Full Judgment Click Here
Maria Margadia Sequeria ... vs Erasmo Jack De Sequeria (D)
Tags
: - Section 6/41 Specific Relief Act; suit for injunction; duty of
the judges; purpose of the system of justice; Section 30 CPC; Truth
and Justice; Role of Judges and lawyers in the administration of
justice; pleadings; Civil Procedure Rules of UK; denials in the
plaint; possession; licensee; title suit for possession; framing of
issues; duties of court while framing issues;
pleadings---------necessary ingredients; suit for mandatory
injunction; due process of law; false claims and false defences;
grant of refusal of an injunction; duties of judges while granting or
refusing injunction; ex-parte ad interim injunction; injunction;
mesne profits; "possession"---------meaning;
Maria Margadia Sequeria ... vs Erasmo Jack De Sequeria (D)
18. According to the appellant, the impugned judgment of the High
Court is contrary to the ratio of the judgment of this Court in Rame
Gowda (dead) by LRs. v. M. Varadappa Naidu (dead) by LRs. and Another
(2004) 1 SCC 769 wherein a three-Judge Bench of this Court has
observed that possession is no
good against the rightful owner and that the assumption that he is in
peaceful possession will not work and cannot operate against the true
lawful owner.
19. Reliance has also been placed by the appellant on Southern
Roadways Ltd., Madurai v. S.M. Krishnan (1989) 4 SCC
603 wherein this Court has held that it is
the settled law that agent has no possession of his own and
caretaker's possession is the possession of the principal. This Court
has taken the view that possession of the agent is the possession of
the principal and in view of the fiduciary relationship, the agent
cannot be permitted to claim his own possession. Thus, according to
the appellant, the respondent had no right, title and/or interest in
the suit property and was not in lawful possession.
Therefore, the suit for injunction under Section 6 of the Specific
Relief Act is totally misconceived. The appellant contended that the
High Court in the impugned judgment has gravely erred in affirming
the judgment of the Trial Court.
25. According to law laid down by this Court in Rame Gowda (dead) by
LRs. (supra), it is the settled
legal position that a possessory suit is good against the whole world
except the rightful owner. It is not maintainable against the true
owner.
26. This Court in Anima Mallick v. Ajoy Kumar Roy and Another (2000)
4 SCC 119 held that where
the sister gave possession as gratuitous to the brother, this Court
restored possession to the sister as it was purely gratuitous basis
and the sister could have reclaimed possession even without knowledge
of the brother.
27. According to the appellant, this Court in Sopan
Sukhdeo Sable and Others v. Assistant Charity Commissioner and Others
(2004) 3 SCC 137 has observed that no
injunction can be granted against the true owner and Section 6 of the
Specific Relief Act cannot be invoked to protect the wrongdoer who
suppressed the material facts from the Courts.
28. The appellant submitted that Section
41 of the Specific Relief Act debars any relief to be given to such
an erring person as the respondent who is guilty of suppression of
material facts.
29. The appellant relied on Automobile
Products India Limited v. Das John Peter and Others
(2010) 12 SCC 593 and Ramrameshwari
Devi and Others v. Nirmala Devi and Others (2011) 8
SCC 249 where the Court has laid down that dilatory
tactics, misconceived injunction suits create only incentives for
wrongdoers.
30. The appellant submitted that for more than two decades the
appellant is without the possession of her own house despite the fact
that she has valid title to the suit property.
Truth
as guiding star in judicial process
31. In
this unfortunate litigation, the Court's serious endeavour has to be
to find out where in fact the truth lies.
The truth should be the guiding
star in the entire judicial process.
32. Truth
alone has to be the foundation of justice. The entire judicial system
has been created only to discern and find out the real truth. Judges
at all levels have to seriously engage themselves in the journey of
discovering the truth.
That is their mandate, obligation and bounden duty.
33. Justice system will acquire
credibility only when people will be convinced that justice is based
on the foundation of the truth.
