"It is an elementary principle that where joint owners have agreed to a mode of enjoyment of joint property, it is not open to one of them to disturb that arrangement without the consent of others: Durgacharan versus Khundkar. It is not inconsistent with the fundamental principle that in Law each joint owner of an estate is regarded as having a joint proprietary right in the whole estate. That, however, is merely a right and must not be confounded with a manner of enjoying that right; It operates in strict Law to prevent a co-owner from setting of a claim to any parcel as his exclusive property during the continuance of the joint ownership, but where co- owners, by arrangement, either tacit or expresse, take up exclusive possession and enjoyment of parcels of the joint property, without such definition or severance of interest as would amount to partition, the Court will not interfere with the arrangement at the instance of one co- owner during tenure in common and will do so only in partition so far as may be necessary to make an equitable division of the property".
In this CO 2064 of 2013 challenge is thrown to the judgment dated 30th April, 2013 passed by the Learned Civil Court (Junior Division), Kurseong in Title Suit No. 1 of 2010 by which the ld. Court was pleased to finally consider the suit filed by the present petitioner/plaintiff under Section 6 of the Specific Relief Act. The case of the present petitioner/plaintiff in the suit claiming restoration of possession and permanent injunction was as follows:-
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Kolkata High Court (Appellete Side)
Gautam Gazmer vs Uttam Gazmer on 30 October, 2014
a) That the petitioner/plaintiff constructed one CI sheet roofed brick wall, road level pucca floor, temporary structure on the road side of the government land (PWD) at Parijat Nagar, Sevoke Bazar, PS Kurseong, District Darjeeling in the year 1984. In the said temporary structure the petitioner/plaintiff started a hotel and restaurant business under the name and style of 'Gautam Hotel'.
b) The Petitioner/plaintiff claims to be the proprietor of the said hotel and has obtained trade licence which stands renewed from time to time. He has also obtained electricity connection and pays other levies in respect of the said hotel business.
c) The petitioner/plaintiff alleges that his peaceful and uninterrupted possession of the suit premises was disturbed by defendant/opposite party No. 1 (OP1) on 17th August, 2009. According to the petitioner/plaintiff the present OP1/defendant forcibly took away cash from the counter of the hotel and thereafter assaulted the petitioner/plaintiff. As a result of the assault the petitioner/plaintiff was admitted to the nursing home.
d) That following the incidents of 17th August, 2009, the suit premises was kept under lock and key by the petitioner/plaintiff. However, on 27th August, 2009 the OP1/defendant illegally and forcibly entered the suit premises and took possession of the same by dispossessing the petitioner/plaintiff. Thereafter the OP1/defendant is running the said hotel without lawful authority. Hence the suit.
The case of the OP1/defendant before the learned Trial Court was as follows:-
i) That the late father of both the petitioner/plaintiff and the OP1/defendant, one Jagat Gazmer constructed a two-storied building with tin roof at the road level and started running a hotel under the name and style of 'Gouttam Line Hotel'. The business of 'Gouttam Line Hotel' as well as a travel business was looked after by the late Jagat Gazmer with the assistance of the present OP1/defendant. The petitioner/plaintiff was responsible for looking after the travel business of their late father and a separate restaurant by the name of 'Vivek Restaurant'
ii) However, after the death of Jagat Gazmer on 22nd March, 2007, the petitioner/plaintiff and the OP1/defendant entered into a mutual family settlement wherein it was decided that the OP1/defendant would continue to run the business of 'Gouttam Line Hotel' and the petitioner/plaintiff would run the travel business and the Vivek Restaurant. The OP1/defendant has, therefore, argued that the petitioner/plaintiff was never in possession of the said 'Gouttam Line Hotel' and the question of his forcible and illegal dispossession does not arise.
The learned Trial Court, on the basis of the respective submissions of the parties, framed ten issues for consideration. The petitioner/plaintiff relied on Exbts 1 to 9 and the defendant relied on Exbts (a) to (d).
The learned Trial Court was pleased to come to the following findings:-
A) That the story of the OP1/defendant that he used to run 'Gouttam Hotel' is without any basis in as much as the OP1/defendant has been unable to show any document in support of the running of the hotel business. He has also not filed any family settlement to the effect that after the death of their late father it is the OP1/defendant who was allowed to run 'Gouttam Hotel'. The learned Trial Court noticed that vide Exbt C, which has been admitted into evidence, the OP1/defendant has revealed the name as Gautam Hotel and the trade licence and electricity bills stand in the name of the petitioner/plaintiff. The electricity connection was in the 'Commercial' category. In such view of the matter the story of the OP1/defendant that he used to run the hotel is without any credence. B) The examination-in-chief and cross-examination of one Amrit Gazmer (DW2) has revealed that neither the petitioner/plaintiff nor the OP1/defendant were given exclusive rights to run 'Gautam Hotel'. The learned Court further noticed that no document has been submitted by the PW1 to show that the construction in the suit premises was made by him. In his evidence PW1 has stated that in 1984 he was only 11 years old and the suit property was constructed by his father. Moreover, the mutual agreement marked Exbts C also shows that the late Jagat Gazmer was in control of the family business in his capacity as 'Karta' of a Hindu Undivided family (HUF).
