Shaikh Jaber Abdulah J Ai Sabah vs Ravindra Mukund Chafe & Anr
2013 Latest Caselaw 383 Bom

    jsn                                         1                      NMS No.3262_2010


             IN THE HIGH COURT OF JUDICATURE AT BOMBAY 
                 ORDINARY ORIGINAL CIVIL JURISDICTION




                                                                                     
                      NOTICE OF MOTION NO.3262 OF 2010
                                           IN




                                                             
                              SUIT NO.2955 OF 2010


    Shaikh Jaber Abdulah J AI Sabah                   ...            Plaintiff




                                                            
                Vs.
    Ravindra Mukund Chafe & Anr.                      ...            Defendants




                                                   
    Mr. Haresh Jagtiani, Sr. Advocate, a/w. Ms. Olga Lume-Pereira, Adv. 
    & Ms. Vandana Mehta, Adv. i/b. Yashpal Jain & Mr. Suprabh Jain, 
                               
    Adv. for the Plaintiff.
    Mr. Rohan Cama, Adv., Mr. T.N. Tripathi, Adv. a/w. Sapna Rachure, 
    Adv. i/b. T.N. Tripathi & Co. for the Defendant No.1.
                              
    Mr.   Shailesh   Shah,   Sr.   Counsel,   a/w.   Mamta   Sadh,   Adv.   &   Sunil 
    Jadhav, Adv., i/b. Hemant Deshpande, Adv. for Defendant No.2.

                                       CORAM :   MRS. ROSHAN DALVI, J.
            


    DATE OF RESERVING THE ORDER       :  25th November, 2013
         



    DATE OF PRONOUNCING THE ORDER :19th December, 2013





    O R D E R

1. The Plaintiff has sued for recovery of possession of a flat being flat No. No.6 in Al-Jabriya Court at 69, Marine Drive, Mumbai

400 020 from the Defendants. The Plaintiff is the owner of the suit building. The Plaintiff has relied upon the property register card in that behalf.

2. Defendant No.1 claims through the Plaintiff's erstwhile tenant. Flat No.6 was earlier tenanted to Jayantilal Desai. After his death his wife Urmila J. Desai continued to occupy the flat until her death and after which their daughter Renuka continued to live in the

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suit flat. Jayantilal's contractual tenancy extended to his wife and his daughter as statutory tenants of the Plaintiff under the provisions of

Section 5 (11) (c) of the Bombay Rent Act, 1947 r/w. 7(15) (d) (i) of the Maharashtra Rent Control Act, 1999. The last statutory tenant

Renuka Shah expired on 23rd April, 2010 without leaving behind any heirs and legal representatives leaving with her at the suit flat at the

time of her death.

3. The Plaintiff claims that he is entitled to the revisionary rights in the suit flat. The Plaintiff has sued for recovery of possession

thereafter from the Defendants who are stated to be trespassers. It may be mentioned that in a suit on trespass the Plaintiff need to show

only his title. The claim of the Defendants to possession or to resist the recovery of possession would have to be made by the Defendants

and proved by the Defendants. It must, therefore, be shown by the Defendants prima facie at the interim stage of the suit.

4. It is the Plaintiff's case that Defendant No.1 entered upon a

flat of the last statutory tenant of the Plaintiff on 31 st August, 2010 by

breaking open the lock. Whether or not Plaintiff proves the incident of 31st August, 2010 is purely incidental and subsidiary because

Defendant No.1 claims to be in possession. His claim is that he was in possession not from 31st August, 2010 but since the life time of the last statutory tenant of the Plaintiff. He claims that he lived with her in her flat. He has not produced any documentary evidence in that

behalf for the period prior to the tenant's death. He does not claim blood relationship. He does not claim to be an heir of the deceased statutory tenant. It may at once be stated that in the case of Vasant Pratap Pandit Vs. Dr. Anant Trimbak Sabnis 1994 Mh. L.J. 1450 in paragraph 14 of the judgment it has been held that since the only heir of the tenant living in the tenanted premises at the time of

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demise of the tenant is entitled to be a tenant of the residential premises U/s.5 (11) (c) (I), a statutory tenant cannot be bequeathed a

tenancy right under any testamentary disposition.

5. Defendant No.1 has shown transfer sought to be made by

the deceased statutory tenant in his favour under an unregistered document purporting to be an agreement for transfer dated 10 th

February, 2010 of immovable property on stamp paper of Rs.100/- in the form of letter from the said deceased statutory tenant to Defendant No.1 signed by her and confirmed by Defendant No.1. The

transfer is shown to be for consideration of Rs.50 lacs payable "by such installments as may be mutually agreed upon". Counsel on

behalf of the Plaintiff drew my specific attention to the fact that though the deceased lady lived at Marine Drive, Mumbai stamp paper

has been purchased in her name at Thane.

