IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2968 OF 2012
(Arising out of SLP (C) No. 15382 of 2009)
Maria Margarida Sequeria Fernandes and Others ...Appellants
Versus
Erasmo Jack de Sequeria(Dead) through L.Rs. ...Respondents
JUDGEMENT
Dalveer Bhandari, J.
1. Leave granted.
2. This appeal emanates from the judgment and order dated
5.5.2009 passed by the High Court of Bombay, Bench at Goa
in Civil Revision Application No.3 of 2009.
3. Appellant No.1 and respondent No.1, Erasmo Jack de
Sequeira (now dead) were sister and brother, hereinafter
referred to as appellant and respondent respectively.
4. According to the appellant, she is the sole owner and is
in exclusive possession of the suit property. Her title of the
said suit property was clearly admitted, and never disputed by
the respondent, Erasmo Jack de Sequeira. According to the
appellant, the suit property was given to her brother as a
caretaker. The respondent has kept appellant, his own sister,
out of her suit property for about two decades by suppressing
relevant material and pertinent information from the Court
and abusing the process of law.
5. Both the appellant and the respondent hail from the
State of Goa and belong to one of the leading and well known
families of Goa. The father of the appellant and the
respondent, Dr. Jack D. Sequeira was an affluent
businessman and a well-known politician of Goa. Dr.
Sequeira, during his lifetime, gave a number of properties
worth crores of rupees to the respondent and also gave some
properties to the appellant and her sisters. The respondent
was given a soft drink factory at Goa, mining leases of iron
ore, agricultural lands and residential plots including one
situated at Dona Paula, which is located next to the
Governor's House. Though the respondent was given
properties worth several crores of rupees, he still eyed on a
small property which the appellant purchased through Court
auction after paying full sale consideration. The respondent-
brother of the appellant was also a very influential and
important Member of Parliament. He was also very active in
the local politics in Goa.
6. The appellant urged that the suit property originally
belonged to her grandmother. Under the Portuguese Law, her
(grandmother's) children, i.e. two sons and a daughter (the
appellant's father, uncle and aunt) got 1/3rd share each in the
said suit property. The suit property of her grandmother was
put to auction and this suit property in question was
purchased in auction by the appellant. In the Inventory
Proceedings No. 1075/935 in the year 1968, she became the
exclusive owner of the suit property. Admittedly, the appellant
has placed a certified copy of the order of the Civil Judge,
Senior Division at Panaji dated 27th May, 1972 issued in
favour of the appellant. According to the appellant, the
possession and title of the suit property in favour of the
appellant is established from the judgment of the Inquiry
Officer of City Survey Tiswadi, Panjim, Goa. The said order
was not only passed in the presence of the respondent, but
also in the presence of his Attorney, Rodrigues who was also a
senior executive officer of the respondent. The relevant
portion of that judgment is as under:-
"The claim put forth by Shrimati Maria Teresa de
Sequeria from Panaji, in respect of Chalta No.14 of
P.T. Sheet 65 was inquired into and it was found
that the same belongs to the said Maria Teresa de
Sequeria in view of Inventory Proceedings No.9-
1968 [1075-935] - vide Certificate issued by the
Court of Civil Judge Senior Division, Panaji dated
27.5.72 and as such her title and possession to the
Chalta No.14 of P.T. Sheet No.65 is confirmed."
7. According to the appellant, she obtained the exclusive
title of the plot and the house in question.
8. It may be pertinent to mention that the respondent had
even participated in the said Court proceedings on behalf of
his handicapped aunt, Edna May Sequeria as a guardian and
received a cheque on her behalf. The appellant had deposited
Rs.40,000/-, the owelty money in the said Court proceedings
which became payable on account of the purchase of the said
house. The said suit property stood registered in Panaji
Municipal Council in the name of the appellant. House tax
was paid by the appellant to the Municipality on self-
occupation basis. Further, it is submitted that the possession
of the suit property always remained with the appellant.
9. The Panaji Municipal Council, Goa issued a certificate
showing that possession of the suit premises was with the
appellant and the house tax of the suit property was paid by
her and she was the recorded owner of the same. According to
the appellant, the respondent himself had acknowledged
possession and title of the suit property in favour of the
appellant.
10. The appellant submitted that she got married on
8.9.1974 to an Officer of the Indian Navy who was posted from
time to time in different places in India. She also submitted
that the respondent - her brother requested her that as his
office is just adjacent to the suit property, therefore, it would
be convenient for him to run his office and to keep an eye on
the suit property of the appellant. Therefore, the suit property
was given to the respondent only as a caretaker.
11. The respondent executed a leave and licence agreement
in the name of his wife to shift with his family out of the suit
property completely on 1.4.1991 to Campo Verde Apartments
at Caranzalem in Goa. The leave and licence agreement
executed by the respondent's wife for the new house wherein
the respondent and his family shifted on 1.4.1991 and
thereafter got the agreement renewed on 7.3.1992. The
respondent also owned one flat in Goa and occupied on
17.4.1991.
12. According to the appellant, the respondent handed over
the suit property to his sister Maria in the first week of May,
1991 and requested her that some items which were already
lying in the suit property which the respondent did not
immediately require in his new place may be kept in the suit
property. According to the appellant, her brother before
shifting to the tenanted flat, handed over the keys of the house
to the appellant. The appellant did not take any receipt from
her brother or click a photograph to create evidence showing
handing over of the custodian possession of the suit property.
