Smt. Arati Ghosh vs Smt. Kalpana Pathak

Harish Tandon, J.—This case is one of the classic examples of the miseries of a person who after successfully litigating for number of years obtained the possession with due process of law and have been forcibly dispossessed in the hands of the ousted tenant. The suit u/s 6 of the Specific Relief Act, 1963 instituted in the year 2002 alleging the forcible dispossession by the evicted tenants has not reached its finality.

The short fact which emerges from the respective stands of the parties are jotted down for convenience in deciding the issues involved in the instant case.

The plaintiff/opposite party filed the Title Suit No. 94 of 2002 against the petitioners before the Civil Judge (Junior Division), 1st Court, Chandannagore u/s 6 of the Specific Relief Act, 1963 claiming a relief of recovery of possession in respect of one pucca brick built room on the ground floor at Premises No. 3, Nimtala Lane, P.S. Bhadreswar, District: Hooghly. The plaintiff/opposite party clammed title in respect of the said premises by dint of purchase dated 4th February, 1981 from the erstwhile owner, Brojendra Nath Mukhopadhyay on valuable consideration. The predecessor-in-interest of the petitioners was a recorded monthly tenant in respect of two bed rooms with verandah in the ground floor of the said premises at a monthly rental of Rs. 80/- payable according to English Calendar. One Naba Kumar Karmakar was also a monthly tenant in respect of a room adjacent to the rooms of the predecessor-in-interest of the petitioners at a monthly rental of Rs. 40/- payable according to English Calendar. After the purchase, the request were made to give up, deliver and vacate the possession to the respective tenants when the predecessor-in-interest of the present petitioners refused to accede to such request whereas the other tenant namely Naba Kumar Karmakar handed over the vacant and khas possession of his tenanted room which is a subject matter of the instant suit on or about 3rd March, 1982. The plaintiffs claimed to be in possession of the said room since after the acceptance of the surrender by the said erstwhile tenant. Because of the refusal to hand over the vacant and khas possession of the tenanted rooms by the predecessor-in-title of the present petitioner, a Title Suit No. 10 of 1988 was instituted before the learned Civil Judge (Junior Division), 1st Court, Chandannagore seeking an eviction on the ground of default, violation of Clauses (m)(o)(p) of Section 108 of the Transfer of Property Act and reasonable requirement. In the said suit, an Advocate Commissioner was appointed who inspected the premises in question and submitted a report. The report further reveals that the predecessor-in-title of the opposite party admitted the actual and physical possession of the plaintiff/opposite party in respect of the suit room upon surrendered by the other erstwhile tenant. The said suit was ultimately decreed on April 27, 1998 against the predecessor-in-title of the present petitioner. Although, the Title Execution Case No. 19 of 1998 was levied but because of the initiation of the Title Appeal No. 100 of 1998 before the District Judge, Chinsurah, the said execution case could not be proceeded with. The title appeal also stood dismissed and the second appeal could not yield fruitful result as the same was dismissed at the stage of Order 41 Rule 11 of the Code. The High Court while dismissing the second appeal granted the predecessor-in-interest of the present petitioner to vacate and deliver up the possession of the said premises in question within a period of one year, on filing an undertaken that during the said period, the predecessor-in-title would pay the arrear rent and the current damages and/or mesne profit together with the decreetal costs. In spite of an undertaken so given, the predecessor-in-title did not vacate the suit premises but, in turn, applied for an extension of time to vacate which was rejected by the division bench of this Court and directed the Superintendent of Police to deliver the peaceful and vacant possession of the premises in question on April 30, 2002. In terms of the order of the division bench passed in the said second appeal, the possession was handed over to the plaintiff/opposite party who kept the said premises in question under lock and key.

According to the plaintiff on the very next date, the present petitioners trespassed into the suit premises and, thus, have taken possession without due process of law which gave rise to the institution of the present suit.

