Shri Sawwad Ali vs Sri Rajesh Kumar And 2 Others
2019 Latest Caselaw 5141 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

AFR
 
Court No. - 22
 

 
Case :- SECOND APPEAL No. - 242 of 2005
 

 
Appellant :- Shri Sawwad Ali
 
Respondent :- Sri Rajesh Kumar And 2 Others
 
Counsel for Appellant :- Mohammad Saeed-Ii
 
Counsel for Respondent :- H.A.B. Sinha,Mohd.Arif Khan
 

 
Hon'ble Ved Prakash Vaish,J.

1. Heard Sri Mohd. Saeed-II, learned counsel for the appellant and Sri Mohd. Arif Khan, Senior Advocate assisted by Sri Mohd. Aslam Khan, learned cousnel for the respondents.

2. The appellant, by filing present second appeal under Section 100 of the Code of Civil Procedure (hereinafter referred to as "C.P.C."), assails the judgment and decree dated 19.05.2005 passed by learned District Judge, Unnao, in Civil Appeal No.37 of 2001, whereby the appeal filed by the appellant was dismissed.

3. The facts giving rise to the present appeal are that the appellant-plaintiff filed a suit for permanent injunction, bearing Regular Suit No.372 of 1999 titled as Sawwad Ali vs. Rajesh Kumar and others, restraining the respondents-defendants from forcibly dispossessing him except in due process of law. The case of the appellant-plaintiff was that he is a tenant in a shop situated in Mohalla Naseemganj, Kasba Bangarmau, Tehsil Safipur, District Unnao, on a monthly rent of Rs.150/- since 1992, the appellant is carrying on business of repairing of motorcycles in the said shop; the disputed shop was constructed in the

year 1981-1982, the appellant-plaintiff had taken the disputed shop on rent from the father of respondents-defendants and a sum of Rs.5,000/- was deposited as a security on the condition that the amount will be paid to the appellant-plaintiff at the time of vacating the disputed shop. It was also averred that the appellant-plaintiff paid rent to the father of the respondents-defendants but no rent receipt was issued to him, after the death of father of the respondents-defendants, rent was paid to the respondents-defendants and the rent has been paid till June 1999. It was also averred that when the appellant-plaintiff demanded the rent receipt, father of the respondents-defendants stated that there is some dispute regarding the ownership of disputed shop, and therefore, no rent receipt was issued. It was further averred that in the Ist week of July, 1999 when the appellant-plaintiff paid the rent, the respondents-defendants asked the appellant-plaintiff to vacate the disputed shop as the respondents wanted to reconstruct the disputed shop as well as other shops. When the appellant-plaintiff demanded back security amount of Rs.5,000/- which was given by him, the respondents became annoyed, and therefore, threatened to take forcibly possession of the disputed shop. Hence, the appellant filed a suit for permanent injunction.

4. The respondents-defendants contested the suit by filing the written statement. The respondents-defendants, inter alia, stated that the appellant-plaintiff was never tenant in the disputed shop nor he took the disputed shop on rent from the father of the respondents-defendants in the year 1992 on a monthly rent of Rs.150/-. It was stated by the defendants that prior to the year 1992 eye site of the father of the respondents-defendants was very weak, he was seriously ailing. The respondents-defendants denied that a sum of Rs.5,000/- was paid by the appellant-plaintiff to the father of the respondents-defendants as a security amount. The respondents-defendants also denied that the appellant-plaintiff made payment of rent till June, 1999. The respondents-defendants stated that the

appellant-plaintiff was carrying on work of repairing of motorcycles and scooters in the Gumti which was kept on the side of the road; the appellant requested to use the disputed Kothari for parking motorcycles and scooters during night. The respondents acceded to the request of the appellant-plaintiff and permitted him to keep his motorcycles and scooters during night in the disputed kothari on the condition that when they would construct the house, he will have to remove his motorcycles and scooters; the appellant-plaintiff agreed to the same. When the respondents requested the appellant to remove his motorcycles and scooters from the disputed kothari, the appellant started demanding huge amount.

