Research › Search › Judgment

Gauhati High Court · body

2005 DIGILAW 802 (GAU)

Kailash Kalita v. Sanjib Sharma

2005-11-28

I.A.ANSARI

body2005
JUDGMENT Iqbal Ahmed Ansari, J. 1. I have heard Mr. S. Ali, learned Counsel for the Petitioner, and Mr. S. Medhi, learned Counsel, appearing on behalf of the Respondents. 2. The material facts and various stages, which have led to the filing of the present writ petition, may, in brief, be set out as follows: (i) The Respondents herein instituted, on 29.01.2004, Title Suit No. 25 of 2004 in the Court of the Civil Judge, (Junior Division), Guwahati, the case of the Plaintiffs being, in brief, thus: The Plaintiffs have inherited a plot of land, which is described in Schedule-A to the plaint. Late Ajit Chandra Deka, predecessor-in-interest of the proforma Defendants, had purchased a plot of land adjacent to the said land of Schedule-A. The Government, however, for the purpose of extension of express high way, acquired the land, which late Ajit Chandra Deka (since deceased) had purchased. Notwithstanding such acquisition, the proforma Defendants, in the year 1994, illegally took over possession of a portion of the Plaintiffs said land described in Schedule-A aforementioned, and illegally constructed thereon one Assam-type house, the land from which the Plaintiffs were so dispossessed having been described in Schedule-B to the plaint. In course of time, the proforma Defendants sold the land of Schedule 'B' aforementioned to the Defendant No. 1, namely, Kailash Kalita, i.e. the present writ Petitioner. Thereafter, in the year 1998, the Defendant No. 2 namely, S.C. Mazumdar, illegally took over possession of a portion of the remaining land of Schedule-A aforementioned, the portion of the land, which the said S.C. Mazumdar so took over possession having been described in Schedule-C to the plaint. As a result of the dispossession of the Plaintiffs from the land of Schedule-B and C, the Plaintiffs, (i.e., the Respondents herein) have remained in possession of a portion of the land of Schedule-A, the portion of the land, which has, so remained, in possession of the Plaintiffs (i.e., the Respondents herein) having been described in Schedule-D to the plaint. The Defendant No. 1 (i.e., the writ Petitioner) has, now, been trying to dispossess the Plaintiffs from the land of Schedule-D too and apprehending such dispossession, the Plaintiffs had lodged complaint to the police. The Defendant No. 1 (i.e., the writ Petitioner) has, now, been trying to dispossess the Plaintiffs from the land of Schedule-D too and apprehending such dispossession, the Plaintiffs had lodged complaint to the police. The Plaintiffs, therefore, sought for, inter alia, decree of declaration of their rights, title and interest over the entire land of Schedule-A, recovery of possession of the plots of land, described in Schedule-B and C, and confirmation of their possession over the land described in Schedule-D, wherefrom Defendant No. 1, (i.e., the Petitioner herein) was, according to the Plaintiffs-Respondents, trying to dispossess the Plaintiffs, and also for permanent injunction. (ii) On 09.02.2004, the Defendant No. 1 of Title Suit No. 25 of 2004 aforementioned instituted Title Suit No. 30 of 2004 in the Court of the Civil Judge (Sr. Division) No. 2, Kamrup, Guwahati. This suit is a suit under Section 6 of the Specific Relief Act seeking recovery of possession of the suit land, his case being, briefly stated, thus: The Plaintiff (i.e., the writ Petitioner) had purchased the suit land by a registered sale deed, dated 14.07.2003, from the successors-in-interest of late Ajit Chandra Deka and obtained possession thereof and, having so obtained possession, constructed thereon not only a boundary wall, but also a shed with CI sheet-roofing in order to use the same for storing building materials for the purpose of construction of a house thereon and appointed a watchman to look after the said property; but on 23.01.2004, the Defendants, (i.e., the Plaintiffs of Title Suit No. 25 of 2004, who are Respondents in the present writ petition), all of a sudden, trespassed into the said land by breaking open the lock of the gate and hastily constructed a temporary house thereon with CI sheet-roofing and collected building materials for construction of a permanent building thereon. (iii) In short, thus, while the Respondents herein, in Title Suit No. 25 of 2004, claimed to be in possession of the land of Schedule 'D' aforementioned having inherited the same from their predecessor-in-interest, the present Petitioner's case, as indicated above, in Title Suit No. 30/2004, was that the Respondents herein had taken over the possession of the land of Schedule 'D' on 23.01.2004, by unlawfully and forcibly evicting the present Petitioner therefrom. In the Court of learned Civil Judge (Sr. In the Court of learned Civil Judge (Sr. Division) No. 2, the Respondents herein, who were Defendants in Title Suit No. 30 of 2004 aforementioned, filed a petition seeking stay of the further proceedings of the Title Suit No. 30 of 2004 on the ground that on the same subject-matter, the Respondents herein (i.e., the Defendants in Title Suit No. 30 of 2004) had already instituted Title Suit No. 25 of 2004 aforementioned and the decision, which may be rendered in the previous suit, i.e., Title Suit No. 25 of 2004, would, ultimately, settle the dispute between the parties and the decree, if any, granted therein, would operate as res judicata for the subsequent suit, which the Petitioner herein had instituted. 