Notice of Motion No.68 of 2002,Suit No.29 of 2002

22nd January, 2004

Petitioner Counsel: FREDUN DEVETRE,T. N. TRIPATHI
Respondent Counsel: PRAVIN SAMDANI,KHARVA,U. S. BOBDE,RAMESH YADAV

Cases Cited:
Meghji Jetha Shah Vs. Kalyan Nanji Shah, 1988(1) BCR 263 [Para 16]
Ramesh Devand Pata Vs. Jayant Kumar Gordhandas Malani, AIR 1998 Guj. 120 [Para 16]
Dora Cawasji Warden Vs. Coomi Sorao Warden, AIR 1990 SC 867 [Para 17]
Krishna Ram Mahale Vs. Mrs. Shobha Venkat Rao, AIR 1989 SC 2097 [Para 17]
Midnapur Zamindary Co. Ltd Vs. Naresh Narayan Roy, AIR 1924 PC 144 [Para 17]

JUDGMENT

JUDGMENT :- This motion is taken out by the plaintiff for appointment of a receiver and a direction to the receiver to put the plaintiff in possession of the suit property as an agent of the receiver in a suit filed by the plaintiff for possession under section 6 of the Specific Relief Act.

The relevant facts are briefly summarised below :

2. On 27th December, 2001, the plaintiff filed the suit No.29 of 2002 under section 6 of the Specific Relief Act alleging that he has been unlawfully dispossessed of the suit property by the defendant No.2 on 9th December, 2001. The property consisting of a piece of land admeasuring about 2,499 sq. yards situated in Gundavli village and Taluka Salcettee Bombay Surburban District and forming part of survey No.88 of Chakala and Survey No.18 of Gundavli bearing non-agricultural survey No.1833 entry No.38D Taluka Salcettee along with two bungalows, one front and one rear, one chawl occupied by about 10 to 12 tenants and a shed constructed thereon originally belonged to the ancestors of the defendant No.2. The entire property is known as Gupta compound and the structures standing on the land are known as "Gupta Bhavan". There are two bungalows in the property one on the front side and one behind it both of which appear to be presently dilapidated. The front bungalow (hereinafter referred to as the suit premises) is the subject matter of dispute in the suit.

3. According to the plaintiff, the defendant No.1 let out the suit premises and put him in possession thereof on 1st February, 1988 at monthly rent of Rs.1000/- and deposit of Rs.50,000/-. In the year 2001, the defendant No.1 demanded increase in the rent and issued him a notice regarding enhancement of rent on 20th June, 2001 which was followed by a notice dated 31st October, 2001 demanding possession. Apprehending forceful eviction, the plaintiff filed a suit bearing No.1211 of 2001 in the Small Causes Courts Mumbai on 6th November, 2001. In the said suit, an application was taken out by the plaintiff for appointment of Court commissioner on 28th November, 2001. The Court passed an order on 4th December, 2001 appointing a Court commissioner. The Court commissioner visited the suit premises on 5th December, 2001 and submitted his report, a copy of which is annexed to the plaint as Exhibit M. The commissioner noted the plaintiff's possession and also noted existence of the name on boards and signboards of the plaintiff affixed to the suit premises. The commissioner also caused the photographs of the premises to be taken which were also filed along with the report. Copies of the photographs are also annexed to the plaint.

4. According to the plaintiff, the defendant No.2 has no concern to the suit premises. The plaintiff alleges that the defendant Nos.1 and 2 in collusion with each other wanted to evict and dispossess the plaintiff. On 9th December, 2001 in the morning at about 4.30 a.m. the defendant No.2 came to the suit premises along with 30 to 35 anti social elements armed with weapons like choppers, swords, sticks and ransacked and looted the suit premises and forcibly dispossessed the plaintiff. The plaintiff has given a graphic description of the incident and the manner in which he was evicted in paragraph Nos.13 to 16 of the plaint. The plaintiff lodged a complaint with the police but, the police did not take any action and in fact helped the defendant No.2 in his illegal action. The police did not initially take down the complaint attempted to be lodged by the plaintiff but, finally the complaint was lodged. As the police failed to take action as anticipated by him, the plaintiff has filed this suit for possession under section 6 of the Specific Relief Act.

