trespasser, one cannot overlook the fact that he is in actual
physical possession of the suit shop holding electricity connection
in respect of the shop conducted in the name as “Bhavna Hair
Dressers”. He claims that he was tenant of one Mallubai who is no
more living. These are the facts and circumstances which can
surely enable the defendant as possessor of the suit shop to resist
the suit filed by the plaintiffs on the ground of their alleged
ownership of the suit shop. Since, according to the defendant, he
was tenant and paid rent in advance to Mallubai land lady who is
no longer living, a person or persons through her could have on
the pretext of ownership of the shop and claim as land lord have
instituted the suit according to law to evict the defendant. It was
not such a case before the trial Court as well as in the first
Appellate Court. Bearing in mind the basic principle of law in civil
jurisprudence that even trespasser cannot be evicted without
following due process of law and no one can be allowed to take
law into his own hands to recover possession of the property
without following due process of law and without proving title to
the immovable property in possession of a person holding actual
physical possession thereof. Suffice it to say that there was no
evidence whatsoever in favour of the plaintiffs to establish their
title to the suit property and therefore, the suit was rightly
dismissed by the trial Court by a well reasoned Judgment.
Interference by the first Appellate Court with the finding of
dismissal of the suit was unwarranted and contrary to law for
abovesaid reasons.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
SECOND APPEAL NO.452 OF 2014
Suresh s/o. Pundalikrao Mirase,
Vs
Ashok Girdharilal Chandak,
CORAM : A.P.BHANGALE, J.
DATE : 3.7.2015.
Citation: 2016(4) ALLMR207
2. Admit – on the following substantial question of law :
Whether the learned Principal District Judge, Wardha
erred in law to decree the suit for vacant possession of
the suit shop when title of the shop was not proved to
the satisfaction of the trial Court ?
3. The appeal is taken up for final hearing. By this appeal,
challenge is to validity and legality of the Judgment and Order
dt.7.8.2014 delivered by the learned Principal District Judge,
Wardha in Regular Civil Appeal No.178 of 2010 whereby the
appeal was allowed and the decree passed by Joint Civil Judge
(Jr.Dn.), Arvi in Regular Civil Suit No.21 of 2008 on 8.7.2008 was
set aside.
4. Briefly stated, the facts are as under :
5. The plaintiffs in the suit claimed ownership of shop
constructed admeasuring 6 ft. x 8 ft. which was bounded on east
by the house of one Rathi, on west by main road, on north by shop
in possession of one Kanerkar and on south by open space
belonging to one Shankarlal Rathi. According to the plaintiffs in
the suit, the defendant is encroacher of the suit shop since
12.3.2008. Therefore, notice dt.11.3.2008 was given, but then the
defendant refused claim of the plaintiffs on the ground of
ownership of shop. As, according to the defendant, he is in
possession of the shop as tenant of one Mallubai and is operating
the business of saloon at the said shop. Thus, the defendant
refused to hand over possession in favour of the plaintiffs on the
basis of claim as to ownership of the shop thereof. The trial Court
found that the plaintiffs had failed to establish ownership over the
suit shop as also alleged ground that the defendant is a trespasser
in respect of the suit shop. The trial Court also held that the suit
was barred by limitation and bad in law. That being so, the
learned trial Judge, after considering the evidence led before it,
dismissed the suit. In appeal by the plaintiffs i.e. Regular Civil
Appeal No.178 of 2010, the learned principal District Judge,
Wardha, however, favoured the case of the plaintiffs to hold that
the defendant is a trespasser and that the suit was within
limitation and in the result, awarded decree of possession to the
plaintiff.
6. I have considered the submissions at the bar as well as the
impugned Judgment and Order. In the light of the Judgment and
Order passed by the trial Court and facts which are revealed from
the Judgments by the Courts below, considering that the suit shop
is immovable property, which was described in the plaint, it was
obligatory for the plaintiffs to lead documentary evidence to
establish their title to the suit shop. Mere claim that the plaintiffs
are owners and it is their ancestral property without any
corroboration to such claim cannot take the case of the plaintiffs
any further when they prayed for possession of the immovable
property i.e. suit shop on the basis of their title to the suit shop.
The defendant in defence to the suit resisted it on the ground of
his long possession. According to the defendant, he also holds
electric connection in respect of shop “Bhavna Hair Dressers” as
also N.O.C. issued by the Municipal Council, Shops and
Establishment Licenses. According to the defendant, he is tenant of
one Mallubai and holds Shops and Establishment license, which
was produced as Exh.48 issued under the Bombay Shops and
Establishment Act. He is also consumer having Identity
No.402660070096 having electric supply through electric meter
installed by the Maharashtra State Electricity Distribution
Company. It is the case of the defendant that he used to pay rent in
advance to Mallubai who is no longer living. It is the case of the
plaintiffs that they are claiming as legal heirs or representatives of
said Mallubai alleged land lady of the defendant. Under these
circumstances, case of the defendant was comparatively on better
footing to hold actual physical possession of the shop operated
under the name and style as “Bhavna Hair Dressers” in possession
of the defendant. In the absence of any prima facie acceptable
evidence on the part of the plaintiffs, they were not entitled to
claim possession. That being so, their claim was rightly dismissed
with costs by the trial Court.
7. Assuming for the sake of argument that the defendant is a
trespasser, one cannot overlook the fact that he is in actual
physical possession of the suit shop holding electricity connection
in respect of the shop conducted in the name as “Bhavna Hair
Dressers”. He claims that he was tenant of one Mallubai who is no
more living. These are the facts and circumstances which can
surely enable the defendant as possessor of the suit shop to resist
the suit filed by the plaintiffs on the ground of their alleged
ownership of the suit shop. Since, according to the defendant, he
was tenant and paid rent in advance to Mallubai land lady who is
no longer living, a person or persons through her could have on
the pretext of ownership of the shop and claim as land lord have
instituted the suit according to law to evict the defendant. It was
not such a case before the trial Court as well as in the first
Appellate Court. Bearing in mind the basic principle of law in civil
jurisprudence that even trespasser cannot be evicted without
following due process of law and no one can be allowed to take
law into his own hands to recover possession of the property
without following due process of law and without proving title to
the immovable property in possession of a person holding actual
physical possession thereof. Suffice it to say that there was no
evidence whatsoever in favour of the plaintiffs to establish their
title to the suit property and therefore, the suit was rightly
dismissed by the trial Court by a well reasoned Judgment.
Interference by the first Appellate Court with the finding of
dismissal of the suit was unwarranted and contrary to law for
abovesaid reasons. Hence, the impugned Judgment and order is
set aside and the order of the trial Court is restored. The Second
Appeal is disposed of accordingly.
JUDGE
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