principle of law laid down by the Hon'ble Supreme Court in the case of PURAN SINGH VS. THE STATE OF PUNJAB reported in AIR 1975 SC 1674 (Puran Singh's case) with regard to what is meant by settled possession the at Para No.11 held as follows:
"11. In this case there was a concurrent finding of fact that Jamuna was in effective possession of the field on the date of occurrence and the prosecution had alleged that P.Ws 17 and 19 had taken possession of the property but the finding of the Court was that P.Ws 17 and 19 had not been put in possession by virtue of the delivery of possession given by the Court. It was against this context that the observations referred to above were made. This Court clearly pointed out that where a trespasser was in settled possession of the
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land he is not entitled to be evicted except in due course of law and he is further entitled to resist or defend his possession even against the rightful owner who tries to dispossess him. The only condition laid down by this Court was that the possession of the trespasser must be settled possession. The Court explained that the settled possession must be extended over a sufficiently long period and acquiesced in by the true owner. This particular expression has persuaded the High Court to hold that since the possession of the appellants party in this case was only a month old, it cannot be deemed to be a settled possession. 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 words 'settled possession' nor is it a ritualistic formula which can be confined in a strait 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 defined his property against attack even by the true owner. Similarly an occupation of the property by a person as an agent or a servant at the instance of the owner will not amount to actual physical possession. 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
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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 defence.
These principles logically flow from a long catena of cases decided by this Court as well as other High Courts some of which have been referred to in the judgment of this Court in Munshi Ram's case, AIR 1968 SC 702=(1968 Cri LJ 806) (supra)".
34. The difference between permissive possession and settled possession are as follows:
Sl. Permissive Possession Settled Possession No.
1. Permissive possession Settled possession implies refers to temporary or long-term, uninterrupted, conditional possession and exclusive possession, granted by the true often leading to owner, often for a prescriptive rights specific purpose
2. Permission from the Long-term and owner uninterrupted
3. Temporary or conditional Exclusive possession
4. No hostile intent Hostile intent (against the true owner)
5. Can be revoked Adverse possession
35. Key difference between permissive possession and settled possession:
Heads Permissive Settled Possession
Possession
Duration Permissive While settled possession
possession is is long-term
temporary
Intent Permissive Whereas settled
possession lacks possession implies
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hostile intent adverse possession
Revocability Permissive Whereas settled
possession can be possession establishes
revoked prescriptive rights
36. Therefore, considering the possession of the plaintiff as settled possession, dismissal of the suit is not correct. Therefore, the defendant cannot take possession of the suit property from the plaintiff without due process of law. Even the trespasser can resist forcible eviction by the owner if he is in settled possession, but when the possession of the plaintiff is concerned, as discussed above, certainly the possession is having higher pedestal than trespasser and licencee. Therefore, it is proved that when the plaintiff is in settled possession, the defendant cannot evict the plaintiff forcibly except with due process of law. Therefore, the plaintiff is entitled to relief of decree of permanent injunction against the defendant, and the defendant shall follow due process of law for taking possession of the suit property from the plaintiff.
37. The Trial Court has termed the possession of the plaintiff as unlawful possession after the plaintiff resigned. The Trial Court has held that the plaintiff is in possession as a
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licencee, therefore, being permissive possession. Therefore, by holding so, it is held that the possession of the plaintiff has turned into unlawful possession being a licencee and has not granted injunction and also directed the plaintiff to handover vacant possession to the defendant, though there is no suit or counterclaim by the defendant for possession. The Trial Court has held that since, the plaintiff is licencee and after revocation of licence, the defendant is entitled to possession, thus granted relief of possession in favour of the defendant by relying on the judgment of Hon'ble Supreme Court in the cases of Maria Margarida Sequeira Fernandes's case (supra) and Thomas Cook (India) Limited's Case (Supra).
38. Then, the question is to consider whether, in a suit for permanent injunction simplicitor, the Trial Court can also decree for grant of decree of possession without there being any counterclaim or suit for possession independently by the defendant. In the present case, the Trial Court has not only dismissed the suit for permanent injunction but also granted decree for possession in favour of the defendant, thereby directed the plaintiff to handover the vacant
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possession of the suit premises to the defendant, without there being counterclaim or suit for possession.