The respondent shifted to his new flat and the suit property
was lying almost vacant because the appellant along with her
husband was living outside Goa on his different official
postings.
13. According to the appellant, the details of electricity, water
and telephone bills clearly demonstrate that the house was
locked and the small amounts payable in the said months, i.e.,
August, September, October and November in the year 1991,
February 1992 also showed very nominal payments of
Rs.30/-, Rs.33/-, Rs.68/- which conclusively proved that a
house comprising of several rooms, drawing, dining,
bathrooms, verandah, lawns etc. was lying vacant.
14. On 20.5.1992, the appellant returned with her family to
Goa and occupied and enjoyed the said suit property. The
appellant submitted that she has a valid title/ownership and
was in possession of the suit property and she could not be
dispossessed by a Court in a suit for injunction. The
appellant submitted that under Section 6 of the Specific Relief
Act, the appellant could not have been legally compelled to
hand over the possession to the respondent. It may be
pertinent to mention that the respondent had filed a suit for
injunction before the Trial Court. The Trial Court granted
injunction in favour of the respondent and the same was
upheld by the High Court in the impugned judgment in Civil
Revision Application.
15. According to the appellant, the impugned judgment of
the High Court by which the judgment of the Trial Court was
affirmed is totally contrary to the law laid down by this Court
in Mahabir Prasad Jain v. Ganga Singh (1999) 8 SCC 274.
It was also asserted by the appellant that this Court in the
aforementioned case has laid down the parameters of Section
6 of the Special Relief Act, 1963. In the instant case, the
Courts below were oblivious of the principle under Section 6 of
the Specific Relief Act. The appellant urged that the
respondent's suit for injunction was not maintainable as he
could not claim to be in lawful and legal possession of the
premises at all. The appellant argued that the Courts below
have missed the main issue as the respondent was merely in
custody of the house on behalf of the appellant. According to
her, a caretaker can never sue a valid title-holder of the
property.
16. The appellant further urged that a caretaker's possession
can never be a possession of individual's right and no such
suit for injunction under Section 6 of the Specific Relief Act
was maintainable. The appellant contended that the
respondent returned the keys of the suit property sometime in
May 1991. The appellant asserted that the respondent had
manipulated the system and collected false and fabricated
evidence in the form of Panchnama in collusion with the local
police and was designed to throw out the appellant from her
own house.
17. On 17.6.1992, the respondent filed a suit for permanent
and mandatory injunction in the Court of Civil Judge, Senior
Division at Panaji as a Special Civil Suit No.131/92/A. On
22.6.1992, an ex-parte order for depositing the keys was
passed while the appellant and her family members were living
in the suit premises. The Trial Court decreed the suit.
18. According to the appellant, the impugned judgment of
the High Court is contrary to the ratio of the judgment of this
Court in Rame Gowda (dead) by LRs. v. M. Varadappa
Naidu (dead) by LRs. and Another (2004) 1 SCC 769
wherein a three-Judge Bench of this Court has observed that
possession is no good against the rightful owner and that the
assumption that he is in peaceful possession will not work and
cannot operate against the true lawful owner.
19. Reliance has also been placed by the appellant on
Southern Roadways Ltd., Madurai v. S.M. Krishnan (1989)
4 SCC 603 wherein this Court has held that it is the settled
law that agent has no possession of his own and caretaker's
possession is the possession of the principal. This Court has
taken the view that possession of the agent is the possession
of the principal and in view of the fiduciary relationship, the
agent cannot be permitted to claim his own possession. Thus,
according to the appellant, the respondent had no right, title
and/or interest in the suit property and was not in lawful
possession. Therefore, the suit for injunction under Section 6
of the Specific Relief Act is totally misconceived. The appellant
contended that the High Court in the impugned judgment has
gravely erred in affirming the judgment of the Trial Court.
20. According to the case of the respondent, he was
permitted to live in the suit premises because of the family
arrangement. The respondent remained in possession of the
suit property for several years and hence he cannot be
dispossessed without following due process of law.
21. It is also submitted by the respondent that he was in
possession of the suit premises for 28 years and was forcibly
dispossessed on 15.6.1992. The respondent also submitted
that he never conceded that the title of the suit property was
with the appellant. He also submitted that it is contrary to the
records that the respondent was a caretaker.
22. The learned counsel for the parties reiterated the
submissions made before the Courts below. The appellant
submitted that she is a helpless and hapless sister of the
respondent who has been kept out from her own house for
more than two decades. The appellant is the owner of the suit
property which is evident from the Certificate of the Probate
Proceedings known as Inventory Proceeding No.1075/935.
She further submitted that the respondent, her brother, was a
party in the said Probate Proceedings where the appellant
acquired the title of the suit property on 27.5.1972. The
respondent collected the sale consideration amount on 17th
March, 1972 vide Cheque No.33559 drawn on Bank of India
on behalf of his aunt in the auction proceedings.
23. The appellant submitted that the City Civil Court held that
the appellant is the owner of the suit property and has the title
and possession of the same which was never challenged by the
respondent. The appellant also submitted that apart from the
title of the suit property, house tax records and wealth tax
records indicate that she was and continued to be the owner of
the suit property. She further submitted that the utility bills
of electricity, water and telephone were of minimal amount
which show that the respondent had never resided in the suit
premises. The appellant submitted that the finding of the
Trial Court that the appellant had no funds to purchase the
property was contrary to record. The High Court has also
erroneously affirmed the findings of the Trial Court.
