It is not the case of the respondents/ defendants
pleaded in the written statement that they were in joint
possession of the suit block as cosharers at any time after
the year 2000 i.e. when the respondent no.2 married with the
respondent no.1. There is no such evidence led by the
defendant that they were in joint possession along with the
plaintiff in respect of the suit block. On the contrary, it is
admitted in the oral evidence that Dr.Dubey was in actual
possession of the suit block from 10.07.2008 to 31.08.2011
and was paying monthly maintenance charges of Rs.3,500/
to the plaintiff. Merely because the property is the joint family
property, it does not follow that for the purposes of Section 6
of the Specific Reliefs Act, the possession of one of the
coowner can be treated as the possession of all the
coowners.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CIVIL REVISION APPLICATION NO. 58 OF 2015
Mahesh Zangoji Ghotekar,
...VERSUS...
Prayas Sakhare,
CORAM: R. K. DESHPANDE, J.
DATE : 18thFEBRUARY, 2016 .
Citation: 2016(4) MHLJ134
2] The dispute arising out of a suit under Section 6
of the Specific Reliefs Act, pertains to Plot No. 8, Khasra
Nos. 62, 69, 71 and 87 of Mouza Ajani in the layout Uruvila
Cooperative Housing Society, Wardha Road, Nagpur, which
was owned by one Smt. Jasabai, the mother of the present
applicant, the original plaintiff. The respondent no.2 Smt.
Manjushri Prayas Sakhare is the daughter of Nivrutti, real
brother of the plaintiff, and the respondent No.1 is her
husband. In Special Civil Suit No. 104 of 2012 filed by the
applicantplaintiff, the respondents were joined as defendant
nos. 1 and 2, as it was alleged that they have forcibly taken
possession of the suit premises on 01.09.2011 and the suit
was filed on 02.02.2012, which was during the period of
limitation of six months, about which there is no dispute.
3] The applicantplaintiff alleged that he was in
actual possession of the suit block from the year 2006 to
2008 along with his brother Nivrutti and Smt. Umabai, the
wife of Nivrutti. The respondent No. 2 Smt. Manjushri,
daughter of Nivrutti, was married in the year 2000 with the
respondent no.1 and she started residing separately at her
matrimonial house at Sugat Nagar, Nagpur. Nivrutti died on
27.02.007 and Smt. Umabai, his widow, shifted to her sister's
house at Jaywant Nagar Nagpur. After the death of Nivrutti
and shifting of Smt.Umabai, the plaintiff was in exclusive
possession of the property. The plaintiff also shifted
thereafter in the year 2008 from the suit house to Beltarodi,
a different locality, where he started residing. The suit block
was given by him to one Dr.Dubey, who was in need of it, on
the maintenance charges of Rs.3,500/ per month. Dr.Dubey
resided in the suit block from 10.07.2008 to 31.08.2011 and
paid the maintenance charges of Rs.3,500/ per month to the
plaintiff. On 01.09.2011, the respondentsoriginal defendants
entered the suit house forcibly and started occupying it.
These facts are not in dispute.
4] The suit was resisted by the respondentsdefendants
by filing written statement. It was the stand taken
that the suit house is the joint family property in which the
defendant no.2 being the daughter of Nivrutti, the real brother
of plaintiff, had share and there was no partition of this
property. This stand taken can be prima facie accepted as
undisputed. It was the further stand taken that the
respondent no.2 being the coowner of the property cannot
be evicted in a suit under Section 6 of the Specific Reliefs Act
and the applicant/plaintiff is required to file a suit for partition
and separate possession. According to the defendants, they
were in constructive possession of the suit block and that the
suit under Section 6 of the Specific Reliefs Act was not
maintainable.
5] The plaintiff himself entered the witness box and
examined Smt. Umabai, the mother of the respondent no.2;
Dr.Dubey who occupied the suit block from 10.07.2008 to
31.08.2011 and one another witness Shri Rameshchandra
Arjundas Godbole, to whom it is alleged that the
tenant/occupant Dr. Dubey had handed over the keys of the
suit block after vacating it on 31.08.2011. Both the
respondents have entered the witness box and they were
cross examined.