39. Learned counsel for the respondent-defendant justified the said relief granted by the Trial Court by placing reliance on the judgment of Hon'ble Supreme Court in the case of MARIA MARGARIDA SEQUEIRA FERNANDES AND OTHERS VS. ERASMO JACK DE SEQUEIRA (DEAD) THROUGH LRS., reported in AIR 2012 SC 1727 (Maria Margarida Sequeira Fernandes's case). The Hon'ble Supreme Court in the said Maria Margarida Sequeira Fernandes's case (supra) by placing reliance on the judgment of Delhi High Court in the case of THOMAS COOK (INDIA) LTD., VS. HOTEL IMPERIAL AND OTHERS reported in AIR 2007 (NOC) 169 (Thomas cook (India) Limited's case) at Para No.82 extracting Para No.28 of (Thomas cook (India) Limited's case) as follows:
82. The High Court of Delhi in a case Thomas Cook (India) Limited v. Hotel Imperial, 2006 (88) DRJ 545: (AIR 2007 (NOC)
169) held as under:
"28. The expressions 'due process of law', 'due course of law' and 'recourse to law' have been interchangeably used in the decisions referred to above which say that the settled possession of even a person in unlawful possession cannot be disturbed 'forcibly' by the true owner taking law in his own
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hands. All these expressions, however, mean the same thing- ejectment from settled possession can only be had by recourse to a court of law. Clearly, 'due process of law' or 'due course of law' here, simply mean that a person in settled possession cannot be ejected without a court of law having adjudicated upon his rights qua the true owner.
Now, this 'due process' or 'due course' condition is satisfied the moment the rights of the parties are adjudicated upon by a court of competent jurisdiction. It does not matter who brought the action to court. It could be the owner in an action for enforcement of his right to eject the person in unlawful possession. It could be the person who is sought to be ejected, in an action preventing the owner form ejecting him. Whether the action is for enforcement of a right (recovery of possession) or protection of a right (injunction against dispossession), is not of much consequence. What is important is that in either event, it is an action before the court and the court adjudicates upon it. If that is done then, the 'bare minimum' requirement of 'due process' or 'due course' of law would stand satisfied as recourse to law would have been taken.
In this context, when a party approaches a court seeking a protective remedy such as an injunction and it fails in setting up a good case, can it then say that the other party must now institute an action in a court of law for enforcing his rights i.e., for taking back something from the first party who holds it unlawfully, and, till such time, the court hearing the injunction action must grant an injunction anyway? I would think not. In any event, the 'recourse to law' stipulation stands satisfied when a judicial determination is made with regard to the first party's protective action. Thus, in the present case, the plaintiff's failure to make out a case for an injunction does not mean that its consequent cessation of user of the said two rooms would have been brought about without recourse of law."
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40. The Hon'ble Supreme Court in Maria Margarida Sequeira Fernandes's case (supra) at Para No.83 approved the findings of the Delhi High Court on this issue. Further, learned counsel for the respondent-defendant places reliance on the judgment of Hon'ble Supreme Court in the case of THE CARPORATION OF CALICUT VS. K. SREENIVASAN reported in AIR 2002 SC 2051 (K. Sreenivasan's case) has submitted that by making difference between lease and licence argued that the lessee does get right in property but licencee does not. The property in case of licnece remains under control and possession grant as a licencee only, acquires right to remain in possession. The above case is pertaining to in the context of Kerala Public Buildings (Eviction of Unauthorized Occupant) Act, 1968 (hereinafter referred to as 'the Kerala Act'). The facts and circumstances in this K. Sreenivasan's case (supra) are different than the instant case on hand. The plaintiff- respondent was put in occupation as a licencee on payment of licence fee at the rate of Rs.4325/- per month wherein he was running a lodging house as well as a restaurant. As the plaintiff-respondent defaulted in making payment of licence fee, the licence was terminated on 01.03.1989 and
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thereafter the plaintiff's continuance in occupation of the building in question become unauthorized leading to issuance of notice by the Esteemed Officer under Section 4 of 'the Act', 1968. Therefore, in the context of the case, it was laid down law that, by making difference between lease and licence and by holding that the plaintiff-respondent possession was as a licencee and after expiry of the licence period or upon determination for any reason whatsoever as such the authorized officer was justified in initiating the proceedings under 'the Kerala Act' and passing impugned order therein. Therefore, the factual matrix in K. Sreenivasan's case (Supra) and in the present case are different. Therefore, the aforesaid judgment is not applicable in the present case.
