1996(3) ALL MR 537
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (PANAJI BENCH)
E.S. DA SILVA, J.
Smt. Khatijabi Aboobaker & Ors. Vs. Karma Constructions & Ors.
Appeal From Order No.5 of 1995
24th February, 1995
Petitioner Counsel: Mr. J.REIS, Mr. M.PEREIRA and Ms T.POTEKAR
Respondent Counsel: Mr. J.E. COELHO PEREIRA, Senior Advocate with Mr. J.GODINHO
(A) Specific Relief Act (1963), S.6 - Scope.
S.6 provides a summary and quick remedy for a person who is in possession and has been illegally dispossessed therefrom without his consent. This remedy is meant to restore the status quo ante and thus all questions of title whether of the plaintiff or of the defendant are out of place in any suit filed under this provision and on that account nothing of that sort can be allowed to be raised or considered in such a suit. In a suit under S.6 no questions of rights arise at all and the only aspect which has to be dealt with is whether the plaintiff was in possession prior to the filing of the suit and has been dispossessed otherwise than in accordance with law.
AIR 1959 All. 1, AIR 1971 Raj. 84 and AIR 1968 SC 702 followed. [Para 6]
(B) Civil P.C. (1908), O.39, Rr. 1 and 2 - Suit under S.6 of Specific Relief Act - Prima facie case of settled possession of appellants (Plaintiffs) as tenants in respect of area of about 210 sq.mts. on ground floor of building found to have been made out on perusal of record - Respondents (defendants) demolished entire building and were constructing new building in its place - Held, pending hearing of suit appellants were entitled to appropriate writ in order to secure whatever claim which might be adjudicated in their favour in case they succeed in suit - It was not required that respondents should be restrained from carrying on construction which was being erected by them - Setting aside order refusing to grant injunction passed by trial court, injunction issued restraining respondents from alienating or creating third party interests in respect of area of about 200 sq. mts. on ground floor of new building which they were putting up in place of demolished structure.
AIR 1982 Raj. 183, 1987 Mah. L.J. 254 and (1959) A.I.J. 221 Referred.
JUDGMENT : Upon hearing learned counsel the appeal is admitted and since I am satisfied that the points raised by the parties have been sufficiently argued at considerable length the same, by consent, is taken for final hearing.
2. The Appeal is directed against the judgment of the learned Civil Judge, Senior Division, Margao, in charge of Vasco Court, dated 22nd December, 1994, in Civil Miscellaneous Applications No.81/94 and 84/94 attached to the Special Civil Suit No.44/94, whereby the learned Judge has dismissed by a common order two applications of the appellants for temporary injunction. By the first one dated 6th May, 1994 the appellants sought to restrain the respondents no.1, 2 and 3, their heirs, agents, servants and legal representatives, from carrying out any construction or interfering in any manner whatsoever in the suit property and further to maintain the status quo till the final disposal of the suit on merits. In the second one dated 16th May, 1994 the trial Court was asked to restrain the respondents no.1 to 3 from carrying out any construction or interfering in any manner whatsoever in the suit property by maintaining the status quo till the final disposal of the application for temporary injunction dated 6th May, 1994.
3. Both these applications were filed in a suit instituted by the appellants under Section 6 of the Specific Relief Act, 1963 praying that the respondents, their heirs or legal representatives be ordered to restore the possession of an area of 210 sq. mts. to the appellants at the exact place where the original leased premises, as described in para 6 of the petition, stood. A further relief sought for was that the appellants be permitted to repair/reconstruct/rebuild the demolished leased premises without any interference from the respondents, their heirs, agents, servants or legal representatives along with a prayer that the respondents should also be restrained from interfering in any manner whatsoever with the appellants' peaceful possession of the leased premises.