6] The trial Court took the view that the property is
the joint family property, the possession of all coparcener or
coowner can be said to be the joint possession. The
possession of one of the coowner can be said to be the
possession of all the coowners. As per the specific
admission of the plaintiff in his cross examination, the suit
property is certainly a joint family property of the plaintiff and
the defendant no.2 and the possession of both can be said to
be the joint possession over the suit property and in such
circumstances, the question of dispossession of one
coowner by another coowner does not at all arise. It is
further held in paragraph 17 that all the legal heirs of Smt.
Jasabai can be said to be in possession of the suit property
and the defendant no. 2 being the daughter of the legal heir,
namely Shri Nivruttinath, her possession can be said to be
through her father Shri Nivruttinath, as a coowner and in
such circumstances, it cannot be said to be dispossession by
one coowner to another coowner. It further holds that no
doubt possession of the plaintiff over the suit property is in
the nature of joint possession as coowner but not exclusive
possession.
7] Keeping in view the pleadings, the evidence
brought on record and the findings recorded by the trial
Court, the following points are required to be determined by
this Court.
(I) Whether the lower appellate Court was
right in dismissing the suit under Section
6 of the Specific Relief Act holding that
the property is the joint family property
and the possession of one of the
coowners can be treated as possession
of all the coowners?
(II) Whether the plaintiff has established his
claim for restoration of possession as
contemplated by Section 6 of the Specific
Reliefs Act.
8] Shri Kalbande, the learned counsel appearing for
the applicant has relied upon the decision of this Court in
case of Abdul Aziz Sk. Imam Musalman and others vrs. Sk.
Amir Sk. Burham Musalman and another, reported in AIR
1941 Nagpur 130, delivered by Shri Justice Vivian Bose, as
he then was. The last paragraph of the said decision being
relevant, the same is reproduced below;
"Reliance is however placed by the learned counsel
for the applicant on certain statements in the written
statements where the defendants admit that the
property is the joint property of the plaintiff and the
defendants and on a statement of defendant 5
where she admits that they have a joint title. That
however has nothing to do with the question of
possession under S.9. It may well be that a joint
owner of property is still at the date of suit under S.
9 entitled to the property and would be given
possession in a suit properly instated for the
purpose. But, nevertheless, it is open to one coowner
of property to oust the others and to obtain
exclusive possession for himself. The title of the
others may not be extinguished when this is done,
but if that ouster took place more than six months
before the institution of the suit under S.9, then for
the purposes of S.9 that ouster would hold good
even though the title of the plaintiff may not be
extinguished. Consequently, the admission of the
defendants which go to the question of title do not
oust the jurisdiction of the Court, and as neither
side contended that they were in joint possession
within six months before the suit was filed, the
lower Court was right in placing the plaintiff in
exclusive and not in joint possession. The
application is dismissed with costs".
This court has held that the fact that the parties have joint
title over the suit property has nothing to do with the question
of possession under Section 9 (now Section 6) of the Specific
Reliefs Act. It further holds that it may well be that a joint
owner of the property is still at the date of suit under Section
9 entitled to property and would be given possession in a suit
properly instituted for that purpose. But, nevertheless, it is
open to one coowner of property to oust the others and to
obtain exclusive possession for himself. The Court further
takes note of the fact that the neither side has contended that
they were in joint possession within six months before the
suit was filed.
9] In the another decision of the Punjab and
Haryana High Court in the case of Shrimati Amar Kaur vrs.
Hardev Singh and others, reported in AIR 1992 P.& H 205, it
is held in paragraph 10 that, "the mere fact that the
defendants (respondents) claimed to be cosharers will not
make any difference because a cosharer is entitled to
remain in exclusive possession of separate and joint land
under the arrangement consented to by other cosharers and
in that contingency it is not open to any such cosharer to
disturb the arrangement without the consent of the others
except by filing a suit for partition.
10] In the another decision of the Kerala High Court
in case of Abdul Rahiman vrs. Nalakath Muhammed Haji,
reported in AIR 1997 KERALA 23, it has been held in
paragraph 3 that, "Section 6 provides a summary, cheap and
useful remedy to a person dispossessed of immovable
property otherwise than in due course of law. The object of
the section is to discourage people from taking the law into
their own hands, however, good their title may be. It provides
a summary remedy to a person who has without his consent
been dispossessed of immovable property otherwise than in
due course of law, for recovery of possession without
establishing title". It is further held that, "plaintiff must prove
his previous possession and dispossession by the
defendants otherwise than in due course of law within six
months from the suit and the Court need not go into the
nature of parties' possession".
