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2011 DIGILAW 2431 (MAD)

Farhath v. Noorunissa Begum

2011-04-27

G.RAJASURIA

body2011
Judgment : Per G. RAJASURIA, J. 1. This second appeal is filed by the plaintiff, inveighing the judgment and decree 2.1.2007 passed by the Sub-Court, Vellore, in A.S. No. 53 of 2006 confirming the judgment and decree dated 10.4.2006 passed by the Additional District Munsif Court, Vellore, in O.S. No. 226 of 2005, which was filed for declaration and permanent injunction. 2. The parties, for the sake of convenience, are referred to hereunder according to their litigative status and ranking before the trial Court. 3. A recapitulation and ‘resume‘ of facts absolutely necessary and germane for the disposal of this second appeal would run thus: (i) The appellant herein, as plaintiff, filed the suit seeking the following reliefs: “(a) to declare the title of the plaintiff to the suit property described in the schedule hereunder; (b)to grant permanent injunction restraining the defendant and her men from in any way interfering with the plaintiff‘s possession and enjoyment of the suit property; (c)to direct the defendant to pay the cost of the suit.” (extracted as such) (ii) The defendant filed the written statement resisting the suit. (iii) Whereupon the trial Court framed the relevant issues. On the plaintiff‘s side, the plaintiff examined herself as P.W.1 along with P.Ws.2 to 4s and marked Exhibit A-1. The defendant examined herself as D.W.1 along with D.W.2 and marked Exhibits B-1 to B-28. (iv) Ultimately, the trial Court dismissed the suit, as against which, the appeal was filed for nothing but to be dismissed by the first appellate Court, confirming the judgment and decree of the trial Court. 4. Challenging and impugning the judgments and decrees of the Courts below, this second appeal is focussed by the plaintiff on various grounds and also suggesting the following substantial questions of law: “(a) Whether the plaintiff has proved the ingredients of oral gift under Muslim Personal Law; (b)Whether the plaintiff is entitled to injunction to protect her lawful possession.” 5. After hearing both sides, my learned predecessor framed the following substantial question of law. “Whether the Courts below are correct, while appreciating the admitted possession of the plaintiff in the suit property had legally failed to grant permanent injunction against the defendant restraining her from evicting the plaintiff except under due process of law?” 6. Heard both sides. 7. After hearing both sides, my learned predecessor framed the following substantial question of law. “Whether the Courts below are correct, while appreciating the admitted possession of the plaintiff in the suit property had legally failed to grant permanent injunction against the defendant restraining her from evicting the plaintiff except under due process of law?” 6. Heard both sides. 7. The gist and kernal of the admitted facts or at least the undeniable facts would run thus: (i) The respondent/defendant happened to be the absolute owner of the entire property found described in the schedule of the plaint. The plaintiff would contend that oral ‘hibba‘ was given by the defendant in her favour in respect of 1/3rd share in the said property. The plaintiff is none but the defendant‘s brother‘s daughter. (ii) The defendant would contend that she permitted the plaintiff to occupy a portion of the said house as a permissive occupier and at no point of time such alleged ‘hibba‘ emerged, at the instance of the defendant in favour of the plaintiff. (iii) The Courts below gave a concurrent finding that the plea of ‘hibba‘, as put forth by the plaintiff was untenable. Whereupon they held that since the plaintiff claimed the relief of absolute ownership based on the ‘hibba‘, which was negatived, she was not entitled to any injunction. 8. I would like to extract hereunder the relevant portions of the judgments of both the Courts below: (a) An excerpt from the judgment of the trial Court would run thus: “28. ..... A person in settled possession can prayed (six) for injunction against any other person other than the true owner.....” (extracted as such) (b) An excerpt from the judgment of the first appellate Court would run thus: “8. ...... since the oral gift stands not proved and since her possession is only a permissive possession, her possession ends with the determination of the same by the defendant and since the plaintiff has not proved the title to the suit property, the appellant is not entitled to a decree of declaration and injunction......” (extracted as such) 9. ...... since the oral gift stands not proved and since her possession is only a permissive possession, her possession ends with the determination of the same by the defendant and since the plaintiff has not proved the title to the suit property, the appellant is not entitled to a decree of declaration and injunction......” (extracted as such) 9. The learned counsel for the respondent/defendant would contend that such findings are perfectly in order and it is in commensurate with the decision of the Honourable Apex Court in Rame Gowda (D) byL.Rs.v. M. Varadappa Naidu (D) by L.Rs and Another AIR 2004 SC 4609 : (2004) 1 SCC 769 : LNIND 2003 SC 1092, which was even relied on by the plaintiff. 10. The learned counsel for the defendant, by reading various portions of the aforesaid judgment of the Honourable Apex Court, would argue that the facts and circumstances involved in that case were different from the facts and circumstances involved in this case; there, the title was disputed and it was not decided, and in such a case, by way of, virtually an interim protection to the possessor, the Honourable Apex Court held that the possessor could continue in possession till he is evicted as per law. Whereas, in this case, both the Courts below negatived the contention of the plaintiff that she is the owner of the property based on the alleged ‘hibba‘ and once the ‘hibba‘ goes away, even as per the plaintiff‘s version in paragraph No. 3 of the plaint, the defendant happens to be the real owner and in such a case, there would be no rhyme or reason for driving the defendant-the owner of the property to file a separate suit for ejecting or evicting the plaintiff. 