Suit by Person Dispossessed of Immovable Property – Section 6 | Specific Relief Act



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2. Adjudication of:

A person, even if he is a landlord, cannot take the law into his own hands and forcibly evict a tenant after expiry of the lease. This section has relevance only to the wrongful act of a person, if it be by the landlord, in forcibly recovering possession of the property without re­course to law. Section 6 frowns upon forcible dispossession without re­course to law but does not at the same time declare that the possession of the evicted person is a lawful possession.

The question of lawful posses­sion does not enter the issue at that stage. All that the Court is then re­quired to consider is whether an evicted person has been wrongfully dis­possessed and he has come to the Court within six months of the dispos­session. The various civil rights between the landlord and the tenant will have to be adjudicated upon finally in a regular civil suit if filed.

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3. Appeal:

In this case plea that embargo against entertainment of appeal incorporated in? Section 6 (3) is absolute and is not effected by the provisions of the Letters Patent or the relevant provision of the High Court Act is not without substance.

4. Applicability of:

In a suit for injunction when plaintiff never alleged that he was dispossessed by defendant then the principles under Section 6 were not applicable.

There was failure to appreciate as to how the principle of Section 6 of Specific Relief Act, 1963 can be applied in the facts and circumstances of the present case. The respondent, who was plaintiff, never alleged that he had been dispossessed by the appellant Municipal Committee. On the other hand, he claimed to be the owner of the land in question and asserted that he was in possession over the same. He sought for permanent injunction restraining the appellant from interfering with his possession. Both the par­ties led evidences in support of their respective claims including on the question of title.

Finding of fact that respondent-plaintiff encroached upon the public land without acquiring any title. Court of appeal decreed the suit of respon­dent-plaintiff merely on the basis of entry in revenue records and without recording a finding to the claim of title. Dismissal of second appeal of ap­pellant in limine by the High Court. In a suit for ejectment based on title, it was incumbent on the part of the Court of Appeal first to record a finding on the claim of title to the suit land made on behalf of respondent. Hence, suit of respondent could not have been decreed merely on the basis of entries in revenue records.

The High Court instead of dismissing appeal in limine ought to have interfered with and set aside the judgment of the Court of Appeal. Therefore judgment of the Court of Appeal and the orders passed by the High Court was set aside, and that of trial Court was resorted. Since, the respondent had neither title nor possession, no question of injunction could arise hence, Section 6 of the Act would not apply.

5. Burden of proof:

Once the case of tenancy is found against respondent-tenant it is for the respondent to establish that his possession is exclusive possession and not one on behalf of the appellant. The question whether a relief can be granted to the respondent under Section 6 of the Specific Relief Act hinges on that issue. The respondent having failed to prove the only plea of tenancy put forward by him is not entitled to get any relief in this suit.

6. Claim for:

In this case the question before the Courts was whether or not there had been an encroachment by the 1st respondent into a land purchased by the appellants. The appellants are now in possession of more than what was purchased by them. The appellants were seeking to claim possession of property which they had never purchased under their sale- deed. The High Court has rightly refused the claim for possession.

7. Course of law:

Under Section 6 (Section 9, old) of the Specific Relief Act a tenant who has ceased to be a tenant may sue for possession against his landlord if the landlord deprives him of possession otherwise than in due course of law.

8. Date of dispossession:

Where in suit for title and possession of disputed property the title was proved, then date of dispossession need not be ascertained.

9. Denial of:

If the plaintiff has retained the sum of Rs. 2, 60,000/- at the same time, defendants have also retained the possession of the prop­erty. When plaintiff on his own did not want to sell the property to the defendants/appellants, then the fact that the same amount of consider­ation as mentioned in the agreement of sale was paid to the plaintiff by the defendants is of no relevance. On the facts of the case, it cannot be held that there are any equitable considerations against the plaintiff to warrant the denial of relief of possession granted to him by the High Court.

10. Entitlement:

The plaintiff remained in possession of the plot and he raised a boundary wall to protect the possession as a prospective vendee.. The contract for sale was acted upon. The defendant trespasser had not been able to prove any right to possess the suit property. This is an appropriate case where the plaintiff must be held to have been in peaceful and lawful possession of the suit property invaded upon by the defendant otherwise than by due process of law and hence the status quo ante by reference to the date of accrual of cause of action must be restored fol­lowed by incidental and consequential reliefs of injunctions.

The defendant may then seek recovery of possession but only by establishing his title therefore in duly constituted legal proceedings before a competent forum. The plaintiff had rushed to the Court without any loss of time. Mis aver­ments made in the plaint and the evidence has remained uncontroverted and unrebutted. On the proven facts the plaintiff is entitled to a declaration that he is owner of the property.

11. Entitlement for:

On a representation that something will be done in future, if the person, to whom the representation was made, acted upon it. Such a representation would amount to an agreement enforceable by law and the person to whom the representation was made would be en­titled to the equitable relief of specific performance of contract.