4. The brief facts of the case are that the appellants no.1 to 5 claim to be the heirs of the late Daud Aboobaker who died in the year 1988 and who was the tenant of three rooms situated on the ground floor of the building known as "CATECULAGAR" belonging to the respondents no.4 to 6 wherein he was carrying on the business of running a bakery under the name and style of "Central Bakery". It is stated by the appellants that by a mutual agreement dated 17th July 1971 the respondents no. 4 to 6 who were intending to erect in the site of the old structure a completely new building agreed to allot to the said Daud a place in the fresh construction under the terms and conditions inserted in the agreement. Pursuant to this agreement Daud vacated the premises in question whereupon the respondents paid to him the agreed consideration of Rs.25,000/- by way of compensation. Clause 5 of the Agreement provides that if respondents no.4 to 6 decided not to put up a new building and intended to let out the building to any other persons then Daud would have the right to reenter the premises on the same terms and conditions as were contained in the original lease. Although the agreement dated 17th July, 1971 did not stipulate the time within which the respondents no.4 to 6 were required to fulfil their obligation of erecting a new building it is understood that such construction was required to be put up within a reasonable time. There is however no dispute that the respondents no.4 to 6, for one reason or the other, could not carry on the work of rebuilding or erecting the new construction for a period of more than 18 years since the time Daud vacated the leased premises somewhere in 1972. It is further the case of the appellants that for this reason they took possession of the leased premises in terms of Clause 5 of the agreement which was repudiated by them in view of the inability of the respondents no.4 to 6 to comply with its several conditions. In the meantime the appellants no.1 to 5 entered into a partnership deal with the appellant no.6 who was put in charge of the leased premises and given by them its physical possession for the purpose of undertaking the necessary repairs and renovation so as to enable the appellants to restart doing their traditional business of bakery which the late Daud was running prior to his vacating the premises in compliance with the terms of the agreement dated 17th July, 1971. It is also stated that, however, on the night of Good Friday, i.e. on 1st April, 1994, the respondent no.2 in the name of the respondent no.1 suddenly began the work of demolition of the suit premises with the help of about 50 to 60 goondas engaged by him for this purpose and though repeated pleas were made to the Vasco Police before whom a written complaint was even lodged by the appellants they failed to take any action in the matter so as to stop the demolition as a result whereof on 2nd April, 1994 by noon the entire building was practically razed to the ground. Thereupon on 27th April, 1994 hired mechanical bulldozers and showels and started excavating the suit property. According to the appellants this work was done in violation of the Vasco Planning and Development Authority approval, being therefore illegal. it was therefore pleaded that if the respondents were not stopped or prevented from going on with the construction the very purpose of the filing of the suit would be rendered infructuous and great prejudice was to be caused to the appellants since it would become impossible for them to recover thereafter the possession of their leased premises.
5. The case of the respondents no.1 to 3 inasmuch as the remaining respondents no.4, 5 and 6 chose not to contest the suit is that the suit itself is not maintainable under Section 6 of the Specific Relief Act as the appellants were never in possession of the leased premises after December 1992. It was contended that the appellants no. 1 to 5 through their ancestor, namely, the late Daud Aboobaker were not in possession of the premises right from the end of November, 1972 and as such they are not entitled to any relief as prayed for in the suit. hence it cannot be said that the appellants had been physically dispossessed from the suit premises by the respondents either by force or without resorting to legal process of law. It was further stated that the original landlords had instituted in December, 1981 a Regular Civil Suit, bearing No.81/81, in the Court of the Civil Judge, Senior Division, Vasco da Gama, amongst others, against M/s. Salgaoncar Engineering Private Limited, represented by its Director Anil Salgaoncar and wherein the Court granted an ad interim injunction restraining the defendants from trespassing into the ground floor and the open space of the land surrounding the suit building and also from occupying the first floor of the same and also not to go ahead with the construction work in the suit land as well as in the suit building. It was also pleaded that on 6th September, 1993 the respondent no.4 locked the doors on the ground floor of the building in order to prevent further trespass by the appellants. it was contended that an earlier suit filed by the appellants against the respondents, bearing no.111/89, based on the non-performance by the respondents no.4 to 6 of their obligation to construct the new building, was dismissed as withdrawn on 15th April, 1994. As such the respondents sought to make out a case that the present suit was not maintainable under Section 6 of the Specific Relief Act as the appellants had never been in possession of the suit premises on or after 7th September, 1993. It was urged in this regard that the suit though styled as a suit under Section 6 of the Specific Relief Act was in fact a suit for declaration and injunction and not a suit per se for restoration simpliciter. The respondents refused to admit that after the predecessor of the appellants no.1 to 5, the late Daud Aboobaker, vacated the premises sometime in the end of the year 1972, pursuant to the agreement dated 17th July, 1971, the appellants recovered possession of the premises as alleged by them on or about 7th September, 1993. The respondents, however, although acknowledging that on 1st April, 1994 the suit building was actually demolished by them have denied that on this count any cause of action arose to the appellants on that day. The respondents sought to explain that this demolition happened because on 1st April, 1994, when the respondents no.2 and 3 had returned home after attending the religious services of Good Friday, at about 18 hours, they observed that the appellant no.6 alongwith two suspicious looking characters were seeking to break open the locks which had been put by the respondents earlier, after taking possession of the building through the Joint Mamlatdar on 6th September, 1993, and were forcibly attempting to induct stray and homeless persons in the premises taking advantage of the situation of the day. It was only due to the good fortune of the respondents that the evil designs of the appellant no.6 were thwarted. It was also stated that prior to this, actually one week earlier, the respondent no.1 had received the required Planning and Development Authority permission for starting development in the suit property. It was therefore denied that the building was demolished illegally and that, at the time of the demolition of the building, the appellants had any lease and/or tenancy rights of even any type of possession on a part or portion of the said building.
