Said Notice of Motion No.344 of 2013 was dismissed by Bombay
City Civil Court vide Order dated 29.04.2013. While rejecting the prayer it
was observed as under:-
“It is specific submission of defendant that Noorbanoo herself
has no right in this premises. Only on sympathetic ground she is
allowed to occupy the premises. If such is fact, when plaintiff is
coming before Court claiming equitable relief like injunction,
he has to prima facie show some rights to claim relief. If
protection is asked for, one must clearly seek ascertaining his
legal rights. Defendant has rightly pointed out that plaintiff is
not submitting his legal right to possess the suit premises. He is
merely claiming that he is residing with Noorbanoo and if
Noorbanoo herself is not having right in the property, I am of
the view that such type of protection cannot be granted in
favour of plaintiff. Neither Noorbanoo is made party to the suit,
nor there is sufficient material to indicate that Noorbanoo has
any legal right to allow plaintiff to reside with her in the suit
property for and on behalf of her. I am of the view that there is
no any substantial right made out on behalf of plaintiff to entitle
him for such equitable relief like injunction.”
The matter was further elaborated in subsequent decision of this Court
in Maria Margarida (Supra) as under:
“97. 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. Thus, a person holding the premises gratuitously or in the capacity as
a caretaker or a servant would not acquire any right or interest in the
property and even long possession in that capacity would be of no legal
consequences. In the circumstances City Civil Court was right and justified
in rejecting the prayer for interim injunction and that decision ought not to
have been set aside by the High Court. We therefore, allow the appeal, set
aside the judgment under appeal and restore the Order dated 29.04.2013
passed by the Bombay City Civil Court in Notice of Motion No.344 of 2013
in Suit No.408 of 2013.
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 150 OF 2017
(ARISING OUT OF SLP (CIVIL) NO. 35464 OF 2013)
Behram Tejani & Ors.
V
Azeem Jagani
Dated:January 6, 2017
Citation:(2017) 2 SCC759
2. This appeal challenges the judgment and Order dated 17.09.2013
passed by the High Court of Bombay in Appeal from Order (ST) No.15590
of 2013 quashing and setting aside the Order dated 29.04.2013 passed by the
Bombay City Civil Court in Notice of Motion No.344 of 2013 in Suit
No.408 of 2013.
3. On 4.02.2013, aforesaid Suit No.408 of 2013 was filed by the
respondent submitting inter alia:-
“The Plaintiff along with his Maternal grand-mother Mrs.
Noorbanoo Mohammed Ali Tejani are in use, occupation and
possession of the premises known as Tej Kunj, 1st Floor, Plot
No.212 D, Byramjee Jeejeebhoy Road, Bandstand, Bandra
(West), Mumbai 400050, hereinafter referred to as ‘the suit
premises’…….The Defendant Nos.1, 2, 3 and 5 are the Paternal
uncles of the Plaintiff’s mother i.e. Mrs. Zeenat S. Jagani viz.
the brothers of deceased father named Mohammed Ali H. Tejani
(since deceased) and Defendant No.6, is a son of the Defendant
No.5 and Defendant No.4 is the sister of Defendants 1,2,3 and
5…….Mohammed Ali H. Tejani (called the said Deceased) was
a Co-owner along with Defendant Nos.1 to 5 in respect of a
Plot of Land bearing Plot No.202-D, along with the building
comprising of ground with one upper floor standing thereon and
known as Tej Kunj ……..The said deceased executed a Will
dated 28th September 1991 under which the deceased
bequeathed his 1/7th share in the plot of land in favour of the
Defendant Nos.1 to 5. The said Will is probated in the High
Court T & I.J. Petition No.856 of 2003 as per the Prabate
granted on 6th December 2006.”
The respondent-plaintiff then adverted to Will dated 28.09.1991 and
Clause 7 thereof in particular. It was averred:-
“The said deceased during his life time resided along with his
wife namely the said Smt. Noorbanoo Mohammed Ali Tejani
and the family members on the entire First Floor of the said
property including the plaintiff herein. The said deceased died
on 22nd March, 2003 and since then the said Noorbanoo
Mohammed Ali Tejani and the plaintiff resided in the said flat.”
