Fernandes & Ors. (supra) has held that merely because the person
is allowed to stay in the premises gratuitously, even by long
possession of years or decades such person would not acquire any
right, title or interest to the said property. It is held that such person
can never acquire interest in the property irrespective of his long
possession and was to give possession forthwith on demand by the
owner of the suit property. It is held that the Courts are not justified in
protecting the possession of a caretaker, servant or any person who
was allowed to live in the premises for some time either as a friend,
relative, caretaker or as a servant. Such persons holds property of
the principal only on behalf of the principal and does not acquire any
right, title or interest of any nature whatsoever in the suit property.
19. In my view, the conclusion drawn by two Courts below is
contrary to the clear finding that possession of the defendant no.1
was permissive possession and no right, title or interest of any nature
whatsoever was either claimed or proved by the defendant no.1 in
the suit property and is contrary to the principles laid down by the
Supreme Court in case of Maria Margarida Sequeria Fernandes &
Ors. (supra).
20. In my view, since the defendant no.1 had not claimed any
right, title or interest of any nature whatsoever in the suit property,
including adverse possession in respect of the suit property or
tenancy and his possession having been found as permissive
possession, the Courts below ought to have directed him to hand
over possession of the suit land to the plaintiffs, who were admittedly
the owners of the suit land. The Courts below could not have
protected the defendant no.1 merely on the basis of his permissive
possession though it was for substantial period. The period of
possession of a person without any right, title or interest which was
not adverse to the interest of the owner, could not be protected by
two Courts below.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO.473 OF 2015
Parvatibai Tanu Shivgan, V Shri Dhondu Sakharam Gurav
CORAM : R.D. DHANUKA, J.
PRONOUNCED ON : 7TH SEPTEMBER, 2016
Citation: 2016(6) ALLMR 16
1. By this appeal filed under section 100 of the Code of Civil
Procedure, 1908, the appellants (original plaintiffs) have impugned
the order and judgment dated 17th November, 2014 passed by the
learned Principal District Judge, Ratnagiri, dismissing Regular Civil
Appeal No.39 of 2009 filed by the appellants, by which the appellants
have impugned the rejection of part of the relief by the learned trial
Judge in the suit for perpetual injunction or in the alternate for
possession of the part of the suit property filed by the appellants is
concerned.
2. For the sake of convenience, the parties described in this
judgment are described as they were described in the proceedings
before the learned trial Judge.
3. By consent of parties, the second appeal was heard finally
at the admission stage by formulating substantial question of law on
30th August, 2016. Some of the relevant facts for the purpose of
deciding this second appeal are as under :
4. The area of 33 acres out of the suit property bearing Gat
No.1026 admeasuring 1-H 52-R known as “Bhokar” situated at village
Khanu, Taluka and District Ratnagiri is the subject matter of this
appeal. The suit property bearing Gat No.1026 was purchased by the
husband of the plaintiff no.1 Tanu Babu Shivgan, father of the
plaintiff no.2 and the defendant nos.2 to 5, who had purchased the
suit property from Govind Dhondabarao Salvi and Ramchandra
Dhondabarao Salvi under a registered sale deed dated 25th
November, 1971.
5. It was the case of the plaintiffs that the predecessor in title
of the suit property Tanu Babu Shivgan planted Alphonso mango
plants and developed Alphonso mango garden on the said plot which
were bearing fruits. Some time in the year 2001- 2002, the defendant
no.2 behind the back of the said Tanu Babu Shivgan entered his
name in the cultivation column of mutation record without giving any
notice to the plaintiffs. Residential Nayab Tehsildar, Ratnagiri allowed
the said application field by the defendant no.1. The plaintiffs
preferred an appeal before the Sub-Divisional Officer, Ratnagiri, who
by his order dated 4th November, 2013 was pleased to set aside the
order passed by the Residential Nayab Tehsildar, Ratnagiri and
directed to strike off the name of the defendant no.1 entered in the
cultivation column of the revenue record to the extent of 33-R. The
defendant no.1 preferred R.T.S. Appeal No.9 of 2004 before the
Additional Collector. The Additional Collector allowed the said appeal
filed by the respondent no.1 and restored the order passed by the
Residential Nayab Tehsildar, Ratnagiri by setting aside the order
passed by the Sub-Divisional Officer, Ratnagiri. It was the case of the
plaintiffs that the said order passed by the Additional Collector was
void and illegal, as the same was passed without conducting any
proper enquiry as to the actual cultivation contemplated under the
provisions of the Maharashtra Land Revenue Code.
6. It was the case of the plaintiffs that the plaintiffs apprehend
interference with their possession over the suit property by the
defendant no.1. The plaintiffs accordingly filed a suit (Regular Civil
Suit No.145 of 2005) on 27th April, 2005 inter-alia praying for
injunction against the defendant no.1 from disturbing their
possession over the entire property and in the alternative in case it
was found that the defendant was in possession of the portion of the
larger property, the defendant no.1 shall be directed by a mandatory
order and injunction to hand over possession of their portion of larger
property to the plaintiffs. The defendant no.1 appeared and contested
the said suit on various grounds. The defendant no.1 in the written
statement did not dispute the title of the plaintiffs in respect of the suit
property.