The present petitioner took a defence that they trespassed into the suit premises on January 23, 1979 and have perfected their title by adverse possession. In other words, they contend that the plaintiff/opposite party was never in possession of the suit premises and no question of forcible dispossession could arise. It further appears from the record that the petitioner No. 1 filed a Title Suit No. 81 of 2002 before the Civil Judge (Junior Division), 1st Court, Chandannagore on 26th day of April, 2002 seeking a declaration of their title by way of an adverse possession and permanent injunction restraining the plaintiff/opposite party from disturbing the peaceful possession in respect of the suit premises. It further appears that both the suits namely Title Suit No. 94 of 2002 and Title Suit No. 81 of 2002 were heard one after another though not analogously, but, the suit filed by the plaintiff/opposite party herein is decreed which is impugned in the revisional application and the suit filed by the petitioner No. 1 was dismissed on the same day. Although, the Title Appeal No. 105 of 2009 is filed by the petitioner No. 1 before the District Judge, Chinsurah, Hooghly but the same as it appears to be still pending. Certified copy of the Order No. 4 dated September 08, 2009 passed in the said Title Appeal No. 105 of 2009 is placed before this Court wherefrom it appears that an application for injunction is dismissed by the Court of appeal below.

At the time of admitting the instant revisional application, the prayer for stay of the operation of the decree was rejected by this Court on December 08, 2009. Subsequently, the petitioner filed an application for review of the said order dated December 08, 2009, which was eventually allowed on August 18, 2011.

Mr. Kallol Basu, the learned Advocate appearing for the petitioner submits that the Court below should have restricted his consideration on possession of the petitioners and could not have gone to investigate the title which is not permissible u/s 6 of the Specific Relief Act, 1963. He further contends that there is no admission on the part of the predecessor-in-interest of the present petitioner with regard to the possession of the suit premises in favour of the plaintiff/opposite party and, therefore, the finding of the trial Court is perverse. He strongly submits that the long, uninterrupted, continuous and hostile possession confers a right on his client to perfect the title by adverse possession and, therefore, the Court should not have held that the petitioners have miserably failed to establish their title. Lastly, he submits that the Court should not have confused between the scope of a suit based on title and recovery of possession and the suit based on previous possession where such possession has been taken away without due process of law.

Mr. Amit Kumar Chatterjee, the learned Advocate appearing for the plaintiff/opposite party strongly submits that his client is forcibly dispossessed by the petitioners without taking recourse to law and, therefore, the suit u/s 6 of the Specific Relief Act, 1963 is maintainable. He further submits that upon dismissal of the suit for title filed by the petitioners, they cannot reopen an issue in the written statement filed in the present suit. He audaciously submits that neither in the written statement filed in the Ejectment Suit, there is any whisper as to the possession in respect of any other room in the premises, than the rooms being the subject matter of the said Ejectment Suit having taken which necessarily infers that they were not in possession of the suit premises at any point of time before the alleged forcible dispossession. Lastly, he submits that so long the judgment and decree passed in the Title Suit instituted by the petitioners is set aside, he cannot claim the perfection of title by adverse possession.

Having considered the respective submissions, there is no dispute to the proposition that there is a distinction between a suit instituted u/s 5 and Section 6 of the Specific Relief Act, 1963. The remedies available under the provisions of the aforesaid sections are mutually exclusive as in case of suit filed u/s 5 of the said Act, the plaintiff has to bring out a suit for recovery of possession based on title whereas a suit filed u/s 6 of the said Act requires the following conditions to concur namely; person should have been in possession in respect of the immovable property; there is a dispossession other than in due process of law; relief for recovery of possession and the suit must be brought within six months from the date of the dispossession.

The word ''possession'' implies the physical control of a person over a thing. It may further be inferred where the person may not be in physical possession but exercises such control, the possession always means the possession of that character of which the thing is capable. By various judicial pronouncements, the concept of settled possession has originated and a person, who has been found in settled possession without any title to support to it, would be entitled to protect his possession and cannot be dispossessed without due process of law. The intend and purpose for which the Section 6 of the Specific Relief Act, 1963 is introduced is to discourage the person taking the law in their own hands and is, therefore, based upon and founded by public policy.