The respondent prayed, inter alia, for following reliefs:-
“a) That this Hon’ble Court be pleased to grant permanent
order and injunction restraining the defendants, their respective
servants, agents and person or persons claiming through or
under them from in any manner dispossessing the plaintiff from
the suit premises without following due process of law.
b) That pending hearing and final disposal of the above suit,
this Hon’ble Court be pleased to grant temporary order and
injunction restraining the defendants, their respective servants,
agents and person or persons claiming through or under them
from in any manner dispossessing the plaintiff from the suit
premises without following due process of law………”
4. By Will dated 28.09.1991 which was referred to by the respondent,
the testator had appointed his brother Amirali Huseinali Tejani and his
daughter Zeenat Shafique Jagani as the executors and trustees. The principal
bequests made by the testator in the Will were:
“5. I give, devise and bequeath all types of investments and
assets which are in the form or nature of moveables and which
are in my own and beneficial name or my four married
daughters namely 1) Mrs. Nasreen I. Fazal, 2) Mrs. Zeenat S.
Jagani, 3) Mrs. Shahnaz R. Butt and 4) Mrs. Tina D. Gai in
equal shares.
…
7. I own and hold undivided one half share right title and
interest in the immovable property known as “Fatmabai
Building’ on Plot No. 115 at Nowroji Hill Road No.2, Nowroji
Hill Estate, Bombay 400 009, one seventh share right title and
interest in “Tej-Kunj” Building on Plot No. 96 at Nowroji Hill
Road No.5, Bombay 400 009 and also one seventh share right
title and interest in a small residential Building “A” on Plot
No.212-D (CTS No. B-764) at B.J. Road, Band Stand, Bandra,
Bombay 400 050. I give devise and bequeath all my aforesaid
fractional shares in the abovementioned immovable properties
to my brother Amirali H. Tejani, Behram H. Tejani, Nasir H.
Tejani and Feroze H. Tejani absolutely in equal shares.
However, my brother Amirali H. Tejani will administer the
affairs of and deal with the aforesaid properties or any part
thereof in his absolute discretion and as he deems fit and proper
seeing to the prevailing conditions and circumstances. The 2nd
floor flat in the aforesaid Building “A” at Bandra is in use and
occupation of my brother Amirali and his family and they can
continue to use, occupy and maintain the same without any
question or disturbance and hindrance from anyone and so also
the other co-owners thereof.”
5. As stated in the aforesaid suit, the Will was probated on 06.12.2006 in
Petition No.856 of 2003 and one of the executors was Zeenat Shafique
Jagani i.e. mother of the respondent. It appears that the testator was residing
on the first floor and after his death his wife continued to be in occupation of
said first floor. The respondent-plaintiff asserted that he was also in use,
occupation and possession of said first floor alongwith his maternal
grand-mother and thus prayed for aforesaid reliefs in the suit. He also
preferred Notice of Motion No.344 of 2013 praying inter alia for grant of
temporary injunction restraining the defendants from dis-possessing the
respondent- plaintiff from the suit premises without following due process of
law.
6. In the affidavit in reply filed on behalf of the defendant-appellants
herein, it was submitted inter alia that after the death of the testator, the
maternal grand-mother of the respondent was merely allowed to use and
occupy the suit premises by the defendants out of love and sympathy
without any fees or compensation; that the suit premises belonged to the
defendants as co-owners; that the testator had bequeathed his right, title and
interest in the building “Tej Kunj” to his four brothers namely defendants
Nos.1, 2, 3 and 5 and that the plaintiff and his grand-mother were fully
aware that no right, not even provision for residence was created under the
Will in her favour. It was further submitted:-
“Nonetheless, out of sympathy, close blood relationship and out
of filial love and affection, Mrs. Tejani has been allowed to use
the suit premises. I say that since she has no right, title or
interest in the suit premises she could have no right to permit
any other person much less the Plaintiff to interfere with the
ownership right of the co-owners. I say that it is on record that
since the co-owners including myself came to learn that Mrs.