11] In another decision of the Apex Court in case of
Sadashiv Shyama Sawant through L.Rs and othrs vrs. Anita
Anant Sawant, reported in 2010 (2) Mh.L.J 805. It is held in
paragraph 19 as under.
19. A landlord by letting out the property to a tenant
does not lose possession as he continues to retain
the legal possession although actual possession,
user and control of that property is with the tenant.
By retaining legal possession or in any case
constructive possession, the landlord also retains all
his legal remedies. As a matter of law, the
dispossession of tenant by a third party is
dispossession of the landlord. The word
"dispossessed" in Section 6(1) must be read in this
context and not in light of the actual possession
alone. If a tenant is thrown out forcibly from the
tenanted premises by a trespasser, the landlord has
implied right of entry in order to recover possession
(for himself and his tenant). Similarly, the
expression "any person claiming through him" would
bring within its fold the landlord as he continues in
legal possession over the tenanted property through
his tenant. As a matter of fact, on plain reading of
Section 6(1), it is clear that besides the person who
has been dispossessed, any person claiming
through him can also file a suit seeking recovery of
possession. Obviously, a landlord who holds the
possession through his tenant is competent to
maintain suit under Section 6 and recover
possession from a trespasser who has forcibly
dispossessed his tenant. A landlord when he lets
out his property to the tenant is not deprived of his
possession in the property in law. What is altered is
mode in which the landlord held his possession in
the property inasmuch as the tenant comes into
physical possession while the landlord retains
possession through his tenant. The view of Calcutta
High Court that where the tenant was forcibly
ejected from the land by the third party, it may
reasonably be held that landlord has also been
dispossessed is the correct view. We find ourselves
in agreement with the view of Bombay, Patna,
Pepsu and Rajasthan High Courts and hold, as it
must be, that there is nothing in Section 6 of the Act
to bar a landlord from suing a trespasser in
possession even when, at the date of
dispossession, the property is in actual occupation
of a tenant entitled to possession. The views
expressed by Madras High Court in Veeraswami
Mudali (supra) and (Kanneganti) Ramamanemma
(supra) and by Nagpur Judicial Commissioner in the
case of Ramchandra (supra) do not lay down the
correct law.
It is held that a landlord by letting out the property to a tenant
does not lose possession as he continues to retain the legal
possession although actual possession, user and control of
that property is with the tenant. By retaining legal possession
or in any case constructive possession, the landlord also
retains all his legal remedies. As a matter of law, the
dispossession of tenant by a third party is dispossession of
the landlord. It further holds that a landlord when lets out his
property to the tenant is not deprived of his possession in the
property in law. What is altered is mode in which the landlord
held his possession in the property inasmuch as the tenant
comes into physical possession while the landlord retains
possession through his tenant.
12] Keeping in view the law laid down in the
aforesaid decision, the undisputed factual position in the
present case will have to be looked into. The suit block was
owned by Smt. Jasabai, the mother of the plaintiff and from
the year 2006 it was in actual and physical possession of the
plaintiff, his brother Nivrutti and Smt. Umabai, the wife of
Nivrutti. The defendant no. 2 was married in the year 2000
and she started residing separately along with her husband
at different place and was not in actual physical possession
of the suit property. Nivrutti died on 27.02.2007 and
thereafter Smt. Umabai, his widow, shifted to her sister's
house. The plaintiff continued to remain in actual physical
possession of the suit property till 2008 when he inducted Dr.
Dubey as tenant in the suit block on monthly maintenance of
Rs.3,500/ and shifted himself to another place at Beltarodi.
Dr.Dubey occupied the suit block from 10.07.2008 to
31.08.2011 and paid the month maintenance of Rs.3,500/ to
the plaintiff.
13] It is not the case of the respondents/ defendants
pleaded in the written statement that they were in joint
possession of the suit block as cosharers at any time after
the year 2000 i.e. when the respondent no.2 married with the
respondent no.1. There is no such evidence led by the
defendant that they were in joint possession along with the
plaintiff in respect of the suit block. On the contrary, it is
admitted in the oral evidence that Dr.Dubey was in actual
possession of the suit block from 10.07.2008 to 31.08.2011
and was paying monthly maintenance charges of Rs.3,500/
to the plaintiff. Merely because the property is the joint family
property, it does not follow that for the purposes of Section 6
of the Specific Reliefs Act, the possession of one of the
coowner can be treated as the possession of all the
coowners.