6. The said deceased statutory tenant is also shown to have executed the last Will and testament on 10 th February, 2010 also on a

stamp paper of Rs.100/- similarly purchased on the same date in the

name of the statutory tenant of the Plaintiff at Thane. The bequest of the entire flat is shown to be made under the Will in favour of

Defendant No.1. The Will is unprobated. Defendant No.1 has applied for probate. The Petition is stated to have been dismissed. The Court is informed by the office that it has been dismissed for want of removal of office objections. It may be at once be stated that even if

the Will is probated the Court would not consider the title of the deceased in the estate sought to be bequeathed by her to Defendant No.1. The title would have to be considered in a civil suit such as the one filed by the Plaintiff.

7. The documents relied upon by the Defendant No.1 are therefore, to no avail. Defendant No.1 cannot show and has not

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shown his title in the suit premises. He has also not actually shown his right or interest in the suit premises consequent upon the total

lack of title. Since he has not claimed to be an heir of the deceased by any blood relationship, he cannot even claim to be a statutory tenant

of the Plaintiff and continue in occupation as before her death. In any event the Defendant No.1 has not produced any documentary

evidence to show his continued residence in the suit flat with the deceased statutory tenant of the Plaintiff prior to her death.

8. Defendant No.1 is shown to reside in a room on the ground

floor of Al-Jabriya Court which is the building in which the suit flat is situate on the 2nd floor. The title of the Plaintiff is not disputed.

9. Defendant No.1 has sought to transfer the property of the Plaintiff which was the tenanted premises of the deceased tenant

within four months of the death of the deceased tenant to Defendant No.2.

10. The transfer is shown by a possession letter signed by

Defendant No.1 and accepted by Defendant No.2 putting him in

possession. The possession letter is dated 10 th July, 2010. Defendant No.2 has filed RAD Suit No.1525 of 2010 on 27 th August, 2010 against

Defendant No.1. Defendant Nos.1 and 2 have filed consent terms in the said suit on 18th October, 2010 declaring Defendant No.2 as the lawful monthly tenant and in possession of the suit flat and the consequential claims.

11. The Plaintiff has justifiably contended that the Defendants are in collusion. The collusion is esoteric. It is not known how long the aftermath of the relationship could last in view of the Plaintiff's ownership and claim to recovery of possession.

12. Defendant No.2 claims to have been issued a single rent receipt. The rent receipt is not admitted by the Plaintiff. It is stated

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to be issued by the CA of the Plaintiff Faizal Essa Yousef (Faizal). It is issued on the rubber stamp of such CA. It is not written or signed by

such CA. The Power of Attorney (POA) executed by the Plaintiff in favour of such CA, Faizal dated 16 th October, 2002 has been revoked

on 28th April, 2010. The authority, therefore, terminated on the date of the revocation. The rent receipt relied upon by the Defendant No.2

is stated to have been executed on 3 rd week of October, 2010 when the POA was already revoked.

13. Defendant No.2 filed criminal complaint against Faizal for

breach of trust and cheating Defendant No.2 in issuing the rent receipt upon accepting consideration of Rs.10 lacs after his authority

was revoked by the principal. In such criminal complaint Defendant No.2 has admitted the Plaintiff's ownership of the building as also the

suit flat.

14. Defendant No.2 has not produced the original receipt in court. It is stated to have been lost. This loss is after the filing of the

Notice of Motion and when the Defendant No.2 was to lead evidence

in respect of the preliminary issue framed in the suit. Counsel on behalf of Defendant No.2 contended that the copy of the receipt be

taken into account by the Court since the original has been lost and the police complaint has been filed in that behalf.

15. Even after the Court would consider the photocopy of the rent receipt as valid secondary evidence, it would not avail Defendant

No.2 in view of his own criminal complaint against the executant of the receipt, Faizal.

16. Defendant No.2 has not been issued any rent receipt other than the aforesaid one rent receipt produced by him. As tenant he is required to pay rent each month and be issued rent receipts from month to month. That is not shown by him.