6. Admittedly, Section 6 of the Specific Relief Act provides a summary and quick remedy for a person who is in possession and has been illegally dispossessed therefrom without his consent. This remedy is meant to restore the status quo ante and thus all questions of title whether of the plaintiff or of the defendant are out of place in any suit filed under this provision and on that account nothing of that sort can be allowed to be raised or considered in such a suit. In a suit under Section 6 of the Act no questions of rights arise at all and the only aspect which has to be dealt with is whether the plaintiff was in possession prior to the filing of the suit and has been dispossessed otherwise than in accordance with law. (AIR 1959 All. 1). Thus the real scope of Section 6 of the Specific Relief Act is to find out whether the plaintiff has been dispossessed without his consent or in a manner otherwise than in due course of law and if these two ingredients are established the Court dealing with a suit under this Section has no other discretion but to restore possession of the land from which the plaintiff has been dispossessed without due process of law. (AIR 1971 Raj. 84).
7. I have gone through the impugned judgment of the learned Judge and I must say that, apart from some irrelevant and unwarranted observations purported to be advanced as legal propositions, otherwise totally misplaced in the narrow context of the controversy sub judice, the most disturbing feature which in my view basically vitiates the entire exercise seems to be the total misconception in law under which the learned Judge has based his reasoning to dismiss the appellants' applications for temporary injunction. To be noted that at no time the learned Judge has even considered the question of maintainability of the very suit filed by the plaintiffs/appellants under Section 6 of the Specific Relief Act and his only concern while negativating the prayers made by the appellants for interim relief appears to be the fact that the appellants were not in actual possession of the land on the date of the institution of the suit. In this regard it is needless to reiterate that such approach of the learned Judge is to be deemed as totally wrong and impermissible. Thus the observations of the learned Judge that "while deciding the application for temporary injunction, Court has to verify the affidavits of the parties along with the documentary evidence, if any, filed by them to come to a prima facie conclusion as to who is in possession of the suit land on the date of institution of the suit" and that "the deponents of the plaintiffs did not make a mention as to whether the plaintiffs are in possession of the suit land on the date of the institution of the suit" is, the least which can be said about it, entirely bad and uncalled for. Similar misconception and grossly inaccurate statement of facts seems also to have influenced the learned Judge in holding that "the suit premises originally belonged to the ancestors of the late Daud Aboobaker but to that aspect of the matter there is not a single whisper in the affidavits of the deponents or of the defendants". The learned Judge goes on further erratically digressing that "it is the case of the plaintiffs that the plaintiffs are the exclusive owners of the suit premises and the suit land" and therefore "they should have come forward with some cogent and trustworthy evidence, but there is no substantial piece of evidence except bald allegations in the affidavits of the plaintiffs". The learned Judge again reiterates the absolute misconception under which he was reeling when he observed that the "Civil Court is concerned in granting injunction only with the question as to which party is prima facie in possession at the time of inception of the suit", that "the evidence produced by the plaintiffs is nebulous and the defendants are in physical possession of the suit premises on the date of the institution of the suit", that "whether the defendants have right over the suit premises and the suit land and whether the Sale Deeds are null and void is a question of evidence which shall be dealt with at the stage of final adjudication of the suit" and therefore "this Court cannot come to the rescue of the plaintiffs at this interim stage".