12. Establishment of title:

A suit under Section 6 of the Act is often called a summary suit inasmuch as the enquiry in the suit under Section 6 is confined to finding out the possession and dispossession within a period of six months from the date of the institution of the suit ignoring the ques­tion of title. Sub-section (3) of Section 6 provides that no appeal shall lie from any order or decree passed in any suit instituted under this Section. Mo review of any such order or decree is permitted.

The remedy of a person unsuccessful in a suit under Section 6 of the Act is to file a regular suit establishing his title to the suit property and in the event of his succeeding he will be entitled to recover possession of the property notwithstanding the adverse decision under Section 6 of the Act. Thus, as against a decision under Section 6 of the Act, the remedy of unsuccessful party is to file a suit based on title.

The remedy of filing a revision is available but that is only by way of an exception; for the High Court would not interfere with a decree or order under Section 6 of the Act except on a case for interference being made out within the well settled parameters of the exercise of revisional jurisdiction under Section 115 of the Code.

A perusal of the order of the High Court shows that the High Court has for the purpose of reversing the decree of the Trial Court relied on the oral statements of Natai Sheikh, PW 3 and Ram Sevak Ram, PW 5. One sentence each from the two depositions has been extracted and set out by the High Court in its order for the purpose of forming an opinion that they are not the plaintiffs but the defendants who were in possession of the suit property before six months from the date of the institution of the suit.

The High Court has not looked into all the material available on record and has also not indicated clearly the availability of any of the grounds within the param­eters of Section 115 of the Code so as to exercise revisional jurisdiction calling for reversal of the decision of the Trial Court under Section 6 of the Act. The revision filed before the High Court cannot be said to have been satisfactorily disposed off.

The appeal is allowed. The impugned order of the High Court is set aside. The civil revision in the High Court shall stand restored to file for hearing and decision afresh in accordance with law. Do order as to the costs in this appeal.

13. Exercise of:

The Supreme Court has observed as follows:

“It is not open to the High Court in the exercise of its revisional jurisdiction under Section 115, to question the findings of fact re­corded by a Subordinate Court. Section 115 applies to cases involv­ing questions of jurisdiction, i.e., questions regarding the irregular exercise or non-exercise of jurisdiction or the illegal assumption of jurisdiction by a Court and is not directed against conclusion of law or fact in which questions of jurisdiction are not involved.

…….the distinction between the two classes of cases is that in one, the Court decides a question of law pertaining to jurisdiction. In other, it decides a question within its jurisdiction.”

14. Filing appeal:

Under Clause 15 of the Letters patent which is a charter under which the High Court of Bombay functioned, the said provi­sion for appeal would not have been whittled down by the statutory provi­sions of Section 6 (3) of the Act.

15. Filing of:

In the instant case, the respondent took forcible pos­session of the tenanted premises and for that purpose appellant had lodged criminal complaint on the same day and as no action was taken, he had informed various authorities immediately. Despite the representation made to the higher authorities as police had not taken any action, appellant pre­ferred Writ Petition before the High Court and the High Court directed the C.B. C.I.D. to investigate the case.

Thereafter the charge-sheet was submit­ted; Government granted sanction; however, for the reasons best known to it, the Government withdrew the criminal proceedings. This would clearly establish that appellant was in possession of the premises and pending suit, he was forcibly dispossessed. Hence, in such circumstances if matter is remanded for reconsideration after lapse of 15 years, the whole purpose of summary suit under Section 6 of the Act for taking possession would be frustrated.

16. Forcible dispossession:

There are two different sets of principles which have to be borne in mind regarding course to be adopted in case of forcible dispossession. Taking up the first aspect, it is true that where a person is in settled possession of property, even on the assumption that he has no right to remain in property, he cannot be disposed by the owner except by recourse of law.

This principle is laid down in Section 6 of the Specific Relief Act, 1963. That section says that if any person is dispos­sessed without his consent from immovable property otherwise than in due course of law, he or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit. That a person without title but in “settled” possession – as against mere fugitive possession – can get back possession if forcibly dispossessed or rather, if dispossessed otherwise than by due process of law.

Section 6 frowns upon forcible dispossession without recourse to law but does not at the same time declare that the possession of the evicted person is a lawful possession. The question of lawful possession does not enter the issue at that stage. All that the Court is then required to consider is whether an evicted person has been wrongfully dispossessed and he has come to the Court within six months of the dispossession. The various civil rights between the landlord and the tenant will have to be adjudicated upon finally, in a regular civil suit if filed.

17. Forcible eviction:

A person whose tenancy has come to an end after the expiry of the period of lease cannot be said to be in possession under a lawful title as he ceases to have any right to continue in possession. It is true that such a person cannot be forcibly evicted and in case of forc­ible eviction he can maintain a suit under Section 6 of the Specific Relief Act, 1963 for recovery of possession but this is for the reason that Section 6 of the Specific Relief Act or a provision similar to that does not take notice of title.