Tejani is wrongfully and without any such authority from the
Defendants allowing the members of Jagani family, the
Defendants by their Advocates’ letter dated 12th January, 2013
addressed to Mrs. Tejani pointed out her deliberate acts of
commission and omission and called upon her not to interfere
with the valuable rights of the defendants qua the suit premises.
By the said letter, it was pointed out that Mrs. Tejani should not
illegally deal with the said premises in any manner whatsoever
as long as she is freely allowed to reside therein and called
upon here to let the Defendants know as to why and under what
circumstances and under whose authority, she has been
intermeddling with the absolute ownership rights of the
defendants qua the suit premises and requested not to create any
encumbrances of any nature whatsoever to the detriment of the
interests of the defendants. No reply has been sent to the said
letter. It is thus evident that the members of Jagani family
including Mrs. Zeenat Jagani or the Plaintiff could have no
right in the suit premises.”
With the aforesaid averments the defendants-appellants opposed grant
of any interim relief.
7. Said Notice of Motion No.344 of 2013 was dismissed by Bombay
City Civil Court vide Order dated 29.04.2013. While rejecting the prayer it
was observed as under:-
“It is specific submission of defendant that Noorbanoo herself
has no right in this premises. Only on sympathetic ground she is
allowed to occupy the premises. If such is fact, when plaintiff is
coming before Court claiming equitable relief like injunction,
he has to prima facie show some rights to claim relief. If
protection is asked for, one must clearly seek ascertaining his
legal rights. Defendant has rightly pointed out that plaintiff is
not submitting his legal right to possess the suit premises. He is
merely claiming that he is residing with Noorbanoo and if
Noorbanoo herself is not having right in the property, I am of
the view that such type of protection cannot be granted in
favour of plaintiff. Neither Noorbanoo is made party to the suit,
nor there is sufficient material to indicate that Noorbanoo has
any legal right to allow plaintiff to reside with her in the suit
property for and on behalf of her. I am of the view that there is
no any substantial right made out on behalf of plaintiff to entitle
him for such equitable relief like injunction.”
8. The order of dismissal of Notice of Motion was challenged by filing
Appeal from Order No.15590 of 2013 in the High Court of Bombay which
was allowed by judgment and Order dated 17.09.2013 and which is
presently under appeal. It was observed by the High Court in Paragraphs 10
and 11 of its judgment as under:-
“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 leaned 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 earned Judge regarding
ownership/title of the maternal grandmother.”
9. Appearing for the defendants-appellants Mr. Dushyant Dave,
learned Senior Advocate submitted that the High Court had erred in granting
interim relief in favour of the respondent. He submitted that the reliance on
Rame Gowda (Dead) by LRS. v. M. Varadappa Naidu(Dead) by LRs. and
Anrs.
1
was completely erroneous; that the respondent, at best, was a relative
staying with a gratuitous licensee; and that the case was covered by the
decision of this Court in Maria Margarida Sequeira Fernandes and others
v. Erasmo Jack De Sequeira (Dead ) through LRS.2
.Ms. Indu Malhotra,
learned Senior Advocate appearing for the plaintiff-respondent submitted
that the respondent had been in settled possession and as such was entitled to
protection. In her submission, the matter was fully covered by the decision
of this Court in Rame Gowda (supra).
10. The Will adverted to in the plaint bequeathed the entire interest that
the testator had in the building in favour of his brothers. The Will further
appointed mother of the respondent as one of the executors and trustees. It
is not the case of the respondent that either he or his grand-mother have any
right independent of the Will or that the Will had bequeathed any interest in
1 2004 (1) SCC 769
2 2012 (5) SCC 370
respect of the premises in question in their favour. In fact the suit does not
claim any independent right either of his grand-mother or of the respondent
himself.
11. Having gone through the record, the submission of the appellants that
the grand-mother of the respondent though did not have any right qua the
premises was permitted to occupy purely out of love and affection is not
without merit. The status of the grand-mother is thus of a gratuitous licensee
and that of the respondent is purely of a relative staying with such
gratuitous licensee.
