It is a settled and an elementary rule of law that to see
whether a suit is between a landlord and tenant one must see the
Plaintiff's case from the plaint, whatever be the defence. The Plaintiff
is the dominus litis. It is for him to sue. It is for the Plaintiff to show
whether his suit is between him as the landlord and the Defendant as
the tenant for recovery of possession, for recovery of rent of any other
application under the Maharashtra Rent Control Act.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
SUIT NO.2955 OF 2010
Shaikh Jaber Abdulah J AI Sabah Vs. Ravindra Mukund Chafe
CORAM : MRS. ROSHAN DALVI, J.
DATED : 19th December, 2013
Citation;2014(3) ALLMR 293 Bom
1. The Plaintiff is the owner of the building AlJabriya
Court
at 69, Marine Drive, Mumbai 400 020. The Defendant No.1 is stated
to be the trespasser who has illegally encroached upon Flat No.6 and
a garage in the aforesaid building. Defendant No.2 is also claimed to
be stranger and trespasser illegally inducted in flat No.6 by Defendant
No.1. The Plaintiff claims that the Defendants have entered upon the
suit premises without his consent or permission and by breaking open
the locks of the suit premises and dispossessed the Plaintiff from
possession constraining the Plaintiff to recover possession of the suit
premises.
2. It is the Plaintiff's case that the premises was tenanted to
one Jayantilal Desai. Rent receipts were issued to him. He died in
April, 1976. His wife Urmila Desai and thereafter his married
daughter Mrs Renuka Shah lived and died in the suit premises. Mrs.
Renuka has not left any legal heirs surviving her, residing with her at
the time of her death on 23rd April, 2010. The Plaintiff, therefore,
claims that the tenancy rights came to an end upon her death. The
Plaintiff claims that the right, title and interest including the
possession of the suit premises devolves upon and reverts to the
Plaintiff as the owner and accordingly he has constructive / symbolic
possession.
3. The Plaintiff claims to be an absentee landlord. He claims
the revisionary rights in respect of the suit premises upon the death of
the last surviving tenant.
4. The Plaintiff has further claimed that on 31st August, 2010
Defendant No.1 broke open the lock of the suit premises and entered
therein. The Plaintiff obtained knowledge of the trespass committed
by Defendant No.1 from the neighboring tenants through his
constituted attorney (CA) one Nabil Rashid Gani (Nabil).
5. Upon such a case the Plaintiff has sued for possession
under Section 6 of the Specific Relief Act. Defendant No.1 claimed
that he had earlier entered upon the suit premises and was occupying
it. Defendant No.1 claims to have been living with deceased Renuka
Shah, the Plaintiff's statutory tenant. He claims to have been
transferred and bequeathed the suit Flat to him. Defendant No.1 has
relied upon a photocopy of the Will of the deceased, yet unprobated.
Without the grant of probate and consequent title Defendant No.1 has
sought to transfer the tenancy to Defendant No.2.
6. Defendant No.2 claims to be a tenant upon the issue of a
single rent receipt by the erstwhile CA of the Plaintiff whose Power of
Attorney (POA) was since revoked. The receipt is shown to be rubber
stamped with his name.
7. The Plaintiff applied for interim reliefs essentially of the
appointment of the Receiver in respect of the suit premises upon his
claim of recovery of possession of the property of which he was
dispossessed under Section 6 of the Specific Relief Act. The
Defendants claim that the Plaintiff was not in possession and could
not have been dispossessed. It is, therefore, contended that the
Plaintiff is required to sue U/s.5 of the Specific Relief Act on his title.
Defendant No.2 claims to be a tenant.
8. Consequently two preliminary issues have been earlier
raised and framed and are required to be answered; (1) relating to
the maintainability of the suit U/s.6 of the Specific Relief Act and
(2) relating to the bar U/s.41 of the Presidency Small Cause Courts
Act, 1882 (PSCCA) as preliminary issue U/s.9A of the Civil Procedure
Code (CPC).
9. The issues are as follows and answered as follows :
ISSUES
1 Is the suit not maintainable U/s.6 of the Specific
Relief Act, 1963.
No
2 Is the suit barred by provision of Section 41 of the
Presidency Small Cause Court Act, 1882.
No
10. The bar of jurisdiction created U/s.41 of the Presidency
Small Cause Court, 1882 is required to be determined first because if
the Courts inherent jurisdiction is ousted, the Court would not be able
to consider the maintainability of this suit U/s.6 of Specific Relief Act.
Hence the issues shall be determined accordingly.
Issues relating to bar of jurisdiction U/s.41 of the
Presidency Small Cause Courts Act, 1882.
11. U/s.41 of the PSCCA suits interalia
between landlord and
tenants for recovery of possession of property are enjoined to be filed
in the Court of Small Causes. The relevant portion of Section 41 runs
thus:
“41. (1) Notwithstanding anything contained elsewhere in
this Act but subject to the provisions of subsection
(2), the
Court of Small Causes shall have jurisdiction to entertain
and try all suits and proceedings between a licensor and
licensee, or a landlord and tenant, relating to the recovery
of possession of any immovable property situated in Greater
Bombay, or relating to the recovery of the licence fee or
charges or rent therefor, irrespective of the value of the
subject matter of such suits or proceedings.
12. Even U/s.33 of the Maharashtra Rent Control Act, 1991 the
bar of jurisdiction is in similar terms. The relevant part of which runs
thus :
… shall have jurisdiction to entertain and try any suit or
proceedings between a landlord and a tenant relating to the
recovery of rent or possession of any premises and to decide
any application made under this Act.
…. and ….
no other Court shall have jurisdiction to entertain any such
suit, proceeding, or application or to deal with such claim or
question.
13. It is a settled and an elementary rule of law that to see
whether a suit is between a landlord and tenant one must see the
Plaintiff's case from the plaint, whatever be the defence. The Plaintiff
is the dominus litis. It is for him to sue. It is for the Plaintiff to show
whether his suit is between him as the landlord and the Defendant as
the tenant for recovery of possession, for recovery of rent of any other
application under the Maharashtra Rent Control Act. It will have to be
seen by the Court whether this is one such suit.
14. It can be seen that the Plaintiff's suit is against trespassers.
The Plaintiff's suit is not against his tenants. The suit is not filed as a
suit between a landlord and tenant for recovery of possession.
Defendant No.2 has sought to show that he has become a tenant. The
Plaintiff has not accepted the tenancy. It is for the Defendant No.2 to
prove that he is tenant. If the Defendant proves that he is Plaintiff's
tenant, the Plaintiff's contentions would belied. The Plaintiff's suit
itself would be dismissed. In the case of Laxmipat Singhania Vs.
Larsen and Toubro Ltd AIR (38) 1951 Bombay 205 which was a
case of a 99 year lease agreement allowing construction of a building
on the land of the Lessor the Court considered the title to the land and
the title to the building in English and Indian law and the Lessee's
rights thereto even after the expiration of the lease. Having concluded
that the suit as filed by the Lessor fell within the provisions of the
Bombay Rent Act, 1947 it held that the Civil Court had no jurisdiction
to try the suit and consequently dismissed the suit.
15. If, however, the Defendant No.2 cannot prove the tenancy
the Plaintiff's suit on trespass would be justified and his reliefs would
require to be granted. It does not matter that the Defendant calls
himself a tenant. It only matters whether the suit is for the reliefs of
recovery of possession or rent or any other application under the rent
Act even between the admitted landlord and the tenant. Unless the
suit specifies the requirements of Section 41 of the Presidency Small
Cause Court Act, 1882 the Civil Court's jurisdiction cannot be barred.
16. In the case of Kanji Manji Vs. The Trustees of the Port of
Bombay, AIR 1963 Supreme Court 468, a monthly lease of land was
made by BPT to five lessees. BPT sued to recover the land from the
lessees in the Bombay City Civil Court which suit came to be decreed.
The suit was for eviction from BPT land only. Such land was not
included in the definition of premises U/s.5(8) of the Bombay Rent
Control Act. Similarly, U/s.4A land belonging to BPT as the local
authority was exempt. Hence the Civil Court's jurisdiction was held
not barred.
17. An analogy can also be drawn from the judgments of this
Court in the cases of Mohinder Kaur Kochar Vs. Mayfair Housing
Pvt. Ltd. & Ors., AIR 2013 Bom 57 and Vardhman Developers Vs.
Thailambal CoOp.
Hsg. Soc. Ltd. & Ors. in Notice of Motion
No.3274 of 2010 in Suit No.2725 of 2010 dated 7th March, 2011 in
which it has been held that the civil court's jurisdiction is not barred
by the provisions contained in Section 91 of the Maharashtra CoOperative
Societies Act, 1960 in case of redevelopment of the Society
building in a suit for claiming rights upon redevelopment as
redevelopment is not a business of the society.
