Naseema Begum vs Mohd Javed & Ors.
2013 Latest Caselaw 3792 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                     Order delivered on: August 29, 2013

+                         C.R.P. No.166/2011

      NASEEMA BEGUM                                        ..... Petitioner
                  Through              Mr.Brahm S. Nagar, Adv.

                          versus

      MOHD JAVED & ORS.                                       ..... Respondents
                   Through             None

      CORAM:
      HON'BLE MR. JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J. (ORAL)

1. The present petition under Section 115 CPC has been filed by the petitioner against the Judgment and Order dated 23rd August, 2011/7th October, 2011 passed by ASCJ-JSCC-GJ (Central), Tis Hazari Courts, Delhi whereby the learned Trial Court dismissed the suit filed by the petitioner for possession under Section 6 of the Specific Relief Act and for permanent injunction in respect of the property bearing no. 7505 (part of property/house bearing Municipal No. 7503 to 7506), Qassabpura, Sadar Bazar, Delhi-06 (hereinafter referred to as "the suit property").

2. It is stated by the petitioner that the suit property belongs to her and she has had constructive possession thereof through respondent No.7, her tenant and the petitioner was illegally, without her consent, without following due course of law, dispossessed from the suit property when the respondents No. 1 to 6 took possession of the suit property, illegally,

from respondent No. 7. In view thereof the petitioner filed a civil suit for possession as well as permanent injunction against the respondents.

3. The suit was dismissed by the learned trial court vide the impugned order with respect to the relief of possession and partly decreed with respect to the relief of permanent injunction restraining the respondents No. 1 to 6 from adding, altering, alienating or parting with the possession of the suit property to any third party.

4. It was stated by the petitioner that she had filed an eviction petition against the respondent No.7 which was pending adjudication at the time of filing the said suit while respondent No.7 had also filed a suit for permanent injunction against the petitioner which was however dismissed as withdrawn in view of the statement by the respondent No.7 that respondent no.7 has handed over the possession of the suit premises to the alleged owners i.e. respondents No. 1 to 6. In another suit for permanent injunction filed by the petitioner against the respondent No.7 for restraining him from subletting or parting with the suit premises, the respondent No.7 was stated to have filed a deed of surrender of tenancy. In the eviction petition, the respondents No. 1 to 6 had filed an application under Order 1 Rule 10 CPC claiming themselves to be the owner of the suit premises and also mentioning that they had been put in possession thereof by the respondent No.7

5. While deciding the matter on issues so framed, amongst the other issues, on the issue as to whether the suit is maintainable under Section 6 of the Specific Relief Act, on one hand the respondents No. 1 to 6 contended that for applicability of the said section, it was necessary for the petitioner to establish that she was in actual possession of the suit

premises and was forcibly dispossessed and that the action was brought within six months from the date of possession. On the other hand petitioner contended that dispossession of respondent No. 7 was actually her dispossession without her consent and other ingredients being satisfied, the suit is maintainable. It was further contended by the Respondents No. 1 to 6 that the respondent no.7 was actually paying rent to their father Mohd. Ismail and as such the possession of the suit premises was not with the petitioner. On consideration of the material placed on record, it was observed by the learned trial court that petitioner was in the constructive possession of the suit premises however, there was no dispossession of respondent No. 7 has he himself had surrendered the possession to respondent Nos. 1 to 6 by way of a surrender deed, therefore it was opined that section 6 of the Specific Relief Act was not applicable. It was observed that even otherwise since the matter pertained to tenancy covered under the provisions of the Delhi Rent Control Act (hereinafter referred to as "the DRC Act") and the fact that respondent No.7 had given the possession of the suit premises to the respondents No. 1 to 6, within the meaning of the DRC Act the respondent No. 7 had either created sub-tenancy or assigned and parted with the possession of the suit property to the respondents No. 1 to 6. Accordingly by virtue of section 50 of the DRC Act, the civil suit was barred under the provisions of the DRC Act. Accordingly the suit was dismissed with regard to the relief of possession as the possession was taken of the suit property from the respondent no.7. As for the relief of injunction, the suit was decreed in favour of the petitioner.

6. Aggrieved by the dismissal, the petitioner has filed the present petition on the ground that the impugned order was passed in a hasty and laconic manner and suffers from material irregularity and wrongful exercise of jurisdiction.