12. Rame Gowda (supra) was a case in which two adjoining owners were
claiming independent right of ownership in respect of a strip of land in
between their holdings. That piece of land was in possession of the plaintiff
and as such while dealing with the controversy, this Court held that a
person in peaceful possession is entitled to retain his possession. However,
while dealing with the concept of “settled possession” it was observed in
paragraph 9 as under:
“The “settled possession” must be (i) effective, (ii) undisturbed,
and (iii) to the knowledge of the owner or without any attempt
at concealment by the trespasser. The phrase “settled
possession” does not carry any special charm or magic in it; nor
is it a ritualistic formula which can be confined in a straitjacket.
An occupation of the property by a person as an agent or a
servant acting at the instance of the owner will not amount to
actual physical possession.”
13. The matter was further elaborated in subsequent decision of this Court
in Maria Margarida (Supra) as under:
“97. 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. Thus, a person holding the premises gratuitously or in the capacity as
a caretaker or a servant would not acquire any right or interest in the
property and even long possession in that capacity would be of no legal
consequences. In the circumstances City Civil Court was right and justified
in rejecting the prayer for interim injunction and that decision ought not to
have been set aside by the High Court. We therefore, allow the appeal, set
aside the judgment under appeal and restore the Order dated 29.04.2013
passed by the Bombay City Civil Court in Notice of Motion No.344 of 2013
in Suit No.408 of 2013.
15. The matter having come up before this Court from an interim order
and since the main suit itself is pending, any observations made by us shall
not be taken as concluding the controversy and the merits of the matter will
be gone into by the Court at the appropriate stage without being influenced
by any observations made by us.
16. Contempt Petition (Civil) No.368 of 2014 was filed by the appellants
submitting inter alia that the interim order passed by this Court on
10.02.2014 was disobeyed by the respondent. No notice was issued in this
contempt petition. As we have decided the main matter no separate orders
are called for in the contempt petition and the same stands disposed of.
17. No order as to costs.
..…..……………………..J.
(Pinaki Chandra Ghose)
……………………J.
(Uday Umesh Lalit)
New Delhi,
January 6, 2017
Print Page
City Civil Court vide Order dated 29.04.2013. While rejecting the prayer it
was observed as under:-
“It is specific submission of defendant that Noorbanoo herself
has no right in this premises. Only on sympathetic ground she is
allowed to occupy the premises. If such is fact, when plaintiff is
coming before Court claiming equitable relief like injunction,
he has to prima facie show some rights to claim relief. If
protection is asked for, one must clearly seek ascertaining his
legal rights. Defendant has rightly pointed out that plaintiff is
not submitting his legal right to possess the suit premises. He is
merely claiming that he is residing with Noorbanoo and if
Noorbanoo herself is not having right in the property, I am of
the view that such type of protection cannot be granted in
favour of plaintiff. Neither Noorbanoo is made party to the suit,
nor there is sufficient material to indicate that Noorbanoo has
any legal right to allow plaintiff to reside with her in the suit
property for and on behalf of her. I am of the view that there is
no any substantial right made out on behalf of plaintiff to entitle
him for such equitable relief like injunction.”
The matter was further elaborated in subsequent decision of this Court
in Maria Margarida (Supra) as under:
“97. 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. Thus, a person holding the premises gratuitously or in the capacity as
a caretaker or a servant would not acquire any right or interest in the
property and even long possession in that capacity would be of no legal
consequences. In the circumstances City Civil Court was right and justified
in rejecting the prayer for interim injunction and that decision ought not to
have been set aside by the High Court. We therefore, allow the appeal, set
aside the judgment under appeal and restore the Order dated 29.04.2013
passed by the Bombay City Civil Court in Notice of Motion No.344 of 2013
in Suit No.408 of 2013.
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 150 OF 2017
(ARISING OUT OF SLP (CIVIL) NO. 35464 OF 2013)
Behram Tejani & Ors.
V
Azeem Jagani
Dated:January 6, 2017
Citation:(2017) 2 SCC759
2. This appeal challenges the judgment and Order dated 17.09.2013
passed by the High Court of Bombay in Appeal from Order (ST) No.15590
of 2013 quashing and setting aside the Order dated 29.04.2013 passed by the
Bombay City Civil Court in Notice of Motion No.344 of 2013 in Suit
No.408 of 2013.