18 Even if the contentions of the Defendants have to be
considered, the claims of Defendant No.1 is not of tenancy but under
a transfer and a bequest. Such a claim would have to be adjudicated
in a Civil Court. Upon the ruling in the case of Vasant Pratap Pandit
Vs. Dr. Anant Trimbak Sabnis 1994 Mh. L.J. 1450 a legatee is held
not to be an heir as contemplated under Section 5(11)(c) of the
Bombay Rent Act, 1947.
The analysis of Section 5(11)(c)(i) in paras 14 & 15 of the
judgment shows the protection given to members of the family
residing with the tenant at the time of the death of the tenant as the
tenancy would be taken by the tenant not only for his benefit but also
for the benefit of the members of the family residing with him. Such
members of the family of the tenant would be protected under the
avowed object of the legislation whether or not those family members
were heirs in the strict sense. The Court, therefore, held that such
heirs are given priority to be treated as tenants and it is only when
such members of the family are not there that the heirs would be
entitled to be treated as tenants. It is observed in para 14 of the
judgment that a bequest under a Will which would require the court
to honour the wishes of the deceased tenant as a Testator would
render nugatory a provision of the section requiring the Court to
decide the tenant amongst the heirs in case of default of agreement
between the heirs themselves.
Consequently it is held in para 14 of the judgment that the
legislature had not intended to confer the statutory tenancy upon a
testamentary heir. Even the reasoning for this ultimate conclusion is
given in the said para thus:
“Otherwise the right of the landlord to recover possession will
stand excluded even though the original party (the tenant)
with whom the landlord had contracted is dead”.
It is thereafter observed:
“Besides, a statutory tenancy is personal to the tenant”.
The further analysis of the reasoning in para 15 of the judgment
shows why a legatee under a Will of a tenant cannot claim as an heir.
It is observed that if an “heir is to be interpreted to include a legatee
even a stranger may have to be inducted as a tenant for there is no
embargo upon a stranger being a legatee”.
19. The oral evidence led by parties is essentially to show the
relationship between the deceased statutory tenant and the Defendant
No.1 as also the tenancy of Defendant No.2. No relationship of
Defendant No.1 with the last statutory tenant of the Plaintiff is shown,
admitted or established. Defendant No.1 is shown to be a stranger.
The provisions of the Maharashtra Rent Control Act do not apply to
such relationship. Defendant No.2 claims through Defendant No.1 as
having been transferred the suit premises. His case similarly follows.
20. Upon seeing the plaint the above suit on trespass is
required to be filed in the Civil Court and the Civil Court's jurisdiction
is not seen to be barred U/s.41 of the Presidency Small Cause Courts
Act, 1882. The issue relating to bar of jurisdiction is, therefore,
answered in the negative holding that the Civil Court's inherent
jurisdiction is not barred.
Issue relating to the maintainability of the suit U/s.6 of
the Specific Relief Act.
21. The owner of a property can sue in a Civil Court for
recovery of possession of the property from any party who he claims is
in wrongful possession of the property owned by him. The Plaintiff
has produced the property register cards showing the ownership. In
this case the Plaintiff is the admitted owner of the building and
consequently also the suit flat No.6 therein. Defendant No.2 has
admitted the ownership of the Plaintiff. None of the Defendants claim
that any other person is the owner.
22. The Plaintiff may recover possession either U/s.5 of the
Specific Relief Act on his title or U/s.6 of the Specific Relief Act
merely on his possession, if the Plaintiff has been dispossessed
therefrom without his consent.
23. For the Plaintiff to recover such possession on title the
Plaintiff would sue U/s.5 of the Specific Relief Act which runs thus :
5. Recovery of specific immovable property. –
A person entitled to the possession of specific immovable
property may recover it in the manner provided by the Code
of Civil Procedure, 1908.
24. The Plaintiff has valued the suit flat at Rs.16 crores and
paid Court fee on the entire amount. The Plaintiff has not valued the
suit under item 2 of schedule I to the Bombay Court Fees Act, 1959 at
half its value as a suit U/s.6 of the Specific Relief Act. The Plaintiff
has prayed for recovery of possession as also compensation and mesne
profits for the unlawful occupation of the suit premises by the
Defendants. The reliefs are essentially as in a suit filed on title U/s.5.
25. However the Plaintiff has not chosen to sue on title. He
has chosen to sue on dispossession. The Plaintiff claims to be in
constructive or juridical or symbolic possession only. He has
described himself as absentee landlord in paragraph 7 of the plaint
being absent from India. He has claimed the entitlement to the suit
premises upon juridical or symbolic possession as an owner in
paragraph 11 of the plaint. However he has claimed forcible
dispossession of such symbolic possession on the specific date – 31st
August, 2010 upon the trespass by Defendant No.1.
26. The Plaintiff has claimed in paragraph 5 of the plaint that
when his CA visited the suit premises on 4th September, 2010 “to take
possession” Defendant No.1 was not available. He did not state when
he would handover possession. The Plaintiff was given to understand
that Defendant No.1 was residing with his family and would not
handover possession. The Plaintiff claims that Defendant No.1
intentionally made duplicate keys of the suit premises and changed
the outer door lock to restrain the Plaintiff's entry and thus
dispossessed the Plaintiff. The Plaintiff accordingly claims right of
recovery of possession U/s.6 of the Specific Relief Act the relevant
part of which runs thus :
6. Suit by person dispossessed of immovable property. –
(1) If any person is dispossessed without his consent of
immovable property otherwise than in due course of law, he
or any person claiming through him may, by suit, recover
possession thereof, notwithstanding any other title that may
be set up in such suit.
27. It is argued on behalf of the Plaintiff that all that the
section requires is dispossession upon lack of consent. The section
does not state that there should be “forcible” dispossession of “actual
possession”. The dispossession may, therefore, be of symbolic
possession of an owner of an immovable property.
28. The title of section 6 shows a suit by a person dispossessed
of immovable property. He must prove his possession. If a person
shows his actual possession such actual possession would be restored
even if he does not have title. It has to be seen whether a person who
has title can be dispossessed of possession not actually with him
because possession would follow his title and he would be in symbolic
possession.
29. A suit u/s.6 of the Specific Relief Act would essentially be
filed against a person who has taken possession. Such possession is
taken without his consent. Hence it would be illegal possession, even
if it is not forcibly taken as in this case by breaking open the locks and
entering upon the suit premises.
30. However the averments in the plaint more specially
paragraph 20 do show that the suit is filed only U/s.6 of the Specific
Relief Act. The Defendants have contended that the suit is not
maintainable as a Section 6 suit. Yet the averments in the plaint also
show the Plaintiff's right of recovery U/s.5 of the Specific Relief Act.
It may be for the Plaintiff to amend plaint to bring it within either of
the aforesaid two sections of the Specific Relief Act.
31. What is the jurisdictional issue or the plea that concerns
the jurisdiction of the Court must be first understood. The earliest
case of Pandurang Vs. Maruti, AIR 1966 SC lays down that law
thus :
It is well settled that a plea of limitation or a plea of res
judicata is a plea of law which concerns the jurisdiction of
the Court.
32. This has been the principle followed in various decisions of
this Court, the first which is the case Smithkline Beecham Consumer
Health Care Gmbhy & Ors. Vs. Hindustan Lever Ltd. & Anr.,
2002(1) ALL MR 1043, in which the learned Single Judge of this
Court considered what was the plea which concerned the jurisdiction
of the Court and the finding on which its jurisdiction could be ousted.
33. That was a case of plea raised under Order 2 Rule 2 of the
CPC. The Court considered that under Order 2 Rule 1 the Plaintiff
had to raise all the grounds available to him in his suit for the matter
in dispute. The object of that provision was to prevent further
litigation. Hence the Plaintiff must include all the causes of action in
one suit so far as was practicable and known to him. If that was not
done, the later suit would be barred Under Order 2 Rule 2 of the CPC.
The Court held that Order 2 Rule 1 was much like
Section 11 – Explanation 4 which dealt with res judicata.
Consequently if a subsequent suit was instituted after the earlier suit
was finally decided it would be barred U/s.11. The Court held that
this bar was pursuant to the bar U/s.9 of the CPC relevant part of
which runs thus :
9. Courts to try all civil suits unless barred. –
The Courts shall (subject to the provisions herein contained)
have jurisdiction to try all suits of a civil nature excepting
suits of which their cognizance is either expressly or
impliedly barred.