7. Learned counsel appearing on behalf of petitioner has referred following two decisions of the Supreme Court in support of his submission :

a) Nagar Palika, Jind Vs. Jagat Singh, Advocate, (1995) 3 SCC 426. Relevant para 9 reads as under :

"9. We fail to appreciate as to how the principle of Section 6 of the Specific Relief Act, 1963 can be applied in the facts and circumstances of the present case. The respondent, who was the plaintiff, never alleged that he had been dispossessed by the appellant Municipal Committee. On the other hand, he claimed to be the owner of the land in question and asserted that he was in possession over the same. He sought for permanent injunction restraining the appellant from interfering with his possession. Both the parties led evidences in support of their respective claims including on the question of title."

b) Sadashiv Shyama Sawant (Dead) Thr. LRs & Ors. Vs. Anita Anant Sawant, 2010 (3) SCC 385. Relevant paras read as under : "18. As noticed above, the views of the High Courts differ about maintainability of suit for possession by the landlord under Section 9 of 1877 Act in respect of property let out to the tenant who has been dispossessed forcibly by a third party. That language of Section 6(1) of the Act and first paragraph of Section 9 of 1877 Act is exactly identical admits of no doubt. The key words in Section 6(1) are "dispossessed" and "he or any person claiming through him". A person is said to have been dispossessed when he has been deprived of his possession; such deprivation may be of actual possession or legal possession. Possession in law follows right to possession. The right to

possession, though distinct from possession, is treated as equivalent to possession itself for certain purposes.

19. In Halsbury's Laws of England (4th Edn., Vol. 35, p. 617, Para 1111), "physical and legal possession" is distinguished as under:

"1111. Physical and legal possession distinguished.- „Possession' is a word of ambiguous meaning, and its legal senses do not coincide with the popular sense. In English law it may be treated not merely as a physical condition protected by ownership, but as a right in itself. The word „possession‟ may mean effective, physical or manual control, or occupation, evidenced by some outward act, sometimes called de facto possession or detention as distinct from a legal right to possession......

`Possession' may mean legal possession: that possession which is recognized and protected as such by law. The elements normally characteristic of legal possession are an intention of possessing together with that amount of occupation or control of the entire subject matter of which it is practically capable and which is sufficient for practical purposes to exclude strangers from interfering. Thus, legal possession is ordinarily associated with de facto possession; but legal possession may exist without de facto possession, and de facto possession is not always regarded as possession in law. A person who, although having no de facto possession, is deemed to have possession in law is sometimes said to have constructive possession"

20. Pollock and Wright in their classic work, An Essay on Possession in the Common Law (1888 Edn., p 27) explained the nature of possession, inter alia, as follows:

"Right to possess or to have legal possession. - This includes the right to physical possession. It can exist apart from both physical and legal possession; it is, for example, that which

remains to a rightful possessor immediately after he has been wrongfully dispossessed. It is a normal incident of ownership or property, and the name of `property' is often given to it....

Right to possess, when separated from possession, is often called „constructive possession.‟ The correct use of the term would seem to be coextensive with and limited to those cases where a person entitled to possess is (or was) allowed the same remedies as if he had really been in possession"

21. A landlord by letting out the property to a tenant does not lose possession as he continues to retain the legal possession although actual possession, user and control of that property is with the tenant. By retaining legal possession or in any case constructive possession, the landlord also retains all his legal remedies. As a matter of law, the dispossession of tenant by a third party is dispossession of the landlord. The word "dispossessed" in Section 6(1) must be read in this context and not in light of the actual possession alone. If a tenant is thrown out forcibly from the tenanted premises by a trespasser, the landlord has implied right of entry in order to recover possession (for himself and his tenant). Similarly, the expression "any person claiming through him" would bring within its fold the landlord as he continues in legal possession over the tenanted property through his tenant.

22. As a matter of fact, on plain reading of Section 6(1), it is clear that besides the person who has been dispossessed, any person claiming through him can also file a suit seeking recovery of possession. Obviously, a landlord who holds the possession through his tenant is competent to maintain suit under Section 6 and recover possession from a trespasser who has forcibly dispossessed his tenant. A landlord when he lets out his property to the tenant is not deprived of his possession in the property in law. What is altered is mode in which the landlord held his possession in the property inasmuch as the tenant comes into physical possession while the landlord retains possession through his tenant.

23. The view of Calcutta High Court that where the tenant was forcibly ejected from the land by the third party, it may reasonably be held that landlord has also been dispossessed is the correct view. We find ourselves in agreement with the view of Bombay, Patna, Pepsu and Rajasthan High Courts and hold, as it must be, that there is nothing in Section 6 of the Act to bar a landlord from suing a trespasser in possession even when, at the date of dispossession, the property is in actual occupation of a tenant entitled to possession. The views expressed by Madras High Court in Veeraswami Mudali and Ramamanemma and by Nagpur Judicial Commissioner in the case of Ramchandra4 do not lay down the correct law."

8. After having considered the said decisions, I am of the view that the matter requires consideration.

9. Admit. Trial court record is added.

10. List the matter in the second week commencing from 7th October, 2013 in regular list as per its priority.

(MANMOHAN SINGH) JUDGE AUGUST 29, 2013