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2012 DIGILAW 619 (HP)

Nagesh Mahajan v. Ratna Sharma

2012-09-24

DEV DARSHAN SUD

body2012
Judgment Dev Darshan Sud, J. This is the defendant’s appeal against the judgments of the two Courts below decreeing the suit of the plaintiff-respondent granting a decree for restoration of possession of the upper sets in building known as `Avondale’ situated on Mall Road, Dalhousie. Mandatory injunction was granted against defendant No.2 (appellant herein) directing him to handover possession of these premises. 2. The case pleaded by the plaintiff through General Power of Attorney Dr. Jaswant Rai was that she was a tenant in the upper portion of the building known as `Avondale’ on Mall Road, Dalhousie. She was inducted as tenant therein since 1980 at a yearly rent of Rs.4000/-. She pleaded that defendant No.1 Shri Prem Raj Mahajan (since deceased) was the landlord of the building. She was paying all Municipal taxes etc. of the suit premises. It was pleaded that on 19.6.1994, when she and her general attorney came to Dalhousie, they found that a lock had been put up on these premises and on reopening/breaking open the lock, she found that her personal belongings etc. had been removed. She pleaded that defendant No.2 (Shri Nagesh Mahajan appellant herein) told her that she is no longer a tenant of the premises and threatened her with dire consequences in case she dared to report the matter to the police. She was undeterred by these threats and lodged FIR with the Police. She then pleads that the appellant/defendant forged his signatures and filed application with the S.D.O.(Electricity), Dalhousie asking for disconnection of the supply of electricity of Meter No.F-805 which was installed in her name. She stated that dispossession was forcible and without recourse to law. Defendant No.1 Shri Prem Raj Mahajan did not contest the suit. Defendant No.2 pleaded that the plaintiff, before leaving for Calcutta, had vacated the premises in the year 1990. Smt.Ratna Sharma plaintiff, according to him, had vacated two sets of the upper portion of the building in the year 1994 and vacant possession was handed over to the defendants. The primary objection pleaded for maintainability of the suit was limitation, cause of action and non-joinder of necessary parties. 3. The learned trial Court settled eight issues on the pleading of the parties. The primary objection pleaded for maintainability of the suit was limitation, cause of action and non-joinder of necessary parties. 3. The learned trial Court settled eight issues on the pleading of the parties. The first two issues relating to the fact as to whether the plaintiff had been illegally dispossessed from the premises in dispute, the second whether the plaintiff was entitled to possession of the suit premises on the pleadings before the learned Court and the third issue as to whether the premises were voluntarily vacated by her in the year 1990. On the other issue of maintainability, they were found against the defendants. More importantly issue No.6 was whether the suit of the plaintiff was within time. The learned Court, on the evidence, held in favour of the plaintiff. 4. In appeal, the learned District Judge dismissed the appeal preferred by the defendant. Dealing with the question of limitation, which is the only question of law urged before me, the learned Court rejected the contention of the appellant that the suit was barred by limitation on the pleading/submission that the proper remedy was under Section 6 of the Specific Relief Act, 1963 (hereinafter referred to as the `Act’) and in this event the suit should and ought to as have been filed within six months of dispossession. From the judgment, I find that the learned appellate Judge has not applied his mind to the issue of limitation raised which I find unfortunate, since the learned appellate Court should and ought to have decided all questions of law and fact urged. This is the mandate of Section 96 CPC. It is submitted that the learned appellate Court has given short shrift to the submissions made without discussing the law applicable. 5. The defendant is now in second appeal before this Court. The appeal was admitted on the following substantial questions of law:- “1. Whether the Plaintiff-Respondent claimed forcible dispossession from the tenanted premises, could the suit against the true owner be maintained by resorting to Article 64 of the Limitation Act. Was not such suit maintainable under the Provisions of Section 6 of the Specific Relief Act, having limitation to institute the suit within 6 months from the date of dispossession? Whether the Plaintiff-Respondent claimed forcible dispossession from the tenanted premises, could the suit against the true owner be maintained by resorting to Article 64 of the Limitation Act. Was not such suit maintainable under the Provisions of Section 6 of the Specific Relief Act, having limitation to institute the suit within 6 months from the date of dispossession? Are not findings of both the courts below patently wrong, erroneous and perverse holding the suit to be within limitation, which was instituted after the expiry of 6 months from the date of alleged complaint of forcible dispossession? 