34 In the case of Foreshore Cooperative
Housing Society
Ltd. Vs. Praveen D. Desai & Ors., 2009(1) Bom CR 757, the Division
Bench of this Court, following the case of Pandurang (Supra)
observed that the plea of limitation would deal with the power of
jurisdiction of the Court to decide the matter. Referring to the case
of Smithkline (Supra) it held that if a suit was barred by any statute
the Court would have no authority to hear or decide the same. Hence
the expression “jurisdiction” is used in the wider sense to include the
bar to the maintainability of the suit. That is the statutory bar to the
maintainability of the suit. It held that Section 3 of the Limitation Act
was such a statutory bar and hence the suit had to be dismissed if it
was barred by limitation because the Court would have no jurisdiction
to entertain it and the parties cannot confer jurisdiction by consent.
Consequently the Court concluded in paragraph 21 of the judgment
that the plea of limitation is a plea which goes to the jurisdiction of
the Court and it is plea on law which would preclude the Court from
proceeding with the merits of the contentions and obliged it to dismiss
the suit.
35 It can be easily seen that there is no such bar U/s.6 (1) of
the Specific Relief Act under which this suit is filed. It would be
worthwhile to cite Section 6(1) and 6(2) of the Specific Relief Act to
understand what is a statutory bar and what is not. Section 6(1) &
(2) run thus :
6. Suit by person dispossessed of immovable property. –
(1) If any person is dispossessed without his consent of
immovable property otherwise than in due course of law, he
or any person claiming through him may, by suit, recover
possession thereof, notwithstanding any other title that may
be set up in such suit.
(2) No suit under this section shall be brought –
(a) after the expiry of six months from the date of
dispossession; or
(b) against the Government
36. Section 6(1) only entitles the person dispossessed without
his consent to sue. It does not bar any suit. In fact the only bar is
under Section 6(2) if the suit U/s.6 is filed after six months from the
date of dispossession or it is filed against the government. If that was
so, the Court would not have the jurisdiction to try the suit. Section
6(2) would bar the Court's jurisdiction. The Court would be obliged
to dismiss the suit upon such statutory bar.
37. In the case of Royal Palms (I) Pvt. Ltd. & Ors. Vs. Bharat
Shantilal Shah & Ors., 2009 (2) Bom C R 622, Smithkline (Supra)
has been followed.
38. In the case of Jagshi K Shah Vs. Shaan Builders Pvt. Ltd.
& Ors., 2012(3) Bom C R 770, Foreshore (Supra) has been
followed.
39. Hence it is now settled law that when a statute creates a
bar, the Court's jurisdiction is barred. When the Court's inherent
jurisdiction is barred, the Court cannot try the suit and must dismiss
it. Hence it must follow as a matter of corollary that if the Courts
jurisdiction is not statutorily barred either expressly or impliedly, the
Court must try the suit on merits and may dismiss it if the provision
under which it is tried is not satisfied or if reliefs cannot be granted
under the provision under which it is tried or under any other
provision of law considering the merits of the case.
40. In the case of Erasmo (Supra) which was filed U/s.6 by
the owner who claimed to be dispossessed the Court held that the
Court must consider on merits his ownership rights and not only
possession. The Court must go that extra mile against a wrongful
party in possession. That judgment, therefore, considered that
Section 5 prevails over Section 6 if the owner of the suit property sued
U/s.6 since both the Sections 5 & 6 of the Specific Relief Act are in
fact for recovery of property. The suit on title, which is filed only by
the owner of the suit property, must get precedence over only
possession that the owner claims upon the case of being dispossessed
without his consent. Of course, if a party is only in possession but is
not the owner of the property, he can sue only U/s.6 and not Section
5 of the Specific Relief Act.
41. This suit is filed U/s.6 of the Specific Relief Act as
aforesaid. The Plaintiff has paid full Court fee. He has valued the suit
property at the market value. He has not filed a misconceived action
to avoid payment of court fee which of course, cannot be entertained
by any Court. There is no bar to the jurisdiction of the Court in trying
the suit.
42 The issue of maintainability of the suit was sought to be
tried as a preliminary issue upon evidence led. The evidence is to
show that a suit under Section 6 could not be filed upon the facts of
the case. It may be mentioned that Plaintiff as the owner of the suit
premises may sue under Section 5 also. Nevertheless the Plaintiff's
case in the plaint, the Defendants defence and the evidence led may
be considered.
43. The Plaintiff claims in paragraph 4 of the plaint that the
Defendants have trespassed into suit premises. The suit is, therefore,
on trespass. The Plaintiff is not in actual possession. The Plaintiff has
sued for recovery of possession. The Plaintiff's suit is, therefore, on
title.
44. Mr. Jagtiani argued that the mere fact that the Defendants
broke open the lock of the suit premises as averred in paragraph 4 of
the plaint, the Plaintiff must be taken to be forcibly dispossessed of his
symbolic possession as the owner of the premises in actual occupation
of his tenant. Accordingly the Plaintiff claims that the suit U/s.6 can
lie.
45. Paragraph 5 of the plaint shows that the CA of the Plaintiff
went to take possession of the suit premises on 4th September, 2010.
Mr. Shah and Cama drew my attention specially to the fact that this
averment shows that until then the Plaintiff was not in possession.
What is contemplated is actual possession. The Plaintiff concedes that
the Plaintiff was not in actual possession. The only question of law to
consider upon the averments in the plaint itself is whether a suit
U/s.6 of the Specific Relief Act can be maintained by an owner in
symbolic possession of the suit property to recover possession from a
trespasser.
46. It may be mentioned that the evidence of the Plaintiff's CA
in his cross examination relied upon by the Defendants shows that
neither the Plaintiff nor even his CA actually had the keys of the suit
premises. Though he claimed to have had a key of the suit flat after
the death of the tenant, he did not remember who gave him the key
and when. He did not keep the key in his possession because he
thought it was useless to keep the key. He deposed that he cannot
ascertain its whereabouts and produce the key. The suit flat
admittedly was in the actual possession of the tenant and hence the
key must be expected to be with her. The case of the breaking open
the lock on 31st August, 2010 is upon information derived from a
certain neighbour by the CA of the Plaintiff and informed to the
Plaintiff. The evidence of the CA in his cross examination in this
regard shows that one Sanghvi, the other tenant of building, orally
informed him. He lodged police complaint but could not produce it.
47. Though the Plaintiff's cross examination would show a very
nebulous case with regard to the actual act of dispossession or the
Plaintiff being in possession of the suit flat by way of holding a key
thereof as aforesaid, the Plaintiff cannot be non suited for any lapse in
the plaint U/s.9A of the CPC under which the objection to the
jurisdiction of the Court alone would have to be decided as a
preliminary issue.
48. In the case of Kumar Kalyan Prasad & Anr. Vs.
Kulanand Vaidik & Ors. AIR 1985 Patna 374 dispossession of
symbolic possession has been considered. It is relied upon by Mr.
Jagtiani to show that the Plaintiff has not had to be in actual
possession of the suit property to sue under Section 6. In that case
the Plaintiffs sued to recover the possession in execution of a decree
obtained by them. The decree was for eviction of the Defendants as
also for arrears of rents. The Nazir handed over the symbolic
possession to the Plaintiffs in execution of the decree. The Plaintiff
claims that they were handed over actual possession and upon taking
delivery of possession they locked the house and deputed two of the
servants to keep a watch over the same. Despite that the Defendants
forcibly entered and took possession of the house by ousting the
Plaintiffs' servants and also assaulted them. A criminal case was then
filed and accused persons were convicted and the conviction had been
maintained by the High Court. The Defendant started erecting new
structures and demolished the old ones. The Plaintiffs sued for
recovery of possession U/s.6 upon such actual dispossession. What is
claimed by the Defendant in that suit was that the Plaintiffs were not
in actual possession but in symbolic possession under a paper
transaction of the Nazir regarding the delivery of possession in the
execution proceedings. It was contended that because the Plaintiffs
were delivered symbolic possession they could not sue U/s.6. It was
held that flagrant and contumacious violation of symbolic possession
duly delivered by the court of law would merit the suit U/s.6 for its
recovery. In that case the possession was obtained by the Plaintiff
from those very Defendants in accordance with law and by the Courts
of law in execution proceedings. Possession obtained admittedly in
execution proceedings was allowed to be recovered.
In this case the Plaintiff claims a symbolic possession only upon
the statutory tenant having expired without leaving behind any heirs
living with her at the time of her death in the suit premises. She
expired in April, 2010. The Plaintiff would not come to be in
symbolic possession ipso facto.
49. The word dispossession implies that the Plaintiff must
show his possession. The Plaintiff must show how he came to be in
possession, either actual or symbolic. Possession has to be obtained
by following due legal process. If the Plaintiff had actually taken
possession of the suit premises after the death of the tenant peaceably
and put his own lock on the suit premises and was in possession of its
key, he would be taken to be in symbolic possession even though he
was an absentee landlord and did not actually reside in the premises
but kept it locked. In this case the Plaintiff has not locked the suit
premises himself. That is not even his case. He has not taken
possession at all, actually or symbolically. He was consequently not in
possession at all actual or symbolic. He is certainly entitled to recover
possession on the basis of his title, but that is to be recovered in
accordance with law if there is any contest. Consequently the
possession claimed by the Plaintiff is the possession which he is
entitled to but which he has not secured for himself. Hence merely
upon Defendant No.1 wrongfully coming into suit premises and
trespassing thereupon the Plaintiff could not be taken to be
“dispossessed” as is required U/s.6.