14] In terms of the decision of this Court in the case
of Abdul Aziz Sk. Imam (cited supra) in the absence of any
case of joint possession of the suit block, the finding of the
trial Court that the suit property is the joint family property
and possession of all coowners or coparceners can be
treated to be the joint possession, cannot be accepted for the
purpose of Section 6 of the Specific Reliefs Act. In terms of
decision of the Apex Court in case of Sadashiv Shayma
Sawant (cited supra), the plaintiff continues to be the landlord
or licensor in respect of the suit property and Dr. Dubey, the
occupant from 10.07.2008 to 31.08.2011, holding the
possession for and on behalf of the plaintiff. The plaintiff
continued to retain legal or constructive possession over the
suit block and the defendants could not have entered the suit
block on 01.09.2011. In view of this, even if all the findings
recorded by the Trial Court in favour of the defendants are
accepted, still the plaintiff cannot be denied the relief of
possession. The trial Court has committed an error in
dismissing the suit for possession and it has to be held that
the plaintiff is entitled to restore the possession over the suit
property. Both the questions are answered accordingly.
15] In the result, the judgment and order dated
13.03.2015 passed by the trial Court in Special Civil Suit No.
104 of 2012 is hereby quashed and set aside. The Special
Civil Suit No. 104 of 2012 is decreed and the respondentsdefendants
are directed to hand over the vacant possession
of the suit house to the plaintiff and to pay the plaintiff
damages/mesne profit or occupational charges at the rate of
Rs.500/ per day from the date of dispossession till the
decision by the trial Court on 13.03.2015. No order as to
costs.
16] At this stage, the learned counsel for the
respondents prays for stay of the decision of this Court for a
period of eight weeks.
In view of this, the possession of the
respondents shall not be disturbed for a period of six weeks
from today, after expiry of which the plaintiff/applicant shall
be entitled to get the decree executed in accordance with
law.
JUDGE
Print Page
pleaded in the written statement that they were in joint
possession of the suit block as cosharers at any time after
the year 2000 i.e. when the respondent no.2 married with the
respondent no.1. There is no such evidence led by the
defendant that they were in joint possession along with the
plaintiff in respect of the suit block. On the contrary, it is
admitted in the oral evidence that Dr.Dubey was in actual
possession of the suit block from 10.07.2008 to 31.08.2011
and was paying monthly maintenance charges of Rs.3,500/
to the plaintiff. Merely because the property is the joint family
property, it does not follow that for the purposes of Section 6
of the Specific Reliefs Act, the possession of one of the
coowner can be treated as the possession of all the
coowners.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CIVIL REVISION APPLICATION NO. 58 OF 2015
Mahesh Zangoji Ghotekar,
...VERSUS...
Prayas Sakhare,
CORAM: R. K. DESHPANDE, J.
DATE : 18thFEBRUARY, 2016 .
Citation: 2016(4) MHLJ134
2] The dispute arising out of a suit under Section 6
of the Specific Reliefs Act, pertains to Plot No. 8, Khasra
Nos. 62, 69, 71 and 87 of Mouza Ajani in the layout Uruvila
Cooperative Housing Society, Wardha Road, Nagpur, which
was owned by one Smt. Jasabai, the mother of the present
applicant, the original plaintiff. The respondent no.2 Smt.
Manjushri Prayas Sakhare is the daughter of Nivrutti, real
brother of the plaintiff, and the respondent No.1 is her
husband. In Special Civil Suit No. 104 of 2012 filed by the
applicantplaintiff, the respondents were joined as defendant
nos. 1 and 2, as it was alleged that they have forcibly taken
possession of the suit premises on 01.09.2011 and the suit
was filed on 02.02.2012, which was during the period of
limitation of six months, about which there is no dispute.