34. In Mohanlal Shamji Soni v. Union of India 1991 Supp (1) SCC 271,
this Court observed that
in such a situation a question that arises for consideration is
whether the presiding officer of a Court should simply sit as a mere
umpire at a contest between two parties and declare at the end of the
combat who has won and who has lost or is there not any legal duty of
his own, independent of the parties, to take an active role in the
proceedings in finding the truth and administering justice? It is a
well accepted and settled principle that a Court must discharge its
statutory functions-whether discretionary or obligatory-according to
law in dispensing justice because it is the duty of a Court not only
to do justice but also to ensure that justice is being done.
35. What people expect is that the Court
should discharge its obligation to find out where in fact the truth
lies. Right from inception of the judicial system it has been
accepted that discovery, vindication and establishment of truth are
the main purposes underlying the existence of the courts of justice.
36. In Ritesh
Tewari and Another v. State of U.P. and Others (2010)
10 SCC 677 this Court reproduced often quoted quotation which reads
as under:
"Every trial is voyage of discovery in
which truth is the quest"
37. This Court observed that the power is to
be exercised with an object to subserve the cause of justice and
public interest and for getting the evidence in aid of a just
decision and to uphold the truth.
38. Lord Denning, in the case of Jones v. National Coal Board [1957]
2 QB 55 has observed that:
"In the system of trial that we evolved
in this country, the Judge sits to hear and determine the issues
raised by the parties, not to conduct an investigation or examination
on behalf of the society at large, as happens, we believe, in some
foreign countries."
39. Certainly, the above, is not true of the
Indian Judicial system. A judge in the Indian System has to be
regarded as failing to exercise its jurisdiction and thereby
discharging its judicial duty, if in the guise of remaining neutral,
he opts to remain passive to the proceedings before him. He has to
always keep in mind that "every trial is a voyage of discovery
in which truth is the quest". In order to bring on record the
relevant fact, he has to play an active role; no doubt within the
bounds of the statutorily defined procedural law.
40. Lord Denning further observed in the said case of Jones (supra)
that "`It's all very well
to paint justice blind, but she does better without a bandage round
her eyes. She should be blind indeed to favour or prejudice, but
clear to see which way lies the truth..."
41. World over, modern procedural Codes are increasingly relying
on full disclosure by the parties. Managerial powers of the Judge are
being deployed to ensure that the scope of the factual controversy is
minimized.
42. In civil cases, adherence to Section 30
CPC would also help in ascertaining the truth. It seems that this
provision which ought to be frequently used is rarely pressed in
service by our judicial officers and judges. Section 30 CPC reads as
under:-
30. Power to order discovery and the like. -
Subject to such conditions and limitations as may be prescribed, the
Court may, at any time either of its own motion or on the application
of any party, -
(a) make such orders as may be necessary or
reasonable in all matters relating to the delivery and answering of
interrogatories, the admission of documents and facts, and the
discovery, inspection, production, impounding and return of documents
or other material objects producible as evidence;
(b) issue summons to persons whose
attendance is required either to give evidence or to produce
documents or such other objects as aforesaid;
(c) order any fact to be proved by affidavit
43.
"Satyameva Jayate" (Literally: "Truth Stands
Invincible") is a mantra from the ancient scripture Mundaka
Upanishad.
Upon
independence of India, it was adopted as the national motto of India.
It is inscribed in Devanagari script at the base of the national
emblem. The meaning of full mantra is as follows:
"Truth
alone triumphs; not falsehood. Through truth the divine path is
spread out by which the sages whose desires have been completely
fulfilled, reach where that supreme treasure of Truth resides."
44. Malimath
Committee on Judicial Reforms heavily relied on the fact that in
discovering truth, the judges of all Courts need to play an active
role. The Committee observed thus:
2.2.......... In the adversarial system truth
is supposed to emerge from the respective versions of the facts
presented by the prosecution and the defence before a neutral judge.