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17. One copy of a bank statement of the bank account of Defendant No.2 produced by Defendant No.2 makes interesting

reading. The statement of account is in New India Cooperative Bank, Worli, branch bearing account No.SB17891. The statement is from 1 st

April, 2010 to 31st March, 2011 which includes the period of the transaction in the suit. The bank account shows a balance of

Rs.2073/- as the opening balance on 7th April, 2010. It shows various deposits of several thousands of rupees from time to time. It also shows Rs.10 lacs debited on 20 th August, 2010 in favour of Defendant

No.1 after which there is cash credit of Rs.10 lacs. Thereafter it shows a deposit of Rs.20 lacs on 26 th August, 2010 followed by an immediate

withdrawal of the entire amount of Rs.20 lacs on 28 th August, 2010. After various other usual entries (except for one deposit of Rs.5 lacs

on 12th January, 2011 followed by a withdrawal of Rs.4.65 lacs therefrom in favour of Faizal on 15 th January, 2011) the account has credit balance of Rs.1963/- on dated 31st March, 2011. This is much

like the story of Salomon Grundy . The account was almost nothing

in April, 2010. It rose after the debit entry in August, 2010 followed by cash deposit. A week thereafter it had a deposit of Rs.20 lacs in

August which came to be withdrawn in August itself. The account once again came to nothing on 31st March, 2011.

18. Mr. Jagtiani argued that market value of the suit flat is Rs.16 crores. The transaction between the parties shows the transfer

sought to be made by the deceased for Rs.50 lacs followed by a Will which would be without consideration, the bribe paid to Faizal of Rs.10 lacs and the aforesaid entries in the bank account of Defendant No.2 showing payment to Defendant No.1 of Rs.10 lacs and Rs.20 lacs.

19. The Plaintiff's case of ownership is shown as also admitted.

     jsn                                          7                       NMS No.3262_2010


    The Defendants  claim  through  the  Plaintiff    since  they  claim  to be 
    tenants   as   stated   above.     The   Defendants   cannot   challenge   the 




                                                                                       

Plaintiff's ownership and the title of the Plaintiff at the beginning of the tenancy and are estopped from doing so U/s.116 of the Indian

Evidence Act which runs thus :

116. Estoppel of tenant; and of licensee of person in possession. -

No tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the

tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such

immovable property; and no person who came upon any immovable property by the licence of the person in possession thereof, shall be permitted to deny that such

person had a title to such possession at the time when such licence was given.

20. Defendant No.2 claims through the statutory tenant of the

Plaintiff. The Defendants cannot deny the title of the Plaintiff at the

beginning of the tenancy U/s.116 of the Indian Evidence Act.

21. The Defendants have failed to show their claim to tenancy.

Defendant No.1 has failed to show his residence with the deceased statutory tenant of the Plaintiff during her lifetime. The document shown by Defendant No.1 rather than showing his right, title or interest in the suit flat shows a dubious transaction unforceable at law

and which gives Defendant No.1 no right, no title and no interest. Since none can transfer a better title than what he has to another, Defendant No.1 cannot transfer the title of tenancy to Defendant No.2 whatever be the illegal consideration paid for by Defendant No.2.

22. Defendant No.2 has relied upon a single rent receipt thumb impressed by the erstwhile CA of the Plaintiff whose power has been

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revoked. Defendant No.2 has lodged the criminal prosecution in that behalf. Reliance placed by Defendant No.2 upon the rent receipt is,

therefore, not only misplaced but under the knowledge that it is false and executed without authority. The possession claimed by

Defendant No.2 through Defendant No.1 who has not shown himself to be in possession is, therefore, no possession in law. It is merely

unauthorised and wholly illegal occupation of the premises belonging to the Plaintiff and earlier tenanted by the Plaintiff to a tenant whose heirs have expired and whose last surviving heir lived in the suit flat

alone.

23. Much has been stated about the Plaintiff's case under

Section 6 of the Specific Relief Act. Evidence has been led on merits in the application for dealing the preliminary issue. It would come to

nothing as the Plaintiff is the admitted owner of the suit premises.

24. Whether the suit is filed U/s.5 or Section 6, it is for recovery of possession by the owner of the premises. The suit would

have have to be considered on merits upon such a premise. The

mandate laid down by the Supreme Court in the case of Maria Margarida Sequeira Fernandes Vs. Erasmo Jack De Sequeira

(Dead) thru LRs. (2012) 5 Supreme Court Cases 370 and as confirmed in the case of A. Shanmugam Vs. Ariya Kshatriya Rajakula Vamsathu, (2012) 6 Supreme Court Cases 430 would enjoin thus Court to ascertain the truth of the averments of the parties

on merits and carry out the mandate laid down in paragraphs 33 which runs thus :

The truth should be the guiding star in the entire judicial process. 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. Justice

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system will acquire credibility only when people will be convinced that justice is based on the foundation of the truth.