3] The applicantplaintiff alleged that he was in
actual possession of the suit block from the year 2006 to
2008 along with his brother Nivrutti and Smt. Umabai, the
wife of Nivrutti. The respondent No. 2 Smt. Manjushri,
daughter of Nivrutti, was married in the year 2000 with the
respondent no.1 and she started residing separately at her
matrimonial house at Sugat Nagar, Nagpur. Nivrutti died on
27.02.007 and Smt. Umabai, his widow, shifted to her sister's
house at Jaywant Nagar Nagpur. After the death of Nivrutti
and shifting of Smt.Umabai, the plaintiff was in exclusive
possession of the property. The plaintiff also shifted
thereafter in the year 2008 from the suit house to Beltarodi,
a different locality, where he started residing. The suit block
was given by him to one Dr.Dubey, who was in need of it, on
the maintenance charges of Rs.3,500/ per month. Dr.Dubey
resided in the suit block from 10.07.2008 to 31.08.2011 and
paid the maintenance charges of Rs.3,500/ per month to the
plaintiff. On 01.09.2011, the respondentsoriginal defendants
entered the suit house forcibly and started occupying it.
These facts are not in dispute.
4] The suit was resisted by the respondentsdefendants
by filing written statement. It was the stand taken
that the suit house is the joint family property in which the
defendant no.2 being the daughter of Nivrutti, the real brother
of plaintiff, had share and there was no partition of this
property. This stand taken can be prima facie accepted as
undisputed. It was the further stand taken that the
respondent no.2 being the coowner of the property cannot
be evicted in a suit under Section 6 of the Specific Reliefs Act
and the applicant/plaintiff is required to file a suit for partition
and separate possession. According to the defendants, they
were in constructive possession of the suit block and that the
suit under Section 6 of the Specific Reliefs Act was not
maintainable.
5] The plaintiff himself entered the witness box and
examined Smt. Umabai, the mother of the respondent no.2;
Dr.Dubey who occupied the suit block from 10.07.2008 to
31.08.2011 and one another witness Shri Rameshchandra
Arjundas Godbole, to whom it is alleged that the
tenant/occupant Dr. Dubey had handed over the keys of the
suit block after vacating it on 31.08.2011. Both the
respondents have entered the witness box and they were
cross examined.
6] The trial Court took the view that the property is
the joint family property, the possession of all coparcener or
coowner can be said to be the joint possession. The
possession of one of the coowner can be said to be the
possession of all the coowners. As per the specific
admission of the plaintiff in his cross examination, the suit
property is certainly a joint family property of the plaintiff and
the defendant no.2 and the possession of both can be said to
be the joint possession over the suit property and in such
circumstances, the question of dispossession of one
coowner by another coowner does not at all arise. It is
further held in paragraph 17 that all the legal heirs of Smt.
Jasabai can be said to be in possession of the suit property
and the defendant no. 2 being the daughter of the legal heir,
namely Shri Nivruttinath, her possession can be said to be
through her father Shri Nivruttinath, as a coowner and in
such circumstances, it cannot be said to be dispossession by
one coowner to another coowner. It further holds that no
doubt possession of the plaintiff over the suit property is in
the nature of joint possession as coowner but not exclusive
possession.
7] Keeping in view the pleadings, the evidence
brought on record and the findings recorded by the trial
Court, the following points are required to be determined by
this Court.
(I) Whether the lower appellate Court was
right in dismissing the suit under Section
6 of the Specific Relief Act holding that
the property is the joint family property
and the possession of one of the
coowners can be treated as possession
of all the coowners?
(II) Whether the plaintiff has established his
claim for restoration of possession as
contemplated by Section 6 of the Specific
Reliefs Act.
8] Shri Kalbande, the learned counsel appearing for
the applicant has relied upon the decision of this Court in
case of Abdul Aziz Sk. Imam Musalman and others vrs. Sk.
Amir Sk. Burham Musalman and another, reported in AIR
1941 Nagpur 130, delivered by Shri Justice Vivian Bose, as
he then was. The last paragraph of the said decision being
relevant, the same is reproduced below;
"Reliance is however placed by the learned counsel
for the applicant on certain statements in the written
statements where the defendants admit that the
property is the joint property of the plaintiff and the
defendants and on a statement of defendant 5
where she admits that they have a joint title. That
however has nothing to do with the question of
possession under S.9. It may well be that a joint
owner of property is still at the date of suit under S.