7. Learned Second Joint Civil Judge, Junior Division,
Ratnagiri framed six issues. Both the parties led oral as well as
documentary evidence before the learned trial Judge. By a judgment
and decree dated 3rd February, 2009, the leaned Second Joint Civil
Judge, Junior Division, Ratnagiri was pleased to pass a partial decree
in the said suit and granted an injunction against the defendant no.1
from disturbing the possession of the plaintiffs except 33-R of land
out of the larger Gat No.1026. The defendant no.1 claimed to be in
possession of the said 33-R of land out of the larger Gat No.1026.
8. Being aggrieved by the said judgment and decree date 3rd
February, 2009, passed by the learned trial Judge, the plaintiffs
impugned part of the said order which was in respect of 33-R of land
is concerned by filing an appeal (Regular Civil Appeal No.39 of 2009)
before the learned Principal District Judge, Ratnagiri. By an order and
judgment dated 17th November, 2014, passed by the learned
Principal District Judge, Ratnagiri, the said Regular Civil Appeal
No.39 of 2009 filed by the plaintiffs came to be dismissed. Being
aggrieved by the said order and judgment dated 17th November, 2014
passed by the learned Principal District Judge, Ratnagiri, the plaintiffs
have filed this second appeal under section 100 of the Code of Civil
Procedure, 1908.
9. This Court has formulated the following substantial
questions of law :-
(i). Whether in view of the findings of Courts below that
the appellants are owners of the suit property and
that the respondent no.1 is in permissive
possession of the suit property. Could both the
Courts below have refused to alternate relief sought
by the appellants for recovery of possession of the
suit property ?
(ii). Whether in view of categorical finding of the Courts
below that the respondent no.1 was in permissive
possession of the suit property could the Courts
below have refused to grant prayer for possession
of the suit property especially after categorically
holding that the respondent no.1 has not pleaded
any adverse possession ?
(iii). Whether the Appellate Court was justified in holding
that the appellants have not filed appropriate suit
without appreciating the fact that the appellants had
in fact sought possession of the suit property from
the respondents ?
(iv). Whether the appellate Court could have refused to
grant decree for possession on the ground that
detailed description of the suit land sought to be
recovered from the respondent no.1 has not been
given in the plaint without appreciating the fact that
owner is in possession of the respondent no.1 to the
extent of 33 Ares has not been disputed by any of
the parties to the litigation and thus property being
identifiable could have been handed over to the
appellants ?”
10. Mr.Shah, learned counsel appearing for the plaintiffs
invited my attention to the copy of the plaint, oral evidence led by the
parties and the findings rendered by the learned trial Judge. He
submits that the learned trial Judge erroneously rejected the relief of
injunction as well as possession insofar as the portion of the land
admeasuring 33-R out of the larger property is concerned. He
submits that though the defendant no.1 had neither claimed title nor
claimed adverse possession and had admitted the title of the plaintiffs
in the said portion of the suit property, the learned trial Judge refused
to grant relief of injunction and in the alternate for possession in
respect of the said portion of the larger property.
11. Learned counsel for the plaintiffs invited my attention to
the findings recorded by the appellate Court and would submit that
though the appellate Court has rendered the finding that the
defendant no.1 was in permissive possession of 33-R i.e. portion of
the suit land and had neither pleaded nor proved adverse possession
in respect of the said portion of the suit property, the appellate Court
has dismissed the appeal filed by the plaintiffs. He submits that since
the defendant no.1 had failed to prove any right, title or interest of any
nature whatsoever in the said portion of 33-R and title of the plaintiffs
was undisputed, the learned trial Judge ought to have passed a
decree for possession in respect of 33-R against the defendant no.1.
12. It is submitted by the learned counsel that the defendant
no.1 came to be in possession of 33-R out of the larger property and
thus he was fully aware of the reliefs claimed by the plaintiffs against
him and thus two Courts below could not have refused to grant relief
for handing over possession of the said property to the plaintiffs on
the ground that the property in possession of the defendant no.1 was
not properly described in the plaint.
13. Learned counsel for the plaintiffs placed reliance on the
judgment of the Supreme Court in case of Maria Margarida
Sequeria Fernandes & Ors. vs. Erasmo Jack de Sequeria (Dead)
through L.Rs., 2012(4) Bom.C.R. 75 and in particular paragraphs 81
and 101. He submits that since the two Courts below have rendered
a finding of fact that the defendant no.1 was though in possession of
the property had neither claimed any title in respect of the suit
property nor had claimed adverse possession, the Courts ought not
to have granted any protection to the defendant. Paragraph 101 of
the judgment of the Supreme Court in case of Maria Margarida
Sequeria Fernandes & Ors. (supra) reads under :-
“101. Principles of law which emerge in this case
are crystallized as under :-
1. No one acquires title to the property if he or
she was allowed to stay in the premises gratuitously.
Even by long possession of years or decades such
person would not acquire any right or interest in the
said property.
2. Caretaker, watchman or servant can never
acquire interest in the property irrespective of his long
possession. The caretaker or servant has to give
possession forthwith on demand.