24. The appellant urged that the suit filed by the respondent
is not based on title. The family arrangement, as alleged by
the respondent, is neither pleaded nor proved. The appellant
asserted that no suit under Section 6 of the Specific Relief Act
lies against the true owner. The appellant submitted that a
caretaker, agent, guardian etc. cannot file a suit under Section
6 of the Specific Relief Act.
25. According to law laid down by this Court in Rame
Gowda (dead) by LRs. (supra), it is the settled legal position
that a possessory suit is good against the whole world except
the rightful owner. It is not maintainable against the true
owner.
26. This Court in Anima Mallick v. Ajoy Kumar Roy and
Another (2000) 4 SCC 119 held that where the sister gave
possession as gratuitous to the brother, this Court restored
possession to the sister as it was purely gratuitous basis and
the sister could have reclaimed possession even without
knowledge of the brother.
27. According to the appellant, this Court in Sopan
Sukhdeo Sable and Others v. Assistant Charity
Commissioner and Others (2004) 3 SCC 137 has observed
that no injunction can be granted against the true owner and
Section 6 of the Specific Relief Act cannot be invoked to
protect the wrongdoer who suppressed the material facts from
the Courts.
28. The appellant submitted that Section 41 of the Specific
Relief Act debars any relief to be given to such an erring
person as the respondent who is guilty of suppression of
material facts.
29. The appellant relied on Automobile Products India
Limited v. Das John Peter and Others (2010) 12 SCC 593
and Ramrameshwari Devi and Others v. Nirmala Devi and
Others (2011) 8 SCC 249 where the Court has laid down that
dilatory tactics, misconceived injunction suits create only
incentives for wrongdoers.
30. The appellant submitted that for more than two decades
the appellant is without the possession of her own house
despite the fact that she has valid title to the suit property.
Truth as guiding star in judicial process
31. In this unfortunate litigation, the Court's serious
endeavour has to be to find out where in fact the truth lies.
The truth should be the guiding star in the entire judicial
process.
32. Truth alone has to be the foundation of justice. The
entire judicial system has been created only to discern and
find out the real truth. Judges at all levels have to seriously
engage themselves in the journey of discovering the truth.
That is their mandate, obligation and bounden duty.
33. Justice system will acquire credibility only when people
will be convinced that justice is based on the foundation of the
truth.
34. In Mohanlal Shamji Soni v. Union of India 1991 Supp
(1) SCC 271, this Court observed that in such a situation a
question that arises for consideration is whether the presiding
officer of a Court should simply sit as a mere umpire at a
contest between two parties and declare at the end of the
combat who has won and who has lost or is there not any
legal duty of his own, independent of the parties, to take an
active role in the proceedings in finding the truth and
administering justice? It is a well accepted and settled
principle that a Court must discharge its statutory functions-
whether discretionary or obligatory-according to law in
dispensing justice because it is the duty of a Court not only to
do justice but also to ensure that justice is being done.
35. What people expect is that the Court should discharge its
obligation to find out where in fact the truth lies. Right from
inception of the judicial system it has been accepted that
discovery, vindication and establishment of truth are the main
purposes underlying the existence of the courts of justice.
36. In Ritesh Tewari and Another v. State of U.P. and
Others (2010) 10 SCC 677 this Court reproduced often quoted
quotation which reads as under:
"Every trial is voyage of discovery in which truth is
the quest"
37. This Court observed that the power is to be exercised
with an object to subserve the cause of justice and public
interest and for getting the evidence in aid of a just decision
and to uphold the truth.
38. Lord Denning, in the case of Jones v. National Coal
Board [1957] 2 QB 55 has observed that:
"In the system of trial that we evolved in this
country, the Judge sits to hear and determine the
issues raised by the parties, not to conduct an
investigation or examination on behalf of the society
at large, as happens, we believe, in some foreign
countries."
39. Certainly, the above, is not true of the Indian Judicial
system. A judge in the Indian System has to be regarded as
failing to exercise its jurisdiction and thereby discharging its
judicial duty, if in the guise of remaining neutral, he opts to
remain passive to the proceedings before him. He has to
always keep in mind that "every trial is a voyage of discovery
in which truth is the quest". In order to bring on record the
relevant fact, he has to play an active role; no doubt within the
bounds of the statutorily defined procedural law.
40. Lord Denning further observed in the said case of Jones
(supra) that "`It's all very well to paint justice blind, but she
does better without a bandage round her eyes. She should be
blind indeed to favour or prejudice, but clear to see which way
lies the truth..."
41. World over, modern procedural Codes are increasingly
relying on full disclosure by the parties. Managerial powers of
the Judge are being deployed to ensure that the scope of the
factual controversy is minimized.
42. In civil cases, adherence to Section 30 CPC would also
help in ascertaining the truth. It seems that this provision
which ought to be frequently used is rarely pressed in service
by our judicial officers and judges. Section 30 CPC reads as
under:-
30. Power to order discovery and the like. -
Subject to such conditions and limitations as may
be prescribed, the Court may, at any time either of
its own motion or on the application of any party, -
(a) make such orders as may be necessary or
reasonable in all matters relating to the
delivery and answering of interrogatories,
the admission of documents and facts,
and the discovery, inspection,
production, impounding and return of
documents or other material objects
producible as evidence;
(b) issue summons to persons whose
attendance is required either to give
evidence or to produce documents or
such other objects as aforesaid;
(c) order any fact to be proved by affidavit
43. "Satyameva Jayate" (Literally: "Truth Stands Invincible")
is a mantra from the ancient scripture Mundaka Upanishad.
