Appeal From Order (ST) No. 15590 of 2013,Civil Application ST. No. 15857 of 2013

17th September, 2013

Petitioner Counsel: Mr. CHIRAG MODY a/w Mr. DEEPAK SHUKLA i/b M/s. VINOD MISTRY & CO.
Respondent Counsel: Ms. SMITA SAWANT a/w Ms. NEHA BHATT i/b M/s. BILAWALA & Co.

Cases Cited:
Rame Gowda Vs. M. Varadappa Naidu, (2004) 1 SCC 769 [Para 5,10]

JUDGMENT

JUDGMENT :- The Appellant-original Plaintiff has challenged order dated 29.4.2013 passed by the learned Judge, City Civil Court, Dindoshi, Mumbai, thereby dismissing the motion pending the Suit, in which the Plaintiff-Appellant prayed for permanent injunction against the Defendants-Respondents from dispossessing the Appellant from the suit premises without following due process of law. A prayer was also made to appoint a Court Commissioner to visit the suit site, apart from a motion for interim protection in view of apprehension so averred in the affidavit supporting the motion.

2. The cause of action arose in the matter sometime in the year 2013 when original Defendant Nos.1 and 2 alleged to have threatened the Appellant that they would not allow him to enter into the suit premises. The Appellant therefore lodged a criminal complaint on 3.2.2013 before the Bandra police station. On 4.2.2013, the Plaintiff therefore filed the present Suit. The learned Judge has rejected the motion by holding that the Appellant has not made out a prima facie case and the balance of convenience also does not lie in his favour. It is further observed that no irreparable loss would cause if injunction is refused.

3. The Suit is not for any decision on the ownership/and or title of the suit property. The Suit is for protection for the possession as averred supported and based upon various documents ranging from the year 2007 till this date. The threat notice issued by the contesting Defendants-Respondents and the police complaint lodged immediately in February 2013, apart from the Suit in question, itself means that the Defendants were fully aware of the fact that the Appellant- Plaintiff has been residing in the premises since long time with his maternal grandmother Mrs.Noorbanoo Mohammed Ali Tejani. The maternal grandmother is not party to the proceeding, but the case is that she has been occupying the premises since so many years, as they permitted her to occupy even after the death of her husband. The Appellant being grandson, for whatever may be the reason, staying with her at least since 2007, there is no objection whatsoever referred and/or recorded of the grandmother with regard to the actual physical possession of the suit premises of the Appellant and his wife along with the maternal grandmother. Some supporting documents just cannot be overlooked while considering the possession of the Appellant. Those documents are viz. ration card (30.1.2008), bank account with Corporation Bank, Bandra (opened on 22.10.2008), motor driving licence (issued on 1.3.2007) showing the address of the flat as permanent address. The identity card issued by the Election Commission of India, passport and many other documents supporting the said address as address of the Appellant.

4. The Defendants have also issued legal notice dated 12.1.2013 to the Appellant's mother and the grandmother complaining about the possession and use and occupation of the Appellant-Plaintiff and his family about joint enjoyment. The notices so issued are silent with regard to the date of knowledge of the occupation of the Appellant in the premises. The dispute and/or objection even if any including the right of the grandmother and/or owner is not the issue and even otherwise cannot be decided at the instance of the Appellant at this stage as it loses its importance though one of the relevant element. It is not always necessary that the owner is always in possession of the premises. The occupants may not be the owner of the premises. Therefore, the ownership/title of any premises and/or dispute related to it, may not be the factor to decide the key issue of possession of the property/premises when the Suit filed and/or the prayer is made to protect the possession by the person who is also in possession of the premises.

5. The learned Counsel appearing for the Appellant has relied upon the judgment of the Apex Court in a case of Rame Gowda Vs. M. Varadappa Naidu [(2004) 1 SCC 769] in support of his contention that being settled possession, there is no question of dispossession by the Defendants except by following the due process of law. The learned Counsel appearing for the contesting Defendants also read and referred the said judgment in support of his contention. The relevant principle laid down by the Supreme Court to determine concept "settled possession" thus reads as under:

"The Court laid down the following tests which may be adopted as a working rule for determining the attributes of "settled possession" (SCC p.527, para 12):

(i) that the trespasser must be in actual physical possession of the property over a sufficiently long period;

(ii) that the possession must be to the knowledge (either express or implied) of the owner or without any attempt at concealment by the trespasser and which contains an element of animus possidendi. The nature of possession of the trespasser would, however, be a matter to be decided on the facts and circumstances of each case;

(iii) The process of dispossession of the true owner by the trespasser must be complete and final and must be acquiesced to by the true owner."