8. It is a well settled law that under the provisions of Section 6 of the Specific Relief Act the question of title is irrelevant and the only aspect which is required to be looked into is one regarding possession of the plaintiff prior to the filing of the suit and from which he is alleged to have been dispossessed without due recourse under the law provided such possession is a settled possession being also an actual and physical possession over a sufficiently long period to the acknowledgement, either implied or express, of the owner and without any attempt to conceal such possession so as to project an implied element of animus possidendi (AIR 1968 SC 702 and AIR 1975 SC 1674). This being the position it is obvious that on this count alone the impugned judgment cannot be sustained and is bound to be unsettled. Then the next question which arises is whether the matter should be remanded to the trial Court for fresh adjudication of the appellants' applications on merits in its true perspective and in the light of the relevant principles of law. However this appears to be a futile expedition in the special facts and circumstances of this case when the matter was exhaustively argued before me at the time of the admission of this appeal. I therefore propose to consider both the applications on their substance for the purpose of granting or refusing the interim reliefs sought for by the appellants before the trial Court which were otherwise reiterated before this Court also.
9. It is the case of the appellants that after Daud Aboobaker vacated the leased premises somewhere in December, 1972, consequent upon the agreement entered into with the respondent no.4 on 17th July, 1971, the appellants no.1 to 5 entered in possession of the ground floor of the suit building which was in an abandoned condition on or about 7th or 8th September, 1993 due to the fact that the respondents no.4 to 6 failed to fulfil their obligations to construct the new building all along a period of more than 18 years. This happened because on 6th September, 1993 the Joint Mamlatdar of Mormugao Taluka came to the site to execute the eviction proceedings against the tenants of the first floor of the building. At that time the appellants' advocate was present in order to safeguard their interest in respect of the ground floor and it was suspected that the respondents no.2 to 3 who were also there were attempting to create some interest in the building. Then they learnt that the said respondents had entered into an agreement for lease with the respondent no.4 in respect of the suit structure. It is further the appellants' no.1 to 5' case that having no other choice but to invoke their rights under Clause 5 of the agreement dated 17th July 1971, soon thereafter they took physical possession of the ground floor of the leased premises on or about 8th September, 1993. At that time the ground floor had no doors or windows and the entire building was abandoned. The ground floor was used by miscreants as a latrine and therefore since at that stage possession was with no one and the building stood abandoned the appellants no.1 to 5 could easily recover possession of the leased premises. However, according to the appellants, immediately thereafter their advocate drafted a legal notice dated 8th September, 1993 to the respondent no.4 and communicated to her that the agreement dated 17th July, 1971 stood rescinded as a result whereof the appellants had revived the old lease which was kept in suspension from 17th July, 1971. On the same occasion two cheques for Rs.25,000/- and Rs.27,600/- were enclosed being the amount of Rs.25,000/- towards the refund of the compensation received by the late Daud under the agreement dated 17th July, 1971 while the amount of Rs.27,600/- was the rent from 17th July, 1971 to 16th July, 1994 at the rate of Rs.100/- per month, which the respondents refused to accept as well as further rents forwarded by the appellants no.1 to 5 with regard to the subsequent months. It is also the appellants' case that in response to the said legal notice which was replied by letter dated 18th September, 1993 the defendant no.4's advocate did not dispute the contentions raised by the appellants and took only a vague stand merely saying that the matter was sub judice. It was on the strength of this alleged action taken by the appellants no.1 to 5 that their entire case of legal and physical possession has been sought to be made out by them in order to show that although the building has been vacated by their ancestor, sometime in the end of 1972, its possession was recovered by the appellants no.1 to 5 in exercise of their contractual rights without any fraud or force by giving a clear intimation of the fact to its owner, the respondent no.4. It has been further contended by the appellants no.1 to 5 that subsequently, on 16th September, 1993, they executed a deed of partnership with the appellant no.6 and his wife for the purpose of recommencing their old business of running a bakery in the premises and based on this agreement the appellant no.6, as the Managing Partner of the partnership Firm, was given possession by them of the ground floor of the building. Thereupon and with the aim of complying with the purpose of the partnership business the appellant no.6, it is alleged, invested substantial amounts of money to clean and renovate the leased premises. In this regard it is said that new doors and windows were put up on t he ground floor, the flooring redone and the walls were replastered and the oven and chimney repaired. Four watchmen were also posted round the clock to protect and safeguard the possession of the appellants and from 16th September, 1993 security guards have been living 24 hours a day in the ground floor in order to protect the premises and avoid it from being misused for public nuisance. Thus, the five appellants from 7th September, 1993 and appellant no.6, through the partnership firm and as its Managing partner, from 16th September, 1993 are in active and physical possession as tenants of the ground floor of the suit premises.