2. Whether both the courts below have wrongly held the suit to be maintainable against the Defendant No.1/Proforma Respondent by holding the relationship of landlord and tenant existing between the Plaintiff- Respondent and Defendant No.1/Proforma Respondent? Are not these findings illegal, erroneous and perverse as against the documents duly placed on the record of both the courts below showing the property having owned by late Shri Sudarshan Kumar Mahajan, who was succeeded by Defendant-Appellant and other legal heirs? Could the suit for possession on the ground of alleged forcible dispossession be maintained without impleading all the owners of the property? Was not suit bad for non-joinder of necessary parties and misjoinder of parties? 3. Whether both the courts below have committed grave illegality and acted erroneously and perversely in not directing adverse inference against the Plaintiff-Respondent for not appearing in the witness box personally? When the material facts have not been explained by the Plaintiff-Respondent personally court the Power of Attorney be said to be a competent witness to be considered a party to the proceeding, is not the conduct of the Plaintiff- Respondent entitles the courts below to draw adverse inference in not appearing as their witness in the suit? 6. Learned counsel for the appellant urges that the suit of the plaintiff was barred by limitation and both the learned Courts below were in grave error in entertaining the suit beyond the period of limitation as prescribed under Section 6(2)(a) of the Act. This is the first and only substantial question of law urged for consideration by this Court. 7. Question of Limitation: This is the only point raised before me for consideration. The point urged by learned senior counsel appearing for the appellant is that the defendant is the owner of the suit property which is also admitted by the plaintiff. This is the first and only substantial question of law urged for consideration by this Court. 7. Question of Limitation: This is the only point raised before me for consideration. The point urged by learned senior counsel appearing for the appellant is that the defendant is the owner of the suit property which is also admitted by the plaintiff. Right of the plaintiff for possession is one of tenancy only and the right of the appellant is a superior right of ownership. It is in this context that the question of limitation has to be resorted as to whether the provisions of Section 6(2)(a) of the Act are applicable or not or as urged by learned counsel appearing for the respondent-plaintiff it is Article 64 of the Limitation Act which would govern the suit. 8. Learned Senior counsel for the appellant relies on the judgment of this Court in in Hari Chand vs. Ramesh Lal, 1993(2) S.L.J.1354, following the principle of law as laid down in Nair Service Society Ltd. vs. K.C. Alexander and others, AIR 1968 SC 1165 and Somnath Berman vs. Dr.S.P. Raju and another, AIR 1970 SC 846 . This Court held that suit for possession based on possessory title can be filed within 12 years and Article 64 of the Limitation Act would govern it, but the moment the defendant pleads a better title, it is Section 6(2)(a) of the Act which governs the suit and limitation would be six months. 9. Adverting to the facts of Hari Chand’s case, appeal was preferred by one Hari Chand against decree of possession granted by the learned appellate Court reversing the decree of the learned trial Court dismissing the suit of the plaintiff Sh.Ramesh Lal. This suit was instituted against the appellant for restoration of possession on the allegations that the appellant-defendant Hari Chand had illegally and unauthorisedly locked out the suit premises from inside thereby effectively depriving the plaintiff of possession of the property. The matter was reported to the police and thereafter suit for injunction was filed by respondent-plaintiff Ramesh Lal. The defendant, in the meantime, forcibly occupied the suit premises placing his belongings inside and completely dispossessing the plaintiff. Suit for injunction was withdrawn and instead suit for possession was instituted. The matter was reported to the police and thereafter suit for injunction was filed by respondent-plaintiff Ramesh Lal. The defendant, in the meantime, forcibly occupied the suit premises placing his belongings inside and completely dispossessing the plaintiff. Suit for injunction was withdrawn and instead suit for possession was instituted. One of the grounds pleaded for non suiting the plaintiff was that it is beyond the period of limitation as prescribed by Section 6(2)(a) of the Act which contention was accepted by the learned trial court but negatived by the learned appellate Court holding that a person in possession of property who has unlawfully dispossessed can sue independently of Section 6 of the Act on the basis of previous possession and in this situation the period of limitation would be 12 years under Article 64. Hon’ble Kamlesh Sharma,J., following the ratio of the judgments in Nair Service society Ltd. and Somnath Berman, held:- “7. The law laid down in Nair Service Society Ltd.