The judge acts like an umpire to see whether the prosecution has been
able to prove the case beyond reasonable doubt. The State discharges
the obligation to protect life, liberty and property of the citizens
by taking suitable preventive and punitive measures which also serve
the object of preventing private retribution so essential for
maintenance of peace and law and order in the society doubt and gives
the benefit of doubt to the accused. It is the parties that determine
the scope of dispute and decide largely, autonomously and in a
selective manner on the evidence that they decide to present to the
court. The trial is oral, continuous and confrontational. The parties
use cross-examination of witnesses to undermine the opposing case and
to discover information the other side has not brought out. The judge
in his anxiety to maintain his position of neutrality never takes any
initiative to discover truth. He does not correct the aberrations in
the investigation or in the matter of production of evidence before
court........"
2.15 "The Adversarial System lacks
dynamism because it has no lofty ideal to inspire. It has not been
entrusted with a positive duty to discover truth as in the
Inquisitorial System. When the investigation is perfunctory or
ineffective, Judges seldom take any initiative to remedy the
situation. During the trial, the Judges do not bother if relevant
evidence is not produced and plays a passive role as he has no duty
to search for truth....."
2.16.9.
Truth being the cherished ideal and ethos of India, pursuit of truth
should be the guiding star of the Criminal Justice System. For
justice to be done truth must prevail. It is truth that must protect
the innocent and it is truth that must be the basis to punish the
guilty. Truth is the very soul of justice. Therefore truth should
become the ideal to inspire the courts to pursue. This can be
achieved by statutorily mandating the courts to become active seekers
of truth. It is of seminal importance to inject vitality into our
system if we have to regain the lost confidence of the people.
Concern for and duty to seek truth should not become the limited
concern of the courts. It should become the paramount duty of
everyone to assist the court in its quest for truth.
45. In
Chandra Shashi v. Anil Kumar Verma (1995) 1 SCC 421
to enable the Courts to ward off unjustified interference in their
working, those who indulge in immoral acts like perjury,
pre-variation and motivated falsehoods have to be appropriately dealt
with, without which it would not be possible for any Court to
administer justice in the true sense and to the satisfaction of those
who approach it in the hope that truth would ultimately prevail.
People would have faith in Courts when they would find that truth
alone triumphs in Courts.
46. Truth
has been foundation of other judicial systems, such as, the United
States of America, the United Kingdom and other countries.
47. In James v.
Giles et al. v. State of Maryland 386 U.S.
66, 87, S.Ct.
793), the US Supreme Court, in
ruling on the conduct of prosecution in suppressing evidence
favourable to the defendants and use of perjured testimony held that
such rules existed for a purpose as a necessary component of the
search for truth and justice that judges, like prosecutors must
undertake. It further held that the State's obligation under the Due
Process Clause "is not to convict, but to see that so far as
possible, truth emerges."
48. The
obligation to pursue truth has been carried to extremes. Thus, in
United States v. J.Lee Havens 446 U.S.
620, 100
St.Ct.1912, it was held that the government may use
illegally obtained evidence to impeach a defendant's fraudulent
statements during cross-examination for the purpose of seeking
justice, for the purpose of "arriving at the truth, which is a
fundamental goal of our legal system".
49. Justice
Cardozo in his widely read and appreciated book "The Nature of
the Judicial Process" discusses the role of the judges. The
relevant part is reproduced as under:-
"There has been a certain lack of candour," "in
much of the discussion of the theme [of judges' humanity], or rather
perhaps in the refusal to discuss it, as if judges must lose respect
and confidence by the reminder that they are subject to human
limitations." I do not doubt the grandeur of conception which
lifts them into the realm of pure reason, above and beyond the sweep
of perturbing and deflecting forces. None the less, if there is
anything of reality in my analysis of the judicial process, they do
not stand aloof on these chill and distant heights; and we shall not
help the cause of truth by acting and speaking as if they do."
50. Aharon
Barak, President of Israeli Supreme Court from 1995 to 2006 takes the
position that:
"For
issues in which stability is actually more important than the
substance of the solution - and there are many such case - I will
join the majority, without restating my dissent each time. Only when
my dissenting opinion reflects an issue that is central for me - that
goes to the core of my role as a judge - will I not capitulate, and
will I continue to restate my dissenting opinion: "Truth or
stability - truth is preferable".