These provisions only oblige the landlord to sue for possession on extinguishment of tenancy in case the tenant does not give up possession on his own. But they do not have the effect of converting the- unauthorised possession of the tenant whose tenancy has expired into possession with legal title. “Section 6 frowns upon forcible dispossession without recourse to law but does not at the same time declare that the possession of the evicted person is a lawful possession.” It was also laid down in the same case:

“A tenant on the expiry of lease cannot be said to continue in lawful possession of the property against the wishes of the landlord if such a possession is not otherwise statutorily protected under the law against even lawful eviction through Court process, such as under the Rent Control Act. Section 6 of the Specific Relief Act does not offer such protection, but only, as stated earlier, forbids forcible dispossession even with the best of title.”

18. Fraud, coercion or undue influence:

In considered view of this Court, that possession by violence, misrepresentation, fraud, coercion, undue influence, seemingly innocuous but hidden with oblique motive or any other mode or method unlawful or otherwise except in due course of law attracts Section 6. Law frowns upon such conduct.

The Court accords legitimacy and legality only to possession taken in due course of law. In Section 6 proceeding on the consideration of the right, title or interest in immovable property either of the persons claiming possession as an owner or under colour of title or person dispossessed or threatened to be dispos­sessed are irrelevant.

It concerns itself whether the person was dispos­sessed without his consent and in due course of law and whether the suit was laid within six months from the date of the suit. The claim based on title or possessing title, after six months, would be gone into in a suit, under Section 5 of the Act. Therein all relevant considerations would enter into the area of consideration.

19. Grant of:

Even in respect of contingent contract the specific per­formance should be granted as the contingency became ineffective by rea­son of subsequent event namely, the passing of Saurashtra Land Reforms Act by which the title of the defendant became perfect.

20. Grant of relief:

What is required in law is not the piecemeal read­ing of the plaint but in its entirety. Whether the reliefs would be granted on the pleaded facts and the evidence adduced is totally different from the relief claimed. All the reliefs claimed may not be allowed to a party on the pleadings and the evidence adduced. Whether part of the relief cannot be granted by the Civil Court is a different matter from saying that because of a combined claim of reliefs the jurisdiction is ousted or no cause of action is disclosed. Considering the reliefs claimed vis-a-vis the pleadings would not mean compartmentalization or segregation, in that sense.

21. Injunction:

Where plaintiff claiming to be in possession of prop­erty as its owner, the suit cannot be treated as a suit based on disposses­sion and the provision has no application.

22. Interruption of:

A receiver is an officer of Court and is not a par­ticular agent of any party to the suit, notwithstanding that in law possession is ultimately treated as possession of the successful party on the termina­tion of the suit. To treat such receiver as plaintiffs agent for the purpose of initiating adverse possession by the plaintiff would be to impute wrong­doing to the Court and its officers.

The doctrine of receiver’s possession being that of the successful party cannot be pushed to the extent of en­abling a person who was initially out of possession to claim the taking on off receiver’s possession to his subsequent adverse possession.

The posi­tion may conceivably be different where the defendant in the suit was pre­viously in adverse possession against the real owner and the receiver has taken possession from his and restores it back to him on the successful termination of the suit in his favour. In such a case the question that would arise would be a discontinuance or abandonment of possession or inter­ruption of the adverse possession.

23. Issue of notice:

The suit came to be filed immediately after the proceedings came to a terminus, no doubt, after issue of notice to the Government under Section 80, C.P.C. and after expiry of 60 days time re­quired under Section 80, C.P.C. Under these circumstances, it must con­cluded that in substance the suit is one under Section 6 of the Specific Relief Act.

24. Lawful possession:

The Supreme Court on aspects of juridical possession laid down in the following words:

“All that Section 6 (new) of the Specific Relief Act provides is that a person, even if he is a landlord cannot take the law into his own hands and forcibly evict a tenant after expiry of the lease. This sec­tion has relevance only to the wrongful act of a person if it be by the landlord, in forcibly recovering possession of the property without recourse to law, Section 6 frowns upon forcible dispossession with­out recourse to law, but does not at the same time declare that the possession of the evicted person is a lawful possession. The ques­tion of lawful possession does not enter the issue at that stage. All that the Court is then required to consider is whether an evicted person has been wrongfully dispossessed and he has come to the Court within six months of the dispossession. The fact that after the expiry of the lease the tenant will be able to continue in possession of the property by resisting a suit for evic­tion, does not establish a case in law to answer the requirement of the lawful possession of the property within the meaning of Rule 13. Lawful possession cannot be established without the concomitant existence of a lawful relationship between the landlord and the tenant. This relationship cannot be established against the consent of the landlord unless, however in view of a special law, his consent be­comes irrelevant. Lawful possession is not litigious possession and must have some foundation in a legal right to possess the property which cannot be equated with a temporary right to enforce recovery of the property in case a person is wrongfully or forcibly dispos­sessed from it. This Court in Lallu Yeshwant Singh’s Case, 1968 (2) SCR 203, AIR 1968 SC 620, had not to consider whether Juridical possession in that case was also lawful possession. We are clearly of opinion that juridical possession is possession protected by law against wrongful dispossession but cannot perse always be equated with lawful possession.”