Upon independence of India, it was adopted as the national motto
of India. It is inscribed in Devanagari script at the base of the
national emblem. The meaning of full mantra is as follows:
"Truth alone triumphs; not falsehood. Through truth
the divine path is spread out by which
the sages whose desires have been completely
fulfilled, reach where that supreme treasure of
Truth resides."
44. Malimath Committee on Judicial Reforms heavily relied
on the fact that in discovering truth, the judges of all Courts
need to play an active role. The Committee observed thus:
2.2.......... In the adversarial system truth is
supposed to emerge from the respective versions of
the facts presented by the prosecution and the
defence before a neutral judge. The judge acts like
an umpire to see whether the prosecution has been
able to prove the case beyond reasonable doubt. The
State discharges the obligation to protect life, liberty
and property of the citizens by taking suitable
preventive and punitive measures which also serve
the object of preventing private retribution so
essential for maintenance of peace and law and
order in the society doubt and gives the benefit of
doubt to the accused. It is the parties that
determine the scope of dispute and decide largely,
autonomously and in a selective manner on the
evidence that they decide to present to the court.
The trial is oral, continuous and confrontational.
The parties use cross-examination of witnesses to
undermine the opposing case and to discover
information the other side has not brought out. The
judge in his anxiety to maintain his position of
neutrality never takes any initiative to discover
truth. He does not correct the aberrations in the
investigation or in the matter of production of
evidence before court........"
2.15 "The Adversarial System lacks dynamism
because it has no lofty ideal to inspire. It has not
been entrusted with a positive duty to discover
truth as in the Inquisitorial System. When the
investigation is perfunctory or ineffective, Judges
seldom take any initiative to remedy the situation.
During the trial, the Judges do not bother if
relevant evidence is not produced and plays a
passive role as he has no duty to search for
truth....."
2.16.9. Truth being the cherished ideal and ethos of
India, pursuit of truth should be the guiding star of
the Criminal Justice System. For justice to be done
truth must prevail. It is truth that must protect the
innocent and it is truth that must be the basis to
punish the guilty. Truth is the very soul of justice.
Therefore truth should become the ideal to inspire
the courts to pursue. This can be achieved by
statutorily mandating the courts to become active
seekers of truth. It is of seminal importance to
inject vitality into our system if we have to regain
the lost confidence of the people. Concern for and
duty to seek truth should not become the limited
concern of the courts. It should become the
paramount duty of everyone to assist the court in
its quest for truth.
45. In Chandra Shashi v. Anil Kumar Verma (1995) 1 SCC
421 to enable the Courts to ward off unjustified interference in
their working, those who indulge in immoral acts like perjury,
pre-variation and motivated falsehoods have to be
appropriately dealt with, without which it would not be
possible for any Court to administer justice in the true sense
and to the satisfaction of those who approach it in the hope
that truth would ultimately prevail. People would have faith in
Courts when they would find that truth alone triumphs in
Courts.
46. Truth has been foundation of other judicial systems,
such as, the United States of America, the United Kingdom
and other countries.
47. In James v. Giles et al. v. State of Maryland 386 U.S.
66, 87, S.Ct. 793), the US Supreme Court, in ruling on the
conduct of prosecution in suppressing evidence favourable to
the defendants and use of perjured testimony held that such
rules existed for a purpose as a necessary component of the
search for truth and justice that judges, like prosecutors must
undertake. It further held that the State's obligation under
the Due Process Clause "is not to convict, but to see that so
far as possible, truth emerges."
48. The obligation to pursue truth has been carried to
extremes. Thus, in United States v. J.Lee Havens 446 U.S.
620, 100 St.Ct.1912, it was held that the government may use
illegally obtained evidence to impeach a defendant's fraudulent
statements during cross-examination for the purpose of
seeking justice, for the purpose of "arriving at the truth, which
is a fundamental goal of our legal system".
49. Justice Cardozo in his widely read and appreciated book
"The Nature of the Judicial Process" discusses the role of the
judges. The relevant part is reproduced as under:-
"There has been a certain lack of candour," "in
much of the discussion of the theme [of judges'
humanity], or rather perhaps in the refusal to
discuss it, as if judges must lose respect and
confidence by the reminder that they are subject to
human limitations." I do not doubt the grandeur of
conception which lifts them into the realm of pure
reason, above and beyond the sweep of perturbing
and deflecting forces. None the less, if there is
anything of reality in my analysis of the judicial
process, they do not stand aloof on these chill and
distant heights; and we shall not help the cause of
truth by acting and speaking as if they do."
50. Aharon Barak, President of Israeli Supreme Court from
1995 to 2006 takes the position that:
"For issues in which stability is actually more
important than the substance of the solution - and
there are many such case - I will join the majority,
without restating my dissent each time. Only when
my dissenting opinion reflects an issue that is
central for me - that goes to the core of my role as a
judge - will I not capitulate, and will I continue to
restate my dissenting opinion: "Truth or stability -
truth is preferable".