5. The defendant No.2 resists the motion taken out by the plaintiff, in short, the case of the defendants is that the suit premises along with the rear side bungalow was let out to him by the defendant No.1 under a written agreement dated 27th January, 1986. Thereafter, the defendant No.1 executed a deed of conveyance conveying the entire suit property to the defendant No.2 on 22nd March, 1986. Though the conveyance deed was not registered, the defendant No.2 was put in possession of the suit property as owner and since 22nd March, 1986.

6. According to the defendant No.2, the defendant No.1 was trying to illegally evict him and the defendant No.1 had even beaten the brother in law of the defendant No.2 in the year 1991 for which a police complaint was made and criminal prosecution is still pending. According to the defendant No.2, he used to store his goods in the suit premises and the bungalow behind it. The defendant No.2 deals in stationery goods in his shop at Kurla and used to store stationery items in the suit premises. The defendant No.2 also carries on business in fire crackers during diwali time and in the year 1997, he had applied for a licence for storing of crackers in the suit premises. The officers of the Bombay Municipal Corporation had visited the suit premises in connection with the licence and had noted that the defendant was in possession of the premises in 1971 (sic). According to the defendant, he is in possession of the suit premises since 1986 initially as a tenant, in pursuance of a tenancy agreement dated 27th January, 1986 and subsequently as an owner in pursuance of a deed of conveyance dated 22nd March, 1986.

7. The defendant No.1 has also filed his affidavit. According to the defendant No.1, he is the owner of the suit property. The defendant No.1 admits that he had previously entered into an agreement of tenancy with the defendant No.2 on 27th January, 1986. However, the said tenancy agreement was cancelled because, thereafter there were negotiations between him and defendant No.2 regarding sale of the property and it was mutually decided between him and the defendant No.2 to treat the tenancy agreement dated 27th January, 1986 as cancelled. The defendant No.1 denied having executed the registered conveyance dated 22nd March, 1986 and alleged that it was a forged and fabricated document. The defendant No.1 further stated that thereafter he let out the suit premises to the plaintiff in the year 1988 and since 1988, the plaintiff is in possession of the suit premises.

8. On these pleadings, the points which arise for my consideration are :

(i) Whether the plaintiff proves that he was in possession of the suit premises on 9th December, 2001 and was forcibly dispossessed by the defendant No.2 otherwise than by due course of law?

(ii) Whether it would be just and convenient to appoint a receiver in respect of the suit premises and to direct the receiver to put the plaintiff in possession of the suit premises as agent of the receiver?

9. All the parties have filed the affidavits, counter affidavits and affidavits in rejoinder. The plaintiff has filed his own affidavits dated 27th December, 2001, 10th January, 2002, 27th March, 2002 and 8th April, 2002. The defendant No.1 has filed affidavits dated 31st December 2001, 10th January, 2002, 27th March 2002 and 8th April, 2002. The defendant No.2 has filed affidavits dated 31st December, 2001, 12th February, 2002 and 4th April, 2002. In addition, the plaintiff has filed on record the affidavits of tenants in the chawl in Gupta compound. The names of the tenants who have filed affidavits in support of the plaintiff are Mr. Urvesh Amrutlal Patel, Mr. Mohammed Sharif Fidali, Mr. Maganlal Lalubhai Patel, Mr.Shrikrishna Ganpat Pingulkar, Mr. Abdul Razak Petiwala, Mr. Riaz Abdul Sattar, Mr. Roshanlal Chhaganlal Jain. In addition, the parties have also filed on record the compilation of documents. At the hearing, learned counsel for the defendant No.2 also handed in a copy of the plaint in suit No.6397 of 2001 filed by the defendant No.2 against the defendant No.1 in the City Civil Court, Mumbai. By consent the said copy is also taken on record.

10. At the commencement of the hearing of the motion, learned counsel for the plaintiff requested permission to cross-examine the defendant No.2 and learned counsel for the defendant No.2 also requested permission to cross examine the plaintiff. By an order dated 14th January, 2003 permission was granted to both the plaintiff and to the defendant No.2 to cross-examine each other in the affidavits filed by them. In pursuance thereof, the plaintiff and defendant No.2 were cross-examined by the learned counsel for the opposing sides.

