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2014 DIGILAW 2400 (BOM)

Ravindra G. Kalangutkar v. Sanjay

2014-12-04

R.M.BORDE

body2014
JUDGMENT : R.M. Borde, J. 1. Instant second appeal is presented by the original plaintiff, challenging the judgment and decree passed by the Civil Judge, Senior Division, at Bicholim, in Regular Civil Suit No. 54/2002/A dated 3rd October, 2005, confirmed by the District Judge-2, Panaji in Regular Civil Appeal No. 57/2006 on 9.8.2007. The appellant-original plaintiff presented a suit claiming decree of perpetual injunction against the defendants in respect of survey No. 260/4 of Village Mayem. According to the plaintiff, the possession of the property has been taken over by the plaintiff on the basis of a lease agreement from the family of one Silva Noronha. The said property, along with some other properties of Silva Noronha family, were declared as evacuee property. The name of the Government of Goa is recorded in the survey records in the occupant's column. It is the contention of the plaintiff that in recording the name of one Prabhakar Vittu Kalangutkar, an error was committed showing him as having "rakhan" of the property. The plaintiff claimed that he was in possession of the property and the defendants do not have any entitlement. However, they are causing interference in the peaceful possession of the plaintiff. 2. The defendants have presented written statement and controverted the contentions raised by the plaintiff. According to the defendants, the suit property was being managed by the Custodian of Evacuee Property. They denied having made any attempts to trespass into the property or they threatened to dispossess the plaintiff from the suit property. According to the defendants, they are in exclusive cultivatory possession of the suit property bearing survey No. 260/4, of which their father was a tenant and the property devolved on them after demise of their father. They claim that their father had become a deemed purchaser of the property and that the plaintiff has no entitlement. 3. At the time of trial, the plaintiff led oral evidence on his behalf. The defendant neither cross examined the witnesses produced by the plaintiff, nor led any independent evidence to substantiate their case. The trial Court, however, dismissed the suit which judgment and decree has been confirmed by the first appellate Court. 4. 3. At the time of trial, the plaintiff led oral evidence on his behalf. The defendant neither cross examined the witnesses produced by the plaintiff, nor led any independent evidence to substantiate their case. The trial Court, however, dismissed the suit which judgment and decree has been confirmed by the first appellate Court. 4. At the stage of admission, the learned Single Judge has framed the following substantial questions of law : "(b) Whether the Courts below misconstrued the entry of the Government in the column of occupant to negative the claim of tenancy although the rent was received from the Appellant claiming tenancy ? (c) Whether in the matter of tenancy, when the tenant is the holder in actual possession, landholder shall be deemed to be the occupant and therefore, the entry of the Government in the column of occupant would only prove rights of the holder in lawful possession i.e. as the owner, when actual and physical possession is claimed by the Appellant as tenant ?" 5. After hearing the arguments advanced by the appellant, I am of the view that the substantial questions of law that arise for consideration in this appeal are : (1) Whether the plaintiff who has been inducted in possession of the property is entitled to protect his possession as against all the persons, including the defendants who do not have any title ? (2) Whether the Courts below have erred in refusing to grant the decree in favour of the plaintiff although the evidence led by the plaintiff before the Court was not at all controverted by the defendants and, as such, has gone unchallenged ? 6. The oral evidence led by the plaintiff supports his case in respect of possession over the suit property. The documentary evidence, namely Form I & XIV of Survey No. 260/4 records the name of Government of Goa as occupant and in other rights column, there is an entry in the name of Prabhakar Vittu Kalangutkar, as "rakhan" of the property. Status of a person who claims to be "rakhan" cannot be equated with tenant. The contention raised by the defendants that they have been inducted in possession and are continuing as tenants on the basis of their tenancy right is not substantiated by them. Status of a person who claims to be "rakhan" cannot be equated with tenant. The contention raised by the defendants that they have been inducted in possession and are continuing as tenants on the basis of their tenancy right is not substantiated by them. There is ample evidence produced on record by the plaintiff, supporting his claim as regards induction of his forefather in possession by Silva Noronha family and continuation of the plaintiff's possession, as lessee on behalf of the Custodian. The claim put forth by the plaintiff as regards his induction as lessee is supported by documentary evidence in form of a Judgment in Misc. Civil Application No. 66/1986 decided on 15/11/1986 by the Additional District Judge, Panaji. The proceedings arose out of a suit filed by De Silva family, claiming that Custodian of Evacuee Property does not have any entitlement to various survey numbers, including the suit property. It is alleged in the suit that the Custodian had created lease of the property in favour of different persons and the name of the plaintiff was included as one of the defendants. The trial Court granted order of injunction, which order was set aside by the appellate Court dealing with the Misc. Civil Appeal. Reference to the present plaintiff in the said proceedings is as lessee on behalf of the Custodian of Evacuee Property. Apart from documentary evidence in the form of judgment referred to above, witnesses for the plaintiff have deposed about present possession of the plaintiff. The evidence led by the plaintiff has not been controverted by the defendants since the defendants chose not to participate in the suit proceedings after presentation of the written statement. In this view of the matter, uncontroverted version of the plaintiff and his witnesses, coupled with the documentary evidence supporting his claim of possession, ought to have been accepted by the Courts below. 7. It is also to be borne in mind that a person lawfully inducted in possession, is entitled to protect his possession even as against the true owner who threatens to invade his possession by applying illegal means. In the instant matter, induction of the plaintiff in possession is by lawful means and he is entitled to protect his possession from invasion at the instance of the defendants who do not have any title to the property. In the instant matter, induction of the plaintiff in possession is by lawful means and he is entitled to protect his possession from invasion at the instance of the defendants who do not have any title to the property. The defendants are strangers in respect of the suit property and, as such, the plaintiff who is in possession is entitled to protect himself from invasion or threatening calls of the defendants to dispossess him. 8. In this context, reliance can be placed on a judgment of Supreme Court in the matter of Rame Gowda (D) by L.Rs. vs. Varadappa Naidu (D) by L.Rs. and anr. reported in AIR 2004 SC 4609 . In para 8 of the judgment, Supreme Court has observed 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 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. 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. In view of the discussion above, I am of the view that the appeal presented by the plaintiff-appellant deserves to be allowed and the same is accordingly allowed. The judgment and decree passed by the Civil Judge, Senior Division, at Bicholim, in Regular Civil Suit No. 54/2002/A dated 3rd October, 2005, confirmed by the District Judge-2, Panaji in Regular Civil Appeal No. 57/2006, on 9.8.2007 is quashed and set aside. The defendants are restrained by order of injunction from interfering in peaceful possession of the plaintiff in respect of Survey No. 260/4 of Village Mayem. In the facts and circumstances of the case, there shall be no order as to costs.