"On the
contrary, public confidence means ruling according to the law and
according to the judge's conscience, whatever the attitude of the
public may be. Public confidence means giving expression to history,
not to hysteria. Public confidence is ensured by the recognition that
the judge is doing justice within the framework of the law and its
provisions. Judges must act - inside and outside the court - in a
manner that preserves public confidence in them. They must understand
that judging is not merely a job but a way of life. It is a way of
life that does not include the pursuit of material wealth or
publicity; it is a way of life based on spiritual wealth; it is a way
of life that includes an objective and impartial search for truth."
51.
In the administration of justice, judges and lawyers play equal
roles. Like judges, lawyers also must ensure that truth triumphs in
the administration of justice.
- Truth is the foundation of justice. It must be the endeavour of all the judicial officers and judges to ascertain truth in every matter and no stone should be left unturned in achieving this object. Courts must give greater emphasis on the veracity of pleadings and documents in order to ascertain the truth.
Pleadings
53.
Pleadings are the foundation of litigation. In pleadings, only the
necessary and relevant material must be included and unnecessary and
irrelevant material must be excluded.
Pleadings are
given utmost importance in similar systems of adjudication, such as,
the United Kingdom and the United States of America.
54. In
the United Kingdom, after the Woolf Report, Civil Procedure Rules,
1998 were enacted. Rule 3.4(2) has some relevance and the same is
reproduced as under:
(2) The Court
may strike out a statement of case if it appears to the Court -
(a) that the
statement of case discloses no reasonable grounds for bringing or
defending the claim;
(b) that the
statement of case is an abuse of the Court's process or is otherwise
likely to obstruct the just disposal of the proceedings; or
(c) that
there has been a failure to comply with a rule, practice direction or
Court order.
61. In
civil cases, pleadings are extremely important for ascertaining the
title and possession of the property in question.
62. Possession
is an incidence of ownership and can be transferred by the owner of
an immovable property to another such as in a mortgage or lease. A
licensee holds possession on behalf of the owner.
63. Possession
is important when there are no title documents and other relevant
records before the Court, but, once the documents and records of
title come before the Court, it is the title which has to be looked
at first and due weightage be given to it. Possession cannot be
considered in vacuum.
64. There
is a presumption that possession of a person, other than the owner,
if at all it is to be called possession, is permissive on behalf of
the title-holder. Further, possession of the past is one thing, and
the right to remain or continue in future is another thing. It is the
latter which is usually more in controversy than the former, and it
is the latter which has seen much abuse and misuse before the Courts.
65. A suit
can be filed by the title holder for recovery of possession or it can
be one for ejectment of an ex-lessee or for mandatory injunction
requiring a person to remove himself or it can be a suit under
Section 6 of the Specific Relief Act to recover possession.
66. A
title suit for possession has two parts - first, adjudication of
title, and second, adjudication of possession.
If the title
dispute is removed and the title is established in one or the other,
then, in effect, it becomes a suit for ejectment where the defendant
must plead and prove why he must not be ejected.
67. In an
action for recovery of possession of immovable property, or for
protecting possession thereof, upon the legal title to the property
being established, the possession or occupation of the property by a
person other than the holder of the legal title will be presumed to
have been under and in subordination to the legal title, and it will
be for the person resisting a claim for recovery of possession or
claiming a right to continue in possession, to establish that he has
such a right. To put it differently, wherever pleadings and documents
establish title to a particular property and possession is in
question, it will be for the person in possession to give
sufficiently detailed pleadings, particulars and documents to support
his claim in order to continue in possession.
68. In
order to do justice, it is necessary to direct the parties to give
all details of pleadings with particulars. Once the title is prima
facie established, it is for the person who is resisting the title
holder's claim to possession to plead with sufficient particularity
on the basis of his claim to remain in possession and place before
the Court all such documents as in the ordinary course of human
affairs are expected to be there.
Only if
the pleadings are sufficient, would an issue be struck and the matter
sent to trial, where the onus will be on him to prove the averred
facts and documents.