25. Lease and licence:

In case of Associated Hotels of India Ltd. v. R.N. Kapoor, AIR 1959 SC 1262, the dissenting judgment of Subba Rao, J. (as he then was) shows the characteristics that distinguish a licence from lease. The Judge formulated the following proposition as well- established:

“(1) To ascertain whether a document creates a licence or lease, the substance of the document must be preferred to the form;

(2) The real test is the intention of the parties—Whether they in­tended to create a lease or a licence;

(3) If the document creates an interest in the property, it is a lease, but if it only permits another to make use of the property, of which the legal possession continues with the owner, it is a li­cence; and

(4) If under the document a party gets exclusive possession of the property, prima facie, he is considered to be a tenant; but cir­cumstances may be established which negative the intention to create a lease.”

In AIR 1965 SC 610 at p. 614, the above tests have been reiterated, but in a different form. The following observation in the decision of the Supreme Court is very apposite:

“The fact….that a stall-holder has exclusive possession of the stall is not conclusive evidence of his being a lessee. If, however, exclusive possession to which a person is entitled under an agreement with a landlord is coupled with an interest in the property, the agreement would be construed not as a mere licence but as a lease.”

It would be very convenient to state here that in AIR 1965 SC 610, none of the stall-holders or their servants is allowed to stay in the market after closing time and there was no question of a stall-holder being able to lock up the stall before leaving the market at the end of the day. It was pointed out that the right which the stall-holder in that case had was to the exclusive use of the stalls during stated hours and nothing more, and it was held as a fact that it could never have been the intention of the parties to grant anything more than a licence to the stall-holders. From a scrutiny of the texts of the principles laid down in the above two decisions of the Supreme Court it is clear that the criterion to determine whether a particu­lar person is a lessee or a licensee mainly depends upon the intention of the parties and if such a relationship is reduced to writing it is not by itself the sole guide. If, however, one party has the exclusive right of possession over the property and if an interest in the property is created, it ought to be construed as a lease.

26. Legality of:

Apart from granting a decree for possession as prayed for by the respondent the Trial Court has granted an additional relief which was not prayed for by him. The trial Court has directed the appellant to remote the construction put up by him including the dismantling of the glass. Such a relief cannot be granted under the provisions.

27. Legality of possession—Effect of:

Where a person is in settled possession of property, even on the assumption that he has no right to remain in property, he cannot be dispossessed by the owner except by recourse of law. This principle is laid down in Section 6 of the Specific Relief Act 1963. That section says that if any person is dispossessed without his consent from immovable property otherwise than in due course of law, he or any person claiming through him may, by suit, recover possession thereof, notwithstanding other title that may be set up in such suit.

28. Limitation:

Ultimately revision dismissed by High Court giving lib­erty to file the suit for possession and suit filed immediately thereafter. The suit held to be not barred by limitation.

29. Litigious possession:

Lawful possession is not litigious posses­sion and must have some foundation in a legal right to possess the property which cannot be equated with a temporary right to enforce recovery of the property in case a person is wrongfully or forcibly dispossessed from it. The Apex Court clearly held, that juridical possession is possession protected by law against wrongful dispossession but cannot perse always be equated with lawful possession.

30. Maintainability of:

The Civil Court, in the instant case, was concerned with the rival claims of the parties as to whether one party has illegally been disposed by the other or not. Such a suit, apart from the general law, would also be maintainable in terms of Section 6 of the Spe­cific Relief Act, 1963. In such matters the Court would not be concerned even with the question as to title/ownership of the property.

Normally, suit for possession is not maintainable in absence of prayer for declaration of title, but if averments made in plaint are sufficient and Courts below have framed issues on validity of lease etc. and no prejudice is caused to parties, relief for possession can be given.

Rival claims of the parties as to whether one party has illegally been dispossessed by the other or not, would be maintainable in terms of Sec­tion 6 of the Specific Relief Act, 1963.

Where a suit for recovery of possession was filed on the allegation of taking wrongful and forcible possession and the plaintiff admitted his signa­ture on the back portion of the rent receipt produced by the defendant and he did not make consequential amendment in the plaint taking plea of fraud and forgery, the suit was held not maintainable.

Where title of the defendant has not been extinguished and is subsist­ing as of today in respect of the suit property, the plaintiff respondent who was dispossessed but who applied for possession beyond 6 months from date of dispossession would not be able to recover possession.