The origin of Section 6 can be traced from the roman law where the proceeding called interdict undivi entitles a person wrongfully dispossessed by another to recovery back if instituted within a certain prescribed period irrespective of defect in his title. The said remedy was brought in originally u/s 15 of the Limitation Act, 1859. Subsequently, u/s 9 of the Specific Relief Act, 1877 which upon repeal is retained u/s 6 of the present act. There is no doubt that the proceeding u/s 6 of the Act is summary in nature, quite, distinct and different from the regular procedure in respect of a civil suit. In limited sense, the Court is not obliged to investigate and/or adjudicate the title but the claim could succeed by proving the continuous possession prior to the dispossession.

The defence as to jus tertii i.e. the title is with the third party is not available to the defendant.

The due process of law has been defined in a recent judgment rendered by the Apex Court in case of Maria Margarida Sequeria Fernandes and Others Vs. Erasmo Jack de Sequeria (Dead) through L. Rs., in these words:

It is a settled principle of law that no one can take the law In his own hands. Even a trespasser in settled possession cannot be dispossessed without recourse to law. It must be the endeavour of the Court that if a suit for mandatory injunction is filed, then it is its bounden duty and obligation to critically examine the pleadings and documents and pass an order of injunction while taking pragmatic realities including prevalent market rent of similar premises in similar localities in consideration. The Court''s primary concern has to be to do substantial justice. Even if the Court in an extraordinary case decides to grant ex parte ad interim injunction in favour of the plaintiff who does not have a clear title, then at least the plaintiff be directed to give an undertaking that in case the suit is ultimately dismissed, then he would be required to pay market rent of the property from the date when an ad interim injunction was obtained by him. It is the duty and the obligation of the Court to at least dispose off the application of grant off injunction as expeditiously as possible. It is the demand of equity and justice.

Due process of law

Due process of law means that nobody ought to be condemned unheard. The due process of law means a person in settled possession will not be dispossessed except by due process of law. Due process means an opportunity to the defendant to file pleadings including written statement and documents before the Court of law. It does not mean the whole trial. Due process of law is satisfied the moment rights of the parties are adjudicated upon by a competent Court.

The High Court of Delhi in Thomas Cook (India) Limited Vs. Hotel Imperial and Others,

The expressions ''due process of law'', ''due course of law'' and ''recourse to law'' have been interchangeably used in the decisions referred to above which say that the settled possession of even a person in unlawful possession cannot be disturbed ''forcibly'' by the true owner taking law in his own hands. All these expressions, however, mean the same thing--ejectment from settled possession can only be had by recourse to a Court off law. Clearly, ''due process of law'' or ''due course of law'', here, simply mean that a person in settled possession cannot be ejected without a Court of law having adjudicated upon his rights qua the true owner.

Now, this ''due process'' or ''due course'' condition is satisfied the moment the rights of the parties are adjudicated upon by a Court of competent jurisdiction. It does not matter who brought the action to Court. It could be the owner in an action for enforcement of his right to eject the person in unlawful possession. It could be the person who is sought to be ejected, in an action preventing the owner from ejecting him. Whether the action is for enforcement of a right (recovery of possession) or protection of a right (injunction against dispossession), is not of much consequence. What is important is that in either event it is an action before the Court and the Court adjudicates upon it. If that is done then, the ''bare minimum'' requirement off ''due process'' or ''due course'' of law would stand satisfied as recourse to law would have been taken. In this context, when a party approaches a Court seeking a protective remedy such as an injunction and it tails in setting up a good case, can it then say that the other party must now institute an action in a Court of law for enforcing his rights i.e. for taking back something from the first party who holds it unlawfully, and, till such time, the Court hearing the injunction action must grant an injunction anyway? I would think not. In any event, the ''recourse to law'' stipulation stands satisfied when a judicial determination is made with regard to the first party''s protective action. Thus, in the present case, the plaintiff''s failure to make out a case for an injunction does not mean that its consequent cessation of user of the said two rooms would have been brought about without recourse to law.