69. The
person averring a right to continue in possession shall, as far as
possible, give a detailed particularized specific pleading along with
documents to support his claim and details of subsequent conduct
which establish his possession.
70.
It would be imperative that one who claims possession must give all
such details as enumerated hereunder. They are only illustrative and
not exhaustive.
(a)
who is or are the owner or owners of the
property;
(b)
title of the property;
(c)
who is in possession of the title documents
- identity of the claimant or claimants to possession;
(e)
the date of entry into possession;
(f)
how he came into possession - whether he purchased
the property or inherited or got the same in gift or by any other
method;
(g)
in case he purchased the property, what is the consideration; if he
has taken it on rent, how much is the rent, license fee or lease
amount;
(h)
If taken on rent, license fee or lease - then insist on rent deed,
license deed or lease deed;
(i)
who are the persons in possession/occupation or otherwise living with
him, in what capacity; as family members, friends or servants etc.;
(j)
subsequent conduct, i.e., any event which might have extinguished his
entitlement to possession or caused shift therein; and
(k)
basis of his claim that not to deliver possession but continue in
possession.
71. Apart
from these pleadings, the Court must insist on documentary proof in
support of the pleadings. All those documents would be relevant which
come into existence after the transfer of title or possession or the
encumbrance as is claimed. While dealing with the civil suits, at the
threshold, the Court must carefully and critically examine pleadings
and documents.
72. The
Court will examine the pleadings for specificity as also the
supporting material for sufficiency and then pass appropriate orders.
73. Discovery
and production of documents and answers to interrogatories, together
with an approach of considering what in ordinary course of human
affairs is more likely to have been the probability, will prevent
many a false claims or defences from sailing beyond the stage for
issues.
74.
If the pleadings do not give sufficient details, they will not raise
an issue, and the Court can reject the claim or pass a decree on
admission.
75. On vague
pleadings, no issue arises. Only when he so establishes, does the
question of framing an issue arise.
Framing of
issues is an extremely important stage in a civil trial. Judges are
expected to carefully examine the pleadings and documents before
framing of issues in a given case.
76. In
pleadings, whenever a person claims right to continue in possession
of another property, it becomes necessary for him to plead with
specificity about who was the owner, on what date did he enter into
possession, in what capacity and in what manner did he conduct his
relationship with the owner over the years till the date of suit. He
must also give details on what basis he is claiming a right to
continue in possession. Until the pleadings raise a sufficient case,
they will not constitute sufficient claim of defence.
77. Dr. Arun
Mohan in his classic treatise on "Justice, Courts and Delays"
has dealt with these fundamental principles of law exhaustively.
78. The
Court must ensure that pleadings of a case must contain sufficient
particulars. Insistence on details reduces the ability to put forward
a non-existent or false claim or defence.
- In dealing with a civil case, pleadings, title documents and relevant records play a vital role and that would ordinarily decide the fate of the case.
Suit
for Mandatory Injunction
- It is a settled principle of law that no one can take law in his own hands. Even a trespasser in settled possession cannot be dispossessed without recourse of law. It must be the endeavour of the Court that if a suit for mandatory injunction is filed, then it is its bounden duty and obligation to critically examine the pleadings and documents and pass an order of injunction while taking pragmatic realities including prevalent market rent of similar premises in similar localities in consideration. The Court's primary concern has to be to do substantial justice. Even if the Court in an extraordinary case decides to grant ex-parte ad interim injunction in favour of the plaintiff who does not have a clear title, then at least the plaintiff be directed to give an undertaking that in case the suit is ultimately dismissed, then he would be required to pay market rent of the property from the date when an ad interim injunction was obtained by him. It is the duty and the obligation of the Court to at least dispose off application of grant of injunction as expeditiously as possible. It is the demand of equity and justice.
Due
process of Law
81. Due
process of law means nobody ought to be condemned unheard. The due
process of law means a person in settled possession will not be
dispossessed except by due process of law. Due process means an
opportunity for the defendant to file pleadings including written
statement and documents before the Court of law. It does not mean the
whole trial. Due process of law is satisfied the moment rights of the
parties are adjudicated by a competent Court.