9 entitled to the property and would be given
possession in a suit properly instated for the
purpose. But, nevertheless, it is open to one coowner
of property to oust the others and to obtain
exclusive possession for himself. The title of the
others may not be extinguished when this is done,
but if that ouster took place more than six months
before the institution of the suit under S.9, then for
the purposes of S.9 that ouster would hold good
even though the title of the plaintiff may not be
extinguished. Consequently, the admission of the
defendants which go to the question of title do not
oust the jurisdiction of the Court, and as neither
side contended that they were in joint possession
within six months before the suit was filed, the
lower Court was right in placing the plaintiff in
exclusive and not in joint possession. The
application is dismissed with costs".
This court has held that the fact that the parties have joint
title over the suit property has nothing to do with the question
of possession under Section 9 (now Section 6) of the Specific
Reliefs Act. It further holds that it may well be that a joint
owner of the property is still at the date of suit under Section
9 entitled to property and would be given possession in a suit
properly instituted for that purpose. But, nevertheless, it is
open to one coowner of property to oust the others and to
obtain exclusive possession for himself. The Court further
takes note of the fact that the neither side has contended that
they were in joint possession within six months before the
suit was filed.
9] In the another decision of the Punjab and
Haryana High Court in the case of Shrimati Amar Kaur vrs.
Hardev Singh and others, reported in AIR 1992 P.& H 205, it
is held in paragraph 10 that, "the mere fact that the
defendants (respondents) claimed to be cosharers will not
make any difference because a cosharer is entitled to
remain in exclusive possession of separate and joint land
under the arrangement consented to by other cosharers and
in that contingency it is not open to any such cosharer to
disturb the arrangement without the consent of the others
except by filing a suit for partition.
10] In the another decision of the Kerala High Court
in case of Abdul Rahiman vrs. Nalakath Muhammed Haji,
reported in AIR 1997 KERALA 23, it has been held in
paragraph 3 that, "Section 6 provides a summary, cheap and
useful remedy to a person dispossessed of immovable
property otherwise than in due course of law. The object of
the section is to discourage people from taking the law into
their own hands, however, good their title may be. It provides
a summary remedy to a person who has without his consent
been dispossessed of immovable property otherwise than in
due course of law, for recovery of possession without
establishing title". It is further held that, "plaintiff must prove
his previous possession and dispossession by the
defendants otherwise than in due course of law within six
months from the suit and the Court need not go into the
nature of parties' possession".
11] In another decision of the Apex Court in case of
Sadashiv Shyama Sawant through L.Rs and othrs vrs. Anita
Anant Sawant, reported in 2010 (2) Mh.L.J 805. It is held in
paragraph 19 as under.
19. A landlord by letting out the property to a tenant
does not lose possession as he continues to retain
the legal possession although actual possession,
user and control of that property is with the tenant.
By retaining legal possession or in any case
constructive possession, the landlord also retains all
his legal remedies. As a matter of law, the
dispossession of tenant by a third party is
dispossession of the landlord. The word
"dispossessed" in Section 6(1) must be read in this
context and not in light of the actual possession
alone. If a tenant is thrown out forcibly from the
tenanted premises by a trespasser, the landlord has
implied right of entry in order to recover possession
(for himself and his tenant). Similarly, the
expression "any person claiming through him" would
bring within its fold the landlord as he continues in
legal possession over the tenanted property through
his tenant. As a matter of fact, on plain reading of
Section 6(1), it is clear that besides the person who
has been dispossessed, any person claiming
through him can also file a suit seeking recovery of
possession. Obviously, a landlord who holds the
possession through his tenant is competent to
maintain suit under Section 6 and recover
possession from a trespasser who has forcibly
dispossessed his tenant. A landlord when he lets
out his property to the tenant is not deprived of his
possession in the property in law. What is altered is
mode in which the landlord held his possession in
the property inasmuch as the tenant comes into
physical possession while the landlord retains
possession through his tenant. The view of Calcutta
High Court that where the tenant was forcibly
ejected from the land by the third party, it may
reasonably be held that landlord has also been
dispossessed is the correct view. We find ourselves
in agreement with the view of Bombay, Patna,
Pepsu and Rajasthan High Courts and hold, as it
must be, that there is nothing in Section 6 of the Act
to bar a landlord from suing a trespasser in
possession even when, at the date of
dispossession, the property is in actual occupation
of a tenant entitled to possession. The views
expressed by Madras High Court in Veeraswami
Mudali (supra) and (Kanneganti) Ramamanemma
(supra) and by Nagpur Judicial Commissioner in the
case of Ramchandra (supra) do not lay down the
correct law.