The Apex Court in the said report indicated the imperative ingredience required to be pleaded in a possessory suit as follows:

It would be imperative that one who claims possession must give all such details as enumerated hereunder. They are only illustrative and not exhaustive:

(a) who is or are the owner or owners of the property;

(b) title of the property;

(c) who is in possession of the title documents;

(d) identity of the claimant or claimants to possession;

(e) the date of entry into possession;

(f) how he came into possession--whether he purchased the property or inherited or got the same in gift or by any other method;

(g) in case he purchased the property, what is the consideration; if he has taken it on rent, how much is the rent, licence fee or lease amount;

(h) If taken on rent, licence fee or lease--then insist on rent deed, licence deed or lease deed;

(i) who are the persons in possession/occupation or otherwise living with him, in what capacity; as family members, friends or servants, etc;

(j) subsequent conduct i.e. any event which might have extinguished his entitlement to possession or caused shift therein; and

(k) basis of his claim that not to deliver possession but continue in possession.

In the backdrop of the law enunciated of the subject, let me now considered on facts whether the suit filed by the plaintiff/opposite party has been rightly decreed by the trial Court. Admittedly, a suit for eviction of a monthly tenant was filed in respect of the portion other than the suit premises which was decreed on contest and the possession was delivered in terms of the order of the division bench on violation of the undertaking filed before the High Court. The petitioners alleged to have claimed their possession on trespass being made on January 23, 1979. There is no whisper of perfection of title by adverse possession in the written statement filed in the said Ejectment Suit though, it may not be relevant as that was not the subject matter of the said suit but, when the question of title was involved, it should have been one of the defence therein. Even if, one proceed that the non-disclosure of the fact of trespass in respect of the suit premises is not relevant but when the title in respect of one of the premises was claimed, that should have been one of the defence in the said suit. That was not a suit simpliciter between the landlord and tenant, where the title is not required to be proved but the said suit was based upon one of the ground as envisaged u/s 13(1)(ff) of the West Bengal Premises Tenancy Act, 1956 where one of the requisite condition to succeed is that the landlord must be the owner of the property. The plausible explanation that is offered is that the said suit was filed in the year 1988 and, therefore, the period as enshrined under the Limitation Act to laid the claim on adverse possession does not permit to be taken so. The Title Suit filed by the petitioner came to be filed immediately upon the alleged dispossession claimed by the plaintiff/opposite party and not before it.

Since the Court is not required to investigate and/or make a full-fledged inquiry as to the title u/s 6 of the Specific Relief Act but other attending circumstances may be taken to deal with the question whether the defendant was all along in possession and has not dispossessed the plaintiff/opposite party. The plaintiff/opposite party has proved his title to the property by producing their deed of conveyance executed by the admitted owner of the property. The petitioner tried to establish their claim on the basis of the trespass being made on January 23, 1979 on the basis of Exhibit-1 i.e. L.R. record of rights where the name of the petitioner No. 1 is shown to be in possession by force. The Revenue Officer who deposed in the suit as D.W.2 produces the L.R. record of rights and says that there is no reflection in the record relating to the possession of the petitioner No. 1 in respect of the premises and categorically asserted that the said Exhibit-1 is not correct. The trial Court further records that there is a variance in the pleadings as well as the evidence adduced by the petitioner No. 1 relating to the alleged trespass.

It is most important to note that the categorical assertion of the plaintiff/opposite party that previously, the suit premises was occupied by a tenant who subsequently surrenders his tenancy in favour of the plaintiff/opposite party has not been controverted and/or denied. If the said property was in possession of a tenant who subsequently surrenders his tenancy, the story of alleged trespass cannot be found to be true in totality.

This Court finds that the plaintiff/opposite party was in possession in respect of the suit premises after obtaining the possession upon surrender of tenancy by the erstwhile tenant and the petitioners having dispossessed the plaintiff/opposite party without recourse to law and/or due process of law, the plaintiff/opposite party entitled to succeed in a suit u/s 6 of the Specific Relief Act, 1963.

This Court, therefore, does not find any infirmity and/or illegality in the impugned order.

The Revisional Application is, hereby, dismissed. However, there shall be no order as to costs.