3. The Courts are not justified in protecting
the possession of a caretaker, servant or any person
who was allowed to live in the premises for some time
either as a friend, relative, caretaker or as a servant.
4. The protection of the Court can only be
granted or extended to the person who has valid,
subsisting rent agreement, lease agreement or
license agreement in his favour.
5. The caretaker or agent holds property of
the principal only on behalf of the principal. He
acquires no right or interest whatsoever for himself in
such property irrespective of his long stay or
possession.”
14. Learned counsel for the defendant no.1 on the other hand
submits that the findings recorded by the two Courts below in favour
of the defendant no.1 are not perverse and being concurrent findings
of fact, cannot be interfered with by this Court in this second appeal
filed under section 100 of the Code of Civil Procedure, 1908. He
submits that the plaintiffs had prayed for possession as and by way
of alternate relief and thus the learned trial Judge was justified in
refusing to grant alternate relief also in the facts and circumstances of
this case.
15. It is submitted by the learned counsel that his client has
been in established possession for last several decades and had
planted Alphonso mango trees on the suit plot and if any decree of
possession is granted by this Court at this stage, his client would be
seriously prejudiced.
16. A perusal of the order passed by the two Courts below and
also the records produced by the learned counsel for the plaintiffs
clearly indicates that it was not the plea of the defendant no.1 that he
had claimed any ownership or tenancy rights in respect of the suit
property. He had also not claimed adverse possession in respect of
the suit property. His case was that he had been in possession of the
suit property for last several decades and had planted various
Alphonso mango trees on the suit plot and thus cannot be
dispossessed by the plaintiffs.
17. A perusal of the impugned judgment and decree passed
by the learned trial Judge and by the appellate Court clearly indicates
that both the Courts have rendered a finding of fact that during the
cross examination of the defendant no.1, he had admitted that neither
he was in possession of 33-R portion of the suit land as a tenant nor
he claimed adverse possession over the said portion of the suit land.
The finding is also rendered that the defendant no.1 was in
permissive possession of the said 33-R portion of the suit land. It is
held by both the Courts below that the plaintiffs had proved their title
in respect of the suit property, whereas the defendant no.1 had failed
to plead and prove adverse possession of the suit property. It is not in
dispute that the defendant no.1 has not challenged various findings of
fact recorded by the two Courts below by filing any cross-objection in
this Court. Various findings of fact rendered aforesaid have thus
attained finality and are binding on the defendant no.1.
18. The Supreme Court in case of Maria Margarida Sequeria
Fernandes & Ors. (supra) has held that merely because the person
is allowed to stay in the premises gratuitously, even by long
possession of years or decades such person would not acquire any
right, title or interest to the said property. It is held that such person
can never acquire interest in the property irrespective of his long
possession and was to give possession forthwith on demand by the
owner of the suit property. It is held that the Courts are not justified in
protecting the possession of a caretaker, servant or any person who
was allowed to live in the premises for some time either as a friend,
relative, caretaker or as a servant. Such persons holds property of
the principal only on behalf of the principal and does not acquire any
right, title or interest of any nature whatsoever in the suit property.
19. In my view, the conclusion drawn by two Courts below is
contrary to the clear finding that possession of the defendant no.1
was permissive possession and no right, title or interest of any nature
whatsoever was either claimed or proved by the defendant no.1 in
the suit property and is contrary to the principles laid down by the
Supreme Court in case of Maria Margarida Sequeria Fernandes &
Ors. (supra).
20. In my view, since the defendant no.1 had not claimed any
right, title or interest of any nature whatsoever in the suit property,
including adverse possession in respect of the suit property or
tenancy and his possession having been found as permissive
possession, the Courts below ought to have directed him to hand
over possession of the suit land to the plaintiffs, who were admittedly
the owners of the suit land. The Courts below could not have
protected the defendant no.1 merely on the basis of his permissive
possession though it was for substantial period. The period of
possession of a person without any right, title or interest which was
not adverse to the interest of the owner, could not be protected by
two Courts below.
21. In my view, the judgments of two Courts below being
contrary to law and inconsistent with the findings recorded by two
Courts below, deserves to be set aside. The judgment of the
Supreme Court in case of Maria Margarida Sequeria Fernandes &
Ors. (supra) squarely applies to the facts of this case. I am
respectfully bound by the said judgment.
22. Insofar as substantial questions of law (i) to (iv) are
concerned, the same are answered in negative.
23. I therefore, pass the following order :-
a). The impugned order and judgment dated 17th November,
2014 passed by the learned Principal District Judge, Ratnagiri is set
aside. Regular Civil Appeal No.39 of 2009 is allowed.
b). The judgment and decree dated 3rd February, 2009
passed by the learned trial Judge insofar as rejection of prayer for
possession of 33-R of land is concerned, is set aside. Regular Civil
Suit No.145 of 2005 is decreed, as prayed.
c). No order as to costs.
d). In view of disposal of the second appeal, Civil Application
No.1006 of 2015 does not survive and is accordingly disposed of.
(R.D. DHANUKA, J.)
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