11. The learned counsel for the defendant also would rely on the following other decisions: (i) Puran Singh and Others v. State of Punjab AIR 1975 SC 1674 : (1975) 4 SCC 518 : LNIND 1975 SC 174; (ii) Lallu Yeshwant Singh v. Rao Jagdish Singh and Others AIR 1968 SC 620 : LNIND 1967 SC 351; (iii) V. Arunagiri and Others v. Divisional Engineer, National Highways, Thiruvannamalai and Another LNIND 1998 Mad 1214 : (1999) 1 MLJ 308 . 12. 12. I would like to point out that a perusal of those decisions and more specifically the recent decision of the Honourable Apex Court Rame Gowda (D) by L.Rs v. M.Varadappa Naidu (D) by L.Rs and Another (supra), would amply make the point clear that if the Court finds that the occupier of a property is in settled possession of it, even though he might be a trespasser, he is entitled to injunction as against the true owner of the property. 13. The Courts below decided the case wrongly by observing, as found in the aforesaid excerpts, as though as against the true owner, no injunction could be granted even if it is found that the occupier is in settled possession. The term ‘settled possession‘ need not cause any confession in the mind of any one, so far this case is concerned. 14. Indubitably and indisputably the defendant, who is the owner of the property, would aver and plead that it was she, who permitted the plaintiff to occupy a portion of the house belonging to her; whereby the possession of the plaintiff has been candidly and categorically, pellucidly and palpably admitted by the owner herself. Even as on this date, the plaintiff is in possession of it. No doubt, as found by the Courts below, the plea of ‘hibba‘, was failed to be proved by the plaintiff. 15. Now the short point which arises for consideration in this second appeal is as to whether injunction could be granted to the limited extent in favour of the plaintiff to the effect that she should not be evicted otherwise than in accordance with law. 16. The learned counsel for the defendant would even go to the extent of arguing that if the suit was for bare injunction and no title was decided by the Courts below, the matter would have been different. According to him, the plaintiff came to Court with a specific plea of ‘hibba‘ and sought for declaration of title and consequently, for an injunction; once, in such a comprehensive suit, the entire issue is decided, the question of once again driving the defendant, who is the admitted owner, to file a suit to get the plaintiff ejected or evicted is not contemplated as per law or as per the decision of the Honourable Apex Court referred to supra. Accordingly, the learned counsel for the defendant would vehemently argue for the dismissal of the second appeal. 17. I would like to extract hereunder the relevant portions of the decision of the Honourable Apex Court in Rame Gowda (D) by L.Rs v. M.Varadappa Naidu (D) by L.Rs and Another (supra), certain excepts from it would run thus: “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 he 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. 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...” 18. The Honourable Apex Court, in the aforesaid judgment visualised various circumstances and arrived at the conclusion that even a trespasser in settled possession could be evicted by the true owner only by having recourse to law. Forcibly such a person in possession cannot be dispossessed. 19. Here the pertinent question arises as to what happened to the theory of the defendant and what would be the legal consequence if the second appeal is dismissed simply. The theory of the defendant, namely, the true owner is that it was she, who permitted the plaintiff to occupy as a permissive occupier in a portion of the said building. If that be so, after such expiry of the permission or cancellation of the permission, what the true owner is expected to do. She cannot take the law into her own hands and forcibly dispossess the plaintiff herein. 20. The Honourable Apex Court in the following decisions clearly answers this question. (i) Joseph Severance and Others v. Benny Mathew and Others (2005) 7 SCC 667 : LNIND 2005 SC 724. (ii) C.M. Beena and Another v. P.N. Ramachandra Rao LNIND 2004 SC 372. 21. It is therefore clear from the above decisions of the Honourable Apex Court that after the expiry of the permission or cancellation of the permission, the true owner is expected to resort to legal measures and only by approaching the Court, the erstwhile permissive occupier could be ejected or evicted as the case may be. 22. Here it is a casewhere the permissive occupier and the true owner locked themselves in litigation and it has come up to this level. 22. Here it is a casewhere the permissive occupier and the true owner locked themselves in litigation and it has come up to this level. Hence, in such a case, it is crystal clear that as per the dictum laid down by the Honourable Apex Court, even though the plaintiff is not entitled to the relief of declaration and absolute permanent injunction based on her title, which she could not prove, injunction could be granted to the limited extent that her possession should not be disturbed otherwise than in accordance with law, so to say, she cannot be dispossessed at the instance of the defendant without the defendant having recourse to legal process. 23. Accordingly, the substantial question of law is answered and the judgments and decrees of the Courts below are modified to the aforesaid limited extent. 24. The second appeal is ordered accordingly. No costs. However, there is no order as to costs.