Where the urban property within ceiling limit and the possession was taken by State by denying the owner, the permission for transfer under Section 27 of the Urban Land Ceiling Act by exercising option to purchase or having permission and consequential purchase by the State Government became void under Section 27. The suit was filed by the owner for recovery of the possession.

The relief of possession cannot be denied on the ground that the owner had executed the sale deed and was paid the same consideration at which he had agreed to sell the property as the sale to State was not voluntary. The owner cannot be said to have suffered any prejudice or loss.

The equitable consideration cannot be said to go against the owner as the owner on his own did not want to sell the property to the defendant/ appellant. The fact that the same amount of consideration as of no reliance. On the facts of the case, it cannot be held that there were no equitable consideration against the plaintiff to warrant, the denial of pos­session granted to him by the High Court.

31. Out of contract:

On aspects of contract by representation, the Supreme Court has observed as follows:

“There is undoubtedly a clear distinction between a representation of an existing fact and a representation that something will be done in future. The former may, if it amounts to a representation as to some fact alleged at the time to be actually in existence, raise an estoppel, if another person alters his position relying upon that rep­resentation. A representation that something will be done in the future may result in a contract, if another person to whom it is ad­dressed acts upon it. A representation that something will be done in future is not a representation that it is true when made, but be­tween a representation of a fact which is untrue and a representa­tion express or implied—to do something in future, there is no clear antithesis. A representation that something will be done in future may involve an existing intention to act in future in the manner represented. If the representation is acted upon by another person it may, unless the statute governing the person making the repre­sentation provides otherwise, result in an agreement enforceable at law; if the statute requires that the agreement shall be in a certain form, no contract may result from the representation and acting therefore but the law is not powerless to raise in appropriate cases an equity against him to compel performance of the obligation aris­ing out of his representation.”

32. Peaceful possession:

Even injunction suits purely based on pre­vious peaceful possession and subsequent threatened dispossession may stand on an entirely different footing and might not attract the sweep of Section 41(1) of the Small Causes Courts Act or for that matter Section 28 of the Bombay Rent Act. But the present suits are not of that type.

They are suits clearly based on the allegation that the plaintiffs are licensees on monetary considerations and they apprehend to be dispossessed, not in accordance with law, at the hands of the defendant-licensors.

Such suits clearly attract the applicability of Section 41 of the Small Causes Courts Act as both the conditions for its applicability, namely, that these are suits be­tween licensees and licensors and relate to recovery of possession of im­movable properties situated in Greater Bombay are complied with. Conse­quently, the conclusion is inevitable that the aforesaid suits as filed by the appellants were not cognizable by the City Civil Court, Bombay and they could be entertained only by the Small Causes Court, Bombay, and fall within the exclusive jurisdiction of the latter Court.

33. Performance of contract:

Trial Court found that there was no con­tract of sale, as required by Article 299 between plaintiff and Union of India. Rather, plaintiff was in unlawful occupation and, therefore, after evicting him, Union of India, delivered possession of house to the appellant in ac­cordance with law. Refusal of decree by trial Court. Erroneously reversed by High Court. However, since only appellant came to Supreme Court against decree of High Court, his right could not be adversely affected in execution of decree by plaintiff against Union of India.

34. Period of limitation:

Limitation of six months is provided for suit for possession, which starts from the date of this possession. But, suit filed after expiry of limitation was held still maintainable on plea of possessory title. So, defendant in that suit can defend his possession by proving his claim.

35. Possession and title:

The title and possession of the respondent had always been disputed by the appellant from the stage of the written statement. In this background, suit of the respondent could not have been decreed merely on basis of entries in the revenue records during the pen­dency of the earlier suit filed in the year 1971.

36. Possession of Government:

When the land was re-submerged the possession of the Government determined, and that while it remained sub­merged, no possession could be deemed to continue so as to be available towards the ultimate acquisition of title against the true owner.

37. Prohibition:

The prohibition under the provisions of Section of the Specific Relief Act is on using force or any unlawful means for dispos­sessing a person.

38. Protection of:

Under the Indian law the possession of a tenant who has ceased to be a tenant is protected by law. Although he may not have a right to continue in possession after the termination of the tenancy his possession is juridical and that possession is protected by statute.’

39. Protection of possession:

There is considerable force in the sub­mission on behalf of the plaintiff that the directions of the High Court are not precise in regard to the area to which they applied. There is also force in the submission that the plaintiff having been found to be the owned in possession at the material time, he was unjustifiably not protected by an appropriate order which he had sought against the defendant in respect of the area encroached upon by the defendant during the pendency of the suit.

These weighty arguments deserve to be properly examined, but Court do not wish to express any final view of on their merits. These matters should be reconsidered by the High Court after hearing the parties.

40. Protection of true owner:

Grant of compensation to the true owner as against the trespasser who had encroached the land was held improper and matter was remanded for reconsideration.

41. Prove title:

Where defendant has denied title, it was necessary for Court to give a finding on title even if the defendant in possession had not pleaded adverse possession.