"On the contrary, public confidence means
ruling according to the law and according to the
judge's conscience, whatever the attitude of the
public may be. Public confidence means giving
expression to history, not to hysteria. Public
confidence is ensured by the recognition that the
judge is doing justice within the framework of the
law and its provisions. Judges must act - inside
and outside the court - in a manner that preserves
public confidence in them. They must understand
that judging is not merely a job but a way of life. It
is a way of life that does not include the pursuit of
material wealth or publicity; it is a way of life based
on spiritual wealth; it is a way of life that includes
an objective and impartial search for truth."
51. In the administration of justice, judges and lawyers play
equal roles. Like judges, lawyers also must ensure that truth
triumphs in the administration of justice.
52. Truth is the foundation of justice. It must be the
endeavour of all the judicial officers and judges to ascertain
truth in every matter and no stone should be left unturned in
achieving this object. Courts must give greater emphasis on
the veracity of pleadings and documents in order to ascertain
the truth.
Pleadings
53. Pleadings are the foundation of litigation. In pleadings,
only the necessary and relevant material must be included
and unnecessary and irrelevant material must be excluded.
Pleadings are given utmost importance in similar systems of
adjudication, such as, the United Kingdom and the United
States of America.
54. In the United Kingdom, after the Woolf Report, Civil
Procedure Rules, 1998 were enacted. Rule 3.4(2) has some
relevance and the same is reproduced as under:
(2) The Court may strike out a statement of
case if it appears to the Court -
(a) that the statement of case discloses
no reasonable grounds for bringing or
defending the claim;
(b) that the statement of case is an
abuse of the Court's process or is
otherwise likely to obstruct the just
disposal of the proceedings; or
(c) that there has been a failure to
comply with a rule, practice direction
or Court order.
55. In so far as denials are concerned, Rule 16.5 provides
that where the defendant denies an allegation, he must state
his reasons for doing so, and if he intends to put forward a
different version of events from that given by the plaintiff, he
must state his own version.
56. The various practice directions and prescribed forms give
an indication of the particulars required. In fact, the 1998
Rules go further and provide for summary judgment. Rule
24.2 of the Civil Procedure Rules, 1998 reads as under:
24.2 The Court may give summary
judgment against a claimant or
defendant on the whole of a claim or
on a particular issue if-
(a) it considers that-
(i) that claimant has no real
prospect of succeeding on the
claim or issue; or
(ii) that defendant has no real
prospect of successfully
defending the claim or issue;
and
(b) there is no other compelling reason
why the case or issue should be disposed
of at a trial.
57. After enactment of the Civil Procedure Rules 1998, much
greater emphasis is given on pleadings in the United Kingdom.
Similarly, in the United States of America, much greater
emphasis is given on pleadings, particularly after two well
known decisions of the US Supreme Court, viz., Bell Atlantic
Corporation et al. v. William Twombly [550 U.S. 544, 127
S.Ct. 1955] and John. D. Ashcroft, Former Attorney
General, et al. v. Javaid Iqbal et al. [556 U.S. 662, 129
S.Ct.1937].
58. In Bell Atlantic (supra), the Court has observed that
factual allegations must be enough to raise a right to relief
above the speculative level. The pleadings must contain
something more than a statement of facts that merely creates
a suspicion of a legally cognizable right of action.
59. In Ashcroft (supra) the majority Judges of the U.S.
Supreme Court observed as under:
"Threadbare recitals of the elements of a cause of
action, supported by mere conclusory
statements, do not suffice. Although for the
purposes of a motion to dismiss we must take
all of the factual allegations in the complaint
as a true, we are not bound to accept as true a
legal conclusion couched as a factual
allegation ... ... ... only a complaint that states
a plausible claim for relief survives a motion to
dismiss."
60. The aforementioned two decisions of the U.S. Supreme
Court re-emphasized and reiterated the importance of
pleadings.
61. In civil cases, pleadings are extremely important for
ascertaining the title and possession of the property in
question.
62. Possession is an incidence of ownership and can be
transferred by the owner of an immovable property to another
such as in a mortgage or lease. A licensee holds possession on
behalf of the owner.
63. Possession is important when there are no title
documents and other relevant records before the Court, but,
once the documents and records of title come before the
Court, it is the title which has to be looked at first and due
weightage be given to it. Possession cannot be considered in
vacuum.
64. There is a presumption that possession of a person, other
than the owner, if at all it is to be called possession, is
permissive on behalf of the title-holder. Further, possession of
the past is one thing, and the right to remain or continue in
future is another thing. It is the latter which is usually more
in controversy than the former, and it is the latter which has
seen much abuse and misuse before the Courts.
65. A suit can be filed by the title holder for recovery of
possession or it can be one for ejectment of an ex-lessee or for
mandatory injunction requiring a person to remove himself or
it can be a suit under Section 6 of the Specific Relief Act to
recover possession.
66. A title suit for possession has two parts - first,
adjudication of title, and second, adjudication of possession.
If the title dispute is removed and the title is established in
one or the other, then, in effect, it becomes a suit for ejectment
where the defendant must plead and prove why he must not
be ejected.
67. In an action for recovery of possession of immovable
property, or for protecting possession thereof, upon the legal
title to the property being established, the possession or
occupation of the property by a person other than the holder
of the legal title will be presumed to have been under and in
subordination to the legal title, and it will be for the person
resisting a claim for recovery of possession or claiming a right
to continue in possession, to establish that he has such a
right. To put it differently, wherever pleadings and documents
establish title to a particular property and possession is in
question, it will be for the person in possession to give
sufficiently detailed pleadings, particulars and documents to
support his claim in order to continue in possession.