50. Mr. Jagtiani drew an analogy to a person owning a flat and
going abroad. He questioned as to whether such a person, whilst he
was abroad, could be taken to be dispossessed if another person broke
open his lock. Mr. Cama rightly contrasted that analogy from that of
the Plaintiff's case. Such a person would put his own lock on the
premises. He would, therefore, be in symbolic possession. If the lock
is broken and stranger entered upon suit premises during his absence,
such a person would be “dispossessed” and would be entitled to
maintain an action U/s.6 of the Specific Relief Act. The Plaintiff is not
one such person. The Plaintiff never put his lock on the suit premises.
He, therefore, cannot claim such symbolic possession. He is,
therefore, not “dispossessed”. Section 6 suit, therefore, would not lie.
51. Mr. Jagtiani relied upon the case of Sadashiv Shyama
Sawant (Dead) thru LRs. & Ors. Vs. Anita Anant Sawant, (2010) 3
Supreme Court Cases 385 to contend that the Section 6 suit can be
filed by the person dispossessed or any person claiming through him.
In that case though a tenant was dispossessed, the landlord was held
entitled to sue as a person claiming possession through such tenant.
The Plaintiff in that case was held entitled to sue in that case as
person claiming through the tenant. The tenant was in exclusive
possession; he was forcibly dispossessed.
The Plaintiff's case is not one such; he has not sued though his
tenant on his tenant's behalf.
Mr. Jagtiani relied upon the extract of the case of Ratanlal
Ghelabhai V. Amarsing Rupsing, AIR 1929 Bom 467 made in
paragraph 14 of the judgment in which it is observed that there is
nothing in Section 6 to show that the possession is confined to actual
physical possession and that the landlord is in possession through his
tenant and that the landlord can sue for revisionary interest in his
own name.
However the point that is missed is that in that case, as rightly
pointed out by Mr. Shah, the landlord sued through the tenant. The
Plaintiff does not sue through his tenant. The Plaintiff has sought to
sue in his own right as the owner to whom the property would revert
after the death of the last statutory tenant. Consequently the Plaintiff
cannot fall under the category of the “person claiming through”
another – i.e. his tenant.
Consequently in the extract of the judgment in the case of
Gobind Ram Jamma Dass V. Mewa, Air 1953 Pepsu 188 whilst
holding that the word “dispossession” is not confined only to actual
possession, it is immediately added that a suit by a landlord is
competent even if the landlord is not in actual possession but in
possession through a tenant at the time of illegal dispossession. The
discussion about why the landlord in such symbolic possession must
be held entitled to sue is that a contrary view would defeat the aims
and objects of the section 6 because if the tenant dispossessed refuses
to sue, the landlord would suffer dispossession until he is forced to
file a recovery suit. Thus the wrong door would be put in an
advantageous position and that would be putting a premium on a
wrongful act of the trespasser.
52. After considering the various judgments the proposition of
law laid down in paragraph 18 is not of any person dispossessed but
relates only to a landlord dispossessed in respect of the property let
out to the tenant of which the tenant has been dispossessed forcibly
by the third party. Consequently the forcible dispossession is the
essential requirement. Dispossession contemplates the actual
possession either of the landlord himself or of his tenant through
whom he claims or sues.
Mr. Jagtiani would rely upon the following specific part of
paragraph 18 of the judgment which runs thus :
A person is said to have been dispossessed when he has been
deprived of his possession; such deprivation may be of actual
possession or legal possession. Possession in law follows
right to possession. The right to possession, though distinct
from possession, is treated as equivalent to possession itself
for certain purposes.
He would argue that any person dispossessed may be in actual
possession or legal possession and that the Plaintiff is certainly in
legal possession since he has the right to possess. However, the right
to possess must be followed by possession since it is held that the
possession in law follows the right to possession. It may be treated as
equivalent to possession but there must be possession for a Plaintiff to
be dispossessed.
The explanation of the distinction between physical and legal
possession in Halsbury Laws of England set out in paragraph 19 of the
Judgment further shows that the legal possession may exist without
de facto possession. A person may be deemed to be in legal
possession though not having de facto possession. Such is
constructive possession. Consequently it is held in paragraph 21 of
the judgment that dispossession of the tenant is dispossession of the
landlord. If the tenant was forcibly thrown out by a trespasser, the
landlord has the implied right of entry to recover possession. As the
landlord would continue in legal possession through his tenant who is
in actual possession but not contrary to his tenant who was in
possession. Hence if the tenant is in physical possession the landlord
retains possession through him.
Consequently one of them must be in actual physical possession
and must be forcibly dispossessed.
If a landlord is in such constructive possession and claims
through the tenant, he can certainly sue U/s.6 because his tenant is in
possession and has been wrongfully, illegally and forcibly
dispossessed without his consent. If not, the landlord himself must be
in possession and must be wrongfully, illegally and forcibly
dispossessed without his consent.
53. In this case the landlord's right is certainly impinged by the
claim of the Defendants. Such a claim may be wholly false, frivolous,
misconceived, malicious and even vexatious. The Plaintiff as the
landlord would certainly have right to recover the possession but only
by following due legal process. He cannot claim to be in possession
merely because his last statutory tenant has expired without any act
on his part in taking possession of the suit flat after her death and
putting up a lock thereon. This the landlord can do by suing on title.
That would be the action on trespass such as this case is. That would
be for recovery of possession from the Defendants as trespassers.
However, that is not an action U/s.6 of the Specific Relief Act; it is an
action for recovery of immovable property on title U/s.5 of the Act as
the person “entitled” to possession of the suit property.
54. Defendant No.1, however, claims that he was transferred
the suit premises and also bequeathed the suit premises. Mr. Shah on
behalf of Defendant No.1 relies upon the case of Bhavarlal
Labhchand Shah Vs. Kanaiyalal Nathalal Intawala, (1986) 1
Supreme Court Cases 571 in which the Plaintiff had not obtained
even symbolic possession in accordance with law. The Plaintiff had
not sued for any declaration and obtained possession under any
decree in favour of the Plaintiff executed by the Plaintiff. The Plaintiff
claimed to be in symbolic possession ipso facto. Such is not the
symbolic possession contemplated in the judgment in the case Kumar
Kalyan (Supra).
55. Mr. Cama on behalf of the Defendant No.2 relied upon the
judgment in the case of Lalji Yeshwant Singh (Dead) by his LRs Vs.
Rao Jagdish Singh, 1967 DFLS (Soft.) 305 in which it has been held
by the Supreme Court that a person in actual possession could not be
dispossessed even though he has no title because law respects
possession even if there is no title to support it if possession is taken
without having recourse to law. It, therefore, contemplates
dispossession of actual possession as held in the case of Bhavarlal
Shah & Vasant Pratap Pandit (Supra). The Plaintiff is certainly
entitled to sue on title though not simplicitor on possession. The
Plaintiff claims to be the landlord of suit building in which the suit flat
is situate. Defendant No.2 has admitted that the Plaintiff is the owner
of the suit property in a criminal complaint filed by Defendant No2
against the erstwhile CA of the Plaintiff.
56. In any event Defendant No.1 claims through the Plaintiff's
tenant during the continuance of her tenancy. He cannot, therefore,
be permitted to deny that the Plaintiff was the landlord of such tenant
at the beginning of the tenancy and had title to the immovable
property.
57. Defendant No.2 also claims to be a Plaintiff's tenant. He
claims to be issued a single rent receipt by the erstwhile CA of the
Plaintiff. He also cannot deny the Plaintiff's title. The Plaintiff's suit
on title for recovery of the possession from the Defendants as
trespassers. Though the Plaintiff has averred in paragraph 20 of the
plaint that he has sued U/s.6 of the Specific Relief Act, the suit for
recovery to possession and mense profits is seen to be a suit on title
U/s.5 of the Specific Relief Act.
58. However, the filing the suit under one or other of the
provisions is not a jurisdictional issue and is capable of correction by
amendment, if required. The Plaintiff cannot be non suited at the
threshold. There is no bar to the filing of the suit under Section 6 of
the Specific Relief Act. Seeing of the entire evidence which is on
merits of whether the suit can succeed or fail as a Section 6 suit is,
therefore, seen to be an act of frivolity undertaken in futility.
59. Consequently the issue relating to the maintainability of
the suit U/s.6 of the Specific Relief Act is answered in the negative
holding that the suit is maintainable.