41. In Maria Margarida Sequeira Fernandes's case (supra), the facts are that, the appellant is sole owner and is in exclusive possession of the suit property and the title of the said suit property was clearly admitted, and never disputed by the respondent-Erasmo Jack De Sequeira (her brother) the appellant was given suit property to her brother-respondent as a caretaker. The respondent-brother
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has kept the appellant-his own sister, out of her suit property for about two decades by suppressing relevant material and pertinent information from the Court abusing the process of law. The appellant urged that the suit property originally belonging to her grandmother and according to Portuguese law, her (grandmother's) children i.e., two sons and daughter (the appellant's father, uncle and aunt) got 1/3rd share each in the said suit property. The property of her grandmother was put into auction and this suit property in question was purchased by the appellant in auction. According to the appellant, she obtained exclusive title of the suit property. It is submitted that the appellant, the possession of suit property always remained with the appellant and the appellant got married on 08.09.1974 to an officer of the Indian Navy who was posted from time to time in different places in India and the appellant submitted that the respondent-her brother requested the appellant that as his office is just adjacent to the suit property, therefore, it would be convenient for him to run his office and to keep an eye and vision on the suit property of the appellant. Therefore, the appellant has given the suit property to the respondent only as a caretaker. The respondent as her
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brother had purchased new flat and shifted his residence to the new flat and therefore, the suit property almost was lying vacant, the respondent has not handed over the keys to the appellant for which no photographs, receipts are taken showing handing over the custodian of possession of the suit property. On 20.05.1992, the appellant returned with her family to Goa and occupied and enjoyed the said suit property, then the respondent had filed suit for injunction before the Trial Court and the Trial Court has granted injunction in favour of the respondent and the same was upheld by the High Court and which is in challenge before the Hon'ble Supreme Court. In this background of factual matrix the appeal filed by the appellant was allowed and the possession of the suit property was handed over to the appellant. It was held that the caretaker or agent holds the 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 therefore, it is held that the Courts are not justified in protecting the possession of the 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.
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42. The facts and circumstances involved in Maria Margarida Sequeira Fernandes's case (supra) are different from the present case. In the above cited Maria Margarida Sequeira Fernandes's case (supra), the appellant has put her brother-respondent only as a caretaker as the appellant had compelled to go along with her husband to different places in India, because her husband was serving in Indian Navy therefore, instead of keeping vacant the property, the appellant has given possession to her brother- respondent. Later on, the respondent though has handed over the vacant possession to the appellant, but with allegation that the appellant has forcibly evicted the respondent and filed suit for injunction by invoking Section 6 of the Specific Relief Act, and obtained decree in the Trial Court, which is confirmed by the High Court. The Hon'ble Apex Court in those facts and circumstances has reversed the order of High Court and affirmed the theory of due process of law as stated by the Delhi High Court. Due process of law means already if proceedings is initiated (either by the plaintiff or defendant), one more proceedings is not necessary in case property is given to caretaker, servant, any relative or as licencee. But in the present case,
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the plaintiff was not given possession as a caretaker or agent also as not licencee, but for his residence since the plaintiff was managing affairs of the companies of the defendant, therefore, as discussed above the possession of the plaintiff is not mere licencee or in permissive possession but is having higher pedestal than licencee and permissive possession. Thus, the plaintiff's possession is settled possession; this makes difference in the facts and circumstances in the above cited case and in the instant case on hand. Therefore, the Maria Margarida Sequeira Fernandes's case (supra) is not applicable in the case on hand.