82. The High
Court of Delhi in a case Thomas Cook (India) Limited v. Hotel
Imperial 2006 (88) DRJ 545 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 hands. All these expressions,
however, mean the same thing -- ejectment from settled possession can
only be had by recourse to a court of law. Clearly, `due process of
law' or `due course of law', here, simply mean that a person in
settled possession cannot be ejected without a court of law having
adjudicated upon his rights qua the true owner.
Now, this `due process' or `due course' condition is satisfied the
moment the rights of the parties are adjudicated upon by a court of
competent jurisdiction. It does not matter who brought the action to
court. It could be the owner in an action for enforcement of his
right to eject the person in unlawful possession. It could be the
person who is sought to be ejected, in an action preventing the owner
from ejecting him. Whether the action is for enforcement of a right
(recovery of possession) or protection of a right (injunction against
dispossession), is not of much consequence. What is important is that
in either event it is an action before the court and the court
adjudicates upon it. If that is done then, the `bare minimum'
requirement of `due process' or `due course' of law would stand
satisfied as recourse to law would have been taken. In this context,
when a party approaches a court seeking a protective remedy such as
an injunction and it fails in setting up a good case, can it then say
that the other party must now institute an action in a court of law
for enforcing his rights i.e., for taking back something from the
first party who holds it unlawfully, and, till such time, the court
hearing the injunction action must grant an injunction anyway? I
would think not. In any event, the `recourse to law' stipulation
stands satisfied when a judicial determination is made with regard to
the first party's protective action. Thus, in the present case, the
plaintiff's failure to make out a case for an injunction does not
mean that its consequent cessation of user of the said two rooms
would have been brought about without recourse to law."
- We approve the findings of the High Court of Delhi on this issue in the aforesaid case.
False
claims and false defences
84.
False
claims and defences are really serious problems with real estate
litigation, predominantly because of ever escalating prices of the
real estate. Litigation pertaining to valuable real estate properties
is dragged on by unscrupulous litigants in the hope that the other
party will tire out and ultimately would settle with them by paying a
huge amount.
This
happens because of the enormous delay in adjudication of cases in our
Courts. If pragmatic approach is adopted, then this problem can be
minimized to a large extent.
85. This Court
in a recent judgment in Ramrameshwari Devi and Others (supra) aptly
observed at page 266 that unless
wrongdoers are denied profit from frivolous litigation, it would be
difficult to prevent it. In order to curb uncalled for and frivolous
litigation, the Courts have to ensure that there is no incentive or
motive for uncalled for litigation. It is a matter of common
experience that Court's otherwise scarce time is consumed or more
appropriately, wasted in a large number of uncalled for cases. In
this very judgment, the Court provided that this problem can be
solved or at least be minimized if exemplary cost is imposed for
instituting frivolous litigation.
The Court
observed at pages 267-268 that imposition of actual, realistic or
proper costs and/or ordering prosecution in appropriate cases would
go a long way in controlling the tendency of introducing false
pleadings and forged and fabricated documents by the litigants.
Imposition of heavy costs would also control unnecessary adjournments
by the parties. In appropriate cases, the Courts may consider
ordering prosecution otherwise it may not be possible to maintain
purity and sanctity of judicial proceedings.
Grant
or refusal of an injunction
86. Grant or
refusal of an injunction in a civil suit is the most important stage
in the civil trial. Due care, caution, diligence and attention must
be bestowed by the judicial officers and judges while granting or
refusing injunction. In most cases, the fate of the case is decided
by grant or refusal of an injunction. Experience has shown that once
an injunction is granted, getting it vacated would become a nightmare
for the defendant. In order to grant or refuse injunction, the
judicial officer or the judge must carefully examine the entire
pleadings and documents with utmost care and seriousness.