3. On 4.02.2013, aforesaid Suit No.408 of 2013 was filed by the
respondent submitting inter alia:-
“The Plaintiff along with his Maternal grand-mother Mrs.
Noorbanoo Mohammed Ali Tejani are in use, occupation and
possession of the premises known as Tej Kunj, 1st Floor, Plot
No.212 D, Byramjee Jeejeebhoy Road, Bandstand, Bandra
(West), Mumbai 400050, hereinafter referred to as ‘the suit
premises’…….The Defendant Nos.1, 2, 3 and 5 are the Paternal
uncles of the Plaintiff’s mother i.e. Mrs. Zeenat S. Jagani viz.
the brothers of deceased father named Mohammed Ali H. Tejani
(since deceased) and Defendant No.6, is a son of the Defendant
No.5 and Defendant No.4 is the sister of Defendants 1,2,3 and
5…….Mohammed Ali H. Tejani (called the said Deceased) was
a Co-owner along with Defendant Nos.1 to 5 in respect of a
Plot of Land bearing Plot No.202-D, along with the building
comprising of ground with one upper floor standing thereon and
known as Tej Kunj ……..The said deceased executed a Will
dated 28th September 1991 under which the deceased
bequeathed his 1/7th share in the plot of land in favour of the
Defendant Nos.1 to 5. The said Will is probated in the High
Court T & I.J. Petition No.856 of 2003 as per the Prabate
granted on 6th December 2006.”
The respondent-plaintiff then adverted to Will dated 28.09.1991 and
Clause 7 thereof in particular. It was averred:-
“The said deceased during his life time resided along with his
wife namely the said Smt. Noorbanoo Mohammed Ali Tejani
and the family members on the entire First Floor of the said
property including the plaintiff herein. The said deceased died
on 22nd March, 2003 and since then the said Noorbanoo
Mohammed Ali Tejani and the plaintiff resided in the said flat.”
The respondent prayed, inter alia, for following reliefs:-
“a) That this Hon’ble Court be pleased to grant permanent
order and injunction restraining the defendants, their respective
servants, agents and person or persons claiming through or
under them from in any manner dispossessing the plaintiff from
the suit premises without following due process of law.
b) That pending hearing and final disposal of the above suit,
this Hon’ble Court be pleased to grant temporary order and
injunction restraining the defendants, their respective servants,
agents and person or persons claiming through or under them
from in any manner dispossessing the plaintiff from the suit
premises without following due process of law………”
4. By Will dated 28.09.1991 which was referred to by the respondent,
the testator had appointed his brother Amirali Huseinali Tejani and his
daughter Zeenat Shafique Jagani as the executors and trustees. The principal
bequests made by the testator in the Will were:
“5. I give, devise and bequeath all types of investments and
assets which are in the form or nature of moveables and which
are in my own and beneficial name or my four married
daughters namely 1) Mrs. Nasreen I. Fazal, 2) Mrs. Zeenat S.
Jagani, 3) Mrs. Shahnaz R. Butt and 4) Mrs. Tina D. Gai in
equal shares.
…
7. I own and hold undivided one half share right title and
interest in the immovable property known as “Fatmabai
Building’ on Plot No. 115 at Nowroji Hill Road No.2, Nowroji
Hill Estate, Bombay 400 009, one seventh share right title and
interest in “Tej-Kunj” Building on Plot No. 96 at Nowroji Hill
Road No.5, Bombay 400 009 and also one seventh share right
title and interest in a small residential Building “A” on Plot
No.212-D (CTS No. B-764) at B.J. Road, Band Stand, Bandra,
Bombay 400 050. I give devise and bequeath all my aforesaid
fractional shares in the abovementioned immovable properties
to my brother Amirali H. Tejani, Behram H. Tejani, Nasir H.
Tejani and Feroze H. Tejani absolutely in equal shares.