( ROSHAN DALVI, J. )
Print Page
whether a suit is between a landlord and tenant one must see the
Plaintiff's case from the plaint, whatever be the defence. The Plaintiff
is the dominus litis. It is for him to sue. It is for the Plaintiff to show
whether his suit is between him as the landlord and the Defendant as
the tenant for recovery of possession, for recovery of rent of any other
application under the Maharashtra Rent Control Act.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
SUIT NO.2955 OF 2010
Shaikh Jaber Abdulah J AI Sabah Vs. Ravindra Mukund Chafe
CORAM : MRS. ROSHAN DALVI, J.
DATED : 19th December, 2013
Citation;2014(3) ALLMR 293 Bom
1. The Plaintiff is the owner of the building AlJabriya
Court
at 69, Marine Drive, Mumbai 400 020. The Defendant No.1 is stated
to be the trespasser who has illegally encroached upon Flat No.6 and
a garage in the aforesaid building. Defendant No.2 is also claimed to
be stranger and trespasser illegally inducted in flat No.6 by Defendant
No.1. The Plaintiff claims that the Defendants have entered upon the
suit premises without his consent or permission and by breaking open
the locks of the suit premises and dispossessed the Plaintiff from
possession constraining the Plaintiff to recover possession of the suit
premises.
2. It is the Plaintiff's case that the premises was tenanted to
one Jayantilal Desai. Rent receipts were issued to him. He died in
April, 1976. His wife Urmila Desai and thereafter his married
daughter Mrs Renuka Shah lived and died in the suit premises. Mrs.
Renuka has not left any legal heirs surviving her, residing with her at
the time of her death on 23rd April, 2010. The Plaintiff, therefore,
claims that the tenancy rights came to an end upon her death. The
Plaintiff claims that the right, title and interest including the
possession of the suit premises devolves upon and reverts to the
Plaintiff as the owner and accordingly he has constructive / symbolic
possession.
3. The Plaintiff claims to be an absentee landlord. He claims
the revisionary rights in respect of the suit premises upon the death of
the last surviving tenant.
4. The Plaintiff has further claimed that on 31st August, 2010
Defendant No.1 broke open the lock of the suit premises and entered
therein. The Plaintiff obtained knowledge of the trespass committed
by Defendant No.1 from the neighboring tenants through his
constituted attorney (CA) one Nabil Rashid Gani (Nabil).
5. Upon such a case the Plaintiff has sued for possession
under Section 6 of the Specific Relief Act. Defendant No.1 claimed
that he had earlier entered upon the suit premises and was occupying
it. Defendant No.1 claims to have been living with deceased Renuka
Shah, the Plaintiff's statutory tenant. He claims to have been
transferred and bequeathed the suit Flat to him. Defendant No.1 has
relied upon a photocopy of the Will of the deceased, yet unprobated.
Without the grant of probate and consequent title Defendant No.1 has
sought to transfer the tenancy to Defendant No.2.
6. Defendant No.2 claims to be a tenant upon the issue of a
single rent receipt by the erstwhile CA of the Plaintiff whose Power of
Attorney (POA) was since revoked. The receipt is shown to be rubber
stamped with his name.
7. The Plaintiff applied for interim reliefs essentially of the
appointment of the Receiver in respect of the suit premises upon his
claim of recovery of possession of the property of which he was
dispossessed under Section 6 of the Specific Relief Act. The
Defendants claim that the Plaintiff was not in possession and could
not have been dispossessed. It is, therefore, contended that the
Plaintiff is required to sue U/s.5 of the Specific Relief Act on his title.
Defendant No.2 claims to be a tenant.
8. Consequently two preliminary issues have been earlier
raised and framed and are required to be answered; (1) relating to
the maintainability of the suit U/s.6 of the Specific Relief Act and
(2) relating to the bar U/s.41 of the Presidency Small Cause Courts
Act, 1882 (PSCCA) as preliminary issue U/s.9A of the Civil Procedure
Code (CPC).
9. The issues are as follows and answered as follows :
ISSUES
1 Is the suit not maintainable U/s.6 of the Specific
Relief Act, 1963.
No
2 Is the suit barred by provision of Section 41 of the
Presidency Small Cause Court Act, 1882.
No
10. The bar of jurisdiction created U/s.41 of the Presidency
Small Cause Court, 1882 is required to be determined first because if
the Courts inherent jurisdiction is ousted, the Court would not be able
to consider the maintainability of this suit U/s.6 of Specific Relief Act.
Hence the issues shall be determined accordingly.
Issues relating to bar of jurisdiction U/s.41 of the
Presidency Small Cause Courts Act, 1882.
11. U/s.41 of the PSCCA suits interalia
between landlord and
tenants for recovery of possession of property are enjoined to be filed
in the Court of Small Causes. The relevant portion of Section 41 runs
thus:
“41. (1) Notwithstanding anything contained elsewhere in
this Act but subject to the provisions of subsection
(2), the
Court of Small Causes shall have jurisdiction to entertain
and try all suits and proceedings between a licensor and
licensee, or a landlord and tenant, relating to the recovery
of possession of any immovable property situated in Greater
Bombay, or relating to the recovery of the licence fee or
charges or rent therefor, irrespective of the value of the
subject matter of such suits or proceedings.
12. Even U/s.33 of the Maharashtra Rent Control Act, 1991 the
bar of jurisdiction is in similar terms. The relevant part of which runs
thus :
… shall have jurisdiction to entertain and try any suit or
proceedings between a landlord and a tenant relating to the
recovery of rent or possession of any premises and to decide
any application made under this Act.
…. and ….
no other Court shall have jurisdiction to entertain any such
suit, proceeding, or application or to deal with such claim or
question.
13. It is a settled and an elementary rule of law that to see
whether a suit is between a landlord and tenant one must see the
Plaintiff's case from the plaint, whatever be the defence. The Plaintiff
is the dominus litis. It is for him to sue. It is for the Plaintiff to show
whether his suit is between him as the landlord and the Defendant as
the tenant for recovery of possession, for recovery of rent of any other
application under the Maharashtra Rent Control Act. It will have to be
seen by the Court whether this is one such suit.
14. It can be seen that the Plaintiff's suit is against trespassers.
The Plaintiff's suit is not against his tenants. The suit is not filed as a
suit between a landlord and tenant for recovery of possession.
Defendant No.2 has sought to show that he has become a tenant. The
Plaintiff has not accepted the tenancy. It is for the Defendant No.2 to
prove that he is tenant. If the Defendant proves that he is Plaintiff's
tenant, the Plaintiff's contentions would belied. The Plaintiff's suit
itself would be dismissed. In the case of Laxmipat Singhania Vs.
Larsen and Toubro Ltd AIR (38) 1951 Bombay 205 which was a
case of a 99 year lease agreement allowing construction of a building
on the land of the Lessor the Court considered the title to the land and
the title to the building in English and Indian law and the Lessee's
rights thereto even after the expiration of the lease. Having concluded
that the suit as filed by the Lessor fell within the provisions of the
Bombay Rent Act, 1947 it held that the Civil Court had no jurisdiction
to try the suit and consequently dismissed the suit.
15. If, however, the Defendant No.2 cannot prove the tenancy
the Plaintiff's suit on trespass would be justified and his reliefs would
require to be granted. It does not matter that the Defendant calls
himself a tenant. It only matters whether the suit is for the reliefs of
recovery of possession or rent or any other application under the rent
Act even between the admitted landlord and the tenant. Unless the
suit specifies the requirements of Section 41 of the Presidency Small
Cause Court Act, 1882 the Civil Court's jurisdiction cannot be barred.
16. In the case of Kanji Manji Vs. The Trustees of the Port of
Bombay, AIR 1963 Supreme Court 468, a monthly lease of land was
made by BPT to five lessees. BPT sued to recover the land from the
lessees in the Bombay City Civil Court which suit came to be decreed.
The suit was for eviction from BPT land only. Such land was not
included in the definition of premises U/s.5(8) of the Bombay Rent
Control Act. Similarly, U/s.4A land belonging to BPT as the local
authority was exempt. Hence the Civil Court's jurisdiction was held
not barred.
17. An analogy can also be drawn from the judgments of this
Court in the cases of Mohinder Kaur Kochar Vs. Mayfair Housing
Pvt. Ltd. & Ors., AIR 2013 Bom 57 and Vardhman Developers Vs.
Thailambal CoOp.
Hsg. Soc. Ltd. & Ors. in Notice of Motion
No.3274 of 2010 in Suit No.2725 of 2010 dated 7th March, 2011 in
which it has been held that the civil court's jurisdiction is not barred
by the provisions contained in Section 91 of the Maharashtra CoOperative
Societies Act, 1960 in case of redevelopment of the Society
building in a suit for claiming rights upon redevelopment as
redevelopment is not a business of the society.