43. In Thomas Cook (India) Limited's Case (Supra), the facts are that the plaintiff has filed I.A.No.2061/2015 under Order XXXIX Rule 2 of the Code of Civil Procedure, wherein the plaintiff has prayed that the defendants be restrained from dispossession of the plaintiff from the premises. I.A.No.4326/2005 was filed by the defendants under Section 151 of Code of Civil Procedure seeking permission for withdrawal of the statement made by his advocate for the defendants on 16.03.2005 before the
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Court. The plaintiff is engaged in the business of tours and travels in the defendant No.1-Five Star Hotel. It is alleged that the plaintiff has been occupying the rooms within the premises of defendant No.1-Five Star Hotel since the year 1975. The plaintiff further alleged that defendant No.1 began exerting pressure and threatening the plaintiff to vacate four rooms, as a result of which, the plaintiff was constrained to file suit in O.S.No.1593/1996 for permanent injunction. During the pendency of the suit both the plaintiff and defendant arrived at mutual settlement and made joint compromise/application and the Court recorded the compromise/application and passed decree in terms thereof. As per this compromise, the plaintiff has occupied two rooms, but with allegation that the defendant has once again threatened the plaintiff to evict from the said two rooms and therefore, in this background the suit has been filed once again for permanent injunction and for declaration that the plaintiff is in lawful possession of the said two rooms and sought for permanent injunction against the defendants. In this background of the case, it was held by the Delhi High Court that the possession of the plaintiff of two rooms is on the basis as a licencee and the possession of plaintiff is not
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settled possession. It was held by the Delhi High Court that the plaintiff merely had a right to use the said two rooms, and it cannot be said that the plaintiff was in possession thereof. As per the compromise decree above referred, the plaintiff was obliged to leave the keys of two rooms at the reception at the close of the each day, the plaintiff was charged a daily tariff and control and possession of the rooms were explicitly retained by the defendants and rights and admission were reserved with the defendants. Therefore, it was opined by the Delhi High Court that the defendants have not parted with the possession or that the plaintiff was in possession of the said two rooms even during the period prior to the revocation of the licence. Therefore, it was held by the Delhi High Court that the possession of the plaintiff is not settled possession but had a mere right to use two rooms, but the possession was held with the defendants. Therefore, under these circumstances, the argument canvassed by the counsel for the plaintiff (in that case) that even in case of licencee, forcibly eviction cannot be done, but with the due process of law is turned down by the Delhi High Court on the reason that the plaintiff's possession was as a mere licencee. Therefore, as per Section 63 of the Indian
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Easement Act, 1882, reasonable time was granted to the plaintiff to leave the premises and discussed what is due process of law in this context of the case. Therefore, the ratio laid down in the above stated case is not applicable in the present case on hand for the reason that as discussed above, in the present case, the possession of the plaintiff is proved to be settled possession and the possession is not merely as a licencee. As discussed above, the possession of the plaintiff is proved to be as settled possession as per the parameters of the Hon'ble Supreme Court as stated above.
44. Therefore, where the plaintiff is in settled possession, he cannot be evicted forcibly without due process of law. Hence, in this background of the factual matrix involved in the judgment of Delhi High Court and in the present case, where the plaintiff's possession is proved to be as a licencee, then as per Section 63 of the Indian Easement Act, due process of law means either plaintiff file suit for injunction or defendant may not file suit for eviction, then it is amounting to due process of law and the defendant need not file suit once again for possession. This is the law laid down by the Delhi High Court, but this is not applicable
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in the case on hand, where it is proved that the possession of the plaintiff is not as a mere licencee, but having considered the characteristic of possession of plaintiff is concerned, the possession of plaintiff is proved to be settled possession. Therefore, in this background in Maria Margarida Sequeira Fernandes's case (supra), wherein the brother of the appellant has filed suit under Section 6 of the Specific Relief Act against the appellant, and in that context the suit was decreed in favour of the brother of appellant and it was set aside by the Hon'ble Supreme Court. Therefore, having found difference in factual matrix involved in the cited cases by the counsel for the respondent-defendant, the cited judgments are not applicable to the present case. The above propositions of law laid down are not applicable in the present case on hand, because having different sets of facts and circumstances regarding possession is concerned, as it is proved in the present case, the plaintiff is proved to be in settled possession. Therefore, where the plaintiff is in settled possession, the defendant, though being owner cannot evict the plaintiff forcibly but with due process of law. Therefore, the Trial Court has committed an error in comprehending the
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difference in factual matrix in the cases and wrongly held that even though without there being counterclaim or suit by the defendant, the defendant can evict the plaintiff from the suit property is not correct. Thus, in this way the Trial Court has committed an error.
45. The other decisions relied on by the counsel for respondent-defendant are all pertaining to plaintiff's possession as a licensee; there was a relationship of licensor and licencee between the plaintiff and defendant. Therefore, in this context of the cases, it was held that reasonable time was granted to vacate the premises; the defendant need not file counterclaim or separate suit for possession. Therefore, where in the present case it is proved that the plaintiff's possession is proved to be settled possession, then the defendant is owner of the suit property, but the defendant cannot evict the plaintiff without due process of law. What is due process of law as enumerated in Thomas Cook (India) Limited's Case (Supra) is in the context of licensor and licencee, in other words, the plaintiff's possession (in that case) is as a licencee. Therefore, it was held that due process of law means even though the plaintiff filed suit for
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permanent injunction that is amounting to due process of law, and hence defendant need not file suit or counterclaim for possession. Whereas in the present case, the possession of the plaintiff is not proved to be as a mere licencee but as settled possession hence, for the defendant, it is required to evict the plaintiff with due process of law and not otherwise.