(supra) is very clear that a suit for possession based on possessory title can be filed within 12 years and Art.64 of the Limitation will govern the said suit but the moment the defendant shows a better title in such a suit, the suit is maintainable under Sec.6 of the Specific Relief Act only and the limitation will be six months. Admittedly, in the present case, the appellant-defendant Hari Chand, being the owner of the suit property, had a better title than the respondent- plaintiff Ramesh Lal and on his asserting his claim of better title, the suit of respondent-plaintiff Ramesh Lal must fail if it is filed beyond the period of six months from the date of dispossession. Admittedly, the respondent-plaintiff Ramesh Lal was dispossessed in December, 1982 and the suit was filed on 24th February, 1984, beyond the period of six months. Sh.Jagdish Vats, learned counsel for the respondent-plaintiff Ramesh Lal, has not been able to show any later judgment of the Supreme Court where the law laid down in Nair Service Society Ltd (Supra) has been differed with in any manner whatsoever.” (p.1357) 10. Learned Senior counsel submits that the ratio in Nair Service Society Ltd.(supra) has been reaffirmed in Tirumala Tirupati Devasthanams vs. K.M. Krishnaiah, AIR 1998 SC 1132 . 11. In that case the Devasthanam Trust was the defendant in the Court of District Munsif in Tirupati. Learned Senior counsel submits that the ratio in Nair Service Society Ltd.(supra) has been reaffirmed in Tirumala Tirupati Devasthanams vs. K.M. Krishnaiah, AIR 1998 SC 1132 . 11. In that case the Devasthanam Trust was the defendant in the Court of District Munsif in Tirupati. Suit was filed by one K.M. Krishnaiah with a prayer for grant of permanent injunction in respect of land in the Tirumala Hills belonging to the Devasthanam Trust. The trial Court dismissed the suit holding that the plaintiff had neither proved his title nor possession and had trespassed into the property in October, 1967, was not entitled to decree of permanent prohibitory injunction against the defendant. The appeal preferred was dismissed; whereafter second appeal was preferred in the High Court. The learned Single Judge allowed the appeal and passed a decree for possession in favour of the plaintiff treating the suit as one based on possessory title, holding that the plaintiff had been dispossessed on 30.8.1969 could recover possession from the appellant Devasthanam Trust unless it proved its title. The Supreme Court noticed that the learned Single Judge on the oral evidence held that title of the Trust was extinguished as delivery receipts showed that some `encroachers’ were in possession of this piece of land. These findings were rendered for the first time in second appeal preferred by the Trust. Three points were formulated by the Hon’ble Supreme Court and it was on the third point as to whether a decree for possession based on possessory right could be granted, the Court adverting to this issue, on the basis of the ratio in Nair Service Society Ltd. case, holds:- “17. In that case the respondent was the plaintiff and he was dispossessed. He sued for possession but the suit was filed more than one year after dispossession. Under the Specific Relief Act, 1877 Section 9 permitted a dispossessed plaintiff to sue for possession within one year and if he so sued, question of title of the defendant was immaterial. Now under Section 6 of the new Specific Relief Act, 1963 the said period of one year has been reduced to six months. Question arose whether the suit by the dispossessed plaintiff, after expiry of the 1 year period, was maintainable. Now under Section 6 of the new Specific Relief Act, 1963 the said period of one year has been reduced to six months. Question arose whether the suit by the dispossessed plaintiff, after expiry of the 1 year period, was maintainable. It was held by this Court that even if the time for filing a summary suit under Section 9 the Specific Relief Act, 1877 expired, the dispossessed person could still file a suit for possession on the basis of prior possession. Such a suit is described as one based on 'possessory title'. But in such a suit filed by the dispossessed plaintiff beyond the period specified in Section 9 of the Specific Relief Act, 1877 (or Section 6 of the 1963 Act) defendant who dispossessed the plaintiff could defend himself by proving title and if he proved title, he could remain in possession. After an exhaustive examination of the law on this aspect, Hidayatullah, J. (as he then was) observed as follows (p.1173) : "When, however, the period of 6 months has passed, questions of title can be raised by the defendant and if he does so, the plaintiff must establish a better title or fail". The difference between the right to possession in summary suit under the Specific Relief Act and a regular suit based on 'possessory title' was explained further as follows (p.1173): ". . . . . the right is only restricted to possession only in a suit under Section 9 of the Specific Relief Act but does not bar a suit on prior possession within 12 years and title need not be proved unless the defendant can prove one". On the question whether the defendant, in