87. The
safe and better course is to give short notice on injunction
application and pass an appropriate order after hearing both the
sides. In case of grave urgency, if it becomes imperative to grant an
ex-parte ad interim injunction, it should be granted for a specified
period, such as, for two weeks. In those cases, the plaintiff will
have no inherent interest in delaying disposal of injunction
application after obtaining an ex-parte ad interim injunction. The
Court, in order to avoid abuse of the process of law may also record
in the injunction order that if the suit is eventually dismissed, the
plaintiff undertakes to pay restitution, actual or realistic costs.
While passing the order, the Court must take into consideration the
pragmatic realities and pass proper order for mesne profits. The
Court must make serious endeavour to ensure that even-handed justice
is given to both the parties.
88. Ordinarily,
three main principles govern the grant or refusal of injunction.
a)
prima facie case;
b)
balance of convenience; and
c)
irreparable injury, which guide the Court in this regard.
- In the broad category of prima facie case, it is imperative for the Court to carefully analyse the pleadings and the documents on record and only on that basis the Court must be governed by the prima facie case. In grant and refusal of injunction, pleadings and documents play vital role.
Mesne
Profits
90. Experience
has shown that all kinds of pleadings are introduced and even false
and fabricated documents are filed in civil cases because there is an
inherent profit in continuation of possession. In a large number of
cases, honest litigants suffer and dishonest litigants get undue
benefit by grant or refusal of an injunction because the Courts do
not critically examine pleadings and documents on record.
In
case while granting or refusing injunction, the Court properly
considers pleadings and documents and takes the pragmatic view and
grants appropriate mesne profit, then the inherent interest to
continue frivolous litigation by unscrupulous litigants would be
reduced to a large extent.
91.
The
Court while granting injunction should broadly take into
consideration the prevailing market rentals in the locality for
similar premises. Based on that, the Court should fix adhoc amount
which the person continuing in possession must pay and on such
payment, the plaintiff may withdraw after furnishing an undertaking
and also making it clear that should the Court pass any order for
reimbursement, it will be a charge upon the property.
92. The Court
can also direct payment of a particular amount and for a
differential, direct furnishing of a security by the person who
wishes to continue in possession. If such amount, as may be fixed by
the Court, is not paid as security, the Court may remove the person
and appoint a receiver of the property or strike out the claim or
defence. This is a very important exercise for balancing equities.
Courts must carry out this exercise with extreme care and caution
while keeping pragmatic realities in mind and make a proper order of
granting mesne profit. This is the requirement of equity and justice.
93. In
the instant case, if the Courts below would have carefully looked
into the pleadings, documents and had applied principle of the grant
of mesne profit, then injustice and illegality would not have
perpetuated for more than two decades.
94. We have
heard the learned counsel for the parties at length and perused the
relevant judgments cited at the Bar. In the instant case, admittedly,
the respondent did not claim any title to the suit property.
Undoubtedly, the appellant has a valid title to the property which is
clearly proved from the pleadings and documents on record.
95. The
respondent has not been able to establish the family arrangement by
which this house was given to the respondent for his residence. The
Courts below have failed to appreciate that the premises in question
was given by the appellant to her brother respondent herein as a
caretaker.
The appellant
was married to a Naval Officer who was transferred from time to time
outside Goa. Therefore, on the request of her brother she gave
possession of the premises to him as a caretaker. The
caretaker holds the property of the principal only on behalf of the
principal.
96. The
respondent's suit for injunction against the true owner - the
appellant was not maintainable, particularly when it was established
beyond doubt that the respondent was only a caretaker and he ought to
have given possession of the premises to the true owner of the suit
property on demand. Admittedly, the respondent does not claim any
title over the suit property and he had not filed any proceedings
disputing the title of the appellant.
97. This Court
in Puran Singh v. The State of Punjab (1975) 4 SCC 518 held that 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.
98. This Court
in Mahabir Prasad Jain (supra) has held that the
possession of a servant or agent is that of his master or principal
as the case may be for all purposes and the former cannot maintain a
suit against the latter on the basis of such possession.
