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2014 DIGILAW 313 (RAJ)

Gorishankar v. Jagmohan Prasad Agarwal

2014-01-29

BELA M.TRIVEDI

body2014
JUDGMENT Hon'ble TRIVEDI, J.—The present writ petition has been filed by the petitioner-plaintiff under Articles 226 & 227 of the Constitution of India, challenging the order dated 26.10.2013 passed by the Additional District Judge No.5, Kota (hereinafter referred to as “the appellate court”) in the Civil Misc. Appeal No.13/2012, whereby the appellate court has allowed the appeal filed by the respondent-defendant, and reversed the order dated 23.06.2012 passed by the learned Civil Judge (Junior Division) Kota (South) (hereinafter referred to as “the trial court”) in misc. application No.200/2012. 2. The short facts giving rise to the present petition are that the petitioner-plaintiff has filed the suit against the respondent-defendant seeking permanent injunction for restraining the defendant from dispossessing the plaintiff from the suit premises being houses No.4-A-20 and 4-A-21 originally belonging to late Dr. Jogendra Prasad Gupta, the brother of the respondent No.1-defendant. According to the petitioner-plaintiff both the houses were given to him by the said late Dr. Jogendra Prasad Gupta in the year 1991 as they had good relations with each other and since then the petitioner was staying in the said houses. It is further case of the petitioner-plaintiff that late Dr. Jogendra Prasad Gupta died on 23.08.2011, and thereafter the respondent-defendant, who happened to be the brother of Dr. Jogendra Prasad Gupta, started giving threats to the petitioner and harassing him. According to the petitioner, the respondent was bent upon harassing the petitioner, and dispossessing him from the suit premises, and hence the suit was filed. The petitioner had also filed an application under Order XXXIX Rule 1 & 2 of CPC seeking temporary injunction of similar nature, pending the suit. The respondent-defendant had resisted the suit as well as the T.I. application by filing reply contending interalia that the petitioner-plaintiff was permitted to live in one room of house No.4-A-20 as a caretaker by late Dr. Jogendra Prasad Gupta to look after the house, and that the petitioner was never given posse-ssion of both the premises by Dr. Jogendra Prasad as alleged by the plaintiff. It was further contended that the petitioner had broken down the common wall existing between the two houses and had illegally encroached upon the house bearing No.4-A-21. It was also contended that after the death of Dr. Jogendra Prasad as alleged by the plaintiff. It was further contended that the petitioner had broken down the common wall existing between the two houses and had illegally encroached upon the house bearing No.4-A-21. It was also contended that after the death of Dr. Jogendra Prasad Gupta, the respondent-defendant had become the owner of both the houses by virtue of the will executed by his brother late Dr. Jogendra Prasad Gupta, and that both the houses have been registered in the name of respondent-defendant in the Rajasthan Housing Board, Jaipur since 11.4.2012. 3. The trial court after hearing the contentions raised by the learned counsels for the parties, had allowed the application filed by the petitioner-plaintiff for temporary injunction, restraining the respondent-defendant, from dispossessing the plaintiff from the houses bearing Nos.4-A-20 and 4-A-21, situated at Mahaveer Nagar, Vistar Yojna, Kota, without following the due pro-cess of law. Being aggrieved by the said order, the respondent-defendant had filed the appeal being No.13/2012 before the appellate court, which has been allowed by the appellate court vide the impugned order dated 26.10.2013. 4. It is submitted by the learned counsel Mr. Bharat Saini for the petitioner that the respondent, taking law in his hand was bent upon dispossessing the petitioner from the suit premises. According to him, the petitioner was in possession of both the premises since last many years, and he could not be dispossessed without following the due process of law. He also submitted that the respondent using muscle power had tried to set fire and cause damage in the house of the petitioner, for which criminal complaint was also filed by the petitioner. 5. However, the learned counsel Mr. Saket Pareek, for the respondent vehemently submitted that the petitioner was simply a caretaker of the house bearing No.4-A-20, and was permitted to stay in one room of the said house, however he had broken down the common wall existing between two houses and encroached upon the house being No.4-A-21 also. 5. However, the learned counsel Mr. Saket Pareek, for the respondent vehemently submitted that the petitioner was simply a caretaker of the house bearing No.4-A-20, and was permitted to stay in one room of the said house, however he had broken down the common wall existing between two houses and encroached upon the house being No.4-A-21 also. Placing heavy reliance on the decision of the Apex Court in case of Maria Margarida Sequeira Fernandes And Others vs. Erasmo Jack De Sequeira (Dead) Through LRs, (2012) 5 Supreme Court Cases 370 = 2012(2) RLW 1765 (SC) and in case of A. Shanmugam vs. Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam & Ors., (2012) 6 Supreme Court Cases 430, the learned counsel submitted that the caretaker has no right to file the suit seeking injunction against the owner, and the title holder of the property, and that when the suit itself is not maintainable, the petitioner is not entitled to get any temporary injunction, as prayed for. 6. In the instant case, it emerges from the submissions made by the learned counsels for the parties, and from the impugned orders passed by the courts below that the petitioner was in possession of the part of the suit premises being No.4-A-20 as a caretaker only. Admittedly the suit premises comprising of the two houses belonged to Dr. Jogendra Prasad, brother of the respondent, and the petitioner was not paying any amount to the said Jogendra Prasad either by way of rent or license fee. As per the case of the petitioner-plaintiff himself, he was allowed to say in the suit premises gratuitously by the said late Dr. Jogendra Prasad. It also appears that after the death