46. The total effect of the judgment of the Trial Court is that, when plaintiff files suit for permanent injunction and without there being counterclaim or separate suit by the defendant for possession, decreeing the suit in favour of defendant for possession is unknown to law. The suit must be decided in accordance with pleadings, evidence, nature of relief claimed and the Court fee payable and on other relevant issues raised as per relief claimed. In this regard, I place reliance on the judgment of Hon'ble Supreme Court in the case of BACHHAG NAHAR VS. NILIM MANDAL & OTHERS reported in AIR 2009 SC 1103 at Para Nos.8, 9 and 10 held as follows:
"8. The High Court, in this case, in its obvious zeal to cut delay and hardship that may ensue by relegating the plaintiffs to one more round of litigation, has rendered a judgment which violates several fundamental rules of civil procedure. The rules breached arola
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(i) No amount of evidence can be looked into, upon a plea which was never put forward in the pleadings. A question which did arise from the pleadings and which was not the subject matter of an issue, cannot be decided by the court
(ii)-A Court cannot make out a case not pleaded. The court should confine its decision to the question raised in pleadings. Nor can it grant a relief which is not claimed and which does not flow from the facts and the cause of action alleged in the plaint.
(ii) A factual issue cannot be raised or considered for the first time in a second appeal.
Civil Procedure Code is an elaborate codification of the principles of natural justice to be applied to civil litigation. The provisions are so elaborate that many a time, fulfilment of the procedural requirements of the Code may itself contribute to delay. But any anxiety to cut the delay or further litigation, should not be a ground to float the settled fundamental rules of civil procedure. Be that as it may. We will briefly set out the reasons for the aforesaid conclusions.
9. The object and purpose of pleadings and issues is to ensure that the litigants come to trial with all issues clearly defined and to prevent cases being expanded or grounds being shifted during trial Its object is also to ensure that each side is fully alive to the questions that are likely to be raised or considered so that they may have an opportunity of placing the relevant evidence appropriate to the issues before the court for its consideration. This Court has repeatedly held that the pleadings are meant to give to each side intimation of the case of the other so that it may be met, to enable courts to determine what is really at issue between the parties, and to prevent any deviation from the course which litigation on particular causes must take
10. The object of issues is to identify from the pleadings the questions or points required to be decided by the courts so as to enable parties to let in evidence thereon. When the facts necessary to make out a claim, or to seek a particular relief, are not found in the plaint, the court particular cannot focus the attention of the parties, or its own attention on that claim or relief, by framing an appropriate issue. As a result the defendant does not get an opportunity to place the facts and
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contentions necessary to repudiate or challenge such a claim or relief. Therefore, the court cannot, on finding that the plaintiff has not made out the case put forth by him, grant some other relief. The question before a court is not whether there is some material on the basis of which some relief can be granted. The question is whether any relief can be granted, when the defendant had no opportunity to show that the relief proposed by the court could not be granted. When there is no prayer for a particular relief and no pleadings to support such a relief, and when defendant has no opportunity to resist or oppose such a relief, if the court considers and grants such a relief, it will lead to miscarriage of justice. Thus it is said that no amount of evidence, on a plea that is not put forward in the pleadings, can be looked into to grant any relief."
47. Further, the Hon'ble Supreme Court in the case of RAM SARUP GUPTA (DEAD) BY LRS., VS. BISHUN NARAIN INTER COLLEGE reported in AIR 1987 SC 1242 at Para No.11 held as follows:
"It is well settled that in the absence of pleadings, evidence, if any, produced by the parties cannot be considered. It is also equally settled that no party should be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it. The object and purpose of pleading is to enable the adversary party to know the case it has to meet. In order to have a fair trial it is imperative that the party should state the essential material facts so that other party may not be taken by surprise. The pleadings however should receive a liberal construction, no pedantic approach should be adopted to defeat justice on hair splitting technicalities. Sometimes pleadings are expressed in words which may not expressly make out a case in accordance with strict interpretation of law, in such a case it is the duty of the court to ascertain the
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substance of the pleadings to determine the question. It is not desirable to place undue emphasis on form, instead the substance of the pleadings should be considered. Whenever the question about lack of pleading is raised the enquiry should not be so much about the form of pleadings, instead the court must find out whether in substance the parties knew the case and the issues upon which they went to trial. Once it is found that in spite of deficiency in the pleadings, parties knew the case and they proceeded to trial on those issue by producing evidence, in that event it would not be open to a party to raise the question of absence of pleadings in appeal."