99. In Sham Lal
v. Rajinder Kumar & Others 1994 (30) DRJ 596, the High Court of
Delhi held thus:
"On the basis of the material available
on record, it will be a misnomer to say that the plaintiff has been
in 'possession' of the suit property. The plaintiff is neither a
tenant, nor a licensee, nor a person even in unlawful possession of
the suit property. Possession of servant is possession of the real
owner. A servant cannot be said to be having any interest in the suit
property. It cannot be said that a servant or a chowkidar can
exercise such a possession or right to possession over the property
as to exclude the master and the real owner of the property from his
possession or exercising right to possession over the property.
Possession is flexible term and is not necessarily restricted to
mere actual possession of the property. The legal conception of
possession may be in various forms. The two elements of possession
are the corpus and the animus. A person though in physical possession
may not be in possession in the eye of law, if the animus be lacking.
On the contrary, to be in possession, it is not necessary that one
must be in actual physical contact.
To
gain the complete idea of possession, one must consider
- the person possessing, (ii) the things possessed and, (iii) the persons excluded from possession.A man may hold an object without claiming any interest therein for himself. A servant though holding an object, holds it for his master. He has, therefore, merely custody of the thing and not the possession which would always be with the master though the master may not be in actual contact of the thing. It is in this light in which the concept of possession has to be understood in the context of a servant and & master."
100. The ratio
of this judgment in Sham Lal (supra) is that merely
because the plaintiff was employed as a servant or chowkidar to look
after the property, it cannot be said that he had entered into such
possession of the property as would entitle him to exclude even the
master from enjoying or claiming possession of the property or as
would entitle him to compel the master from staying away from his own
property.
101.
Principles
of law which emerge in this case are crystallized as under:-
1. No
one acquires title to the property if he or she was allowed to stay
in the premises gratuitously. Even by long possession of years or
decades such person would not acquire any right or interest in the
said property.
2. Caretaker,
watchman or servant can never acquire interest in the property
irrespective of his long possession. The caretaker or servant has to
give possession forthwith on demand.
3. The
Courts are not justified in protecting the possession of a caretaker,
servant or any person who was allowed to live in the premises for
some time either as a friend, relative, caretaker or as a servant.
4. The
protection of the Court can only be granted or extended to the person
who has valid, subsisting rent agreement, lease agreement or license
agreement in his favour.
5. The
caretaker or agent holds property of the principal only on behalf of
the principal. He acquires no right or interest whatsoever for
himself in such property irrespective of his long stay or possession.
102. In this
view of the matter, the impugned judgment of the High Court as also
of the Trial Court deserve to be set aside and we accordingly do so.
Consequently, this Court directs that the possession of the suit
premises be handed over to the appellant, who is admittedly the owner
of the suit property.
103. In the
peculiar facts and circumstances of this case, the legal
representatives of the respondent are granted three months time to
vacate the suit premises. They are further directed that after the
expiry of the three months period, the vacant and peaceful possession
of the suit property be handed over to the appellant. The usual
undertaking to this effect be filed by the legal representatives of
the respondent in this Court within two weeks.
104. The legal
representatives of the respondent are also directed to pay
Rs.1,00,000/- (Rupees one Lakh) per month towards the use and
occupation of the premises for a period of three months. The said
amount for use and occupation be given to the appellant on or before
the 10th of every month. In case the legal representatives of the
respondent are not willing to pay the amount for use and occupation
as directed by this Court, they must hand over the possession of the
premises within two weeks from the date of this judgment. Thereafter,
if the legal representatives of the respondent do not hand over
peaceful possession of the suit property, in that event, the
appellant would be at liberty to get the possession of the premises
by taking police help.
105. As a
result, the appeal of the appellant is allowed. In the facts and
circumstances of the case, the respondents are directed to pay a cost
of Rs.50,000/- to the appellant within four weeks. (We have imposed
the moderate cost in view of the fact that the original respondent
has expired). Ordered accordingly.
..................................J.
(Dalveer
Bhandari) .................................J.
(H.L. Dattu)
.................................J.
(Deepak Verma)
New Delhi;
March 21, 2012