spite of dispossessing the plaintiff, could, by proving title, remain in possession, it was held that the defendant could, in such a situation, be permitted to retain his possession if he proved title. It was stated that the law was so laid down in Asher v. Whitlock, (1865) 1 QB 1 and was accepted by the House of Lords in Perry v. Clissold, 1907 AC 73, that was also the law applicable in our country and it was this principle that was engrafted into Articles 64 and 65 of the Indian Limitation Act, 1963. The said articles were, it was held, declaratory of the law. The said articles were, it was held, declaratory of the law. The following observations of Hidayatullah, J. (as he then was) place the matter beyond any shadow of doubt, (p 1175, Col.1): "1865 (1) QB 1 (Asher v. Whitlock) lays down that a person in possession of land has a good title against all the world except the true owner and it is wrong in principle for any one without title or authority of the true owner to dispossess him and relying on his position as defendant in ejectment to remain in possession". . . . . A defendant in such a case must show in himself or his predecessor a valid legal title or . . . . . ." (name of case in brackets supplied). On the facts in Nair Service Society, ( AIR 1968 SC 1165 ), the said Society which was the defendant raised a plea that it had not dispossessed the plaintiff-respondent but that the plaintiff was dispossessed by the State which was the real owner. It contended further that the State had put the Society in possession, after dispossessing the plaintiff. The High Court however, held that it was the Society that had dispossessed the plaintiff and not the State. This finding was accepted by the Supreme Court. It was therefore held that the suit for possession by the dispossessed plaintiff was maintainable even though the one year period under Section 9 of the old Specific Relief Act, 1877 had expired, that the suit would then be one where title could be pleaded by the Society to remain in possession, but that the Society failed to prove title in itself. Nor did the Society prove any authority from the true owner to dispossess the plaintiff. The Society could not, therefore, remain in possession. However, in this Court, the Society set up a different root of title under a second Kuthaka-pattam (see para 33) and with a view to shorten further litigation, an amendment to the written statement of the Society was allowed by this Court and the matter was remanded. 18. The Society could not, therefore, remain in possession. However, in this Court, the Society set up a different root of title under a second Kuthaka-pattam (see para 33) and with a view to shorten further litigation, an amendment to the written statement of the Society was allowed by this Court and the matter was remanded. 18. In the present case before us the principles laid down in Nair Service Society's case ( AIR 1968 SC 1165 ) are squarely applicable with this difference namely that inasmuch as, -in view of our finding in Point 1, -title of the defendant TTD has not been extinguished and is subsisting as of today in respect of the suit property, the plaintiff respondent who was dispossessed on 30-8-69 -but who applied for possession on 25-7-70 beyond 6 months from date of dispossession -would not be able to recover possession. The TTD could remain and retain its possession. We hold accordingly Point 3 in favour of the appellant.” 19. In the result the Civil appeal is allowed and the judgment of the learned Judge in Second Appeal is set aside and the suit of the plaintiff for possession (as per the amended plaint) is dismissed with costs. The stay granted in favour of the appellant on 27-7-1987 is confirmed and consequent to the appeal being allowed, the appellant will be entitled to recover, by way of restitution, any mesne profits deposited by it pending this appeal and withdrawn by the plaintiff. Such recovery by the appellant can be made either by encashing any subsisting bank guarantee furnished by the plaintiff as directed by this Court in its order dated 27-7-1987 or in any other manner whatsoever by way of restitution. (pp.1136 & 1137) 12. The appeal was accepted and the judgment granting a decree for possession was set aside. Learned counsel for the respondents urges that dismissing the suit on the ground of limitation would be encouraging people to take law into their hands. He submitted that it is the settled principle of law that no person shall be dispossessed of his property save and except in accordance with law. He places reliance on the decision of the Supreme Court in Rame Gowda (Dead) By LRs. vs. M.Varadappa Naidu (Dead) By LRs. and Another, (2004)1 SCC 769 , wherein it has been held that:- “7. He places reliance on the decision of the Supreme Court in Rame Gowda (Dead) By LRs. vs. M.Varadappa Naidu (Dead) By LRs. and Another, (2004)1 SCC 769 , wherein it has been held that:- “7. The thought has prevailed incessantly, till date, the last and latest one in the chain of decisions being Ramesh Chand Ardawatiya v. Anil Panjwant, (2003)7 SCC 350. In between, to quote a few out of several, in Lallu Yeshwant Singh v. Rao Jagdish Singh, AIR 1968 SC 620 