C) The learned Trial Court was of the considered view that from the evidence on record it can be inferred that the both the parties were in joint possession, both physical and constructive, over the suit property and neither the petitioner/plaintiff nor the OP1/defendant can claim to be the exclusive owner of the said property. The learned Trial Court, therefore, concluded that the property remaining joint a suit for recovery of possession under Section 6 of the Specific Relief Act cannot lie and hence dismissed the suit. Aggrieved by the judgment and order of dismissal dated 30th April, 2013 the petitioner/plaintiff has filed the present application. Shri Angshuman Chakraborty, Learned Counsel appearing for the petitioner/plaintiff has primarily argued that the learned Trial Court has erred by denying recovery of possession in respect of the suit property which was also in possession of the petitioner/plaintiff. Such property, even if considered to be joint, the right of the petitioner/plaintiff to be put back in possession of the same after he has been forcibly and illegally dispossessed cannot be curtailed. In support of his submission Shri Chakraborty relies upon the following decisions:-
19 CWN page 1117 in the matter of Atiman Bibi versus Seikh Reasut.
39 Calcutta Law Journal page 414 in the matter of Kameswari Dasya versus Sishuram Deka and another. AIR 1968 Supreme Court page 620 in the matter of Lallu Yeshwant Singh (dead) by his legal representative versus Rao Jagdish singh and others.
Shri Chakraborty points out that 19 CWN page 1117 is an authority on the point that the object of section 9 of the old Specific Relief Act (1877) which is pari materia to Section 6 of the present Act is to provide an efficacious remedy in the class of cases where a person in physical possession of property is forcibly dispossessed from it against his will and consent. The main question for determination is whether the plaintiff while in physical possession of the property has been dispossessed of the same in the manner specified in the Section.
The Court held that if the plaintiff was in physical possession he can be restored to such possession under the decree of the Court. The Court further held that a parcel in joint possession of immovable property is as much in physical possession of his share as the entire body of co-sharers in physical possession of the whole and such joint possession can as well be physically restored in respect of his share as the possession of the whole can be restored to the entire body of co- sharers.
In 39 CLJ page 414 a Three Judge Bench of this Hon'ble Court held as follows:-
"It is an elementary principle that where joint owners have agreed to a mode of enjoyment of joint property, it is not open to one of them to disturb that arrangement without the consent of others: Durgacharan versus Khundkar. It is not inconsistent with the fundamental principle that in Law each joint owner of an estate is regarded as having a joint proprietary right in the whole estate. That, however, is merely a right and must not be confounded with a manner of enjoying that right; It operates in strict Law to prevent a co-owner from setting of a claim to any parcel as his exclusive property during the continuance of the joint ownership, but where co- owners, by arrangement, either tacit or expresse, take up exclusive possession and enjoyment of parcels of the joint property, without such definition or severance of interest as would amount to partition, the Court will not interfere with the arrangement at the instance of one co- owner during tenure in common and will do so only in partition so far as may be necessary to make an equitable division of the property".
Heard. Considered the materials on record.
This Court finds substance in the argument advanced by Shri Chakraborty relying on 19 CWN page 1117 on the point that where a co-owner in physical possession of a joint property with other co- sharers, if dispossessed by the latter, a suit for recovery of possession under Section 6 of the Specific Relief Act (Section 9 of the erstwhile Act) shall lie.
In the facts of the present case the Ld. Trial Court failed to distinguish between the exclusive right, title and interest to the property and its exclusive possession. In the considered view of this Court the Ld. Trial Court did not notice the scope of Section 6 of the Specific Relief Act (Section 9 of the erstwhile Act) which protects exclusive possession over joint property without requiring determination of title.
Following the ratio of the decision in 19 CWN page 1117 (supra) this Court is of the considered view that the Ld. Trial Court ought to have applied the correct law to a proper appreciation of the facts. In the further opinion of this Court while the Ld. Trial Court on the one hand correctly held that "it is an established principle of law that the question of recovery of possession would arise only when one party is dispossessed from the rightful possession", on the other hand the Ld. Court ought to have noticed that from the pleadings and evidence on record the plaintiff/petitioner had discharged the onus of his exclusive possession over the property-in-suit.
This Court, therefore, holds that the Ld. Trial Court erred in dismissing the suit only on the ground that "the suit for recovery of possession ipso facto does not lie because the property in dispute remains a joint family property" inasmuch as the relief of recovery of possession under Section 6 of the Specific Relief Act is independent of the defence of title which can be set up by way of separate suit.
The order impugned dated 30th April, 2013 is accordingly set aside. The matter is remanded back to the Ld. Trial Court to consider the reliefs claimed in the suit in the light of the abovenoted observations within a period of three months from the date of communication of this order.
CO 2064 of 2013 is accordingly allowed.
There will be, however, no order as to costs.
Urgent Xerox certified photocopies of this judgment, if applied for, be given to the parties upon compliance of all requisite formalities.
(Subrata Talukdar, J.)
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