3. Upon hearing the learned Counsel for the parties, the learned Civil Judge (Sr. Division) No. 2 passed an order on 01.12.2004, staying the further proceedings of Title Suit No. 30/2004 purportedly in exercise of powers under Section 10 of the Code of Civil Procedure. It is this order, which stands impugned in the present writ petition. 4. On a careful perusal of the impugned order, what transpires is that the learned Court below has stayed the proceedings of the subsequent suit, for, according to the learned Court below, parties to both the suits, causes of action in both the suits and also the issues in both the suits are substantially the same and that the decision in the previous suit, i.e., Title Suit No. 25/2004, and the decree passed therein would operate as res judicata so far as the subsequent suit, i.e., Title Suit No. 30/2004 filed by the present writ Petitioner is concerned. 5. Let me, now, test the reasons, which, as indicated hereinabove, impelled the learned Court below to pass the impugned order. 5. Let me, now, test the reasons, which, as indicated hereinabove, impelled the learned Court below to pass the impugned order. While considering this aspect of the matter, it is pertinent to note that Section 6 of the Specific Relief Act envisages institution of suit based on possessory title as against the suit based on proprietary title, for, it vests a right in the person, who has been dispossessed, without his consent, of an immovable property otherwise that in due course of law, to sue for recovery of possession thereof notwithstanding the fact that such person may not have title to the property, provided that the suit is brought as against a person other than the Government within the expiry of the period of six months from the date of dispossession. Section 6 of the Specific Relief Act, thus, contemplates a suit for recovery of possession of immovable property based on previous possession and not on title. The reason as to why law so jealously protects possession has been vividly described by Salmond in Jurisprudence (Twelfth Edition) thus, "But since an attack on a man's possession is an attack on something which may be essential to him, it becomes almost tantamount to an assault on the man himself; and the possessor may well be stirred to defend himself with force. The result is violence, chaos and disorder." To put it differently, it is in order to exclude the possibility of violence, chaos and disorder in the society that the law protects the possession of a wrongful possessor except against earlier possessor and the true owner. In fact, as Salmond observed, "Even the true owner, who takes his own, may be forced in this way to restore it to the wrongdoer, and will not be permitted to set up his own superior title to it." Thus, even a true owner cannot unsettle a settled possessor by taking recourse to force; what the law will require from such an owner is to obtain his possession from the settled possessor by taking recourse to law and not by taking resort to force. 6. The law, in India, with regard to extending protection to the settled possessor of a property is, as observed by the Supreme Court, in Rame Gowda v. M. Varadappa Naidu reported in (2004) 1 SCC 769 , in accord with the jurisprudential thoughts propounded by Salmond. 6. The law, in India, with regard to extending protection to the settled possessor of a property is, as observed by the Supreme Court, in Rame Gowda v. M. Varadappa Naidu reported in (2004) 1 SCC 769 , in accord with the jurisprudential thoughts propounded by Salmond. No wonder, therefore, that in Midnapur Zamindary Co. Ltd. v. Kumar Naresh Narayan Roy and other, 1924 PC 144, Sir John Edge 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. In Lallu Yeshwant Singh (dead) by his legal representative v. Rao Jagdish Singh and other reported in (1968) 2 SCR 203 , the Apex Court quoted with approval the position of law with regard to Section 6 laid down by the full Bench of the Allahabad High Court about half-a-century ago in Yar Mohammad v. Lakshmi Das AIR 1959 All. 14 , which reads, 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. 7. In M.C. Chockalingam and other v. V. Manickavasagam and other reported in (1974) 1 SCC 48 , too, the Apex Court put beyond confusion the philosophy behind the enactment of Section 6 of the Specific Relief Act by observing that the law forbids forcible dispossession even with the best of title. More than abundantly made clear the Supreme Court, in Krishna Ram Mahale (dead) by his Lrs. v. Mrs. Shobha Venkat Rao reported in (1989) 4 SCC 131 , when it held that when a person is in settled possession of an immovable property, even though he had no right to remain on the property, he cannot be dispossessed by the owner of the property except by recourse to law. In Puran Singh and other v. State of Punjab reported in (1975) 4 SCC 518 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. In Puran Singh and other v. State of Punjab reported in (1975) 4 SCC 518 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, however, be (i) effective, (ii) undisturbed and (iii) to the knowledge of the owner or without any attempt at concealment by the trespasser. 