Property - Possession - Protection - Present appeal challenging dismissal order for protection of suit property - Whether Appellant entitled for protection of property - Held, ownership and possession were two distinguishable matter - Appellant claimed for protection of actual possession - Dismissal order passed considering aspect of ownership - Ownership over property could not be construed as foundation to decide actual possession - No evidence to show that Respondents enjoying possession based upon ownership - Infirmity in dismissal order - Appellant entitled for grant of protection - Appeal allowed.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE CIVIL JURISDICTION
APPEAL FROM ORDER NO. 754 OF 2013
WITH
CIVIL APPLICATION NO. 919 OF 2013
IN
APPEAL FROM ORDER NO. 754 OF 2013
Mr. Mohd. Hashim Ajmullah Khan
Vs.
Vasiullah Nasibullah Khan & Ors.
ORAL JUDGMENT:
CORAM : ANOOP V
. MOHTA, J.
DATE : 3 SEPTEMBER 2013.
Citation; 2014 (2) ALLMR694 Bom,2014(1)BomCR383
The Appellantoriginal Plaintiff has challenged order
passed by the learned Judge of the City Civil Court dated 2 May 2013
whereby, his Notice of Motion stands dismissed, filed in a Suit by the
Plaintiff referring to the property having Survey No.49, 49/1 to 49/6,
area admeasuring about 3838.46 sq. fts. Known as Fojdar Compound,
situated at L.B.S. Marg, Opposite Kurla Bus Depot, Kurla (West)
Mumbai400 070, with a prayer to grant relief under Order2 Rule2
of the Code of Civil Procedure, 1908 (for short, CPC) to file
substantive Suit in accordance with law. The Suit is basically filed for
protecting the possession with a specific prayer against the Defendants
and/or its servants from dispossessing from the Suit property, except
the due process of law. The prayer is also made to appoint a
Commissioner to visit the Suit property and to submit a report in
respect thereof. Both the parties have contested the matter by filing
their affidavit, reply, rejoinder and supporting documents.
The learned Judge, first of all not considered, as opposed
by the Respondents, to appoint the Commissioner and to submit the
report with regard to the possession of the property in question. After
going through the reasons, as well as, the documents so filed by the
parties, it is clear that the learned Judge has decided and adjudicated
the issue of ownership instead of the issue of actual possession of the
property. In a Suit like this, where the leave is sought to file a
substantive Suit, but the main prayers are for injunction to protect the
property, in my view, the relevant aspect is that the actual possession
of the Suit property and not only the ownership. The person in
possession of the property may not be the owner. The owner may not
be in actual possession. The concept of “ownership” and the
“possession” are two distinct and distinguishable on facts of the
matter.
The learned Judge may take note of ownership issue but
the situation like, where there are number of documents and at this
prima facie stage, it is difficult to decide the actual possession, the
rejection of Application of injunction or a prayer to protect the
possession, in my view, is also undesirable approach to deal with the
main Suit for possession of the property. The principle of grant of
injunction and/or protection of possession revolved around the actual
and physical possession of the property irrespective of ownership
and/or title, even if any. The learned Judge however, referring to the
documents, decided the issue against the Plaintiff/Appellant by
deciding the aspect of ownership first and so also the issue of
contradictory and inconsistent plea so raised revolving around only
the Plaintiff. I am inclined to observe that those documents itself, as
read and referred by the parties, are not sufficient to decide the aspect
of actual possession of the property at least of the Defendants
Respondents. The disputed questions based upon these documents
required a detail trial or at least a material to show and/or to decide
actual physical possession of the property.
Though the learned Judge has referred the family
settlement of the year 1998, but by raising various doubts about even
its execution, overlooked the contents of the same. The consideration
so paid even if in dispute, just cannot be overlooked in view of the last
document of family settlement between the parties. The issue of
possession, therefore, needs to be adjudicated first instead of deciding
made by the Appellant in rejoinder.
the ownership title and/or claim of adverse possession, as raised or
Assume for a moment that there are certain documents in
favour of the Defendants as read and referred by filing one
compilation in this Court also, as the same were not filed on record
but reference was made in the rejoinder, that itself is in my view, not
sufficient to decide the aspect of settled possession of the suit
property. The ownership/title of the property itself cannot be mean
and/or accepted as a foundation to decide the actual and physical
possession of the property. In my view, both are two distinct and
different aspects which the Court need to consider on the basis of
material available on record. The decision of ownership at prima
facie stage, that itself in my view, is incorrect approach to decide
and/or deny the right to protect the long standing possession of the
property, basically when there is no denial that the parties are in
relation, and therefore, they entered into a mutual understanding as
recorded above.
The position of possession of the property would have
been resolved properly, had the learned Judge granted the Motion to
appoint the Commissioner and to submit the report in respect thereof.
As noted, no reason whatsoever given while rejecting the said
Application to appoint the Commissioner. I am inclined to observe in
a situation like this, where there are number of rival contentions and
the issue about actual possession are uncleared, the appointment of a
Commissioner would resolve the basic aspect of actual possession of
the property, without deciding the rights and/or title of the property.
There are no detailed reasons and/or findings given by the
learned Judge with regard to the actual possession of the property in
question, in either way. The Court, as recorded above, at no point of
time granted any injunction in favour of the AppellantPlaintiff till this
date. The AppellantPlaintiff's possession, therefore, though in
doubtful in view of Defendants' case, the fact of taking possession of
Defendants by following due process of law, if they are owners, in no
way restricted by any Court and/or by any observations. The
Appellant has filed the Suit for protection of the property. The
Defendants have not taken any steps till this date to claim protection
and/or ownership of the property. There is no contra material to
show that they are in actual physical possession of the property based
upon the ownership which they are talking about. In absence of clear
finding of actual possession, I am inclined to interfere with the order
so passed with a direction to the learned Judge to reexamine the
issue after getting the report by appointing the Commissioner in
accordance with law and lastly pass the appropriate order with regard
to the possession of the property in question also.
Resultantly, the following order:
ORDER
a) The Appeal from Order is allowed.
b) Impugned order dated 2 May 2013 is quashed and set
aside.
c)
The learned Judge to pass appropriate order by
appointing and directing the Commissioner to submit
the report, as early as possible, within a specific period.
The Trial Court to reconsider the matter after getting
Commissioner's report.
d) The Civil Application is also disposed of accordingly.
e) Liberty is granted to apply for injunction/interim
There shall be no order as to costs.
f)
ig
apprehension.
relief/protection, if there is a case of any such
(ANOOP V
. MOHTA, J.)
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