25. Whilst doing that the mandate laid down by the Supreme

Court in the judgment with regard to the distinction between the suit on possession and suit on title in paragraphs 63 must also be followed in a case such as this. Paragraph 63 runs thus :

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.

26.

Similarly, the Supreme Court has observed that the suit by the title holder can be filed either on title, on his possession for an

injunction or under Section 6 of the Specific Relief Act in paragraph 65 and 66 of the judgment which run thus :

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.

27. The further mandate upon the person resisting title holders and claiming possession is further to be noted as laid down in paragraph 68 of the judgment which runs thus :

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

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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

(d) 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

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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.

28. Further directions to Courts are given in paragraph 74 to

deal with insufficient pleadings which would also apply in this case. Paragraph 74 runs thus :

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. 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.

29. The Court also laid down the ambit of due process of law and when it would be satisfied in Paragraph 79 which runs thus:

79. 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.

30. An endemic malaise of our system in filing false claims and false defences have been stated in paragraph 81 which would be of relevance in this matter which runs thus :

81. False claims and defences are really serious problems

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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.

31. The Court then laid down the Court's duty in curtailing and preventing false actions in law and false defences in paragraph 82

under the judgment in the case of Ramrameshwari Devi V. Nirmala Devi, (2011) 8 SCC 249. The relevant part of paragraph 82 runs

thus :

82. This Court in a recent judgment in Ramrameshwari Devi and Ors. (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.

32. For a party wanting to continue in possession the Court laid down the guidelines in paragraph 89 which runs thus :

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89. 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.

33. In the case which was filed U/s.6 of the Specific Relief Act

only on possession and not title against the title holder the Court

considered that the Defendant / Respondent established the case set up by him. In that case the premises belonging to the sister was given

to the brother as caretaker observing that such caretaker held the property of the principal only on behalf of the principal. The Court held that his suit against the true owner U/s.6 was not maintainable

since he should have given back possession to his sister on demand.

With regard to the jurisprudential aspect of possession, the Court upon citing the case of Sham Lal V. Rajinder Kumar, 20 (1994) 30 DRJ 596 set out the aspect of possession in Paragraph 96 which runs

thus :

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

(i) the person possessing,

(ii) the things possessed and,

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(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.

34. Having seen the Plaintiff's title and kind of possession

claimed by Defendant Nos. 1 and 2 and having ascertained the truth of the averments of the parties it can be seen that it matters little

whether a suit is filed by a title holder U/s.5 or U/s.6 of the Specific Relief Act. The Court must see the truth of his claim. The Court must

see the falsity of the opponent's claim. The Court must claim consider the possession in vacuum when it is not sufficiently explained and

proved. Upon seeing the case of the parties and consequently following the due legal process and upon ascertaining that the

defence is false, the Court is duty bound to pass an order to do complete justice to the parties by seeing that none makes a mockery

of the law. Therefore the Court must also consider the value of the property stated by Plaintiff to be Rs.16 Crores which is sought to be purchased by Defendant No.2 for Rs.1.5 Crores upon payment of Rs.10 lacs as bribe for transfer and Rs.20 lacs to Defendant No.1

which corpus case out of the blue in the lean bank account of Defendant No.2.

35. The Plaintiff has applied for relief of recovery of possession, the relief of injunction against the Defendants and their servants and agents from transferring or alienating the suit property, for mesne profits and for appointment of Court Receiver in respect of

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the suit property.

36. Case for appointment of Receiver and grant of injunction is

amply made out. The Court Receiver is appointed in respect of the suit property. The Court Receiver shall recover possession of the suit

property from the Defendants or their servants, agents, family members, associates or any other persons claiming through them.

The Court Receiver shall put the Plaintiff in possession of the suit property as his agent without payment of any royalty but upon security as determined by Court Receiver in accordance with law. The

Plaintiff shall continue as the agent of the Court Receiver pending the suit. The Plaintiff may let out the suit property to any outside person

but only as the agent of the Court Receiver and through the Court Receiver. The person who has let out the suit premises shall pay the

rent of the suit premises as per the market value of the suit premises to the Court Receiver pending the suit.

37. The Defendants shall not sell, alienate or encumber,

transfer or create any third party rights in any manner in respect of

the suit flat pending the suit. The Defendants shall pay costs of this Notice of Motion fixed at Rs.1 lac by each of them to the Plaintiff.

38. Notice of Motion is disposed off accordingly.

39. This order of appointment of Court Receiver is stayed until 8th January, 2014.

( ROSHAN DALVI, J. )