42. Question of:

If Section 9 of the old Specific Relief Act is utilized the plaintiff need not prove title and the title of the defendant does not avail him when however the period of six 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. In other words the right is restricted to possession only in a suit under this section but that does not bar a suit on prior possession within 12 years and title need not be proved unless the defendant can prove one.

43. Question of limitation:

The plaintiff who was dispossessed on 30.8.1969 but who applied for possession on 25.7.1970 beyond six months from date of dispossession would not be able to recover possession.

44. Question of title:

It is well-settled that in a suit under Section 6 of the Act, no question of title either of the plaintiff or the defendant can be raised or gone into. The question of title is irrelevant in a suit under that section. The plaintiff will be entitled to succeed without proving any title and the defendant cannot succeed even though he may be in possession to establish the best of all the titles.

45. Real title:

No question of title either of the plaintiff or of the de­fendant can be raised or gone into in the case (under Section 9 of the Specific Relief Act). The plaintiff will be entitled to succeed without proving any title on which he can fall back upon, and the defendant cannot succeed even though he may be in a position to establish the best of all titles.

The restoration of possession in such suit is, however, always subject to a regu­lar title suit and the person who has the real title or even the better title cannot, therefore, be prejudiced in any way by a decree in such a suit. It will always be open to him to establish his title in a regular suit and to recover back possession.

46. Relevancy of:

Wherein suit for possession the title to property proved. The date of dispossession of plaintiff is not relevant to allow the suit for possession.

47. Relief:

Under Order II, Rule 1 of the Code which contains provi­sions of mandatory nature, the requirement is that the plaintiffs are duty- bound to claim the entire relief. The suit has to be so framed as to afford ground for final decision upon the subjects in dispute and to prevent fur­ther litigation concerning them.

Rule 2 further enjoins on the plaintiff to include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action. If the plaintiff omits to sue or intentionally relinquishes any portion of his claim, it is not permissible for him to sue in respect of the portion so omitted or relinquished afterwards.

48. Restoration:

In a suit for possession the defence of adverse pos­session was not proved. However, possession of plaintiff proved. Thus, sub-merging of part of land by water does not affect the legal possession of the plaintiff. Therefore, decree of possession granted by trial Court was restored.

49. Restoration of:

Assuming a trespasser ousted can seek restora­tion of possession under Section 6 of the Specific Relief Act, 1963 can the trespasser seek injunction against the true owner? This question does not entirely depend upon Section 6 of the Specific Relief Act, but mainly de­pends upon certain general principles applicable to the law of injunctions and as to the scope of the exercise of discretion while granting injunction? In Mahadeo Sauiaram Sheika v. Pune Municipal Corporation, 1995 (3) SCC 33, it was held, after referring to Woodrofe on “Law relating to injunction; L.C. Goyal ‘Law of injunctions’; David Bean ‘Injunction’ Jayce on Injunc­tions and other leading Articles on the subject that the appellant who was a trespasser in possession could not seek injunction against the true owner. In that context this Court quoted Shiv Kumar Chadha v. M.C.D., 1993 (3) SCC 161, wherein it was observed that injunction is discretionary and that:

“Judicial proceedings cannot be used to protect or to perpetuate a wrong committed by a person who approaches the Court.”

The question of forcible possession as claimed is also a matter which can be pressed into service by the parties before the Trial Court and if raised the Court shall deal with it considering its relevance to the suit and accept it or otherwise reject the plea in accordance with law.

50. Right to re-enter:

A landlord has no right to re-enter after the extinguishment of tenancy and he must approach the Court for recovery of possession and that if the landlord recovers forcible possession the tenant can sue for being restored to possession under Section 326 of Qanoon Mai Riyasat Gwalior which was in pari materia with Section 6 of the Specific Relief Act. The legal position would, however, be different if a landlord is prevented by legislation from suing for possession even though the tenancy has come to an end. In such cases of statutory protection a tenant whose lease has expired will have a lawful title and such a person will also be said to hold land in spite of expiry of his lease.

51. Sale deed:

The High Court has not committed any error of law in interfering with the decree of the Appellate Court and considering relevant circumstantial evidence that unless the respondent had in the first instance approached and the appellant avoided the receipt of the consideration and execution of sale-deed, the respondent had no occasion to approach an Advocate to get the notice issued asking the appellant to be present before the Sub-registrar for execution of sale-deed under Article 54 of the Sched­ule to the Limitation Act 21 of 1963, limitation for specific performance begins to turn from the date fixed in the contract or from the date of refusal to execute the sale-deed.

Since time is not the essence of the contract, the respondent had offered the payment of the amount before the expiry of the date of reconveyance but the appellant had refused to reconvey the same. The cause of action arises on expiry of eight years from the date of execution of sale-deed. The appellant by conduct refused to execute the sale-deed, the suit was filed within limitation from the date of refusal.