11. Learned counsel for the defendant No.2 invited my attention to the tenancy agreement dated 27th January, 1986, four rent receipts of the same date (i.e. 27-1-1986) and the deed of conveyance dated 22nd March, 1986 executed by the defendant No.1 in respect of the suit premises as also rear side bungalow. The defendant No.1 has not denied the execution of the tenancy agreement nor denied the simultaneous execution of the four rent receipts. The tenancy agreement as well as the two rent receipts are issued in the name of Jyoti Trading Corporation of which the defendant No.2 claims to be a partner. The defendant No.1 however, has stated in the affidavit after execution of this tenancy agreement and rent receipts, it was agreed between the parties to cancel the tenancy the sale (sic - agreement) and there were negotiations between the parties regarding the sale of the property. Furthermore, the defendant No.2 himself claims that the defendant No.1 had executed in his favour an unregistered sale deed on 22nd March, 1986 copy of which is also filed on record. The question of admissibility of the sale deed in evidence in the absence of registration can be gone into at the stage of trial. However, if one peruses the sale deed for a limited collateral purpose to which it may be used in the absence of registration, it can be seen that the sale deed does not mention that the defendant No.2 was in possession of the suit premises or any part of the entire property as a tenant. In fact, one of the recitals in the clauses states that the vendors (i.e. the defendant No.1) was absolutely seized and possessed of the suit property. Even in the body of the document, it is mentioned that the purchaser (i.e. the defendant No.2) shall and may at all the times hereafter peacefully, quietly enter upon and occupy enjoy the said land and heridaments. Thus, prima facie immediately prior to the sale deed dated 22nd March 1986 the defendant No.2 was not in possession of the suit property and in any event his possession was not so mentioned in the sale deed. This, prima facie supports the case put up by the defendant No.1 that it was agreed between him and the defendant No.2 that the tenancy agreement dated 27th January, 1986 was cancelled and not acted upon in view of the subsequent negotiations regarding the sale of the suit property. It is also worthwhile to note that except for the four receipts dated 27th January, 1986 which were issued simultaneously with the execution to the agreement, the defendant No.2 has not produced any receipt for having paid the rent thereafter. In the plaint, in Suit No.6397 of 2001 filed by the defendant No.2 in the City Civil Court, Mumbai he has alleged that he is the owner of the suit property. He has not pleaded tenancy in the said suit. In the cross-examination, the defendant No.2 has contended that he had paid rent to the defendant No.1 in cash up to December, 1999 but he does not have any receipt of payment. He has further stated that he maintains accounts of his business and has debited the rent paid in the books of accounts. However, he has not produced the books of account nor the extract of entries in the books of accounts regarding payment of rent to the defendant No.1. The defendant No. 2also admits that he is a income tax payee and files income tax returns. Though he showed willingness to produce office copy of the Income tax returns along with the receipt and payment account to show the payment of the rent, he has chosen not to produce them in Court. On the other hand, in the suit filed by him in the City Civil Court, he claims to be the owner of the suit premises. Therefore, the case put up by the defendant; No.2 of being in possession of the suit premises as a tenant cannot prima facie be accepted.

