Delhi High Court

Shri Puran Chand Khandelwal & Anr. vs Shri Kewal on 18 November, 2014

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                 C.M.(M) No.1525-26/2006

%                                                       18th November, 2014

SHRI PURAN CHAND KHANDELWAL & ANR.             ..... Petitioners
                 Through: Mr. Prakash Gautam, Advocate.


                          Versus
SHRI KEWAL                                                  ..... Respondent

                          Through:       Mr. Vishal Bhatnagar, Advocate.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1. At the outset, at the request made on behalf of the petitioners,

this petition is treated instead of as a petition under Article 227 of the

Constitution of India invoking which provision the petition has been filed,

instead as a petition under Section 115 of the Code of Civil Procedure, 1908

(CPC) because the impugned judgment which is challenged is the judgment

of the civil court dismissing the suit of the petitioners/plaintiffs under

Section 6 of the Specific Relief Act, 1963.

2. The present revision petition is filed impugning the judgment of

the trial court dated 4.7.2006 which has dismissed the suit of the

petitioners/plaintiffs under Section 6 of the Specific Relief Act, 1963.

Petitioners/plaintiffs claimed to have been illegally dispossessed on 6.1.2001

from the suit property being shop no.2, building no.H-44, Rajouri Garden,

New Delhi. The case of the petitioners/plaintiffs is not based on title but is

based on possession of the suit property till 6.1.2001 and the

petitioners/plaintiffs claim that since they were in peaceful settled possession

of the suit property, they could not have been illegally dispossessed by the

respondent/defendant by using force on 6.1.2001. The case of the

respondent/defendant however was that in the suit property there was one

tenant by the name of Sh. B.L. Kalra (referred to as B.L.K. in the impugned

judgment). Respondent/defendant had filed an eviction petition against Sh.

B.L. Kalra on 21.4.1999 on the ground of subletting of the premises by Sh.

B.L. Kalra in favour of the present petitioner no.1. In that petition, Sh. B.L.

Kalra appeared and informed the court that he had already handed over

possession to the petitioner no.2/plaintiff no.2 through her attorney being

petitioner no.1/plaintiff no.1 and thereafter Sh. B.L. Kalra absented himself

in the eviction petition proceedings. An exparte eviction decree was passed

in favour of the respondent/defendant on 23.10.2000 by the court of

Additional Rent Controller, Delhi. Respondent/defendant then filed an

execution petition bearing no.61/2000 and when the petitioner no.1/plaintiff

no.1 came to know of this he filed objections under Section 25 of the Delhi

Rent Control Act, 1958 against execution of the decree dated 23.10.2000.

These objections (Ex.PW1/V) were filed by the petitioner no.1/plaintiff no.1

on 23.12.2000 but these objections were ultimately not pursued and hence

were dismissed as withdrawn on 16.2.2002. The respondent/defendant in

the meanwhile in execution of the judgment and decree dated 23.10.2000 is

stated to have taken possession through court bailiff on 14.12.2000,

however, the respondent/defendant states that the petitioner no.1/plaintiff

no.1 again illegally took possession and consequently when the police failed

to register an FIR against the petitioner no.1/plaintiff no.1,

respondent/defendant filed a writ petition before this Court and on which

petition being allowed the FIR no.9/2001 was registered against petitioner

no.1/plaintiff no.1 on 4.1.2001 and to avoid the consequences of the FIR

petitioner no.1/plaintiff no.1 surrendered peaceful possession of the suit

property to the respondent/defendant on 6.1.2001. The petitioners/plaintiffs

on the contrary claim that there is no question of surrendering peaceful

possession to the respondent/defendant on 6.1.2001 especially if the FIR

against the petitioner no.1 was not withdrawn.

3. After completion of pleadings, the trial court framed the

following issues:-

" 1. Whether the suit is barred under Section 25 DRC Act? OPD

2. Whether the suit is barred under Order 21 Rule 97 and 99 CPC? OPD

3. Whether the suit is not maintainable in its present form? OPD

4. Whether the suit is not maintainable in view of the statement stated to have been given by the Counsel for the Plaintiff no.1 as alleged in para 7 (in fact it is para 6) of the preliminary objection in the written statement? OPD

5. Whether the Plaintiff no.1 is dispossessed from the property without due process of law on 06-01-2001? OPP 1

6. Whether the Plaintiff is entitled for the decree of possession, as so prayed in para 1 of the prayer clause of the plaint? OPP

7. Whether the Plaintiff is entitled for the damages amounting to Rs.3,71,400/- as so prayed in para ii of the prayer clause of the plaint? OPP

