M/S. F. M. Chinoy Pvt. Ltd vs Navin Deju Poojari
2023 Latest Caselaw 11372 Bom

2023:BHC-AS:33844
                                                                                      35-cra-78-2023.doc


                        SA Pathan
                                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                            CIVIL APPELLATE JURISDICTION

                                      CIVIL REVISION APPLICATION NO.78 OF 2023

                        M/s. F. M. Chinoy Pvt. Ltd.                  ... Applicant
    SHABNOOR
                                    V/s.
    AYUB
    PATHAN
    Digitally signed
                        Navin Deju Poojari                           ... Respondent
    by SHABNOOR
    AYUB PATHAN
    Date: 2023.11.06
    18:39:59 +0530




                        Mr. Cyrus Bharucha a/w Mr. Nirav Shah a/w Mr. Akash
                        Kothari a/w Ms. Nisharika Singh i/by Little & Co., for
                        Applicant.



                                                      CORAM    : AMIT BORKAR, J.

                                                      DATED    : NOVEMBER 6, 2023
                        P.C.:

1. By this application under Section 115 of the Code of Civil Procedure, 1908 (for short 'CPC') the applicant original defendant is challenging order passed by the Trial Court rejecting application under Order 7, Rule 11(a) of CPC.

2. The respondent/plaintiff filed Special Civil Suit No.1720 of 2014 seeking a declaration that threat of defendants of dispossessing plaintiff from suit premises be declared as illegal unlawful. However, allotment seeking plaintiff's entitlement to allotment permanent alternative shop in the proposed building be granted and consequential injunction from dispossessing plaintiff from suit premises is also sought. Permanent injunction restraining defendants from carrying out construction over the City Survey

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No.380 is also sought.

3. In the said suit, the defendant filed an application under Order 7, Rule 11 of CPC contending that the plea of undue influence raised by the plaintiff lacks of material particulars/facts. Therefore, in absence of such essential pleadings, there is no cause of action for filing the suit.

4. On meaningful reading of the plaint, it appears that according to plaintiff, he is in possession of shop for 25 years before the filing of suit. The plot belongs to Mumbai Municipal Corporation. However, under the grant of development without providing permanent alternative accommodation.

5. In so far as right of a person to prove his possession is concerned. The law is well settled in view of judgment in the case of Rame Gowda (Dead) by LRs v. M. Varadappa Naidu (Dead) by LRs & Anr. reported in (2004) 1 SCC 769. The Apex Court in paragraph 9 of the judgment has laid down parameters to adjudicate on the issue of settled position. It is well settled that for the purpose of construing cause of action. The averments made in the plaint along with documents annexed along with plaint that are required to be taken into consideration. Paragraph 9 reads thus:

"9. It is the settled possession or effective possession of a person without title which would entitle him to protect his possession even as against the true owner. The concept of settled possession and the right of the possessor to protect his possession against the owner has come to be settled by a catena of decisions. Illustratively, we may refer to Munshi

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Ram v. Delhi Admn. (AIR 1968 702 : (1986) 2 SCR 455 : 1968 Cri LJ 806), Puran Singh v. State of Punjab ((1975) 4 SCC 518 : 1975 SCC (Cri.) 608), Ram Rattan v. State of U.P. ((1977) 1 SCC 188 : 1977 SCC (Cri.) 85). The authorities need not be multiplied. In Munshi Ram case , it was held that no one, including the true owner, has a right to dispossess the trespasser by force if the trespasser is in settled possession of the land and in such a case unless he is evicted in the due course of law, he is entitled to defend his possession even against the rightful owner. But merely stray or even intermittent acts of trespass do not give such a right against the true owner. The possession which a trespasser is entitled to defend against the rightful owner must be settled possession, extending over a sufficiently long period of time and acquiesced to by the true owner. A casual act of possession would not have the effect of interrupting the possession of the rightful owner. The rightful owner may re- enter and reinstate himself provided he does not use more force than is necessary. Such entry will be viewed only as resistance to an intrusion upon his possession which has not matured into settled possession, can be obstructed or removed b y the true owner even by using necessary force. In Puran Singh case the Court clarified that it is difficult to lay down any hard-and-fast rule as to when the possession of a trespasser can mature into settled possession. The "Settled possession" must be (i) effective, (ii)) undisturbed, and (iii) to the knowledge of the power 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 to a straitjacket. An occupation of the property by a person as an agent or a servant acting at the instance of the owner will amount amount to actual physical possession. The Court laid down the following tests which may be adopted as a working rule for determining the attributes of "settled possession" (SCC p. 527, para 12): (i) that the trespasser must be in

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actual physical possession of the property over a sufficiently long period; (ii) that the possession must be to the knowledge (either express or implied) of the owner or without any attempt at concealment by the trespasser and which contains an element of animus possidendi. The nature of possession of the trespasser would, however, be a matter to be decided on the facts and circumstances of each case;

(iii) the process of dispossession of the true owner by the trespasser must be complete and final and must be acquiesced to by the true owner; and

(iv) that one of the usual tests to determine the quality of settled possession, in the case of culturable land, would be whether or not the trespasser, after having taken possession, had grown any crop. If the crop had been grown by the trespasser, then even the true owner, has no right to destroy the crop grown by the trespasser and take forcible possession."

6. Merely because the plaintiff pleaded in the plaint that the defendant is trying to dispossess the plaintiff by using force, pleadings as required under Order 6, Rule 4 of CPC giving details of fraud misrepresentation or collusion is not necessary.

7. The substances of the case is that the plaintiff being in settled position, his possession cannot be disturbed without following due process of law.

8. Apart from reliefs in the nature of grant of alternative accommodation is also prayed. Whether finally plaintiff will be entitled such relief or not is an issue which the Trial Court needs to be decided after granting parties opportunity to lead evidence. However, at its threshold, such a plaint cannot be rejected under Order 7, Rule 11 (a) of CPC. Therefore, there is no error of

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jurisdiction.

9. The writ petition stands dismissed. No costs.

(AMIT BORKAR, J.)