10. Affidavits of a number of witnesses were filed by the appellants in support of their possession which were obviously disputed by the respondents who also filed their own affidavits. Needless to say that, at this stage, it is too premature to give any credence or record a clear finding on the matter of possession claimed by the appellants on the basis of such affidavitary evidence which was contested by the respondents through affidavits produced by them to prove that at no stage, prior to the demolition of the building and after the vacation of the same by the late Daud Aboobaker, the ground floor of the premises came to be occupied by the appellants and that on their behalf any repair work had been done. Instead the respondents have sought to project that, at the time of the demolition of the building, the entire structure and the ground floor as well was in an abandoned and ruinous condition being used as a public latrine by miscreants who were availing of the situation to ease themselves in the premises and commit all sort of nuisance therein. A bare reading of both sets of affidavits, indeed reflect several contradictions and inconsistencies which I do not think it necessary to either pinpoint or consider at this juncture inasmuch as in the absence of an effective cross-examination of the deponents for the appellants and the respondents their entire evidence cannot be accepted as safe enough to enable this Court to arrive at a conclusive opinion on the factum of actual possession. But irrespective of that some internal evidence on record, based on documents and admitted facts, is, in my judgment, quite sufficient to establish a prima facie case of a settled possession in favour of the appellants at this interim stage of the proceedings.
11. First of all there is no dispute that the appellants no.1 to 5 are the legal representatives and heirs of the late Daud Aboobaker after his death in the year 1988 and that Daud was the tenant of the respondents no.4 to 6 in respect of the suit building wherein he was carrying on the business of a bakery in the name and style of "Central Bakery". It is also an admitted position that the said building continued to belong to the respondents no.4 to 6 till the deed dated 28th December, 1993 purporting to sell it to the respondents no.1 to 3 was executed by the concerned parties. There is no denial that, by agreement dated 17th July, 1971, respondents no.4 to 6 undertook to put up a new building in place of the old one and for that purpose Daud was asked to vacate the leased premises on the understanding that after its erection he would be allowed to reoccupy it under the terms and conditions stipulated in the various clause of the agreement. At the time Daud actually vacated the premises he was paid Rs.25,000/- by the respondents no.4 to 6 by way of compensation. It is seen that Clause 5 of the agreement provides that, in case the owners decided not to put up any new building or intended to let out the same to any other person, Daud would be entitled to reoccupy the leased premises on the same terms and conditions which were contained in the original lease. Although no time limit was mentioned in the agreement for the respondents no.4 to 6 to put up the new structure the fact remains that, from 1972 up to the time of its demolition on 1st April, 1994, the old structure remained as it was originally, however, in a dilapidated condition. It is the case of the respondents that the plans of the respondent no.4 to reerect the new structure were foiled on account of the attitude of the tenants on the first floor, namely, the appellant no.6 who have raised all sort of objections and difficulties to vacate the same as a result whereof the original owners were fed up with the litigation imposed upon them and decided to sell the entire building along with the land to the respondents no.1 to 4. Whether this reason adduced by the respondents is or is not true it is not certainly at this stage that this Court is in a position to adjudicate the genuineness of their explanation.
