Whether tenant in possession of the tenanted property after termination of tenancy can be held guilty for the offence of criminal trespass?

On the basis of the discussions made in the preceding paragraphs, we are of the opinion that the rigors of section 441, . I. P. C. as amended by the Orissa Act 22 of 1986 shall not be applicable to the following cases :

(i) Statutory tenants whose tenancy is governed by any statute.

[They are protected by tenancy laws like. Public Premises Eviction Act, etc.]

(ii) Tenant who has entered into possession by virtue of a lease.

[Rights of such tenant is governed under the provisions of the Transfer of Property Act and the Specific Relief Act and he acquires a right of possession. After determination of tenancy by notice, he would become "Tenant holding •over", "Tenant on sufferance" or "Tenant at will" as the case may be. His possession being juridical, is protected He can be evicted only in due process of law. The possession of such tenant cannot be equated with that of trespassers.]

(iii) Person who has entered into possession by virtue of some covenant like, agreement to sell, will etc. and/ or put forth a genuine right over the property possessed.

[If a person claims a right of title coupled with possession, till the dispute is adjudicated, his possession cannot be conclusively said to be that of a trespasser and his right to possess would be subject to the result of the suit or legal proceeding.]

However, the said section shall be applicable to the following category of persons ;

(i) Person who was permitted to possess a property for a particular period and after lapse of the said period, he was called upon to handover possession by issuance of quit notice,

(ii) Person who was put in possession by means of a 'licence' and who fails to handover possession after expiry of the term of licence and/or after receiving quit notice from the landlord,

(iii) Persons who was in "permissive possession" and who fails to handover possession even after receiving a notice to quit ]

The reference made by the learned Single Judge is answered accordingly.

Before parting, we feel constrained to observe that there cannot be an iron tight jacket to fit in all cases or tenants. It should be borne in mind that judicial process should not be permitted to be used as an instrument of oppression or needless harassment. The court should be circumspect and judicious in exercising discretion and should take all the relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of private complainant as vendetta to harass the persons needlessly. In a given case, the court adjudicating the dispute has to take a pragmatic view keeping in mind the discussions made in this judgment and other provisions of law and arrive at a subjective satisfaction as to whether the mischief as stipulated under section 441, I. P. C. (Amended) has been intentionally committed or not and pass necessary orders.

IN THE HIGH COURT OF ORISSA

Criminal Misc. Case No. 334 of 1994

Decided On: 14.03.2001

 Akapati Bhaskar Patro  Vs.  Trinath Sahu and Ors.

Hon'ble Judges/Coram:

P.K. Mohanty and A.S. Naidu, JJ.

Citation:  2001 I OLR 502,MANU/OR/0089/2001

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Whether the tenant can claim adverse possession in the tenanted property without surrender of the tenancy?

 The Respondent continued to be in possession of the land leased vide registered lease deed dated 22nd September, 1954. The Respondent has admitted the ownership of the Appellants before the Reference Court. Such plea operates as estoppel against the Respondent in respect of the title of the Appellants. However, the claim of compensation put forward by the Respondent was declined for the reason that non-payment of rent disentitles the Respondent from compensation. In the present proceedings, the Respondent has denied his status as that of a tenant but claimed title in himself. The Respondent claimed adverse possession and claimed possession as owner against a person, who has inducted him as tenant. The Respondent was to prove his continuous, open and hostile possession to the knowledge of true owner for a continuous period of 12 years. The Respondent has not led any evidence of hostile possession to the knowledge of true owner at any time before or after the award of the reference Court nor he has surrendered possession before asserting hostile, continuous and open title to the knowledge of the true owner. The question of adverse possession without admitting the title of the real owner is not tenable.         {Para 41}

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 9918 of 2011

Decided On: 19.03.2020

 Nand Ram  Vs.   Jagdish Prasad

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Whether obstructionist notice is maintainable if obstructionist is not in possession of suit property?

The Lower Court proceeded to hold that only a person in physical possession of the suit property can cause obstruction during the execution of the decree. For that reason, the application preferred by the petitioners came to be rejected. This view taken by the lower Court is the subject-matter of challenge in the present petition.

6. Having considered the rival submissions, I have no hesitation in taking the view that the opinion recorded by the lower Court is manifestly wrong. In fact the same is contrary to the spirit of the scope of issues to be answered in the obstructionist proceedings by the Executing Court. However, if any guidance is required in support of this, we may usefully refer to Rules 97 and 101 of Order XXI of Civil Procedure Code.

7. Indeed, Rule 97 may not throw direct light on the point in issue, but the controversy stands squarely answered by the opening part of Rule 101 which mandates that all questions including question relating to right, title or interest in the property arising between the parties to a proceeding on an application under Rule 97 or Rule 99 or their representatives and relevant to adjudication of the application, shall be determined by the Court dealing with the application, and not by a separate suit.

8. A priori, the purport of Rule 101 is wide enough to encompass the claim of the petitioners that they have acquired right, title and interest in the suit property on account of certain transaction with their predecessors who claim through the Judgment debtor.

9. For the time being it is unnecessary to dilate the controversy as to whether the petitioners have acquired such right after the institution of the, suit for eviction; so as to disentitle them to independently contest the obstructionist proceedings-keeping in mind the tenor of Rule 102 of Order XXI of Civil Procedure Code. That is a matter which will have to be addressed before the Lower Court in the first instance. For the time being I would only observe that the opinion recorded by the Lower Court that only a person who is in physical possession is entitled to cause obstruction and for which reason eligible to be impleaded as party to the obstruction proceeding is untenable in law. 

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 699 of 2005

Decided On: 11.09.2008

Arihant Builders Pvt. Ltd. Vs. Manjula Vithaldas Kapadia and Ors.

Hon'ble Judges/Coram:

A.M. Khanwilkar, J.

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