12. In a suit for possession under section 6 of the Specific Relief Act, it is not necessary to consider the nature of the title claimed by the parties. What is necessary to be considered is who was in possession of the suit property and whether has been dispossessed without due course of law within a period of six months immediately before the suit. The defendant No.2 no doubt has produced some evidence which tends to show that he could be in possession of the suit property at least at some point of time. The defendant No.2 has produced on record xerox copy of the applications made by Jyoti Trading Corporation for grant of permission to store fire crackers in the suit property. It is not made clear in the application whether crackers were to be stored in the suit premises i.e. front bungalow or any other part of the entire property. Admittedly, there are two bungalows, a shed and chawl. The chawl is in occupation of the tenants but, the defendant No.2 claims to be in possession of the rear bungalow also. The application does not mention whether it was made for the purpose of storing of fire crackers in the front bungalow or the rear bungalow. Even the report of the Inspectors who allegedly visited the suit property for the purpose of considering the application of defendant No.2 for grant of licence is not unambiguous as to the property inspected by them. Assuming however, that the said application was in respect of the suit premises, it must be stated that the visit was in the year 1997 and we are concerned with the possession on 9th December, 2001. All the documents which have been produced by the defendant No.2 are only up to the period 1999. The defendant No.2 has not produced any document pertaining to the years 2000 or 2001 to show his possession. As against this, the plaintiff has produced the documents pertaining to the years 1988 to 2001 which indicate his possession. The defendant No.1 let out the suit premises to the defendants by a written tenancy agreement dated 1st February, 1988. A xerox copy thereof is produced by the plaintiff. The same is admitted by the defendant No.1. The plaintiff has also produced on record the rent receipts, first of the rent receipt is dated 1st February, 1988 and the last of the rent receipt is dated 11th February, 2001. Learned counsel for the defendant No.2 contends that the rent receipt No.124 dated 16th January, 1989 is a false document and invites my attention to the affidavit to which another copy of the rent receipt No.124 is attached. The defendant No.1 of course has denied the other rent receipts produced by the defendant No.2 and has admitted the rent receipts issued to the plaintiff. Even if the rent receipt No.124 is ignored on account of the controversy raised by the defendant No.2, there are other numerous undisputed rent receipts for payment of rent by the plaintiff to the defendant No.1 regarding the suit premises. The other rent receipts are not denied and last of the rent receipt is dated 11th February, 2001 indicating that the plaintiff was paying rent in respect of the suit premises even till the February 2001. It is true that mere production of a rent receipt would not prove the possession of the suit premises by the plaintiff but, certainly the rent receipts would be one of the several pieces of evidence which would be required to be taken into consideration for deciding whether the plaintiff was in possession of the suit premises.

13. It appears that the defendant. No.1 wanted higher rent for the suit premises for the defendant No.1. It is for this reason that the defendant No.1 might not have accepted the rent receipt after February, 2001. On 20th June, 2001 the defendant No.1 wrote a letter and requested the plaintiff to meet him for considering the enhancement of the rent. On 31st October, 2001 the defendant No.1 wrote further letter to the plaintiff to pay rent of Rs.4000/- per month from February, 2001 onwards failing which the defendant No.1 would have no option but to terminate the tenancy. The rent receipt dated 11th February, 2001 regarding the payment of rent up to January, 2001 is consistent with the statement made in the letter of defendant No.1 dated 31st October, 2001 that the plaintiff had not paid the rent from February, 2001. It is thus, clear that some differences had arisen between the plaintiff and the defendant No.1 regarding the increase in rent sometime by the middle of the year 2001. Since the defendant No.1 had threatened to terminate the tenancy of the plaintiff, he apprehended danger and filed a suit bearing suit No.1211 of 2001 on 6th November, 2001 in the Small Causes Court, Mumbai against the defendant No.1. Filing of the suit appears to be natural on account of the receipt of a notice dated 31st October, 2001. In the said suit, the plaintiff made an application on 9th November, 2001 for appointment of a Court commissioner. By an order dated 4th December, 2001 learned Judge of the Small Causes Court, Mumbai appointed Mr. A. N. Rodrigues an advocate practising in that Court as Court commissioner to visit the suit premises and make a report. The Court commissioner accordingly visited the suit premises a little before 6 p.m. on 5th December, 2001. The commission work lasted for an hour. Photographs were taken by the commissioner. The commissioner's report and photographs are filed on record. The commissioner's report shows that the plaintiff was in possession of the suit premises. The photographs annexed to the commissioner's report show that the plaintiff had put up at least two big name boards styled "Khan Brick House" to the suit premises. The plaintiff is a dealer in building materials and cement, bricks and building tiles were found stored in the suit premises. In his report the Court Commissioner has noted that 10 cement bags of coromandal make, 50 bags of Neeru (L and T company's make), 30 bags of cement of birla make, 12 bags of washing chemical powder, 122 bags of prima Trick USA Brand Water Proof, fittings (Large), 5 Drainage Line Pipes, 50 grills, 50 bags of Glazed Tiles, 6000 bricks and 50 Large boxes of Spartex Tiles as also other building materials were stored in the suit premises. Presence of these materials is consistent with the plaintiff's stand that he was using the suit premises for the purpose of storing building materials for his business and was in possession of the suit premises.