5. The appellant-plaintiff filed replication, denied the allegations made in the written statement and reiterated the plea taken in the plaint.

6. On the pleadings of the parties, following issues were framed by learned trial court:-

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7. In support of his case, the appellant examined Sawwad Ali (plaintiff) as PW-1, Malhu as PW-2 and Abdul Rashid as PW-3. However, Malhu (PW-2) did not appear for cross-examination. The respondents-defendants examined Rajesh Kumar as DW-1 and Radhey as DW-2.

8. By judgment and decree dated 26.02.2001, the suit was dismissed by learned Additional Civil Judge (Senior Division), Unnao. Against the said judgment and decree, the appellant-plaintiff filed a Civil Appeal bearing No.37 of 2001 titled as Sawwad Ali vs. Rajesh Kumar and others, the said appeal was dismissed by learned Additional District Judge, Unnao vide impugned judgment and decreed dated 19.05.2005.

9. Feeling aggrieved by the said judgment and decree, the appellant has filed the present second appeal under Section 100 of the C.P.C.

10. Vide order dated 14.05.2019, the appeal was admitted on the following substantial question of law:-

"Whether the courts' below are justified in dismissing the suit of the appellant even after holding that the appellant is in possession of the disputed shop?"

11. Learned counsel for the appellant submitted that the plaintiff took the disputed shop on rent on a monthly rent of Rs.150/- from father of the respondents in the year 1992, the appellant had been paying rent to the father of the respondents and after his death the rent was paid to the respondents but no rent receipt was ever issued. Learned counsel for the appellant submits that the appellant was in possession on the disputed shop, hence he was entitled to the decree for permanent injunction. The defendants cannot dispossess without due process of law.

12. On the other hand, learned Senior Counsel for the respondents submitted that the appellant is not a tenant in the disputed shop (Kothari), the appellant was carrying on business of repairing of motorcycles and scooters in the Gumti which is lying on the side of road and on the request of the appellant he was permitted to keep motorcycles and scooters in the disputed shop (Kothari). He further submitted that the respondents had clearly informed to the appellant to keep the motorcycles and scooters in the disputed shop (Kothari) during night, the appellant-plaintiff assured that when the respondents would reconstruct the house, the appellant will vacate the disputed shop (Kothari).

13. Learned Senior Counsel for the respondents also submitted that the appellant was neither a tenant in the disputed shop nor any rent receipt was issued to the appellant and the appellant had not paid a sum of Rs.5,000/- towards security to the father of the respondents-defendants.

14. I have carefully considered the submissions made by learned counsel for the parties. I have also gone through the material available on record.

15. Dealing with possession, in Chapter 9, Salmond On Jurisprudence (12th Edition), states that few relationships are as vital to man as that of possession, and we may expect any system of law, however primitive, to provide rules for its protection. Possession of material things is essential to life, it is the most basic relationship between men and things.

16. Elaborating the concept of possession, at page 266, the learned author has opined:-

"But the concept of possession is as difficult to define as it is essential to protect. In the first place, possession is an abstract notion and involves the same sort of difficulties, which we have seen to arise with other abstract terms such as "law" and "rule". There is nothing which we can point at and identify as possession in the same way as we can do with concrete things such as tables and chairs. Moreover, it is an abstract term to which the traditional type of definition is as inappropriate as we saw it to be for the term "rule". Just as we could not locate the notion of a rule within some wider class of concepts, so too with possession we cannot define it by placing it in a wider class and then distinguishing it from other members of the class; for possession is, it would seem, is a class of its own.

A second cause of difficulty is the fact that possession is not purely a legal concept. Our discussion of ownership showed that possession differs from ownership in that the former is of temporary duration whereas the latter is of a more permanent, ultimate and residuary nature. But possession differs from ownership in another quite different respect. Ownership, as we saw, consists of a combination of legal rights, some or all of which may be present in any particular instance; and such rights imply the existence of legal rules and a system of law. With possession this is not so. A possessor is not so much one who has certain rights as one who actually has possession. Whether a person has ownership depends oil rules of law; whether he has possession is a question that could be answered as a matter of fact and without reference to law at all. The notion of possession has application in a pre-legal society, and even perhaps outside society altogether. Of course in so far as statements about possession are statements of law, then they imply the existence of that law, but the existence of possession is independent of, and prior to that of law. Whereas ownership is strictly a legal concept, possession is both a legal and a non-legal or pre-legal concept."