68. In order to do justice, it is necessary to direct the parties
to give all details of pleadings with particulars. Once the title
is prima facie established, it is for the person who is resisting
the title holder's claim to possession to plead with sufficient
particularity on the basis of his claim to remain in possession
and place before the Court all such documents as in the
ordinary course of human affairs are expected to be there.
Only if the pleadings are sufficient, would an issue be struck
and the matter sent to trial, where the onus will be on him to
prove the averred facts and documents.
69. The person averring a right to continue in possession
shall, as far as possible, give a detailed particularized specific
pleading along with documents to support his claim and
details of subsequent conduct which establish his possession.
70. It would be imperative that one who claims possession
must give all such details as enumerated hereunder. They are
only illustrative and not exhaustive.
(a) who is or are the owner or owners of the
property;
(b) title of the property;
(c) who is in possession of the title documents
(d) identity of the claimant or claimants to
possession;
(e) the date of entry into possession;
(f) how he came into possession - whether he
purchased the property or inherited or got the
same in gift or by any other method;
(g) in case he purchased the property, what is the
consideration; if he has taken it on rent, how
much is the rent, license fee or lease amount;
(h) If taken on rent, license fee or lease - then
insist on rent deed, license deed or lease deed;
(i) who are the persons in possession/occupation
or otherwise living with him, in what capacity;
as family members, friends or servants etc.;
(j) subsequent conduct, i.e., any event which
might have extinguished his entitlement to
possession or caused shift therein; and
(k) basis of his claim that not to deliver
possession but continue in possession.
71. Apart from these pleadings, the Court must insist on
documentary proof in support of the pleadings. All those
documents would be relevant which come into existence after
the transfer of title or possession or the encumbrance as is
claimed. While dealing with the civil suits, at the threshold,
the Court must carefully and critically examine pleadings and
documents.
72. The Court will examine the pleadings for specificity as
also the supporting material for sufficiency and then pass
appropriate orders.
73. Discovery and production of documents and answers to
interrogatories, together with an approach of considering what
in ordinary course of human affairs is more likely to have been
the probability, will prevent many a false claims or defences
from sailing beyond the stage for issues.
74. If the pleadings do not give sufficient details, they will not
raise an issue, and the Court can reject the claim or pass a
decree on admission.
75. On vague pleadings, no issue arises. Only when he so
establishes, does the question of framing an issue arise.
Framing of issues is an extremely important stage in a civil
trial. Judges are expected to carefully examine the pleadings
and documents before framing of issues in a given case.
76. In pleadings, whenever a person claims right to continue
in possession of another property, it becomes necessary for
him to plead with specificity about who was the owner, on
what date did he enter into possession, in what capacity and
in what manner did he conduct his relationship with the
owner over the years till the date of suit. He must also give
details on what basis he is claiming a right to continue in
possession. Until the pleadings raise a sufficient case, they
will not constitute sufficient claim of defence.
77. Dr. Arun Mohan in his classic treatise on "Justice,
Courts and Delays" has dealt with these fundamental
principles of law exhaustively.
78. The Court must ensure that pleadings of a case must
contain sufficient particulars. Insistence on details reduces
the ability to put forward a non-existent or false claim or
defence.
79. In dealing with a civil case, pleadings, title documents
and relevant records play a vital role and that would ordinarily
decide the fate of the case.
Suit for Mandatory Injunction
80. It is a settled principle of law that no one can take law in
his own hands. Even a trespasser in settled possession
cannot be dispossessed without recourse of law. It must be
the endeavour of the Court that if a suit for mandatory
injunction is filed, then it is its bounden duty and obligation to
critically examine the pleadings and documents and pass an
order of injunction while taking pragmatic realities including
prevalent market rent of similar premises in similar localities
in consideration. The Court's primary concern has to be to do
substantial justice. Even if the Court in an extraordinary case
decides to grant ex-parte ad interim injunction in favour of the
plaintiff who does not have a clear title, then at least the
plaintiff be directed to give an undertaking that in case the
suit is ultimately dismissed, then he would be required to pay
market rent of the property from the date when an ad interim
injunction was obtained by him. It is the duty and the
obligation of the Court to at least dispose off application of
grant of injunction as expeditiously as possible. It is the
demand of equity and justice.
Due process of Law
81. Due process of law means nobody ought to be
condemned unheard. The due process of law means a person
in settled possession will not be dispossessed except by due
process of law. Due process means an opportunity for the
defendant to file pleadings including written statement and
documents before the Court of law. It does not mean the
whole trial. Due process of law is satisfied the moment rights
of the parties are adjudicated by a competent Court.
82. The High Court of Delhi in a case Thomas Cook (India)
Limited v. Hotel Imperial 2006 (88) DRJ 545 held as under:
"28. The expressions `due process of law', `due
course of law' and `recourse to law' have been
interchangeably used in the decisions referred to
above which say that the settled possession of even
a person in unlawful possession cannot be
disturbed `forcibly' by the true owner taking law in
his own hands. All these expressions, however,
mean the same thing -- ejectment from settled
possession can only be had by recourse to a court of
law. Clearly, `due process of law' or `due course of
law', here, simply mean that a person in settled
possession cannot be ejected without a court of law
having adjudicated upon his rights qua the true
owner.