8. It is, thus, clear that so far as the Indian law is concerned, the person in peaceful possession of an immovable property 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 his land, may retake possession if he can do so peacefully and without the use of unreasonable force. If the trespasser is in the settled possession of the property belonging to the rightful owner, the rightful owner shall have to take recourse to law; the true owner cannot take the law in his own hands and evict the trespasser or interfere with the possession of the trespasser. 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. See Rame Gowda (supra). 9. In short, the object of Section 6 of the Specific Relief Act is to protect the possession of a settled possessor of a property even against the true owner thereof. Logically, therefore, even the true owner of a property cannot forcibly evict the wrong-doer or retake possession of the property from a settled possessor by applying force. The remedy for such an owner really lies in obtaining possession from the settled possessor of the land by taking recourse to law. It is this philosophy, which Section 6 seeks to so carefully underline. In fact, the scope of Section 6 of the Specific Relief Act and the purport thereof have been succinctly described by the Apex Court in Ramesh Chand Ardawatiya v. Anil Panjwani reported in (2003) 7 SCC 350 , in the following words : 34. It is this philosophy, which Section 6 seeks to so carefully underline. In fact, the scope of Section 6 of the Specific Relief Act and the purport thereof have been succinctly described by the Apex Court in Ramesh Chand Ardawatiya v. Anil Panjwani reported in (2003) 7 SCC 350 , in the following words : 34. Section 6 of the Specific Relief Act, 1963, provides for any person dispossessed without his consent of immovable property otherwise than in due course of law being entitled to claim and successfully sue for recovery of possession thereof, notwithstanding any other title that may be set up in such suit if the suit is brought before the expiry of six months from the date of dispossession except against the Government. Article 64 of the Limitation Act, 1963 contemplates a suit for possession of immovable property based on previous possession, and not on title, being brought within twelve years from the date of dispossession. Such a suit is known in law as a suit based on possessory title as distinguished from proprietary title. The law discourages people from taking the law into their own hands, howsoever good and sound their title may be. 10. Coupled with the above, it is also imperative to note that a proceeding under Section 6 of the Specific Relief Act is essentially summary in nature, for, what is required to be determined by the Court in such a suit is as to whether the Plaintiff was in possession of the property, which he claims to have been in possession of, and whether he has been dispossessed therefrom unlawfully and/or without following the procedure prescribed by law. Reference may be made, in this regard, to Mansukhlal Dhanraj Jain and other v. Eknath Vithal Ogale reported in (1995) 2 SCC 665 , wherein the Court held. It is trite to say that Section 6 of the Specific Relief Act gives a summary remedy to the Plaintiff to seek restoration of possession from the Defendant within six months of illegal recovery of possession by the Defendant, without referring to the title of the Plaintiff and irrelevant. It is trite to say that Section 6 of the Specific Relief Act gives a summary remedy to the Plaintiff to seek restoration of possession from the Defendant within six months of illegal recovery of possession by the Defendant, without referring to the title of the Plaintiff and irrelevant. In such type of suits the Plaintiff is not required to prove his title or a superior right to possession as compared to the Defendant and has only to show that he was in possession of the suit immovable property and he was illegally dispossessed within a period of six months prior to the date of the suit. Once the Plaintiff proves this case, he becomes entitled to succeed and can get status quo ante and restoration of possession of the suit premises through the assistance of the Court. 11. What crystallizes from the above discussion is that when a person is in settled possession of an immovable property, even if his possession of the property is not lawful, he cannot be dispossessed by the owner of the property except in accordance with law, for, the law does not permit taking of forcible possession by true owner of a property from a settled possessor. Section 6 of the Specific Relief Act provides a mechanism, which is summary in nature, for obtaining possession of a property by a person, who has been forcibly or unlawfully dispossessed from his settled possession by even its true owner, the limitation on this right, however, being that the suit for restoration of possession against a person, other than the Government, must be instituted within a period of six months from the date of the dispossession. In a suit under Section 6 of the Specific Relief Act, the Plaintiff need not prove his title or a superior right of possession as compared to the Defendant. What he has to show is that he was in peaceful possession of the suit property and he was illegally dispossessed therefrom within a period of six months prior to the date of the institution of the suit. Once the Plaintiff proves these facts, he becomes entitled to restoration of the possession of the suit property through the process of the Court. 