Wednesday, 4 December 2019

Whether plaintiff seeking protection of his possession should prove his title?

 The ratio of the judgment does not indicate that in every case, where the plaintiff claims to be in settled previous possession of property claiming to protect it, he must prove either his title or his entitlement to be in possession. Ours is a case where the Plaintiff was undisputedly in settled possession of the suit property. It was his case that the owner of the suit property, being his self-acquired property, had put the Plaintiff in possession of the same after evincing intention to make an oral gift in his favour. In pursuance of such delivery of possession, the owner had even applied to the revenue authorities for effecting a mutation in respect of the suit property in favour of the Plaintiff. Ever since the death of the admitted owner of the suit property, the Plaintiff had, in the premises, been in settled physical possession, cultivating the same. He claimed to be entitled to protect his possession from any unauthorised person. On these facts, unless the Defendants show that they were actually in joint physical possession or had the right to be in such possession, the Plaintiff's suit for possession could not have been dismissed. 
In the High Court of Bombay
(Before S.C. Gupte, J.)

Kadar Raju Shaikh  v.  Abbas Pirmohamad Shaikh 

Second Appeal No. 249 of 1993
Civil Application No. 1779 of 2016
Decided on November 7, 2019
Citation: 2019 SCC OnLine Bom 4688
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Under which law eviction suit is to be filed if open plot was let out on which saw mill was constructed?

It is pertinent to note that the definition of expression 'premises' given in the Act clearly indicates that the Act is not applicable to open lands and it applies to the buildings and structures and parts thereof used as separate premises for residence, education, business, trade or storage. However, the Rent Control Order applied to open lands also but by virtue of provisions of Section 58 of the Act, the said Rent Control Order has been repealed and by virtue of the provisions of Section 46 of the Act, the Rent Control Order is applicable only to the suits or proceedings pending on the date of commencement of the Act. Admittedly, on the date of commencement of the Act, no suit or proceeding for eviction of the defendant from the suit premises was pending and, therefore, in my opinion, it is the Transfer of Property Act which would govern the field and would be applicable to the matter in question and as such, the notice to quit issued by the plaintiffs to the defendant under Section 106 of Transfer of Property Act determining his tenancy without obtaining prior permission of the Rent Controller cannot be said to be illegal or invalid and, therefore, in my opinion, the learned trial Judge has rightly held so. I, therefore, find no substance in the contentions canvassed by the learned Counsel for the applicant in this regard.
Bombay High Court
Gangdas S/O Moujibhai Patel vs Harshvardhan S/O Balkrushna ... on 14 October, 2002
Equivalent citations: 2003 (4) BomCR 712, 2003 (1) MhLj 203

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Supreme Court: Court should not deny bail to accused considering documents produced by prosecution in sealed cover

The question as to whether the Court could look
into the documents while considering an application for
bail had arisen for consideration in the very case between
the parties herein in Criminal Appeal No.130/2019
wherein through the judgment dated 05.09.2019 while
considering the matter relating to the order dated
20.08.2019 whereby the High Court had rejected the bail,
this Court had held that it would be open for the Court to
receive the materials/documents collected during the
investigation and peruse the same to satisfy its conscience
that the investigation is proceeding in the right lines and
for the purpose of consideration of grant of
bail/anticipatory bail etc. At the same time, this Court,
had disapproved the manner in which the learned Judge
of the High Court in the said case had verbatim quoted a
note produced by the respondent. If that be the position,
in the instant case, the learned Judge while adverting to
the materials, ought not have recorded a finding based on

the materials produced before him. While the learned
Judge was empowered to look at the materials produced in
a sealed cover to satisfy his judicial conscience, the
learned Judge ought not to have recorded finding based on
the materials produced in a sealed cover. Further while
deciding the same case of the appellant in Crl. Appeal
No.1340 of 2019, after holding so, this Court had
consciously refrained from opening the sealed cover and
perusing the documents lest some observations are made
thereon after perusal of the same, which would prejudice
the accused pre-trial. In that circumstance though it is
held that it would be open for the Court to peruse the
documents, it would be against the concept of fair trial if
in every case the prosecution presents documents in
sealed cover and the findings on the same are recorded as
if the offence is committed and the same is treated as
having a bearing for denial or grant of bail.


P. Chidambaram Vs  Directorate of Enforcement 

A.S. Bopanna,J.
Dated:December 04, 2019
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Bom HC: Conduct of search of house by police in violation of provisions of CRPC amounts to breach of right to privacy

 In the case reported as State v. Rehman (AIR
1960 SC 210) it is laid down by the Apex Court that as
search is a process exceedingly arbitrary in character,
stringent statutory conditions are imposed on the exercise
of the power. The provision of section 165 of the Cr.P.C. is
enacted to enable police to take search when there is

urgency and when it is not permissible to follow lengthy
process, securing search warrant from Magistrate. In the
case of Rehman (cited supra) the Apex Court has laid
down that as the provision of section 165(1) of the Cr.P.C.
is mandatory in nature, it should be strictly followed.
Thus, before entering a house, investigating officer has to
specify in writing the things for which search is to be
made and also the ground of his belief that such things
would be found in the house which is to be searched. In
view of the wording of the provision it can be said that
the provision is not restricted to search of what is stolen
or believed to be stolen and it permits the police officer to
make search for anything necessary for the purposes of
investigation into any offence. Thus, on one hand the
provision enables police to take search of the house for
investigation of any crime, on the other, it becomes
mandatory for police to record reasons as the first step
before entering the house.
16) Sub section (2) of section 165 of the Cr.P.C.
shows that police officer taking action should be either
police officer in charge of the police station or the

investigating officer. It can be said that in cases of
urgency, the investigating officer may depute his
subordinate but in view of the provision of section 165(1)
of the Cr.P.C. such deputation must be in writing. That is
also made clear in section 165(3) of the Cr.P.C.
17) The provision of section 165 of the Cr.P.C.
shows that it applies to searches when offence is
committed under general Act like Indian Penal Code, or
special Acts or also local Acts provided that the conditions
given in section 165 of the Cr.P.C. are satisfied. This Court
has gone through the provisions of the Arms Act 1959 as
the respondents have come with the defence that there
was specific secret information against the petitioner that
he was in possession of firearm illegally. There is nothing
in the Arms Act and the Rules framed under that Act to
enable police to take such search by ignoring the
provision of section 165 of the Cr.P.C. This Court has also
gone through the provisions of the Maharashtra Police Act
to ascertain the powers of police officer and this Act also
does not show that police can bypass the provision of
section 165 of the Cr.P.C.

Criminal Writ Petition No.25 of 2019

Dnyaneshwar s/o Kachru Todmal,  Vs  The State of Maharashtra,

Coram: T.V. NALAWADE &

Judgment pronounced on : 29 November, 2019
JUDGMENT (Per T.V. Nalawade, J.):
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