8. Whether the Plaintiff is entitled to interest, if so, then at what rate and to what extent? OPP

9. Relief."

4. The trial court in the present case has held that no possession

was taken in execution proceedings from petitioner no.1/plaintiff no.1 on

14.12.2000, however, the court below has held that petitioner no.1/plaintiff

no.1 voluntarily surrendered possession to respondent/defendant on 6.1.2001

and hence dismissed the suit under Section 6 of the Specific Relief Act,

1963 which requires forcible dispossession. Trial court has refused to place

any emphasis on the photographs Ex.PW1/W, filed by the

petitioners/plaintiffs, to urge illegal dispossession on 6.1.2001. Trial court

has also noted that petitioner no.1/plaintiff no.1 does not claim any title to

the property because in a civil suit between the parties the petitioner

no.1/plaintiff no.1 had made a statement on oath on 20.9.1999, Ex.PW1/DB,

whereby petitioner no.1 conceded that he had no concern with the suit shop

no.2 i.e no title/rights were claimed and that the petitioner no.1/plaintiff no.1

had no concern with the suit shop no.2. Trial court therefore dismissed the

suit after arriving at a finding that there was no illegal dispossession of the

petitioner no.1/plaintiff no.1 on 6.1.2001 because petitioner no.1/plaintiff

no.1 had voluntarily surrendered possession of the suit premises to the

respondent/defendant/decree holder.

5. Learned counsel for the petitioners argued before this Court the

following points:-

(i) The court below has committed a grave error in holding against the

petitioners/plaintiffs that the case of the petitioners/plaintiffs lacks

credibility only because it was held by the trial court that the suit was filed

after two and a half months of the alleged dispossession on 6.1.2001 and this

conclusion of the trial court could not have been arrived at because the

legislature has prescribed a period of six months in filing of a suit for

possession under Section 6 of the Specific Relief Act, 1963.

(ii) Counsel for the petitioners relies upon the document Ex.PW1/T and

which is the letter dated 14.12.2000 written by the petitioner no.1/plaintiff

no.1 to the police on 14.12.2000 alleging that petitioner no.1/plaintiff no.1

was sought to be dispossessed on 14.12.2000 and as per the counsel for the

petitioners this document clearly shows that petitioner no.1/plaintiff no.1

was not dispossessed in execution of the judgment and decree dated

23.10.2000 on 14.12.2000 and there was no question of voluntarily handing

over possession on 6.1.2001 without getting the FIR against the

petitioners/plaintiffs compromised/quashed.

(iii) Trial court in its finding in para 23 of the impugned judgment held

that the respondent/defendant was not given possession on 14.12.2000 and

once that is so then there was no reason why the trial court should have held

that the possession was given by petitioner no.1/plaintiff no.1 to the

respondent/defendant on 6.1.2001.

6. Though, in my opinion, the trial court has committed various

errors in arriving at different conclusions, the impugned judgment in my

opinion will have to be sustained for the reasons which I am giving and

which reasons are derived by me from the existing record of the trial court

by using the spirit of provisions of Order XLI Rule 24 CPC.

7. Firstly, I completely disagree and therefore set aside the finding

of the trial court that the petitioner no.1/plaintiff no.1 was not dispossessed

in execution of the judgment and decree dated 23.10.2000 on 14.12.2000

inasmuch as I fail to understand as to how the trial court could have

overlooked unimpeachable judicial record in the execution proceedings and

the statement which was given by the bailiff Sh. Babu Ram Sharma (sic: Sh.