14. The defendant No.2 in his cross-examination has stated that he had employed Mr. Shirke as a watchman of the suit property. According to the plaintiff, Mr. Shirke and his brother used to be always present on the suit property except perhaps occasional absence for personal work. If Mr. Shirke and his brother were always present on the suit site property and if the plaintiff was not in possession, it would not have been possible for him to bring in and store before Court Commissioner's visit such large quantity of building materials in the suit premises without being noticed and objected to by Mr. Shirke. It is true that the defendant No.2 was not a party to suit No.1211 of 2001. But, admittedly the suit premises were inspected by the Court Commissioner who is an officer of the Court. The plaintiff has annexed to the plaint the copy of the Commissioner's report as well as the photographs. The plaintiff has averred about the appointment of the Court Commissioner, the Commissioner's visit and his report in para 12 of the plaint. Despite this, the defendant No.2 has not filed any affidavit in reply dealing with the averments made in para 12 of the plaint or dealing with the Commissioner's report and the photographs taken by him. The Commissioner's report and the photographs annexed thereto prove beyond reasonable doubt the presence of the plaintiff and his material in the suit premises atleast on 5th December, 2001 which is very proximate to 9th December, 2001 being the date of the alleged unlawful eviction.

15. In the cross-examination, the defendant No.2 has admitted that some incident occurred on 9th December, 2001. Mr. Shirke telephoned the defendant No.2 in the morning at about 10.30 a.m. on 9th December, 2001 and so he visited the suit premises. Learned counsel for the defendant No.2 strenuously contended that the plaintiff was not unlawfully and forcibly evicted on 9th December, 2001 but, it was the plaintiff who attempted to dispossess the defendant No.2 on 9th December, 2001. If so, the defendant No.2 would have certainly lodged an F.I.R. with the police. The defendant No.2 has not lodged any F.I.R. On the other hand, the plaintiff has averred that he made attempts to lodge police complaint (F.I.R.) which the police refused to register at the first instance as they had colluded with the defendant No.2. The defendant No.2 therefore made a complaint by post to the Commissioner of Police and to the Additional Commissioner of Police, Mumbai and copy was sent by post to the Inspector in-charge of the said police station on the same day. It appears that an F.I.R. was registered subsequently by the police in the evening of 9th December, 2001. Two employees of the plaintiff who were in the premises were beaten up in the said incident. Xerox copies of the medical certificates of Cooper Hospital about the injuries have also being filed on record. Thus, there is sufficient evidence on record to show that the plaintiff was evicted from the suit premises otherwise than by due course of law.

Re : Appointment of Court Receiver

16. Learned counsel for the plaintiff relied upon the decision of the Single Judge of this Court in Meghji Jetha Shah Vs. Kalyan Nanji Shah reported in 1988(1) BCR 263. The plaintiff in that case had filed a suit in the City Civil Court, Mumbai under section 6 of the Specific Relief Act for recovery of possession of the suit premises alleging that while he was in settled possession of the premises and running his grocery business, he was without due course of law forcibly dispossessed by the defendants on 12th April, 1984. In that suit, the plaintiff took out a notice of motion for appointment of a Court receiver with a direction to appoint him as agent of the receiver and to allow him to run the business which he was running till he was dispossessed on 12th April, 1984. The City Civil Court after consideration of the various documents produced by the parties on record made the notice of motion absolute and appointed the receiver and further directed that the plaintiff be put in possession of the property as agent of the receiver, at the interlocutory stage. In revision before this Court, an objection was raised that no receiver could be appointed at an interlocutory stage in a suit under section 6 of the Specific Relief Act. Rejecting the said contention, the learned Single Judge held that there is no prohibition either in the Specific Relief Act or in the Civil Procedure Code for appointment of Court receiver under order 40 Rule 1 of the Civil Procedure Code at an interlocutory stage in a suit under section 6 of the Specific Relief Act. In Ramesh Devand Pata Vs. Jayant Kumar Gordhandas Malani reported in AIR 1998 Guj. 120 Gujarat High Court taking the similar view that the Court has ample power under section 6 of the Specific Relief Act to grant interim relief by directing restoration of possession which existed immediately before filing of the suit. I am in respectful agreement with this view. The facts in this case are startling. The plaintiff was in possession of the suit premises. 30 to 35 people gathered in the wee hours on 9th December, 2001 and forcibly removed the plaintiff's goods from the suit premises in trucks and other vehicles. The plaintiff's employees were threatened and beaten up by the assailants who are armed. A complaint attempted to be lodged at the police station was not recorded by the police for their own reasons. Even a police van which was posted at or near the premises ; police were either a silent spectators or were hand in glove with the defendant No.2. In paragraph Nos.12 to 16 of the plaint, the plaintiff has narrated in graphic manner his dispossession. In various affidavits filed on record the defendant No.2 has not cared to deny the averments in paragraph Nos.12 to 16 of the plaint. In his first affidavit, the plaintiff has categorically incorporated the averments made in the plaint as part of the affidavit in support of the notice of motion. As these averments have not been specifically dealt within the three affidavits in reply filed by the defendant No.2, those must be deemed to have been admitted. This shows the lawlessness. Section 6 of the Specific Relief Act is expected to be a speedy remedy for restoration of possession of a person who has been dispossessed without the due course of law. It is for this reason that sub-section (3) of section 6 provides that even an appeal shall not lie against an order or decree passed in a suit instituted under section 6. Despite the eagerness of the legislature to provide speedy justice to the persons who are dispossessed without due course of law, because of the pendency of large number of cases, Courts have not been able to deal with these cases expeditiously. Learned counsel for all the parties are agreed that despite expedition, suits under section 6 of Specific Relief Act take more than five years for reaching hearing. Learned counsel for the plaintiff points out that this Court has taken more than two years for deciding this motion itself. In such circumstances, denying of interim relief to the person who has been unlawfully evicted without due course of law for a period of five years amounts to denial of justice.