18 Even if the contentions of the Defendants have to be
considered, the claims of Defendant No.1 is not of tenancy but under
a transfer and a bequest. Such a claim would have to be adjudicated
in a Civil Court. Upon the ruling in the case of Vasant Pratap Pandit
Vs. Dr. Anant Trimbak Sabnis 1994 Mh. L.J. 1450 a legatee is held
not to be an heir as contemplated under Section 5(11)(c) of the
Bombay Rent Act, 1947.
The analysis of Section 5(11)(c)(i) in paras 14 & 15 of the
judgment shows the protection given to members of the family
residing with the tenant at the time of the death of the tenant as the
tenancy would be taken by the tenant not only for his benefit but also
for the benefit of the members of the family residing with him. Such
members of the family of the tenant would be protected under the
avowed object of the legislation whether or not those family members
were heirs in the strict sense. The Court, therefore, held that such
heirs are given priority to be treated as tenants and it is only when
such members of the family are not there that the heirs would be
entitled to be treated as tenants. It is observed in para 14 of the
judgment that a bequest under a Will which would require the court
to honour the wishes of the deceased tenant as a Testator would
render nugatory a provision of the section requiring the Court to
decide the tenant amongst the heirs in case of default of agreement
between the heirs themselves.
Consequently it is held in para 14 of the judgment that the
legislature had not intended to confer the statutory tenancy upon a
testamentary heir. Even the reasoning for this ultimate conclusion is
given in the said para thus:
“Otherwise the right of the landlord to recover possession will
stand excluded even though the original party (the tenant)
with whom the landlord had contracted is dead”.
It is thereafter observed:
“Besides, a statutory tenancy is personal to the tenant”.
The further analysis of the reasoning in para 15 of the judgment
shows why a legatee under a Will of a tenant cannot claim as an heir.
It is observed that if an “heir is to be interpreted to include a legatee
even a stranger may have to be inducted as a tenant for there is no
embargo upon a stranger being a legatee”.
19. The oral evidence led by parties is essentially to show the
relationship between the deceased statutory tenant and the Defendant
No.1 as also the tenancy of Defendant No.2. No relationship of
Defendant No.1 with the last statutory tenant of the Plaintiff is shown,
admitted or established. Defendant No.1 is shown to be a stranger.
The provisions of the Maharashtra Rent Control Act do not apply to
such relationship. Defendant No.2 claims through Defendant No.1 as
having been transferred the suit premises. His case similarly follows.
20. Upon seeing the plaint the above suit on trespass is
required to be filed in the Civil Court and the Civil Court's jurisdiction
is not seen to be barred U/s.41 of the Presidency Small Cause Courts
Act, 1882. The issue relating to bar of jurisdiction is, therefore,
answered in the negative holding that the Civil Court's inherent
jurisdiction is not barred.
Issue relating to the maintainability of the suit U/s.6 of
the Specific Relief Act.
21. The owner of a property can sue in a Civil Court for
recovery of possession of the property from any party who he claims is
in wrongful possession of the property owned by him. The Plaintiff
has produced the property register cards showing the ownership. In
this case the Plaintiff is the admitted owner of the building and
consequently also the suit flat No.6 therein. Defendant No.2 has
admitted the ownership of the Plaintiff. None of the Defendants claim
that any other person is the owner.
22. The Plaintiff may recover possession either U/s.5 of the
Specific Relief Act on his title or U/s.6 of the Specific Relief Act
merely on his possession, if the Plaintiff has been dispossessed
therefrom without his consent.
23. For the Plaintiff to recover such possession on title the
Plaintiff would sue U/s.5 of the Specific Relief Act which runs thus :
5. Recovery of specific immovable property. –
A person entitled to the possession of specific immovable
property may recover it in the manner provided by the Code
of Civil Procedure, 1908.
24. The Plaintiff has valued the suit flat at Rs.16 crores and
paid Court fee on the entire amount. The Plaintiff has not valued the
suit under item 2 of schedule I to the Bombay Court Fees Act, 1959 at
half its value as a suit U/s.6 of the Specific Relief Act. The Plaintiff
has prayed for recovery of possession as also compensation and mesne
profits for the unlawful occupation of the suit premises by the
Defendants. The reliefs are essentially as in a suit filed on title U/s.5.
25. However the Plaintiff has not chosen to sue on title. He
has chosen to sue on dispossession. The Plaintiff claims to be in
constructive or juridical or symbolic possession only. He has
described himself as absentee landlord in paragraph 7 of the plaint
being absent from India. He has claimed the entitlement to the suit
premises upon juridical or symbolic possession as an owner in
paragraph 11 of the plaint. However he has claimed forcible
dispossession of such symbolic possession on the specific date – 31st
August, 2010 upon the trespass by Defendant No.1.
26. The Plaintiff has claimed in paragraph 5 of the plaint that
when his CA visited the suit premises on 4th September, 2010 “to take
possession” Defendant No.1 was not available. He did not state when
he would handover possession. The Plaintiff was given to understand
that Defendant No.1 was residing with his family and would not
handover possession. The Plaintiff claims that Defendant No.1
intentionally made duplicate keys of the suit premises and changed
the outer door lock to restrain the Plaintiff's entry and thus
dispossessed the Plaintiff. The Plaintiff accordingly claims right of
recovery of possession U/s.6 of the Specific Relief Act the relevant
part of which runs thus :
6. Suit by person dispossessed of immovable property. –
(1) If any person is dispossessed without his consent of
immovable property otherwise than in due course of law, he
or any person claiming through him may, by suit, recover
possession thereof, notwithstanding any other title that may
be set up in such suit.
27. It is argued on behalf of the Plaintiff that all that the
section requires is dispossession upon lack of consent. The section
does not state that there should be “forcible” dispossession of “actual
possession”. The dispossession may, therefore, be of symbolic
possession of an owner of an immovable property.
28. The title of section 6 shows a suit by a person dispossessed
of immovable property. He must prove his possession. If a person
shows his actual possession such actual possession would be restored
even if he does not have title. It has to be seen whether a person who
has title can be dispossessed of possession not actually with him
because possession would follow his title and he would be in symbolic
possession.
29. A suit u/s.6 of the Specific Relief Act would essentially be
filed against a person who has taken possession. Such possession is
taken without his consent. Hence it would be illegal possession, even
if it is not forcibly taken as in this case by breaking open the locks and
entering upon the suit premises.
30. However the averments in the plaint more specially
paragraph 20 do show that the suit is filed only U/s.6 of the Specific
Relief Act. The Defendants have contended that the suit is not
maintainable as a Section 6 suit. Yet the averments in the plaint also
show the Plaintiff's right of recovery U/s.5 of the Specific Relief Act.
It may be for the Plaintiff to amend plaint to bring it within either of
the aforesaid two sections of the Specific Relief Act.
31. What is the jurisdictional issue or the plea that concerns
the jurisdiction of the Court must be first understood. The earliest
case of Pandurang Vs. Maruti, AIR 1966 SC lays down that law
thus :
It is well settled that a plea of limitation or a plea of res
judicata is a plea of law which concerns the jurisdiction of
the Court.
32. This has been the principle followed in various decisions of
this Court, the first which is the case Smithkline Beecham Consumer
Health Care Gmbhy & Ors. Vs. Hindustan Lever Ltd. & Anr.,
2002(1) ALL MR 1043, in which the learned Single Judge of this
Court considered what was the plea which concerned the jurisdiction
of the Court and the finding on which its jurisdiction could be ousted.
33. That was a case of plea raised under Order 2 Rule 2 of the
CPC. The Court considered that under Order 2 Rule 1 the Plaintiff
had to raise all the grounds available to him in his suit for the matter
in dispute. The object of that provision was to prevent further
litigation. Hence the Plaintiff must include all the causes of action in
one suit so far as was practicable and known to him. If that was not
done, the later suit would be barred Under Order 2 Rule 2 of the CPC.
The Court held that Order 2 Rule 1 was much like
Section 11 – Explanation 4 which dealt with res judicata.
Consequently if a subsequent suit was instituted after the earlier suit
was finally decided it would be barred U/s.11. The Court held that
this bar was pursuant to the bar U/s.9 of the CPC relevant part of
which runs thus :
9. Courts to try all civil suits unless barred. –
The Courts shall (subject to the provisions herein contained)
have jurisdiction to try all suits of a civil nature excepting
suits of which their cognizance is either expressly or
impliedly barred.