this Court has held that a landlord did commit trespass when he forcibly entered his own land in the possession of a tenant whose tenancy has expired. The Court turned down the submission that under the general law applicable to a lessor and a lessee there was no rule or principle which made it obligatory for the lessor to resort to court and obtain an order for possession before he cold eject the lessee. The Court quoted with approval the law as stated by a Full Bench of the Allahabad High Court in Yar Mohd. V. Lakshmi Das AIR 1959 All 1 (AIR at p.4): “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.” (AIR p.5, para 13) In the oft-quoted case of Nair Service Society Ltd. v. K.C. Alexander AIR 1968 SC 1165 this Court held that a person in possession of land in assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. When the facts disclose no title in either party, possession alone decides. When the facts disclose no title in either party, possession alone decides. The Court quoted Loft’s maxim – “Possessio contra omnes valet praeter eur cui ius sit possessionis (he that hath possession hath right against all but him that hath the very right)” and said: (AIR p.1175, para 20) “A defendant in such a case must show in himself or his predecessor a valid legal title, or probably a possession prior to the plaintiff’s and thus be able to raise a presumption prior in time.” In M.C. Chockalingam v. V.Manickavasagam, (1974)1 SCC 48 this Court held that the law forbids forcible dispossession, even with the best of title. In Krishna Ram Mahale v. Shobha Venkat Rao, (1989)4 SCC 131 it was held that where a person is in settled possession of property, even on the assumption that 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 Nagar Palika, Jind v. Jagat Singh, (1995)3 SCC 426 this Court held that disputed questions of title are to be decided by due process of law, but the peaceful possession is to be protected from the trespasser without regard to the question of the origin of the possession. When the defendant fails in proving his title to the suit land the plaintiff can succeed in securing a decree for possession on the basis of his prior possession against the defendant who has dispossessed him. Such a suit will be founded on the averment of previous possession of the plaintiff and dispossession by the defendant. 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. 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 the 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 acquienced to by the true owner.” (pp.774-775) 13. Learned counsel for the respondents places reliance on the decision of the Supreme Court in Ramiah vs. N.Narayana Reddy (Dead) By LRs., (2004)7 SCC 541 , to hold that it is Article 64 of the Limitation Act which would govern limitation. 14. I am unable to accept this contention. There is no doubt that a person in possession is entitled to protection. No person can take the law in his own hand, but at the same time, it is the question of limitation which has to be considered. Indisputably, the suit was filed on 11.6.1997. The pleading is that on 19.6.1994, when the plaintiff and her general power of attorney visited Dalhousie, they found that the lock of the suit premises had been removed and on entering the premises they found that none of the plaintiff’s personal belonging were there. I only consider this part of the pleading for the purpose of limitation though in the suit I find that no list of belongings etc. has been placed on the record of the case. I only consider this part of the pleading for the purpose of limitation though in the suit I find that no list of belongings etc. has been placed on the record of the case. No other point has been urged before me. Indisputably, if the pleadings of the plaintiff are accepted on the factual narration of the factum of dispossession or the cause of action, the dispossession took place on 19.6.1994 and suit was filed on 11.6.1997 which was beyond a period of six months. The question for consideration as raised was otherwise whether Section 6(2)(a) governs the case or not. The law on this point now stands settled in Tirumala Tirupati Devasthanams and Hari Chand’s cases (supra), where the defendant had a better title and no suit for possession was filed within a period of six months. I find that both the Courts below have erred while considering this question. Learned counsel for the respondents also places reliance on the judgment of the Allahabad High Court in Ram Surat Singh and others vs. Badri Narain Singh and another, AIR 1927 Allahabad 799 and Oudh High Court in Mohammad Mahmud vs. Mukammad Afaq and others, AIR 1934 Oudh 21. The law on the point having been settled by the Supreme Court I do not consider it necessary to refer to these judgments for the purposes of decision of this case. The learned trial Court has been remiss while applying the principle of law applicable and the learned appellate Court has not even cared to give thought to the argument of limitation and merely glossed over, holding that Article 64 would govern the suit. Question No.1 is answered in favour of the appellant and against the defendants. Appeal allowed. No order as to costs.