However, my brother Amirali H. Tejani will administer the
affairs of and deal with the aforesaid properties or any part
thereof in his absolute discretion and as he deems fit and proper
seeing to the prevailing conditions and circumstances. The 2nd
floor flat in the aforesaid Building “A” at Bandra is in use and
occupation of my brother Amirali and his family and they can
continue to use, occupy and maintain the same without any
question or disturbance and hindrance from anyone and so also
the other co-owners thereof.”
5. As stated in the aforesaid suit, the Will was probated on 06.12.2006 in
Petition No.856 of 2003 and one of the executors was Zeenat Shafique
Jagani i.e. mother of the respondent. It appears that the testator was residing
on the first floor and after his death his wife continued to be in occupation of
said first floor. The respondent-plaintiff asserted that he was also in use,
occupation and possession of said first floor alongwith his maternal
grand-mother and thus prayed for aforesaid reliefs in the suit. He also
preferred Notice of Motion No.344 of 2013 praying inter alia for grant of
temporary injunction restraining the defendants from dis-possessing the
respondent- plaintiff from the suit premises without following due process of
law.
6. In the affidavit in reply filed on behalf of the defendant-appellants
herein, it was submitted inter alia that after the death of the testator, the
maternal grand-mother of the respondent was merely allowed to use and
occupy the suit premises by the defendants out of love and sympathy
without any fees or compensation; that the suit premises belonged to the
defendants as co-owners; that the testator had bequeathed his right, title and
interest in the building “Tej Kunj” to his four brothers namely defendants
Nos.1, 2, 3 and 5 and that the plaintiff and his grand-mother were fully
aware that no right, not even provision for residence was created under the
Will in her favour. It was further submitted:-
“Nonetheless, out of sympathy, close blood relationship and out
of filial love and affection, Mrs. Tejani has been allowed to use
the suit premises. I say that since she has no right, title or
interest in the suit premises she could have no right to permit
any other person much less the Plaintiff to interfere with the
ownership right of the co-owners. I say that it is on record that
since the co-owners including myself came to learn that Mrs.
Tejani is wrongfully and without any such authority from the
Defendants allowing the members of Jagani family, the
Defendants by their Advocates’ letter dated 12th January, 2013
addressed to Mrs. Tejani pointed out her deliberate acts of
commission and omission and called upon her not to interfere
with the valuable rights of the defendants qua the suit premises.
By the said letter, it was pointed out that Mrs. Tejani should not
illegally deal with the said premises in any manner whatsoever
as long as she is freely allowed to reside therein and called
upon here to let the Defendants know as to why and under what
circumstances and under whose authority, she has been
intermeddling with the absolute ownership rights of the
defendants qua the suit premises and requested not to create any
encumbrances of any nature whatsoever to the detriment of the
interests of the defendants. No reply has been sent to the said
letter. It is thus evident that the members of Jagani family
including Mrs. Zeenat Jagani or the Plaintiff could have no
right in the suit premises.”
With the aforesaid averments the defendants-appellants opposed grant
of any interim relief.
7. Said Notice of Motion No.344 of 2013 was dismissed by Bombay
City Civil Court vide Order dated 29.04.2013. While rejecting the prayer it
was observed as under:-
“It is specific submission of defendant that Noorbanoo herself
has no right in this premises. Only on sympathetic ground she is
allowed to occupy the premises. If such is fact, when plaintiff is
coming before Court claiming equitable relief like injunction,
he has to prima facie show some rights to claim relief. If
protection is asked for, one must clearly seek ascertaining his
legal rights. Defendant has rightly pointed out that plaintiff is
not submitting his legal right to possess the suit premises. He is
merely claiming that he is residing with Noorbanoo and if
Noorbanoo herself is not having right in the property, I am of
the view that such type of protection cannot be granted in
favour of plaintiff. Neither Noorbanoo is made party to the suit,
nor there is sufficient material to indicate that Noorbanoo has
any legal right to allow plaintiff to reside with her in the suit
property for and on behalf of her. I am of the view that there is
no any substantial right made out on behalf of plaintiff to entitle
him for such equitable relief like injunction.”