6. The possession of the Appellant though through the maternal grandmother cannot be stated to be in dispute. The threat notice and the complaint so filed, apart from the documents so referred at this stage sufficient to accept the case of actual possession of the premises of Appellant along with maternal grandmother. The contesting Defendant is not denying the fact that the grandmother is residing in the premises in question since long, because they permitted her to occupy the same though there are issues about the ownership of the flat/property in question. The permissive possession of the grandmother if not in dispute, the possession of the Appellant along with her permission, at this stage, just cannot be overlooked merely because the submission is made that the Appellant's possession over the premises was not "sufficiently of long period". The concept "sufficiently long period" always a matter of discussion based upon the facts and circumstances of the case, basically when dealing with the possession/occupation of the property. The concept of permissive possession/use "licensor and/or licencor relationship just cannot be overlooked even at this stage. The Appellant, as sought to be contended, was never authorized by the Defendants to occupy the premises, from their point of view need to be treated at the most "trespasser".

7. The prayer of the Appellant is not to disturb his possession except due process of law. The judgment so cited supports the said principle. In any way, in the present facts and circumstances, the protection was sought of dispossession in view of the threat so given by the owner of the property/premises and not permissive occupier who permitted the occupant to reside with her since long. Under what circumstances the documents were prepared as placed on record by the Appellant in support of his case of settled possession is again a matter of trial. But at this stage, presumption goes in favour of the Appellant. The contra material, even if any need to be placed on record at appropriate stage of the proceeding, there is no material placed on record even by the Defendants to show or prove that the Appellant is residing somewhere else at least since year 2007.

8. The concept of "sufficiently long period" therefore needs to be decided also from the angle of occupants one who initially permitted to occupy the premises for 11 months based upon the lincesor or licensor relationship leave and licence agreement and if he refused to vacate and/or retain the possession unauthorisedly, the concept of trespasser/unauthorise possession crops up. The permissive possession of the Appellant from the year 2007 if we take note of at least on the date of the threat/notice/Suit in question is sufficiently covered the concept "sufficient long period", because it also supports the other elements; effective, undisturbed possession apart from knowledge of the owner. There is nothing on record to show that the date on which they came to know about the alleged possession of the Appellant though they issued notices in February 2013.

9. The averments and material on record to show that the Appellant is residing in premises at least since year 2007 and even after his marriage since 2010. The Respondent-Defendant No.1 admittedly occupying the ground floor and Defendant No.5 is occupying the 2nd floor. The premises in question is on the first floor. The facts itself, in my view, at this stage sufficient to cover the case in favour of the Appellant, but against the Defendants that they have express knowledge and/or any such issue need to be adjudicated at appropriate stage of the proceeding. But this itself confirms the case of the Appellant that he is in possession of the premises at least since 2007.

10. The learned Judge, in view of the above position on record, wrong in rejecting the motion on a foundation of ownership of the Defendants, even by accepting the submission of the Defendants-Respondents that Mrs.Noorbanoo Mohammed Ali Tejani maternal grandmother herself has no right in the premises. The legal right of possession as even observed by the Supreme Court in a case of Rame Gowda (supra) just cannot be the basis unless adjudicated, to overlook the "settled possession". The requirement is the physical possession of the property of the occupant/person like Appellant who is seeking the protection of his possession, though there is no claim and/or submission even made by the Appellant that he is the owner and/or right in the property in question at least in the present case. While deciding the possession right of the Appellant, the learned Judge has actually given finding against the maternal grandmother and decided even that she has no right to occupy the premises and therefore no question of permitting the Appellant to reside therein. The concept of "settled possession" cannot be equated with in all matters- "legal possession". It depends upon facts and circumstances of case, as recorded in the present case.

11. The learned Judge has committed an error by relying upon wrong footing of law that the possession can be granted only to the person who has a legal right to occupy the premises and no other one. In view of the reasons so given in above paragraphs, the learned Judge has committed wrong even invoking the principle of equity against the Appellant-Plaintiff. Let the due course of law with a foundation to dispossess the person in possession of the premises be only after due trial. In view of above, I am inclined to observe that the order passed by the learned Judge deserves to be interfered with, as it is against the settled principle of law with regard to the possession of the property. It is made clear that we are dealing with the protection of the possession of the premises and not ownership and/or title of Mrs. Noorbanoo Mohammed Ali Tejani maternal grandmother. All points are kept open, including the observations given by the learned Judge regarding ownership/title of the maternal grandmother.

12. In view of above, the impugned order is hereby quashed and set aside. Notice of Motion is allowed in terms of prayer clause (a). So far as the prayer for appointment of the Court Commissioner is concerned, liberty is granted to the Appellant-Plaintiff to apply again. The Court concerned to consider the same in accordance with law, in view of the reasons so recorded above. The Appeal from Order is accordingly allowed. No costs. The Civil Application is disposed of.

13. The Appeal from Order as well as the Civil Application stand disposed of. No costs.

Ordered accordingly.