52. Scope of:

A tenant on the expiry of the lease cannot be said to continue in ‘lawful possession’ of the property against the wishes of the landlord if such a possession is not otherwise statutorily protected under the law against even lawful eviction through Court process, such as under the Rent Control Act. Section 6 of the Specific Relief Act does not offer such protection, but only, forbids forcible dispossession, even with the best of title.

Due course of law implies the right of the person affected thereby to be present before the Tribunal which pronounces judgment upon the question of life, liberty or property in its most comprehensive sense; to be heard, by testimony or otherwise and to have the right of the controversy by proof, every material fact which bears on the question of fact of liability be conclu­sively proved or presumed against him. This is the meaning of due course of law in a comprehensive sense.

In Rudrappa v. Narsingrao, 1905 ILR 29 Bom 213, a Division Bench consisting of Sir L.J. Jenkins, Chief Justice, as he then was, and Batchelor, J., held that:

“the word ‘due course of law’ in Section 9 of the Specific Relief Act (old Act) as merely equivalent to the word ‘legally’ is, we think to deprive them of a force and a significance which they carry on their very face. For a thing, which is perfectly legal, may still be by no means a thing done ‘in due course of law’. The enable this phrase to be predicted of it, it is essential, speaking generally, that the thing should have been submitted to the consideration and pronounce­ment of the law, and the ‘due course of law’ means, we take it, the regular, normal process and effect of the law, operating on a matter which has been laid before it for adjudication.”

53. Settled possession:

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 disposed by the owner of the property except by recourse to law.

54. Specific performance:

It is furthermore not in dispute that in terms of the consent decree the first respondent herein is in possession. A decree for permanent injunction has been passed in its favour. The Appellant herein in terms of the decree passed in his favour in OS No. 140 of 2003 and the purported sale deed pursuant thereto merely has stepped into the shoes of the second respondent. He cannot claim a better title than her. Thus, so long the decree passed in the said OS No. 1220 of 1987 is not set aside, and/or the original Suit No. 381 of 2003 is not decreed, the possession of the first respondent herein could not have been interfered with. The slip­shod manner in which the purported delivery of possession was sought to be effected has been noticed by us.

The Central Nazir did notice that the schedule property was not in possession of the judgment- debtor in OS Mo. 140 of 2003 but still the possession thereof was purported to have been taken through Senior Bailiff under Order XXI, Rule 35 of the Code of Civil Procedure. Even the Senior Bailiff in his report states that he went to the plaintiffs place. The defendant was not there. How the land was identified had not been shown. Even the Village Administrative Officer refused to sign.

In that view of the matter, when the first respondent in its application under Section 151 of the Code of Civil Procedure stated that it continued to be in possession, the same cannot be disbelieved. In any event, having regard to the fact that the first respondent could not have been dispos­sessed pursuant to or in furtherance of the decree passed in the said OS No. 140 of 2003, it would be entitled to continue to possess the said prop­erty and in the event, possession has been taken symbolically or otherwise, possession should be restored to the First respondent.

55. Suit against dispossession from premises:

Possession of appellant’s premises was on the basis of licence granted to the respondent- Bank for 12 years. On expiry of 12 years, appellant gave notice to vacate but respondent-Bank retained possession. Just thereafter a fire broke out and respondent-Bank had to shift its office to other premises although few belongings of the Bank were not removed.

Subsequently, on some oral talks between the parties, Bank vacated premises but, after vacating pre­mises, Bank filed a suit under Section 6, asserting that dispossession was not in due course of law. Due to difference of opinion between Judges the views of the two Judges extracted.

56. Suit based on tenancy:

In the instant case, claim of possession was based on tenancy with predecessor-in-interest of present owners and tenancy found to be not proved. Specific defence plea having kept plaintiff as servant not considered by trial Court and High Court. Trial Court having wrongly placed reliance on order in earlier suit and irrelevant materials. Material on record proving earlier dispossession of plaintiff. Wrong assump­tion was made regarding payment of compounding fee.

High Court in revision having failed to correct the errors. Plaintiff having instituted different pro­ceedings with inconsistent allegations. Plaintiff having not come to the Court with clean hands. Only plea of limitation was urged in revision before High Court. However, right to raise other points before Supreme Court was not barred. Further plea of limitation integrally connected with the issue as to tenancy. Tenancy having not been proved, plaintiff was entitled to no relief. Moreover, trial Court having granted relief to plaintiff outside the scope of Section 6 of the Act. Therefore, suit of plaintiff was dismissed.

57. Suit based on title:

Where suit was filed on basis of title with prayer for restraining defendants from dispossessing plaintiff it should be decided on basis of evidence of ownership. Such suit cannot be decided on basis of Section 6 because there is difference between suit based on title and suit based on possession.