17. At page 274, the learned author has opined that in a civilized society some protection of possession is essential. There are two methods of protecting the possession. Firstly, the possessor can be given certain legal rights, such as a right to continue in possession free from interference by others. Secondly, the law can protect possession by prescribing criminal penalties for wrongful interference and wrongful dispossession.

18. In relation to the former i.e., the first method by which law can protect possession, the learned author opines that the possessory right in rem can be supported by various sanctioning rights in personam against those who violate the possessor's right: he can be given a right to recover compensation for interference and for dispossession, and a right to have his possession restored to him.

19. The learned author goes on to explain that whenever such remedies are invoked, it will be important to ascertain whether a person invoking them actually has any possession to be protected. Consequently, a legal criteria has to be evolved to determine whether a person is in possession of an object.

20. But, legal concept of possession is not restricted to the commonsense concept of possession, namely physical control. Possession in fact is not a simple notion. The question whether in fact a person is in possession of an article depends on various factors such as the nature of the article itself and the attitudes and activities of other persons.

21. Possession may be lawful, it may be unlawful. It may be legal or illegal. The acquisition of legal possession would obviously be lawful and would of necessity involve the occurrence of some event recognized by law whereby the subject matter falls under the control of the possessor.

But a problem arises where the duration for which possession is recognized is limited by the grantor or the law. Continuance of possession beyond the period specified by the grantor or recognized by law is not treated as a lawful possession. For example, a tenant acquires legal as well as lawful possession of the tenanted premises from the landlord with the express consent of the landlord but limited to the duration of the lease. On expiry of the lease, if the landlord does not consent to the lease being continued, the possession of such tenant would not be a lawful possession. The nature of possession being not lawful would entitle the landlord to regain possession.

22. From a commonsense point of view, lawful possession must be the state of being a possessor in the eyes of law. The possession must be warranted or authorized by the law; having the qualifications prescribed by law and not contrary to nor forbidden by the law.

23. But law recognizes possession as a substantive right or an interest. Continued possession of a person is recognized by law as a sufficient interest capable of being protected by the possessor, right being founded on mere fact of possession.

24. Salmond On Jurisprudence (12th Edition), page 294, while discussing possessory remedies has noted that in English law, possession is a good title of right against anyone who cannot show a better title. Thus, a possessor, including a wrongful possessor, has the rights of an owner with respect to all persons except the true owner. Many legal systems go much further and treat possession as a provisional or temporary title even against the true owner. A wrongdoer who is deprived of his possession can recover it from any person whatsoever, simply on the ground of his possession and where the true owner uses force to throw out the wrongdoer, these legal systems do not permit the true owner to set up his superior title to protect the possession which was regained by force. He is compelled to give up possession and then proceed in due course of law for the recovery of the thing on the strength of his ownership.

25. In the latter legal systems, the intention of the law is that every possessor shall be entitled to retain and recover his possession until deprived of it by an action according to law.

26. Legal remedies for protection of possession even against ownership are called possessory. Legal remedies for protection of possession or regaining possession based on ownership (title) are proprietary. In the modern and medievous civil law, the distinction is expressed by the contrasted terms petitorium (a proprietary suit) and possessorium (a possessory suit).

27. Extended to the extreme it would mean: he who helps himself by force even to that which is his own must restore it even to the thief and recover the same as per a recognized legal procedure.

28. Law in India, as it has developed, accords with the jurisprudential thought as propounded by Salmond. In 'Midnapur Zamindary Co. Ltd. vs. Kumar Naresh Narayan Roy and others', AIR 1924 Privy Council 144, the Privy Council summed up the Indian law by stating that in India persons are not permitted to take forcible possession; they must obtain such possession as they are entitled to through a Court.