12. Once the Plaintiff proves these facts, he becomes entitled to restoration of the possession of the suit property through the process of the Court. 12. Turning to Section 10 of the Code of Civil Procedure (in short, the Code), what is of immense importance to note is that though the principles underlying in Section 10 of the Code is to prevent the Courts of concurrent jurisdiction from simultaneously trying two parallel suits in respect of the same matter in issue so as to avoid conflict of decisions, yet in order to attract the provisions of Section 10of the Code, the matter in issue in both the suits must be 'directly and substantially' the same. The subject-matter of both the suits have to be, therefore, identical. While an issue raised in the subsequent suit, which is directly and substantially in issue in the previous suit, would attract the provisions of Section 10, the issue, raised in the subsequent suit, which is not 'directly and substantially', in issue in the previous suit, would not attract Section 10 of the Code. The fall out of this limitation on the scope of Section 10 is that if an issue raised in the subsequent suit is an issue, which is incidentally and collaterally in issue in the earlier suit, Section 10 would not be applied. One may, in this regard, respectfully refer to National Institute of Mental Health & Neuro Sciences v. C. Parameshwara reported in (2005) 2 SCC 256 , wherein the Supreme Court has clarified the position of law, in the following words: 8. The object underlying Section 10 is to prevent courts of concurrent jurisdiction from simultaneously trying two parallel suits in respect of the same matter in issue. The object underlying Section 10 is to avoid two parallel trials on the same issue by two courts and to avoid recording of conflicting findings on issues which are 'directly and substantially' in issue in previously instituted suit. The language of Section 10 suggests that it is referable to a suit instituted in the civil court and it cannot apply to proceedings of other nature instituted under any other statute. The object of Section 10 is to prevent courts of concurrent jurisdiction from simultaneously trying two parallel suits between the same parties in respect of the same matter in issue. The object of Section 10 is to prevent courts of concurrent jurisdiction from simultaneously trying two parallel suits between the same parties in respect of the same matter in issue. The fundamental test to attract Section 10 is, whether on final decision being reached in the previous suit, such decision would operate as res judicata in the subsequent suit. Section 10 applies only in cases where the whole of the subject-matter in both the suits is identical. The key words in Section 10 are "the matter in issue is directly and substantially in issue" in the previous instituted suit. The words "directly and substantially in issue" are used in contradiction to the words "incidentally or collaterally in issue". Therefore, Section 10 would apply only if there is identity of the matter in issue in both the suits, meaning thereby that the whole of the subject matter in both the proceedings is identical. 13. From a careful reading of what has been observed in National Institute of Mental Health & Neuro Sciences (supra), what becomes transparent is that the subject matter in both the suits must be identical in order to attract the provisions of Section 10 of the Code. To put it differently, if the issues in both the suits are not identical or the issue raised in the subsequent suit is not directly and substantially in issue in the previously instituted suit or if the issue raised in the subsequent suit is incidentally and/or collaterally in issue in the previously instituted suit, Section 10 of the Code cannot be applied. 14. One may pause, at this stage, to point out to the case of British Indian Corporation Ltd. v. Rashtraco Freight Carriers reported in (1996) 4 SCC 748 , wherein, in the context of the facts of the said case, the Apex Court observed and held thus: "Section 10 of Code of Civil Procedure envisages that no court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same of any other court in India having jurisdiction to grant the relief claimed. It is seen that the claim of the Respondent in Suit No. 612 of 1994 is for the recovery of the alleged dues said to be payable by the Appellant-Corporation while the suit of the Appellant is for recovery of the goods lawfully entrusted to and unlawfully detained by the Respondent. The causes of action are entirely different. There is no common issue directly or substantially in issue in both the suits. The High Court, therefore, committed gross error of law in staying the later suit." 15. Bearing in mind the principles governing the scope of Section 10 of the Code and