Now, this `due process' or `due course' condition is
satisfied the moment the rights of the parties are
adjudicated upon by a court of competent
jurisdiction. It does not matter who brought the
action to court. It could be the owner in an action
for enforcement of his right to eject the person in
unlawful possession. It could be the person who is
sought to be ejected, in an action preventing the
owner from ejecting him. Whether the action is for
enforcement of a right (recovery of possession) or
protection of a right (injunction against
dispossession), is not of much consequence. What is
important is that in either event it is an action
before the court and the court adjudicates upon it.
If that is done then, the `bare minimum'
requirement of `due process' or `due course' of law
would stand satisfied as recourse to law would have
been taken. In this context, when a party
approaches a court seeking a protective remedy
such as an injunction and it fails in setting up a
good case, can it then say that the other party must
now institute an action in a court of law for
enforcing his rights i.e., for taking back something
from the first party who holds it unlawfully, and, till
such time, the court hearing the injunction action
must grant an injunction anyway? I would think
not. In any event, the `recourse to law' stipulation
stands satisfied when a judicial determination is
made with regard to the first party's protective
action. Thus, in the present case, the plaintiff's
failure to make out a case for an injunction does not
mean that its consequent cessation of user of the
said two rooms would have been brought about
without recourse to law."
83. We approve the findings of the High Court of Delhi on
this issue in the aforesaid case.
False claims and false defences
84. False claims and defences are really serious problems
with real estate litigation, predominantly because of ever
escalating prices of the real estate. Litigation pertaining to
valuable real estate properties is dragged on by unscrupulous
litigants in the hope that the other party will tire out and
ultimately would settle with them by paying a huge amount.
This happens because of the enormous delay in adjudication
of cases in our Courts. If pragmatic approach is adopted, then
this problem can be minimized to a large extent.
85. This Court in a recent judgment in Ramrameshwari
Devi and Others (supra) aptly observed at page 266 that
unless wrongdoers are denied profit from frivolous litigation, it
would be difficult to prevent it. In order to curb uncalled for
and frivolous litigation, the Courts have to ensure that there is
no incentive or motive for uncalled for litigation. It is a matter
of common experience that Court's otherwise scarce time is
consumed or more appropriately, wasted in a large number of
uncalled for cases. In this very judgment, the Court provided
that this problem can be solved or at least be minimized if
exemplary cost is imposed for instituting frivolous litigation.
The Court observed at pages 267-268 that imposition of
actual, realistic or proper costs and/or ordering prosecution
in appropriate cases would go a long way in controlling the
tendency of introducing false pleadings and forged and
fabricated documents by the litigants. Imposition of heavy
costs would also control unnecessary adjournments by the
parties. In appropriate cases, the Courts may consider
ordering prosecution otherwise it may not be possible to
maintain purity and sanctity of judicial proceedings.
Grant or refusal of an injunction
86. Grant or refusal of an injunction in a civil suit is the
most important stage in the civil trial. Due care, caution,
diligence and attention must be bestowed by the judicial
officers and judges while granting or refusing injunction. In
most cases, the fate of the case is decided by grant or refusal
of an injunction. Experience has shown that once an
injunction is granted, getting it vacated would become a
nightmare for the defendant. In order to grant or refuse
injunction, the judicial officer or the judge must carefully
examine the entire pleadings and documents with utmost care
and seriousness.
87. The safe and better course is to give short notice on
injunction application and pass an appropriate order after
hearing both the sides. In case of grave urgency, if it becomes
imperative to grant an ex-parte ad interim injunction, it
should be granted for a specified period, such as, for two
weeks. In those cases, the plaintiff will have no inherent
interest in delaying disposal of injunction application after
obtaining an ex-parte ad interim injunction. The Court, in
order to avoid abuse of the process of law may also record in
the injunction order that if the suit is eventually dismissed,
the plaintiff undertakes to pay restitution, actual or realistic
costs. While passing the order, the Court must take into
consideration the pragmatic realities and pass proper order for
mesne profits. The Court must make serious endeavour to
ensure that even-handed justice is given to both the parties.
88. Ordinarily, three main principles govern the grant or
refusal of injunction.
a) prima facie case;
b) balance of convenience; and
c) irreparable injury, which guide the Court in
this regard.
89. In the broad category of prima facie case, it is imperative
for the Court to carefully analyse the pleadings and the
documents on record and only on that basis the Court must
be governed by the prima facie case. In grant and refusal of
injunction, pleadings and documents play vital role.
Mesne Profits
90. Experience has shown that all kinds of pleadings are
introduced and even false and fabricated documents are filed
in civil cases because there is an inherent profit in
continuation of possession. In a large number of cases,
honest litigants suffer and dishonest litigants get undue
benefit by grant or refusal of an injunction because the Courts
do not critically examine pleadings and documents on record.
In case while granting or refusing injunction, the Court
properly considers pleadings and documents and takes the
pragmatic view and grants appropriate mesne profit, then the
inherent interest to continue frivolous litigation by
unscrupulous litigants would be reduced to a large extent.
91. The Court while granting injunction should broadly take
into consideration the prevailing market rentals in the locality
for similar premises. Based on that, the Court should fix
adhoc amount which the person continuing in possession
must pay and on such payment, the plaintiff may withdraw
after furnishing an undertaking and also making it clear that
should the Court pass any order for reimbursement, it will be
a charge upon the property.