58. Suit for possession:

The proceedings were initiated at the instance of the respondent and were pending for long-time until the revision was dismissed by the High Court giving liberty to the appellant to file the suit for possession. Under these circumstances, the suit came to be filed immedi­ately after the proceedings came to a terminus, no doubt, after issue of notice to the Government under Section 80, C.P.C. and after expiry of 60 days time required under Section 80, C.P.C. Under these circumstances, it must be concluded that in substance the suit is one under Section 6 of the Specific Relief Act.

Since the suit is for possession based on title to the suit property and the defendant had denied title of the plaintiff it is necessary for the Court to give a finding on title of the plaintiff even if the defendants in possession had not pleaded adverse possession.

59. Suit for recovery of:

A person who is found by the Magistrate not to be in possession must evict the person who is found to be in possession in due course of law. If the aggrieved person chooses to file a suit under Section 6 of the Specific Relief Act, for possession and recovers possession under a decree in such a suit, it will be an eviction of the person found by the Magistrate in possession in due course of law.

Sub-section (6) of Sec­tion 145 nowhere enjoins a suit on title, nor is there any requirement that the party must seek to have the order of the learned Magistrate set aside. In fact, it will not be open to a Civil Court, without an express statutory provi­sion to that effect, to determine whether the Magistrate was right or wrong. Such a question could only be determined in an appeal against the order under Section 145 of the Code of Criminal Procedure or in revision thereaf­ter.

It would be sufficient for a Civil Court to come to the conclusion as to whether the plaintiff was or was not in possession within six months prior to the date of the suit and whether the plaintiff has or has not been dispos­sessed within that period. It would not be necessary for the Civil Court to go into the rights and wrongs of an order under Section 145. The decision of the Civil Court would prevail by virtue of Section 145 (6) of the Code of Criminal Procedure.

60. Suit for restoration:

Plaintiff was neither a tenant nor a licensee of garage. Possession based only on permission from sister, the owner. There was no legal interest of plaintiff. Possession was reclaimed by owner. Even if intimation of taking possession not given plaintiff not entitled to possession. Dismissal of suit by District Judge. Therefore, interference by High Court under Article 227 of the Constitution was not justified and liable to be set aside.

61. Suit under—riot succeeded:

The court has to record in such suit a categorical finding as to whether the suit is filed within six months from the date of dispossession. Until this essential ingredient is established to the satisfaction of the court, the suit under Section 6 of the Act, 1963 would not succeed.

62. Sustainability of:

The order of attachment of property without deciding objections on merit was not sustainable in law.

Where suit for declaration of title and possession was based on com­promise driven at in between two sets of defendants but alleged compro­mise was not reliable, suit was held not sustainable.

63. Termination of licence:

A true owner has every right to dispos­sess or throw out a trespasser while he is in the act or process of trespass­ing but this right is not available to the true owner if the trespasser has been successful in accomplishing his possession to the knowledge of the true owner. In such circumstances, the law requires that the true owner should dispossess the trespasser by taking recourse to the remedies under the law. In the present case, there was no question of the plaintiff entering upon the premises as a trespasser at all, as she had entered into the pos­session of the restaurant business and the premises where it was conducted as a licensee and in due course of law. Thus, defendant Mo. 3 was not entitled to dispossess the plaintiff unlawfully and behind her back as has been done by him in the present case.

64. Title acquired by adverse possession:

The possession continues with the title holder unless and until the defendant acquires title by adverse possession. There would be no continuance of adverse possession when the land remains submerged and when it is put out of use and enjoyment. In such a case the party having title could claim constructive possession provided the title had not been extinguished by adverse possession before the last sub-mergence. There is no difference in principle between seasonal submersion and one which continues for a length of time.

The plaintiff has proved title to the property. The defendants have not acquired title by adverse possession. The property as described in the sale deed was a vacant land fetching no income. It was called “Pallam” or pond that was seasonally submerged, but it makes little difference in the position of law. “As a general rule possession of part is in law possession of the whole, if the whole is otherwise vacant.”

65. Trespasser:

A trespasser is one who lawfully enters into but un­lawfully remains in possession of the property without the consent or acqui­escence of the owner. If one goes into possession of the property of an­other with invitation or permission for instance to a shop or cinema theatre, or marriage hall to celebrate a marriage his initial entry is lawful but if he refuses to leave that place and unlawfully squats on it, he becomes a tres­passer of transient origin with no visage of right.

The initial entry into pos­session is obviously for short duration with a specified purpose. But if he enters upon the land under a contract and uses the land or premises and does continuous business therein for well over a long period peacefully and uninterruptedly and continues to do the same even after the expiry or ter­mination of licence the important question arises whether he is a rank tres­passer without any protection of law.

66. True owner:

A true owner has every right to dispossess or throw out a trespasser while he is in the act or process of trespassing but this right is not available to the true owner if the trespasser has been successful in accomplishing his possession to the knowledge of the true owner. In such circumstances, the law requires that the true owner should dispossess the trespasser by taking recourse to the remedies under the law.

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