also Section 6of the Specific Relief Act, when we turn to the factual matrix of the present case, what attracts the eyes, most prominently, is that in Title Suit No. 30/2004, the only issue for determination before the Court is as to whether the present writ Petitioner was dispossessed, on 23.01.2004, from the land described in Title Suit No. 30/2004, i.e., the land in Schedule 'D' of Title Suit No. 25/2004. This issue is not at all an issue in Title Suit No. 25/2004. This apart, the parties to both the suits and cause of action in the two suits are, contrary to whether the learned Court below observed. Above all if in Title Suit No. 30/2004, the Court finds that the writ Petitioner had been dispossessed as alleged by him on 23.01.2004, the possession of the property, wherefrom the Petitioner was dispossessed, would be restored to the Petitioner. This relief, which the Petitioner may obtain in the subsequent suit, would, however, be subject to the outcome of the Title Suit No. 25/2004. 16. The effect of the impugned order staying the proceedings of the subsequent suit is that even if in the previously instituted suit, i.e., Title Suit No. 25/2004, the present Petitioner is found to have been illegally and unlawfully dispossessed from the land of Schedule 'D' on 23.01.2004, no remedy may be made available to him, for, on declaration of title to the land of Schedule 'D' (if the suit is decreed in favour of the Respondents herein), the Respondents herein would receive the possession of the land of Schedule 'D'. The wrong done to the writ Petitioner and the illegal acts done by the Respondents, herein would, in such an eventuality, remain unattended to by law. The wrong done to the writ Petitioner and the illegal acts done by the Respondents, herein would, in such an eventuality, remain unattended to by law. The law makes available remedy for every civil wrong and even a rightful owner of a property, as already indicated hereinabove, cannot take the law into his own hands and dispossess a wrong-doer. The fact situation of the present case can be well illustrated by an example. Assuming 'X' is the owner of a property, which is in the possession of 'Y'; but 'X' forcibly and unlawfully evicts 'Y' and takes possession of the property and, then, institutes a suit seeking declaration of his title to the property and confirmation of his possession thereon. If 'Y', who has been unlawfully dispossessed from the property, institutes a suit under Section 6 of the Specific Relief Act seeking restoration of his possession of the property and the Court, by taking recourse to Section 10 of the Code, stays the proceedings of the suit instituted by 'Y', the effect would be that even if, in the suit instituted by 'X', the Court concludes that 'Y' was wrongfully dispossessed, yet on declaration of the title to the property in favour of 'X', the possession of the property would remain with 'X'. Thus, notwithstanding the fact that 'X' forcibly, illegally and unlawfully obtained possession of the property, he would still succeed in retaining the possession of the property and 'Y' would be left with no remedy, though Section 6 guarantees remedy against such wrongs. It was with this object in view that the Apex Court in Rame Gowda (supra) observed, "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 of interfere with his possession. The law will come to the aid or a person in peaceful and settled possession by injuncting even a rightful owner from using force or taking law in his own hands." Emphasised the Supreme Court in Munshi Ram and other v. Delhi Administration reported in (1968) 2 SCC 455. The law will come to the aid or a person in peaceful and settled possession by injuncting even a rightful owner from using force or taking law in his own hands." Emphasised the Supreme Court in Munshi Ram and other v. Delhi Administration reported in (1968) 2 SCC 455. 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. 17. In the context of the facts of the present case therefore, imperative it was, on the part of the learned Court below, to have allowed the proceedings of the Title Suit No. 30/2004 to continue instead of snapping the same by the impugned order. If the wrong, so done by the impugned order, is not interfered with, it may, as indicated hereinabove, frustrate the suit of the Plaintiff-Petitioner herein and defeat the legal right of the writ Petitioner. 18. Considering, therefore, the matter in its entirety and in the interest of justice, the impugned order, dated 01.12.2004, aforementioned is hereby set aside and quashed. The learned Court below is thereby directed to proceed with the Title Suit No. 30 of 2004 expeditiously and dispose of the same by holding, if necessary, day to-day hearing of the suit. For the purpose of expeditious disposal of the Title Suit No. 30 of 2004, parties to the writ petition are hereby directed to appear in the learned Court below in Title Suit No. 30 of 2004 on 05.12.2005. On their appearance, as directed, the learned Court below shall dispose of the suit in accordance with law, preferably, within a period of three months from the date of appearance of the parties concerned. 19. With the above observations and directions, this writ petition shall stand disposed of. 20. No order as to costs.