12. On the other hand the appellants' contention is that on account of the failure of the respondents to comply with the terms of the agreement within a reasonable period and also because they learnt, at the time of the handing over of possession of the first floor of the premises to them by the Joint Mamlatdar, that the respondents no. 4 to 6 were intending to dispose of the building in favour of the respondents no.1 to 3, they decided to re-occupy the leased premises in terms of Clause 5 of the agreement. For that purpose on or about 7th September the appellants no.1 to 5 took physical possession of its ground floor which was at that time in an abandoned condition and being used by miscreants as a public latrine and this fact was communicated to the respondents no.4 to 6 by letter dated 8th September, 1993. Prior to that, sometime in the year 1989, the appellants had already filed a suit, being Special Civil Suit No. 111/89, in the Court of Civil Judge, Senior Division at Vasco da Gama, seeking judicial remedy on account of the respondents no.4 to 6's failure to perform their obligations to construct the proposed new building which was still pending. Further along with the intimation letter dated 8th September, 1993 the appellants forwarded to said respondents two cheques, being one for Rs.25,000/- which was the amount of compensation paid by them to their predecessor late Daud Aboobaker to vacate the premises and the other one, being for Rs.27,600/-, towards the rent regarding the period from 17th July, 1971 to 16th July, 1994. None of these facts have been denied or controverted by the respondents and instead the reply of the respondents' advocate, dated 18th September, 1993, acknowledging the receipt of the appellants' letter dated 8th September, 1993 whereby the two cheques were returned does not take any definite stand on the points raised by the appellants nor did it dispute the appellants' right to reoccupy the leased premises on account of the respondents' failure to construct the new building within a reasonable time under Clause 5 of the agreement. The said reply contents only to say that the subject matter is under dispute. The record also shows that subsequent to this letter of 8th September, 1993 the appellants no.1 to 5 entered into a partnership agreement with the appellant no.6 under which the said appellant was made the Managing partner of the partnership Firm for the purpose of running their traditional business of bakery. It is the case of the appellants no.1 to 5 that from that day the appellant no.6 was given possession of the leased premises by them on the strength whereof the said appellant spent substantial amounts of money for the cleaning and repairing of the ground floor so as to make it fit to run the business. There is also documentary evidence to show that thereafter, on 4th March, 1994, the appellants through their advocate addressed a letter to Vasco da Gama Planning and Development Authority in connection with the proposed approval of development plans by the said Authority and construction of a new building by the respondents no.1 to 3. In the said letter the appellants have reiterated the fact of their being in possession of the leased premises on the ground floor of the old building. Further, the permission granted by the Town Planning and Development Authority makes the development and construction of the building by the respondent no.3 conditional and subject to settlement of the rights of its tenants through competent Courts.
13. The appellants have also produced, besides affidavits in support of their claim, documents consisting of bills, cash memos, etc. to substantiate the alleged expenses incurred by them with the repairs and renovation of the premises after they purportedly took possession of the ground floor. I am however not inclined to consider these documents also for the same reasons to which I have made a mention with regard to the affidavits of the parties. But in addition to the factual position referred to above I am unable to overlook the fact that the demolition of the building, admittedly done at the behest of the respondents no.2 and 3 who are said to have already acquired ownership rights to the same, was purportedly executed after 6 p.m. on 1st April, 1994 which was Good Friday, being thus a holiday. This fact by itself suggests that the said demolition which the respondents no.1 to 3 contend was done with the permission granted by the Town and Country Planning Department and the concerned Municipality was carried on in a manner inconsistent with the normal exercise of proprietary rights by its legitimate owner. In this respect it is pertinent to note that no demolition could have been undertaken by the said respondents, although the developmental activities in the land had been authorised by the competent Town Planning Authority, without the permission of the Vasco da Gama Municipality, which permission, the record shows, was granted to the respondents only on 13th April, 1994. It thus follows that the respondents have themselves engaged in this exercise even prior to the licence given by the Municipality for the construction of the new building which would obviously include permission to demolish the old structure too. Be that as it may the fact remains that if the demolition of the building was really sought to be done by the respondents under the authority of law there was no need for them to carry on with the same on a day which was supposed to be a very special one for them, being Good Friday, and that also at late hours of the night. In this connection there is evidence that the appellants immediately informed the Police and lodged a further complaint against the respondents seeking to stop the demolition but due to the inaction or unwillingness of the Police to interfere the work of demolition is alleged to have been completed on 2nd April, 1994. Indeed the respondents dispute this assertion and say that the actual work of demolition was completed only on 4th April, 1994. The respondents have made an attempt to explain as to why they decided to carry