It is held that a landlord by letting out the property to a tenant
does not lose possession as he continues to retain the legal
possession although actual possession, user and control of
that property is with the tenant. By retaining legal possession
or in any case constructive possession, the landlord also
retains all his legal remedies. As a matter of law, the
dispossession of tenant by a third party is dispossession of
the landlord. It further holds that a landlord when lets out his
property to the tenant is not deprived of his possession in the
property in law. What is altered is mode in which the landlord
held his possession in the property inasmuch as the tenant
comes into physical possession while the landlord retains
possession through his tenant.
12] Keeping in view the law laid down in the
aforesaid decision, the undisputed factual position in the
present case will have to be looked into. The suit block was
owned by Smt. Jasabai, the mother of the plaintiff and from
the year 2006 it was in actual and physical possession of the
plaintiff, his brother Nivrutti and Smt. Umabai, the wife of
Nivrutti. The defendant no. 2 was married in the year 2000
and she started residing separately along with her husband
at different place and was not in actual physical possession
of the suit property. Nivrutti died on 27.02.2007 and
thereafter Smt. Umabai, his widow, shifted to her sister's
house. The plaintiff continued to remain in actual physical
possession of the suit property till 2008 when he inducted Dr.
Dubey as tenant in the suit block on monthly maintenance of
Rs.3,500/ and shifted himself to another place at Beltarodi.
Dr.Dubey occupied the suit block from 10.07.2008 to
31.08.2011 and paid the month maintenance of Rs.3,500/ to
the plaintiff.
13] It is not the case of the respondents/ defendants
pleaded in the written statement that they were in joint
possession of the suit block as cosharers at any time after
the year 2000 i.e. when the respondent no.2 married with the
respondent no.1. There is no such evidence led by the
defendant that they were in joint possession along with the
plaintiff in respect of the suit block. On the contrary, it is
admitted in the oral evidence that Dr.Dubey was in actual
possession of the suit block from 10.07.2008 to 31.08.2011
and was paying monthly maintenance charges of Rs.3,500/
to the plaintiff. Merely because the property is the joint family
property, it does not follow that for the purposes of Section 6
of the Specific Reliefs Act, the possession of one of the
coowner can be treated as the possession of all the
coowners.
14] In terms of the decision of this Court in the case
of Abdul Aziz Sk. Imam (cited supra) in the absence of any
case of joint possession of the suit block, the finding of the
trial Court that the suit property is the joint family property
and possession of all coowners or coparceners can be
treated to be the joint possession, cannot be accepted for the
purpose of Section 6 of the Specific Reliefs Act. In terms of
decision of the Apex Court in case of Sadashiv Shayma
Sawant (cited supra), the plaintiff continues to be the landlord
or licensor in respect of the suit property and Dr. Dubey, the
occupant from 10.07.2008 to 31.08.2011, holding the
possession for and on behalf of the plaintiff. The plaintiff
continued to retain legal or constructive possession over the
suit block and the defendants could not have entered the suit
block on 01.09.2011. In view of this, even if all the findings
recorded by the Trial Court in favour of the defendants are
accepted, still the plaintiff cannot be denied the relief of
possession. The trial Court has committed an error in
dismissing the suit for possession and it has to be held that
the plaintiff is entitled to restore the possession over the suit
property. Both the questions are answered accordingly.
15] In the result, the judgment and order dated
13.03.2015 passed by the trial Court in Special Civil Suit No.
104 of 2012 is hereby quashed and set aside. The Special
Civil Suit No. 104 of 2012 is decreed and the respondentsdefendants
are directed to hand over the vacant possession
of the suit house to the plaintiff and to pay the plaintiff
damages/mesne profit or occupational charges at the rate of
Rs.500/ per day from the date of dispossession till the
decision by the trial Court on 13.03.2015. No order as to
costs.
16] At this stage, the learned counsel for the
respondents prays for stay of the decision of this Court for a
period of eight weeks.
In view of this, the possession of the
respondents shall not be disturbed for a period of six weeks
from today, after expiry of which the plaintiff/applicant shall
be entitled to get the decree executed in accordance with
law.
JUDGE
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