92. The Court can also direct payment of a particular
amount and for a differential, direct furnishing of a security by
the person who wishes to continue in possession. If such
amount, as may be fixed by the Court, is not paid as security,
the Court may remove the person and appoint a receiver of the
property or strike out the claim or defence. This is a very
important exercise for balancing equities. Courts must carry
out this exercise with extreme care and caution while keeping
pragmatic realities in mind and make a proper order of
granting mesne profit. This is the requirement of equity and
justice.
93. In the instant case, if the Courts below would have
carefully looked into the pleadings, documents and had
applied principle of the grant of mesne profit, then injustice
and illegality would not have perpetuated for more than two
decades.
94. We have heard the learned counsel for the parties at
length and perused the relevant judgments cited at the Bar. In
the instant case, admittedly, the respondent did not claim any
title to the suit property. Undoubtedly, the appellant has a
valid title to the property which is clearly proved from the
pleadings and documents on record.
95. The respondent has not been able to establish the
family arrangement by which this house was given to the
respondent for his residence. The Courts below have failed to
appreciate that the premises in question was given by the
appellant to her brother respondent herein as a caretaker.
The appellant was married to a Naval Officer who was
transferred from time to time outside Goa. Therefore, on the
request of her brother she gave possession of the premises to
him as a caretaker. The caretaker holds the property of the
principal only on behalf of the principal.
96. The respondent's suit for injunction against the true
owner - the appellant was not maintainable, particularly
when it was established beyond doubt that the respondent
was only a caretaker and he ought to have given possession
of the premises to the true owner of the suit property on
demand. Admittedly, the respondent does not claim any title
over the suit property and he had not filed any proceedings
disputing the title of the appellant.
97. This Court in Puran Singh v. The State of Punjab
(1975) 4 SCC 518 held that an occupation of the property by a
person as an agent or a servant at the instance of the owner
will not amount to actual physical possession.
98. This Court in Mahabir Prasad Jain (supra) has held
that the possession of a servant or agent is that of his master
or principal as the case may be for all purposes and the former
cannot maintain a suit against the latter on the basis of such
possession.
99. In Sham Lal v. Rajinder Kumar & Others 1994 (30)
DRJ 596, the High Court of Delhi held thus:
"On the basis of the material available on record, it
will be a misnomer to say that the plaintiff has been
in 'possession' of the suit property. The plaintiff is
neither a tenant, nor a licensee, nor a person even
in unlawful possession of the suit property.
Possession of servant is possession of the real
owner. A servant cannot be said to be having any
interest in the suit property. It cannot be said that a
servant or a chowkidar can exercise such a
possession or right to possession over the property
as to exclude the master and the real owner of the
property from his possession or exercising right to
possession over the property.
Possession is flexible term and is not necessarily
restricted to mere actual possession of the property.
The legal conception of possession may be in
various forms. The two elements of possession are
the corpus and the animus. A person though in
physical possession may not be in possession in the
eye of law, if the animus be lacking. On the
contrary, to be in possession, it is not necessary
that one must be in actual physical contact. To gain
the complete idea of possession, one must consider
(i) the person possessing, (ii) the things possessed
and, (iii) the persons excluded from possession. A
man may hold an object without claiming any
interest therein for himself. A servant though
holding an object, holds it for his master. He has,
therefore, merely custody of the thing and not the
possession which would always be with the master
though the master may not be in actual contact of
the thing. It is in this light in which the concept of
possession has to be understood in the context of a
servant and & master."
100. The ratio of this judgment in Sham Lal (supra) is that
merely because the plaintiff was employed as a servant or
chowkidar to look after the property, it cannot be said that he
had entered into such possession of the property as would
entitle him to exclude even the master from enjoying or
claiming possession of the property or as would entitle him to
compel the master from staying away from his own property.
101. Principles of law which emerge in this case are
crystallized 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 premises 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 principal. He acquires no right or
interest whatsoever for himself in such property
irrespective of his long stay or possession.
102. In this view of the matter, the impugned judgment of the
High Court as also of the Trial Court deserve to be set aside
and we accordingly do so. Consequently, this Court directs
that the possession of the suit premises be handed over to the
appellant, who is admittedly the owner of the suit property.
103. In the peculiar facts and circumstances of this case, the
legal representatives of the respondent are granted three
months time to vacate the suit premises. They are further
directed that after the expiry of the three months period, the
vacant and peaceful possession of the suit property be handed
over to the appellant. The usual undertaking to this effect be
filed by the legal representatives of the respondent in this
Court within two weeks.
104. The legal representatives of the respondent are also
directed to pay Rs.1,00,000/- (Rupees one Lakh) per month
towards the use and occupation of the premises for a period of
three months. The said amount for use and occupation be
given to the appellant on or before the 10th of every month. In
case the legal representatives of the respondent are not willing
to pay the amount for use and occupation as directed by this
Court, they must hand over the possession of the premises
within two weeks from the date of this judgment. Thereafter, if
the legal representatives of the respondent do not hand over
peaceful possession of the suit property, in that event, the
appellant would be at liberty to get the possession of the
premises by taking police help.
105. As a result, the appeal of the appellant is allowed. In the
facts and circumstances of the case, the respondents are
directed to pay a cost of Rs.50,000/- to the appellant within
four weeks. (We have imposed the moderate cost in view of
the fact that the original respondent has expired). Ordered
accordingly.
..................................J.
(Dalveer Bhandari)
.................................J.
(H.L. Dattu)
.................................J.
(Deepak Verma)
New Delhi;
March 21, 2012
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