29. The Hon'ble Supreme Court in another case 'Lallu Yeshwant Singh (dead) by his legal representative vs. Rao Jagdish Sinh and others', AIR 1968 SC 620 it was held that a landlord did commit trespass when he forcibly entered his own land in the possession of a tenant whose tenancy has expired. The Court turned down the submission that under the general law applicable to a lessor and a lessee there was no rule or principle which made it obligatory for the lessor to resort to Court and obtain an order for possession before he could eject the lessee. In the said case, the Hon'ble Supreme Court quoted with approval the law as stated

by a Full Bench of the Allahabad High Court in 'Yar Muhammad and another vs. Lakshmi Das and others', AIR 1959 Allahabad 1 (FB) as under:-

""12........."No question of title either of the plaintiff or of the defendant can be raised or gone into in that case (under Section 9 of the Specific Relief Act). The plaintiff will be entitled to succeed without proving any title on which he can fall back upon and the defendant cannot succeed even though he may be in a position to establish the best of all titles. The restoration of possession in such a suit is, however, always subject to a regular title suit and the person who has the real title or even the better title cannot, therefore, be prejudiced in any way by a decree in such a suit. It will always be open to him to establish his title in a regular suit and to recover back possession."

The High Court further observed:

"Law respects possession even if there is no title to support it. It will not permit any person to take the law in his own hands and to dispossess a person in actual possession without having recourse to a court. No person can be allowed to become a judge in his own cause. As observed by Edge, C.J., in Wali Ahmed Khan v. Ayodhya Kundu (1891) ILR 13 All 537 at p. 556:

"The object of the section was to drive the person who wanted to eject a person into the proper court and to prevent them from going with a high hand and ejecting such persons.""

30. The Apex Court in the case of 'Krishna Ram Mahale (dead) by his Lrs vs. Mrs. Shobha Venkat Rao', AIR 1989 SC 2097, after relying upon the judgment in Lallu Yeshwant Singh's case (supra) observed that it is a well-settled law in this country that where a person is in settled possession of property, even on the assumption that he had no right to remain on the property, he cannot be dispossessed by the owner of the property except by recourse to law.

31. In another case 'Nair Service Society Ltd., vs. K.C. Alexander and others', AIR 1968 SC 1165, the Hon'ble Supreme Court observed that a person in possession of land in assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. The Hon'ble Supreme Court quoted loft's maxim- "Possessio contra omnes valet praeter eur cui ius sit possessionis (he that hath possession hath right against all but him that hath the very right)".

32. In the case of 'M.C. Chockalingam and others vs. V. Manickavasagam and others', (1974) 1 SCC 48, the Hon'ble Supreme Court held that law forbids forcibly dispossession, even with the best of title.

33. Further, in the case of 'Krishan Ram Mahale (dead) by LRs. vs. Shobha Venkat Rao', (1989) 4 SCC 131 it was held that where a person is in settled possession of property, even on the assumption that he had no right to remain on the property, he cannot be dispossessed by the owner of the property except by recourse to law.

34. In another case 'Nagar Palika, Jind vs. Jagat Singh, Advocate', (1995) 3 SCC 426, it was held that disputed questions of title are to be decided by due process of law but the peaceful possession is to be protected from a trespasser without regard to the question of the origin of the possession. Such suit can be entertained and decreed only where both the plaintiff and the defendant have no title to the suit land, but as the plaintiff proves his prior possession, because of that he is entitled to a decree for possession against the defendant who has dispossessed him. The plaint of such a suit must aver only previous possession and dispossession by the defendant.

35. In 'Munshi Ram and others vs. Delhi Adminstration', AIR 1968 SC 702 it was held;

"14. It is true that no one including the true owner has a right to dispossess the trespasser by force if the trespasser is in settled possession of the land and in such a case unless he is evicted in due course of law he is entitled to defend his possession even against the rightful owner. But stray or even intermittent acts of trespass do not give such a right against the true owner. The possession which a trespasser is entitled to defend against the rightful owner must be a settled possession extending over a sufficiently long period and acquiesced in by the true owner. A casual act of possession would not have the effect of interrupting the possession of the rightful owner. The rightful owner may re-enter and reinstate himself provided he does not use more force than necessary. Such entry will be viewed only as resistance to an intrusion upon possession which has never been lost. The persons in possession by a stray act of trespass, a possession which has not matured into settled possession, constitute an unlawful assembly, giving right to the true owner, though not in actual possession at the time to remove the obstruction even by using necessary force."