8. The order of dismissal of Notice of Motion was challenged by filing
Appeal from Order No.15590 of 2013 in the High Court of Bombay which
was allowed by judgment and Order dated 17.09.2013 and which is
presently under appeal. It was observed by the High Court in Paragraphs 10
and 11 of its judgment as under:-
“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 leaned 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 earned Judge regarding
ownership/title of the maternal grandmother.”
9. Appearing for the defendants-appellants Mr. Dushyant Dave,
learned Senior Advocate submitted that the High Court had erred in granting
interim relief in favour of the respondent. He submitted that the reliance on
Rame Gowda (Dead) by LRS. v. M. Varadappa Naidu(Dead) by LRs. and
Anrs.
1
was completely erroneous; that the respondent, at best, was a relative
staying with a gratuitous licensee; and that the case was covered by the
decision of this Court in Maria Margarida Sequeira Fernandes and others
v. Erasmo Jack De Sequeira (Dead ) through LRS.2
.Ms. Indu Malhotra,
learned Senior Advocate appearing for the plaintiff-respondent submitted
that the respondent had been in settled possession and as such was entitled to
protection. In her submission, the matter was fully covered by the decision
of this Court in Rame Gowda (supra).
10. The Will adverted to in the plaint bequeathed the entire interest that
the testator had in the building in favour of his brothers. The Will further
appointed mother of the respondent as one of the executors and trustees. It
is not the case of the respondent that either he or his grand-mother have any
right independent of the Will or that the Will had bequeathed any interest in
1 2004 (1) SCC 769
2 2012 (5) SCC 370
respect of the premises in question in their favour. In fact the suit does not
claim any independent right either of his grand-mother or of the respondent
himself.
11. Having gone through the record, the submission of the appellants that
the grand-mother of the respondent though did not have any right qua the
premises was permitted to occupy purely out of love and affection is not
without merit. The status of the grand-mother is thus of a gratuitous licensee
and that of the respondent is purely of a relative staying with such
gratuitous licensee.
12. Rame Gowda (supra) was a case in which two adjoining owners were
claiming independent right of ownership in respect of a strip of land in
between their holdings. That piece of land was in possession of the plaintiff
and as such while dealing with the controversy, this Court held that a
person in peaceful possession is entitled to retain his possession. However,
while dealing with the concept of “settled possession” it was observed in
paragraph 9 as under:
“The “settled possession” must be (i) effective, (ii) undisturbed,
and (iii) to the knowledge of the owner or without any attempt
at concealment by the trespasser. The phrase “settled
possession” does not carry any special charm or magic in it; nor
is it a ritualistic formula which can be confined in a straitjacket.
An occupation of the property by a person as an agent or a
servant acting at the instance of the owner will not amount to
actual physical possession.”
13. The matter was further elaborated in subsequent decision of this Court
in Maria Margarida (Supra) as under:
“97. 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. Thus, a person holding the premises gratuitously or in the capacity as
a caretaker or a servant would not acquire any right or interest in the
property and even long possession in that capacity would be of no legal
consequences. In the circumstances City Civil Court was right and justified
in rejecting the prayer for interim injunction and that decision ought not to
have been set aside by the High Court. We therefore, allow the appeal, set
aside the judgment under appeal and restore the Order dated 29.04.2013
passed by the Bombay City Civil Court in Notice of Motion No.344 of 2013
in Suit No.408 of 2013.
15. The matter having come up before this Court from an interim order
and since the main suit itself is pending, any observations made by us shall
not be taken as concluding the controversy and the merits of the matter will
be gone into by the Court at the appropriate stage without being influenced
by any observations made by us.
16. Contempt Petition (Civil) No.368 of 2014 was filed by the appellants
submitting inter alia that the interim order passed by this Court on
10.02.2014 was disobeyed by the respondent. No notice was issued in this
contempt petition. As we have decided the main matter no separate orders
are called for in the contempt petition and the same stands disposed of.
17. No order as to costs.
..…..……………………..J.
(Pinaki Chandra Ghose)
……………………J.
(Uday Umesh Lalit)
New Delhi,
January 6, 2017
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