34 In the case of Foreshore Cooperative
Housing Society
Ltd. Vs. Praveen D. Desai & Ors., 2009(1) Bom CR 757, the Division
Bench of this Court, following the case of Pandurang (Supra)
observed that the plea of limitation would deal with the power of
jurisdiction of the Court to decide the matter. Referring to the case
of Smithkline (Supra) it held that if a suit was barred by any statute
the Court would have no authority to hear or decide the same. Hence
the expression “jurisdiction” is used in the wider sense to include the
bar to the maintainability of the suit. That is the statutory bar to the
maintainability of the suit. It held that Section 3 of the Limitation Act
was such a statutory bar and hence the suit had to be dismissed if it
was barred by limitation because the Court would have no jurisdiction
to entertain it and the parties cannot confer jurisdiction by consent.
Consequently the Court concluded in paragraph 21 of the judgment
that the plea of limitation is a plea which goes to the jurisdiction of
the Court and it is plea on law which would preclude the Court from
proceeding with the merits of the contentions and obliged it to dismiss
the suit.
35 It can be easily seen that there is no such bar U/s.6 (1) of
the Specific Relief Act under which this suit is filed. It would be
worthwhile to cite Section 6(1) and 6(2) of the Specific Relief Act to
understand what is a statutory bar and what is not. Section 6(1) &
(2) run thus :
6. Suit by person dispossessed of immovable property. –
(1) If any person is dispossessed without his consent of
immovable property otherwise than in due course of law, he
or any person claiming through him may, by suit, recover
possession thereof, notwithstanding any other title that may
be set up in such suit.
(2) No suit under this section shall be brought –
(a) after the expiry of six months from the date of
dispossession; or
(b) against the Government
36. Section 6(1) only entitles the person dispossessed without
his consent to sue. It does not bar any suit. In fact the only bar is
under Section 6(2) if the suit U/s.6 is filed after six months from the
date of dispossession or it is filed against the government. If that was
so, the Court would not have the jurisdiction to try the suit. Section
6(2) would bar the Court's jurisdiction. The Court would be obliged
to dismiss the suit upon such statutory bar.
37. In the case of Royal Palms (I) Pvt. Ltd. & Ors. Vs. Bharat
Shantilal Shah & Ors., 2009 (2) Bom C R 622, Smithkline (Supra)
has been followed.
38. In the case of Jagshi K Shah Vs. Shaan Builders Pvt. Ltd.
& Ors., 2012(3) Bom C R 770, Foreshore (Supra) has been
followed.
39. Hence it is now settled law that when a statute creates a
bar, the Court's jurisdiction is barred. When the Court's inherent
jurisdiction is barred, the Court cannot try the suit and must dismiss
it. Hence it must follow as a matter of corollary that if the Courts
jurisdiction is not statutorily barred either expressly or impliedly, the
Court must try the suit on merits and may dismiss it if the provision
under which it is tried is not satisfied or if reliefs cannot be granted
under the provision under which it is tried or under any other
provision of law considering the merits of the case.
40. In the case of Erasmo (Supra) which was filed U/s.6 by
the owner who claimed to be dispossessed the Court held that the
Court must consider on merits his ownership rights and not only
possession. The Court must go that extra mile against a wrongful
party in possession. That judgment, therefore, considered that
Section 5 prevails over Section 6 if the owner of the suit property sued
U/s.6 since both the Sections 5 & 6 of the Specific Relief Act are in
fact for recovery of property. The suit on title, which is filed only by
the owner of the suit property, must get precedence over only
possession that the owner claims upon the case of being dispossessed
without his consent. Of course, if a party is only in possession but is
not the owner of the property, he can sue only U/s.6 and not Section
5 of the Specific Relief Act.
41. This suit is filed U/s.6 of the Specific Relief Act as
aforesaid. The Plaintiff has paid full Court fee. He has valued the suit
property at the market value. He has not filed a misconceived action
to avoid payment of court fee which of course, cannot be entertained
by any Court. There is no bar to the jurisdiction of the Court in trying
the suit.
42 The issue of maintainability of the suit was sought to be
tried as a preliminary issue upon evidence led. The evidence is to
show that a suit under Section 6 could not be filed upon the facts of
the case. It may be mentioned that Plaintiff as the owner of the suit
premises may sue under Section 5 also. Nevertheless the Plaintiff's
case in the plaint, the Defendants defence and the evidence led may
be considered.
43. The Plaintiff claims in paragraph 4 of the plaint that the
Defendants have trespassed into suit premises. The suit is, therefore,
on trespass. The Plaintiff is not in actual possession. The Plaintiff has
sued for recovery of possession. The Plaintiff's suit is, therefore, on
title.
44. Mr. Jagtiani argued that the mere fact that the Defendants
broke open the lock of the suit premises as averred in paragraph 4 of
the plaint, the Plaintiff must be taken to be forcibly dispossessed of his
symbolic possession as the owner of the premises in actual occupation
of his tenant. Accordingly the Plaintiff claims that the suit U/s.6 can
lie.
45. Paragraph 5 of the plaint shows that the CA of the Plaintiff
went to take possession of the suit premises on 4th September, 2010.
Mr. Shah and Cama drew my attention specially to the fact that this
averment shows that until then the Plaintiff was not in possession.
What is contemplated is actual possession. The Plaintiff concedes that
the Plaintiff was not in actual possession. The only question of law to
consider upon the averments in the plaint itself is whether a suit
U/s.6 of the Specific Relief Act can be maintained by an owner in
symbolic possession of the suit property to recover possession from a
trespasser.
46. It may be mentioned that the evidence of the Plaintiff's CA
in his cross examination relied upon by the Defendants shows that
neither the Plaintiff nor even his CA actually had the keys of the suit
premises. Though he claimed to have had a key of the suit flat after
the death of the tenant, he did not remember who gave him the key
and when. He did not keep the key in his possession because he
thought it was useless to keep the key. He deposed that he cannot
ascertain its whereabouts and produce the key. The suit flat
admittedly was in the actual possession of the tenant and hence the
key must be expected to be with her. The case of the breaking open
the lock on 31st August, 2010 is upon information derived from a
certain neighbour by the CA of the Plaintiff and informed to the
Plaintiff. The evidence of the CA in his cross examination in this
regard shows that one Sanghvi, the other tenant of building, orally
informed him. He lodged police complaint but could not produce it.
47. Though the Plaintiff's cross examination would show a very
nebulous case with regard to the actual act of dispossession or the
Plaintiff being in possession of the suit flat by way of holding a key
thereof as aforesaid, the Plaintiff cannot be non suited for any lapse in
the plaint U/s.9A of the CPC under which the objection to the
jurisdiction of the Court alone would have to be decided as a
preliminary issue.
48. In the case of Kumar Kalyan Prasad & Anr. Vs.
Kulanand Vaidik & Ors. AIR 1985 Patna 374 dispossession of
symbolic possession has been considered. It is relied upon by Mr.
Jagtiani to show that the Plaintiff has not had to be in actual
possession of the suit property to sue under Section 6. In that case
the Plaintiffs sued to recover the possession in execution of a decree
obtained by them. The decree was for eviction of the Defendants as
also for arrears of rents. The Nazir handed over the symbolic
possession to the Plaintiffs in execution of the decree. The Plaintiff
claims that they were handed over actual possession and upon taking
delivery of possession they locked the house and deputed two of the
servants to keep a watch over the same. Despite that the Defendants
forcibly entered and took possession of the house by ousting the
Plaintiffs' servants and also assaulted them. A criminal case was then
filed and accused persons were convicted and the conviction had been
maintained by the High Court. The Defendant started erecting new
structures and demolished the old ones. The Plaintiffs sued for
recovery of possession U/s.6 upon such actual dispossession. What is
claimed by the Defendant in that suit was that the Plaintiffs were not
in actual possession but in symbolic possession under a paper
transaction of the Nazir regarding the delivery of possession in the
execution proceedings. It was contended that because the Plaintiffs
were delivered symbolic possession they could not sue U/s.6. It was
held that flagrant and contumacious violation of symbolic possession
duly delivered by the court of law would merit the suit U/s.6 for its
recovery. In that case the possession was obtained by the Plaintiff
from those very Defendants in accordance with law and by the Courts
of law in execution proceedings. Possession obtained admittedly in
execution proceedings was allowed to be recovered.
In this case the Plaintiff claims a symbolic possession only upon
the statutory tenant having expired without leaving behind any heirs
living with her at the time of her death in the suit premises. She
expired in April, 2010. The Plaintiff would not come to be in
symbolic possession ipso facto.
49. The word dispossession implies that the Plaintiff must
show his possession. The Plaintiff must show how he came to be in
possession, either actual or symbolic. Possession has to be obtained
by following due legal process. If the Plaintiff had actually taken
possession of the suit premises after the death of the tenant peaceably
and put his own lock on the suit premises and was in possession of its
key, he would be taken to be in symbolic possession even though he
was an absentee landlord and did not actually reside in the premises
but kept it locked. In this case the Plaintiff has not locked the suit
premises himself. That is not even his case. He has not taken
possession at all, actually or symbolically. He was consequently not in
possession at all actual or symbolic. He is certainly entitled to recover
possession on the basis of his title, but that is to be recovered in
accordance with law if there is any contest. Consequently the
possession claimed by the Plaintiff is the possession which he is
entitled to but which he has not secured for himself. Hence merely
upon Defendant No.1 wrongfully coming into suit premises and
trespassing thereupon the Plaintiff could not be taken to be
“dispossessed” as is required U/s.6.