36. In the case of 'Ramesh Chand Ardawatiya vs. Anil Panjwani', (2003) 7 SCC 350, Hon'ble Supreme Court observed that a person in possession may not have title to the property yet if he has been inducted into possession by the rightful owner and is in peaceful and settled possession of such property he is entitled in law to protect the possession until dispossessed by due process of law by a person having a better title then what he has.

37. It is difficult to lay down any hard and fast rule as to when a possession of the trespasser can mature into settled possession. The "settled possession" must be (i) effective, (ii) undisturbed, and (iii) to the knowledge of the owner or without any attempt at concealment by the trespasser. The phrase settled possession does not carry any special charm or magic in it; nor is it a ritualistic formula which can be confined in a straight jacket. 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.

38. Thus, the law discourages people from taking the law into their own hands, howsoever good and sound their title may be. It is clear that the law respects peaceful and settled possession. The right of the possessor to protect his possession against the owner has come to be settled by a catena of decisions. The person in peaceful possession is entitled to retain his possession. It is a settled possession or effective possession of a person without title which would entitle him to protect his possession.

39. What does the phrase 'due course of law' mean. In the case of 'East India Hotels Ltd. vs. Syndicate Bank', 1992 Supp. (2) SCC 29, Hon'ble Supreme Court observed as under:-

"30. What is meant by due course of law? Due course of law in each particular case means such an exercise of the powers by duly constituted tribunal or court in accordance with the procedure established by law under such safeguards for the protection of individual rights. A course of legal proceedings according to the rules and principles which have been established in our system of jurisprudence for the enforcement and protection of private rights. To give such proceedings any validity, there must thus be a tribunal competent by its constitution, that is by law of its creation, to pass upon the subject matter of the suit or proceedings; and, if that involves merely a determination of the personal liability of the defendant, it must be brought within its jurisdiction by service of process within the State, or his voluntary appearance. Due course of law implies the right of the person affected thereby to be present before the tribunal which pronounces judgment upon the question of life, liberty or property in its most comprehensive sense; to be heard, by testimony or otherwise, and to have the right determination of the controversy by proof, every material fact which bears on the question of fact or liability be conclusively proved or presumed against him. This is the meaning of due course of law in a comprehensive sense."

40. In the present case, both the courts below have dismissed the suit on the ground that the appellant failed to establish that he is a tenant in the disputed shop and no rent receipt has been proved on record. The first appellate court dismissed the appeal on the ground that the appellant is not a tenant in the disputed shop and his possession over the shop in question was permissive for a limited period which had expired.

41. It is not disputed by the respondents that the appellant is in possession of the disputed shop (kothari). However, the only question remains is in what capacity, the appellant is in possession of the disputed shop, whether the appellant is in occupation of the disputed shop as a tenant or a licensee? In my considered view, the status of the appellant will have to be kept open to be determined in the appropriate proceedings. In the present suit for injunction simplicitor, it is not necessary to decide

status of the appellant.

42. In view of the above discussion, the appeal is allowed, impugned judgment and decree dated 19.05.2005 passed by learned Additional District Judge, Unnao, in Civil Appeal No.37 of 2001 and judgment and decree dated 26.02.2001 passed by learned Additional Civil Judge (Senior Division) Unnao in Suit No.372 of 1999 are set aside. The respondents are restrained from forcibly dispossessing the appellant from the disputed shop (Kothari) except in due process of law.

43. No order as to costs.

44. Interim application, if any, stands disposed of.

45. Lower court record be sent back forthwith.

(Ved Prakash Vaish)

Judge

Order Date :- 29.5.2019

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