17. In the facts and circumstances, it would be just, convenient and appropriate to pass interim orders for appointment of a receiver with direction to appoint the plaintiff as agent of the receiver. I am conscious of the fact that this order is similar to the order in the nature of mandatory injunction of restoration of possession at the interlocutory stage. In Dora Cawasji Warden Vs. Coomi Sorao Warden and ors. reported in AIR 1990 SC 867, the Supreme Court, of course in a different context, has held that orders in the nature of mandatory injunction can be passed even at interlocutory stage. In that case, one of the co-owners of the property sold his undivided share in the property and the purchaser was put in possession. Even though the purchaser was put in possession, the Court by an interlocutory mandatory order restored possession to the co-owner by ordering eviction of the stranger at the interlocutory stage. The Court made no distinction between a negative injunction and a mandatory order while passing an order at an interlocutory stage. The Court held that mandatory injunctions are granted for the purpose of maintenance of status quo which prevailed at the date of the suit or immediately preceding thereto. A message must be sent, loud and clear, that Courts of law are not helpless when a person is dispossessed by another person taking law in his own hand and the judicial delays would not prevent restoration to a person when it is found that the person has been dispossessed without due course of law. It is well established law of this country where a person is in settled possession of the property, even on an assumption that he has no right to appear on the property, he cannot be dispossessed even by the true owner of the property except by due recourse to law. In Krishna Ram Mahale Vs. Mrs. Shobha Venkat Rao reported in AIR 1989 SC 2097, the Apex Court quoted with approval the observations made by the Privy Council in Midnapur Zamindary Co. Ltd Vs. Naresh Narayan Roy, AIR 1924 PC 144 to the effect:

"In India, persons are not permitted to take forcible possession; they must obtain such possession as they are entitled to through a Court."

18. Here is a case wherein the defendant No.1 took law in his own hands. He dispossessed the plaintiff without due course of law and perhaps with the connivance of the police or atleast with their inaction. Hence, if asked, I would have been inclined to grant a mandatory injunction and restored possession to the plaintiff. Here, the plaintiff is asking for a lesser relief of appointment of Court receiver and appointing him as the agent of the receiver. I see no reason to refuse such a relief.

19. In the circumstances, motion is made absolute in terms of prayer (a). Learned counsel for the defendant No.2 states that he is in possession of the rear bungalow and therefore, this order should not affect his possession of the rear bungalow. Learned counsel for the defendant No.1 disputes this and contends that it is the defendant No.1 who is in possession of the rear bungalow. No finding can be recorded in the present suit regarding possession of the rear side of the bungalow and hence it is not necessary to pass any orders regarding the rear side bungalow.

20. At the request of learned counsel for the defendant No.2, operation of this order is stayed for a period of four weeks.

Certified copy is expedited.

Court Receiver, and parties to act on an authenticated copy of the order attested by the Court Associate.

Order accordingly.