50. Mr. Jagtiani drew an analogy to a person owning a flat and
going abroad. He questioned as to whether such a person, whilst he
was abroad, could be taken to be dispossessed if another person broke
open his lock. Mr. Cama rightly contrasted that analogy from that of
the Plaintiff's case. Such a person would put his own lock on the
premises. He would, therefore, be in symbolic possession. If the lock
is broken and stranger entered upon suit premises during his absence,
such a person would be “dispossessed” and would be entitled to
maintain an action U/s.6 of the Specific Relief Act. The Plaintiff is not
one such person. The Plaintiff never put his lock on the suit premises.
He, therefore, cannot claim such symbolic possession. He is,
therefore, not “dispossessed”. Section 6 suit, therefore, would not lie.
51. Mr. Jagtiani relied upon the case of Sadashiv Shyama
Sawant (Dead) thru LRs. & Ors. Vs. Anita Anant Sawant, (2010) 3
Supreme Court Cases 385 to contend that the Section 6 suit can be
filed by the person dispossessed or any person claiming through him.
In that case though a tenant was dispossessed, the landlord was held
entitled to sue as a person claiming possession through such tenant.
The Plaintiff in that case was held entitled to sue in that case as
person claiming through the tenant. The tenant was in exclusive
possession; he was forcibly dispossessed.
The Plaintiff's case is not one such; he has not sued though his
tenant on his tenant's behalf.
Mr. Jagtiani relied upon the extract of the case of Ratanlal
Ghelabhai V. Amarsing Rupsing, AIR 1929 Bom 467 made in
paragraph 14 of the judgment in which it is observed that there is
nothing in Section 6 to show that the possession is confined to actual
physical possession and that the landlord is in possession through his
tenant and that the landlord can sue for revisionary interest in his
own name.
However the point that is missed is that in that case, as rightly
pointed out by Mr. Shah, the landlord sued through the tenant. The
Plaintiff does not sue through his tenant. The Plaintiff has sought to
sue in his own right as the owner to whom the property would revert
after the death of the last statutory tenant. Consequently the Plaintiff
cannot fall under the category of the “person claiming through”
another – i.e. his tenant.
Consequently in the extract of the judgment in the case of
Gobind Ram Jamma Dass V. Mewa, Air 1953 Pepsu 188 whilst
holding that the word “dispossession” is not confined only to actual
possession, it is immediately added that a suit by a landlord is
competent even if the landlord is not in actual possession but in
possession through a tenant at the time of illegal dispossession. The
discussion about why the landlord in such symbolic possession must
be held entitled to sue is that a contrary view would defeat the aims
and objects of the section 6 because if the tenant dispossessed refuses
to sue, the landlord would suffer dispossession until he is forced to
file a recovery suit. Thus the wrong door would be put in an
advantageous position and that would be putting a premium on a
wrongful act of the trespasser.
52. After considering the various judgments the proposition of
law laid down in paragraph 18 is not of any person dispossessed but
relates only to a landlord dispossessed in respect of the property let
out to the tenant of which the tenant has been dispossessed forcibly
by the third party. Consequently the forcible dispossession is the
essential requirement. Dispossession contemplates the actual
possession either of the landlord himself or of his tenant through
whom he claims or sues.
Mr. Jagtiani would rely upon the following specific part of
paragraph 18 of the judgment which runs thus :
A person is said to have been dispossessed when he has been
deprived of his possession; such deprivation may be of actual
possession or legal possession. Possession in law follows
right to possession. The right to possession, though distinct
from possession, is treated as equivalent to possession itself
for certain purposes.
He would argue that any person dispossessed may be in actual
possession or legal possession and that the Plaintiff is certainly in
legal possession since he has the right to possess. However, the right
to possess must be followed by possession since it is held that the
possession in law follows the right to possession. It may be treated as
equivalent to possession but there must be possession for a Plaintiff to
be dispossessed.
The explanation of the distinction between physical and legal
possession in Halsbury Laws of England set out in paragraph 19 of the
Judgment further shows that the legal possession may exist without
de facto possession. A person may be deemed to be in legal
possession though not having de facto possession. Such is
constructive possession. Consequently it is held in paragraph 21 of
the judgment that dispossession of the tenant is dispossession of the
landlord. If the tenant was forcibly thrown out by a trespasser, the
landlord has the implied right of entry to recover possession. As the
landlord would continue in legal possession through his tenant who is
in actual possession but not contrary to his tenant who was in
possession. Hence if the tenant is in physical possession the landlord
retains possession through him.
Consequently one of them must be in actual physical possession
and must be forcibly dispossessed.
If a landlord is in such constructive possession and claims
through the tenant, he can certainly sue U/s.6 because his tenant is in
possession and has been wrongfully, illegally and forcibly
dispossessed without his consent. If not, the landlord himself must be
in possession and must be wrongfully, illegally and forcibly
dispossessed without his consent.
53. In this case the landlord's right is certainly impinged by the
claim of the Defendants. Such a claim may be wholly false, frivolous,
misconceived, malicious and even vexatious. The Plaintiff as the
landlord would certainly have right to recover the possession but only
by following due legal process. He cannot claim to be in possession
merely because his last statutory tenant has expired without any act
on his part in taking possession of the suit flat after her death and
putting up a lock thereon. This the landlord can do by suing on title.
That would be the action on trespass such as this case is. That would
be for recovery of possession from the Defendants as trespassers.
However, that is not an action U/s.6 of the Specific Relief Act; it is an
action for recovery of immovable property on title U/s.5 of the Act as
the person “entitled” to possession of the suit property.
54. Defendant No.1, however, claims that he was transferred
the suit premises and also bequeathed the suit premises. Mr. Shah on
behalf of Defendant No.1 relies upon the case of Bhavarlal
Labhchand Shah Vs. Kanaiyalal Nathalal Intawala, (1986) 1
Supreme Court Cases 571 in which the Plaintiff had not obtained
even symbolic possession in accordance with law. The Plaintiff had
not sued for any declaration and obtained possession under any
decree in favour of the Plaintiff executed by the Plaintiff. The Plaintiff
claimed to be in symbolic possession ipso facto. Such is not the
symbolic possession contemplated in the judgment in the case Kumar
Kalyan (Supra).
55. Mr. Cama on behalf of the Defendant No.2 relied upon the
judgment in the case of Lalji Yeshwant Singh (Dead) by his LRs Vs.
Rao Jagdish Singh, 1967 DFLS (Soft.) 305 in which it has been held
by the Supreme Court that a person in actual possession could not be
dispossessed even though he has no title because law respects
possession even if there is no title to support it if possession is taken
without having recourse to law. It, therefore, contemplates
dispossession of actual possession as held in the case of Bhavarlal
Shah & Vasant Pratap Pandit (Supra). The Plaintiff is certainly
entitled to sue on title though not simplicitor on possession. The
Plaintiff claims to be the landlord of suit building in which the suit flat
is situate. Defendant No.2 has admitted that the Plaintiff is the owner
of the suit property in a criminal complaint filed by Defendant No2
against the erstwhile CA of the Plaintiff.
56. In any event Defendant No.1 claims through the Plaintiff's
tenant during the continuance of her tenancy. He cannot, therefore,
be permitted to deny that the Plaintiff was the landlord of such tenant
at the beginning of the tenancy and had title to the immovable
property.
57. Defendant No.2 also claims to be a Plaintiff's tenant. He
claims to be issued a single rent receipt by the erstwhile CA of the
Plaintiff. He also cannot deny the Plaintiff's title. The Plaintiff's suit
on title for recovery of the possession from the Defendants as
trespassers. Though the Plaintiff has averred in paragraph 20 of the
plaint that he has sued U/s.6 of the Specific Relief Act, the suit for
recovery to possession and mense profits is seen to be a suit on title
U/s.5 of the Specific Relief Act.
58. However, the filing the suit under one or other of the
provisions is not a jurisdictional issue and is capable of correction by
amendment, if required. The Plaintiff cannot be non suited at the
threshold. There is no bar to the filing of the suit under Section 6 of
the Specific Relief Act. Seeing of the entire evidence which is on
merits of whether the suit can succeed or fail as a Section 6 suit is,
therefore, seen to be an act of frivolity undertaken in futility.
59. Consequently the issue relating to the maintainability of
the suit U/s.6 of the Specific Relief Act is answered in the negative
holding that the suit is maintainable.
( ROSHAN DALVI, J. )
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