on the demolition of the structure in the circumstances pointed out above and contended that on 1st April, 1994, when the respondent no.2 was returning from the Church after attending the religious services on Good Friday, he saw the appellant no.6 in the company of two suspicious looking characters trying to break open the locks put up by him on the door of the building and forcibly induct stray and homeless persons in the premises by taking advantage of the situation of the day. In all fairness it is difficult to appreciate such justification advanced on behalf of the respondents bearing in mind that it has not been explained as to why, in order to prevent the entry of undesirable elements in the building which, according to them, was in their lawful possession the appellants resorted to the extreme step of pulling down the whole structure at that late hours of the night and were able to arrange on the spot a sufficient number of labourers at that odd time to immediately start the process of demolition. Thus it appears reasonable to infer that, prima facie, the said exercise seems to have been well-planned and from whatever angle one may look at it the reasons advanced by the respondents to justify the demolition of the building done in such an unusual manner it is not easy to believe that the respondents chose to carry on the demolition only because the appellant no.6 purportedly wanted to induct in the old structure some strangers who had certainly no right to enter therein or obtain its lawful possession. The story of the appellants in this respect is that the respondents, by taking advantage of the fact that the 1st of April, 1994 was Good Friday, being a holiday, came at night time with a group of hired goondas and after bodily throwing away the watchmen put up by them began immediately with the work of pulling down the old structure against which the appellants promptly reacted by filing a written complaint to the Police and unsuccessfully sought to stop the demolition. Whether the story put up by the appellants is correct and true or the explanation given by the respondents is genuine, although hard to be accepted, is also a matter of proof which can be adjudicated by the trial Court only after recording proper evidence in this regard. For the time being I am satisfied that, prima facie, the whole process of pulling down the old structure creates a doubt about the legality of the exercise indulged by the respondents as a result whereof the appellants' contention that by this violent manner the respondents have forcibly dispossessed them from the leased premises in their physical possession right from 7th September, 1993 cannot be safely ruled out. It is therefore in the fitness of things that the trial Court should be in a position to investigate the conflicting issue of actual possession claimed by the appellants and its forceful dispossession by the respondents by indulging to the expedient of carrying on the demolition of the structure. It is in this light that the suit filed by the appellants for recovery of possession under Section 6 of the Specific Relief Act appears to be maintainable and therefore the trial Court is expected to adjudicate it strictly on the basis of the alleged possession claimed by the appellants on the strength of factual material based on documents and affidavits relied upon by them and decide the same in view of the evidence produced by the respondents which purports to dispute the alleged possession of the appellants and their forceful dispossession by the said respondents.
14. This being the position, the first question which arises is in what manner the right of the appellants to get the main issue in the suit effectively adjudicated with regard to their prayer for recovery of possession can be protected or secured in case they are able to succeed in the suit. Both in the suit as well as in their application for temporary injunction the appellants have prayed that the possession of the leased premises be restored to them to the extent of an area of 210 sq. mts. at the exact spot where the original leased premises stood and for that purpose they be permitted to repair/reconstruct the demolished premises without any interference either from the respondents or their legal representatives. More particularly the appellants have prayed that the respondents be restrained from digging or carrying out any work of construction whatsoever in the property and also status quo be maintained in the meantime. Admittedly, the construction started by the respondents after the appellants failed to obtain extension of the ex parte restraint put to them initially by the trial Court till the time the respondents filed their affidavit in reply to the appellants' application for temporary injunction has considerably progressed and although the appellants contend that there is still large scope for them to halt the same in order to preserve the appellants' rights, I am not inclined, in a balanced view of the matter, to restrain the respondents from proceeding with the said construction only because the appellants in a suit for recovery of possession have claimed the right to occupy the leased premises which according to them do not extend beyond an area of about 210 sq. mts. The respondents vehemently deny that even assuming that the real tenants are entitled to reoccupy a certain area of the new building in terms of the agreement dated 17th July, 1971, the said area cannot extend to more than 300 sq. ft. which is hardly about 30 and odd sq. mts. In this regard it is contended that out of the three compartments originally leased by them to the late Daud two were sub-leased by the said Daud to third parties with whom they had already settled the deal by paying to them the agreed compensation to get them vacated. Therefore at the most the appellants no.1 to 5, as heirs of the late Daud, would be entitled to an area corresponding to the third compartment which was actually in physical possession of their predecessor the late Daud at the time he vacated the leased premises, some time in December, 1972.