Balram Sharma) who had deposed in favour of the respondent/defendant as

DW2. Once the Court bailiff, undisputedly a Government servant, comes

and deposes as per the judicial record of execution proceedings that in the

execution proceedings he gave possession of the suit shop to the

respondent/defendant, such a deposition could not have been overlooked by

the trial court for arriving at a finding that the respondent/defendant did not

take actual physical possession through court proceedings of execution on

14.12.2000. The document Ex.PW1/T being the report dated 14.12.2000

written by the petitioner no.1 to the police on 14.12.2000 at best is a self-

serving document, and a self-serving document stating that petitioner

no.1/plaintiff no.1 was in possession of the suit shop on 14.12.2000 and he

was sought to be dispossessed cannot carry any weight in view of the

deposition of Sh. Balram Sharma/bailiff as DW2 and who proved the

possession of the suit shop having been delivered by the petitioners/plaintiffs

in execution proceedings no.61/2000 filed for execution of the judgment and

decree dated 23.10.2000 passed by the court of Additional Rent Controller,

Delhi. The fact of the matter therefore is that once the respondent/defendant

had taken possession on 14.12.2000 and the petitioner no.1/plaintiff no.1

was in fact found again to be in possession of the suit shop, the possession of

the petitioner no.1/plaintiff no.1 in the suit shop was not in the opinion of

this Court settled possession which could have been protected and

possession granted under Section 6 of the Specific Relief Act, 1963. The

law in this regard is now settled and stated by the Supreme Court in the

judgment in the case of Rame Gowda (dead) by LRs. Vs. M. Varadappa

Naidu (dead) by LRs. and Anr. (2004) 1 SCC 769. Supreme Court in the

judgment in the case of Rame Gowda (supra) holds that a person who is in

legal possession is entitled to protect such possession by using of reasonable

force to throw out a trespasser. Supreme Court states that an original owner

who has been wrongly dispossessed may retake possession if he can do so

peacefully without use of unreasonable force i.e use of reasonable force is

permissible. Supreme Court holds that trespass does not result into a settled

possession and unless the possession is settled possession and effective

possession such a possession cannot be protected as against the true owner.

Supreme Court has made it clear that an act of trespass or a possession

which has not matured in settled possession can be removed by the true

owner even by using necessary force. Paras 8 to 10 of the judgment in the

case of Rame Gowda (supra) are relevant and these paras read as under:-

"8. It is thus clear that so far as the Indian law is concerned the person in peaceful possession is entitled to retain his possession and in order to protect such possession he may even use reasonable force to keep out a trespasser. A rightful owner who has been wrongfully dispossessed of land may retake possession if be can do so peacefully and without the use of unreasonable force. If the trespasser is in settled possession of the property belonging to the rightful owner, the rightful owner shall have to take recourse to law; he cannot take the law in his own hands and evict the trespasser or interfere with his possession. The law will come to the aid of a person in peaceful and settled possession by injuncting even a rightful owner from using force or taking law in his own hands, and also by restoring him in possession even from the rightful owner (of course subject to the law of limitation), if the latter has dispossessed the prior possessor by use of force. In the absence of proof of better title, possession or prior peaceful settled possession is itself evidence of title. Law presumes the possession to go with the title unless rebutted. The owner of any property may prevent even by using reasonable force a trespasser from an attempted trespass, when it is in the process of being committed, or is of a flimsy character, or recurring, intermittent, stray or casual in nature, or has just been committed, while the rightful owner did not have enough time to have recourse to law. In the last of the cases, the possession of the trespasser, just entered into would not be called as one acquiesced to by the true owner.

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 Ram and Ors. v. Delhi Administration : 1968CriLJ806 , Puran Singh and Ors. v. The State of Punjab : AIR1975SC1674 and Ram Rattan and Ors. v. State of Uttar Pradesh : 1977CriLJ433 . The authorities need not be multiplied. In Munshi Ram & Ors.'s case (supra), 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 re-instate 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 never been lost. A stray act of trespass, or a possession which has not matured into settled possession, can be obstructed or removed by the true owner even by using necessary force. In Puran Singh and Ors.'s case (supra), 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 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 strait-jacket. An occupation of the property by a person as an agent or a servant acting at the instance of the owner will not 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':

i) that the trespasser must be in actual physical possession of the property over a sufficiently long period;

ii) that the possession must be to the knowledge (either express of 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.

10. In the cases of Munshi Ram and Ors. (supra) and Puran Singh and Ors. (supra), the Court has approved the statement of law made in IIoram v. Rex : AIR1949All564 , wherein a distinction was drawn between the trespasser in the process of acquiring possession and the trespasser who had already accomplished or completed his possession wherein the true owner may be treated to have acquiesced in: while the former can be obstructed and turned out by the true owner even by using reasonable force, the later, may be dispossessed by the true owner only by having recourse to the due process of law for re-acquiring possession over his property." (underlining added)

8. Learned counsel for the petitioners/plaintiffs did seek to argue

that there was no reason why the petitioner no.1/plaintiff no.1 would

"peacefully surrender" possession on 6.1.2001 once an FIR stood registered

against him on 4.1.2001 and which FIR would stand, however, I do not find

this argument to be convincing because there may be various reasons why

the petitioner no.1/plaintiff no.1 may have chosen not to pursue the matter

and would have instead chosen to handover peaceful possession to the

respondent/defendant especially considering that possession was taken by

the respondent/defendant through due process of law in execution

proceedings. Also, on specifically asking counsel for the

petitioners/plaintiffs that if the petitioner no.1/plaintiff no.1 was illegally

dispossessed on 6.1.2001 then whether on 6.1.2001 or thereafter the