of original owner Dr. Jogendra Prasad Gupta, the present respondent-defendant had become the owner of the suit premises. There is nothing on record to suggest that the petitioner-plaintiff was in possession of the house bearing No.4-A-21. From the documents produced by the petitioner, it appears that he was in possession of house No.4-A-20 and not of 4-A-21. It also transpires that the petitioner-plaintiff has filed the suit seeking permanent in-junction for restraining the respondent-defendant, who is the owner of the suit premises, from dispossessing the petitioner from both the houses bearing No. 4-A-20 and 4-A-21. From the documents produced by the petitioner, it appears that he was in possession of house No.4-A-20 and not of 4-A-21. It also transpires that the petitioner-plaintiff has filed the suit seeking permanent in-junction for restraining the respondent-defendant, who is the owner of the suit premises, from dispossessing the petitioner from both the houses bearing No. 4-A-20 and 4-A-21. At this juncture, the observations made by the Apex Court in case of Maria Margarida Sequeira Fernandes And Others vs. Erasmo Jack De Sequeira (Dead) Through LRs. (supra), relied upon by the learned counsel for the respondent, are required to be reproduced which read as under:- “97. Principles of law which emerge in this case are crystallised as under: (1) No one acquires title to the property if he or she was allowed to stay in the premises gratuitously. Even by long possession of years or decades such person would not acquire any right or interest in the said property. (2) Caretaker, watchman or servant can never acquire interest in the property irrespective of his long possession. The caretaker or servant has to give possession forthwith on demand. (3) The courts are not justified in protecting the possession of a caretaker, servant or any person who was allowed to live in the premi-ses for some time either as a friend, relative, caretaker or as a servant. (4) The protection of the court can only be granted or extended to the person who has valid, subsisting rent agreement, lease agreement or license agreement in his favour. (5) The caretaker or agent holds property of the principal only on behalf of the principle. He acquires no right or interest whatsoever for himself in such property irrespective of his long stay or possession.” 7. Similar view has also been taken by the Apex Court in case of A. Shanmugam vs. Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam & Ors. (supra), in which it has been held as under:- “43. On the facts of the present case, the following principles emerge: 43.1. It is the bounden duty of the court to uphold the truth and do justice. 43.2. Every litigant is expected to state truth before the law court whether it is pleadings, affidavits or evidence. Dishonest and unscrupulous litigants have no place in law courts. 43.3. The ultimate object of the judicial proceedings is to discern the truth and do justice. It is the bounden duty of the court to uphold the truth and do justice. 43.2. Every litigant is expected to state truth before the law court whether it is pleadings, affidavits or evidence. Dishonest and unscrupulous litigants have no place in law courts. 43.3. The ultimate object of the judicial proceedings is to discern the truth and do justice. It is imperative that pleadings and all other presentations before the court should be truthful. 43.4. Once the court discovers falsehood, concealment, distortion, obstruction or confusion in pleadings and documents, the court should in addition to full restitution impose appropriate costs. The court must ensure that there is no incentive for wrongdoer in the temple of justice. Truth is the foundation of justice and it has to be the common endeavour of all to uphold the truth and no one should be permitted to pollute the stream of justice. 43.5. It is the bounden obligation of the Court to neutralise any unjust and/or undeserved benefit or advantage obtained by abusing the judicial process. 43.6. The watchman, caretaker or a servant employed to look after the property can never acquire interest in the property irrespective of his long possession. The watchman, caretaker or a servant is under an obligation to hand over the possession forthwith on demand. According to the principles of justice, equity and good conscience, the courts are not justified in protecting the possession of a watchman, caretaker or servant who was only allowed to live into the premises to look after the same. 43.7. The watchman, caretaker or agent holds the property of the principal only on behalf the principal. He acquires no right or interest whatsoever in such property irrespective of his long stay or possession. 43.8. The protection of the court can be granted or extended to the person who has valid subsisting rent agreement, lease agreement or licence agreement in his favour.” 8. In the light of the afore-stated ratio of the judgments, if the facts of the present case are appreciated, it clearly transpires that late Dr. Jogendra Prasad had allowed the petitioner-plaintiff to stay in part of house No.4-20-A gratuitously and the petitioner-plaintiff had misused the process of law by filing the suit, which is not maintainable in the eye of law. Jogendra Prasad had allowed the petitioner-plaintiff to stay in part of house No.4-20-A gratuitously and the petitioner-plaintiff had misused the process of law by filing the suit, which is not maintainable in the eye of law. As per the afore-stated legal position, it was the bounden duty of the petitioner to handover possession of the suit premises to the respondent immediately on demand and the court should not protect the possession of the petitioner under the guise of the temporary injunction. As rightly submitted by the learned counsel Mr. Pareek for the respondent, the petitioner could not be granted the temporary injunction when his suit for permanent injunction was not maintainable. In absence of any valid and subsisting lease or license agreement or rent agreement, the petitioner can not be granted any injunction or permitted to retain the possession of the suit premises. 9. In that view of the matter, the Court does not find any merit in the petition. The petition is dismissed accordingly.