15. However the entire case of the appellants is that, consequent upon the renounciation by them of the agreement dated 17th July, 1971 by letter dated 8th September, 1993 on the ground that the respondents failed to comply with its terms, the rights now claimed by them with regard to the recovery of possession cannot be ascertained on the basis of the clauses of an agreement which has been terminated in terms of its relevant clauses and is therefore to be deemed as not existent for all purposes under the law. This is also another bone of contention which the appellants will have to get adjudicated and settled in a competent forum. It cannot be disputed that a plaintiff, in a suit under Section 6 of the Specific Act, has also a right to obtain a relief seeking to protect his interest in securing the effective execution of any decree which might be passed in his favour for recovery of possession even in case of a building which has been already pulled down by its owner and in respect whereof the tenant claims a right of re-occupation. In this regard the appellants have relied on the case of 'Hari Shankar & Ors. Vs. Satya Prakash & Anr.' (AIR 1982 Raj. 183) wherein a Single Judge of the Rajasthan High Court has held that in a suit for possession under the Specific Relief Act the Court has powers under Order XXXIX Rules 1 and 2 Civil Procedure Code read with Section 37 of the Act to pass orders to ensure that the property in dispute is not alienated, altered, demolished, changed, removed and destroyed during the pendency of the suit, so as to preserve the property in dispute, if necessary, in the same condition so that an effective decree for possession can be given in favour of the plaintiff. In this connection it was observed that it would be a futile exercise if the Court is held to be powerless for making any arrangements or granting any injunction or directions to ensure preservation of the property and then at the time of passing the decree when the stage of execution comes, it was found out that either the entire property has been washed, destroyed, altered removed, dilapidated or alienated. This could result in making a futile decree.
In another case of 'Meghji Jetha Shah Vs. Kalyanji Nanji Shah' (1987 Mah. L.J. 254) a Single Judge of this Court has also ruled that there is no provision either in the Specific Relief Act or in the Civil Procedure Code for the Civil Court to act under Order 40 Rule 1 of the Civil Procedure Code where a suit is filed under Section 6 of the Specific Relief Act, which is meant to empower the Court to do justice between the parties pending the final decision of the suit and such powers are necessary even in a suit under Section 6 of the Specific Relief Act.
In the case of 'Bhagghandra Vs. Ram Prasad' (1959 A.I.J. 221) a Single Judge of the Allahabad High Court has similarly held that the jurisdiction of a Court deciding a case under the Specific Relief Act though limited to the decisions of questions falling within that provision is not so limited as to take away its inherent powers to act ex debito justitiae.
16. Indeed Section 37 of the Specific Relief Act gives also power to the Courts to grant temporary injunctions in the same manner as permitted under the Civil Procedure Code. Besides Section 94(e) and Section 151 of the Civil Procedure Code enable the Courts to mould the reliefs and grant injunctions in terms of Order 39 Rules 1 and 2 of the Civil Procedure Code. In this view of the matter in my considered judgment and pending the hearing of their suit the appellants are entitled to an appropriate writ in order to secure whatever claim which might be eventually adjudicated in their favour in case they succeed in the suit. Looking at the things on this angle in my view it is not at all required that the respondents should be restrained from carrying on the construction which is being erected by them and it is suffice that the appellants should be placed in a position to eventually secure actual possession of an area to which in law they might be found entitled in competent proceedings in respect of the leased premises. Thus and although the respondents are disputing the area in respect whereof they are committed to give possession to the appellants no.1 to 5, as heirs and legal representatives of the deceased original lessee Daud, as per the terms of the agreement dated 17th July, 1971 the fact remains that once the appellants have purportedly repudiated the said agreement and are claiming that the area of the ground floor originally occupied by them was of about 210 sq. mts. an equivalent area should also be put under restraint so as to prevent the respondents from alienating or creating third party interests on such area till the final disposal of the suit.
17. It is true that the respondents have claimed that the tenancy of the appellants has been reduced to the extent of one room only in view of the fact that the other two rooms had been sub-leased to different persons with whom they had settled the deal and obtained their eviction in terms of agreement dated 17th July, 1971 but here is a case wherein a question arises as to whether the said agreement still subsists or has been legally repudiated or terminated by the appellants due to non-implementation of its clauses and conditions, which dispute is also to be considered and adjudicated by the trial Court in the suit.
18. In the result, the appeal is allowed and the judgment of the learned Civil Judge, Senior Division, Margao, dated 22nd December, 1994 is quashed and set aside. The applications of the appellants dated 6th May, 1994 and 16th May, 1994 are partly granted to the extent that the respondents are hereby restrained from alienating or creating third party interests in respect of an area of about 200 sq. mts. on the ground floor of the new building which they are putting up in place of the demolished structure, namely of the ground floor originally leased to the late Daud. However, bearing in mind the special circumstances of this case and having regard to the fact that the question of actual recovery by the appellants is to be adjudicated at the earliest so as to settle once and for all the real dispute between the parties, the learned Judge is directed to dispose of the suit as expeditiously as possible preferably within a period of six months from the receipt of this judgment.