48. Therefore, where the case is made out of the suit for injunction simplicitor, the evidence can be given only on the pleadings made in the plaint and written statement. In the present case, the defendant has admitted that the plaintiff's possession is on the suit property and the plaintiff has been residing in the suit property for more than twenty years as an employee of the defendant-company, but the possession of the plaintiff is not mere as an agent or caretaker but for him and his family residence. Therefore, the possession of the plaintiff cannot be as a mere licencee but in settled possession; therefore, when the plaintiff filed suit for permanent injunction and, if at all, the defendant wants to take back possession of the suit property from the plaintiff, then mere denial of the plaint averments is not
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sufficient, but the defendant had to file counterclaim or file a separate suit for possession. But, the defendant has not filed counterclaim for reclaiming possession or filed a suit for recovery of possession. Therefore, in absence of it by the defendant, where in a suit for permanent injunction filed by the plaintiff making averment that he is in settled possession a decree cannot be passed for possession in favour of defendant in absence of counterclaim or suit for possession by the defendant. A counterclaim for possession or a suit for possession by the defendant is governed by law. For filing suit for possession pleadings, relief claimed, nature of possession, Court fee to be computed and paid etc., are all the factors to be considered in the suit filed for possession, but that is not found in the present case; therefore, the Trial Court ought not to have decreed the suit for possession in absence of counterclaim or suit by the defendant in this regard.
49. It is fundamental to note that, in a civil suit relief to be granted can only be with reference to the prayers made in the pleadings. That apart, in civil suits, grant of relief is circumscribed by various factors like Court fee,
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limitation, relief claimed, nature of possession. The parties to the suit have also grounds like res-judicata, estoppel, acquiescence, non-joinder of parties, cause of action etc., which requires pleadings and proof. Therefore, it would be hazardous to hold that in a civil suit, whatever the relief that is prayed, the Court can, on examination of facts, grant any relief as it fix to. For example, in a suit for injunction, a decree of declaration cannot be granted. In a suit for possession of property of X, a decree cannot be granted in respect of property of Z; the jurisdiction to grant relief in a civil suit necessarily depends on the pleadings, prayer, Court fee paid, evidence let in etc., Therefore, in these principles of law laid down by the Hon'ble Supreme Court, the Trial Court ought not to have granted decree for possession in favour of defendant in absence of any pleadings and in absence of any counterclaim or suit for possession by the defendant. Therefore, in this regard, the Trial Court has committed the error in decreeing the suit in favour of defendant for possession apart from dismissing the suit for permanent injunction.
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50. For example, even in a civil suit filed for declaration and if the plaintiff is not in possession but mere relief claimed is declaration but relief of possession is not claimed when the plaintiff is not in possession is hit by Section 34 of the Specific Relief Act. Therefore, claiming of relief also plays an important role in deciding the suit; therefore, the pleadings, evidence, and relief claimed in a suit on any law, cause of action, jurisdiction, Court fee paid etc., plays important role in deciding the suit. Otherwise, if decree for possession is granted in a suit filed for permanent injunction, as in the present case, granted by the Trial Court, then the situation would be that in a suit for permanent injunction filed by the plaintiff, the Court can grant decree for possession which is unhard of known to law except in case of licence. The facts and circumstances in the cited referred cases above by the counsel for defendant are different from the case on hand as the cases are for licence and relationship therein is licensor and licencee or permissive possession. Therefore, in this regard, the Trial Court has committed an error while decreeing the suit for possession in favour of defendant though there is no counterclaim or suit by the defendant for possession.
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51. Therefore, under all the circumstances, the judgment and decree passed by the Trial Court requires intervention by this Court and thus is liable to be set aside by decreeing the suit as prayed for. The defendant is at liberty to follow due process of law for taking possession of the suit property. Accordingly, I answer point No.1 and point No.2 in the Negative.
52. Hence, I proceed to pass the following:
ORDER i. RFA No.392/2023 is allowed.
ii. The judgment and decree dated 06.02.2023 passed in O.S.No.2422/2017 by the XXIX Addl. City Civil and Sessions Judge, Bengaluru, is hereby set aside.
iii. The suit is decreed as prayed for.
iv. However, liberty is reserved to the defendant
to follow due process of law in order to take possession of the property from the plaintiff.
v. No order as to costs.
vi. Draw decree accordingly.
SD/-
(HANCHATE SANJEEVKUMAR)
JUDGE
CT:GSM
MRK: Para 1 to 11
SRA: Para 12, 18 to end