MARIA MARGARIDA SEQUERIA FERNANDES & Ors. v. ERASMO JACK DE SEQUERIA(DEAD) THROUGH L.RS

2.2. In civil cases, pleadings are extremely important E for ascertaining the title and possession of the property in question. Possession is an incidence of ownership and. can be transferred by the owner of an immovable property to another such as in a mortgage or lease. A licensee holds possession on behalf of the owner. Possession is important when there are no title F documents and other relevant records before the Court, but, once the documents and records of title come before the Court, it is the title which has to be looked at first and due weightage be given to it. Possession cannot be considered in vacuum. There is a presumption that G possession of a person, other than the owner, if at all it is to be called possession, is permissive on behalf of the title-holder. Further, possession of the past is one thing, and the right to remain or continue in future is another thing. It is the latter which is usually more in controversy H MARIA MARGARIDA SEQUERIA FERNANDES v. ERASMO JACK 84 7 DE SEQUERIA (D) TR. L.RS. than the former, and it is the latter which has seen much A abuse and misuse before the Courts. A suit can be filed by the title holder for recovery of possession or it can be one for ejectment of an ex-lessee or for mandatory injunction requiring a person to remove himself or it can be a suit under Section 6 of the Specific Relief Act to B recover possession. [paras 61-65) [874-B-F] the possession or D

2.3. A title suit for possession has two parts - first, adjudication of title, and second, adjudication of possession. If the title dispute is removed and the title is established in one or the other, then, in effect, it becomes C a suit for ejectment where the defendant must plead and prove why he must not be ejected. In an action for recovery of possession of immovable property, or for protecting possession thereof, upon the legal title to the property being established, occupation of the property by a person other than the holder of the legal title will be presumed to have been under and in subordination to the legal title, and it will be for the person resisting a claim for recovery of possession or claiming a right to continue in possession, to establish that he has such a right. To put it differently, wherever pleadings and documents establish title to a particular property and possession is in question, it will be for the person in possession to give sufficiently detailed pleadings, particulars and documents to support F his claim in order to continue in possession. In order to do justice, it is necessary to direct the parties to give all details of pleadings with particulars. Once the title is prima facie established, it is for the person who is resisting the title holder's claim to possession to plead G with sufficient particularity on the basis of his claim to remain in possession and place before the Court all such documents as in the ordinary course of human affairs are expected to be there. Only if the pleadings are sufficient, would an issue be struck and the matter sent to trial, E H 848 SUPREME COURT REPORTS [2012] 3 S.C.R. A where the onus will be on him to prove the averred facts and documents. [Paras 66-68) [874-G-H; 875-A-E]

2.4. The person averring a right to continue in possession shall, as far as possible, give a detailed particularized specific pleading along with documents to 8 support his claim and details of subsequent conduct which establish his possession. It would be imperative that one who claims possession must give all such details as enumerated hereunder. They are only illustrative and not exhaustive. (a) who is or are the owner C or owners of the property; (b) title of the property; (c) who is in possession of the title documents; (d) identity of the claimant or claimants to possession; (e) the date of entry into possession; (f) how he came into. possession - whether he purchased the property or inherited or got the D same in gift or by any other method; (g) in case he purchased the property, what is the consideration; if he has taken it on rent, how much is the rent, license fee or lease amount; (h) If taken on rent, license fee or lease - then insist on rent deed, license deed or lease deed; (i) · E who are the persons in possession/occupation or otherwise living with him, in what capacity; as family rnembers, friends or servants etc.; (j) subsequent conduct, i.e., any event which might have extinguished his entitlement to possession or caused shift therein; and F (k) basis of his claim that not to deliver possession but continue in possession. [Paras 69-70) [875~F-H; 876-A-E]

2.5. Apart from these pleadings, the Court must insist on documentary proof in support of the pleadings. All those documents would be relevant which come into G existence after the transfer of title or possession or the encumbrance as is claimed. While dealing with the civil suits, at the threshold, the Court must carefully and critically examine pleadings and documents. The Court will examine the pleadings for specificity as also the H MARIA MARGARIDA SEQUERIA FERNANDES v. ERASMO JACK 849 DE SEQUERIA (D) TR. L.RS. supporting material for sufficiency and then pass A appropriate orders. Discovery and production of documents and answers to interrogatories, together with an approach of considering what in ordinary course of human affairs is more likely to have been the probability, will prevent many a false claims or defences from sailing B beyond the stage for issues. If the pleadings do not give sufficient details, they will not raise an issue, and the Court can reject the claim or pass a decree on admission. On vague pleadings, no issue arises. Only when he so establishes, does the question of framing an issue arise. c Framing of issues is an extremely important stage in a civil trial. Judges are expected to carefully examine the pleadings and documents before framing of issues in a given case. [Paras 71-75] [876-F-H; 877-A-C]

2.6. In pleadings, whenever a person claims right to D continue in possession of another property, it becomes necessary for him to plead with specificity about who was the owner, on what date did he enter into possession, in what capacity and in what manner did he conduct his relationship with the owner over the years till the date of E suit. He must also give details on what basis he is claiming a right to continue in possession. Until the pleadings raise a sufficient case, they will not constitute sufficient claim of defence. The Court must ensure that pleadings of a case must contain sufficient particulars. Insistence F on details reduces the ability to put forward a non existent or false claim or defence. In dealing with a civil case, pleadings, title documents and relevant records play a vital role and that would ordinarily decide the fate of the case. [Paras 76, 78-79] [877-D-G] G Bell Atlantic Corporation et al. v. William Twombly 550 U.S. 544, 127 S.Ct. 1955; John. D. Ashcroft, Former Attorney General, et al. v. Javaid Iqbal et al. 556 U.S. 662, 129 S.Ct.1937 - referred to. 850 . SUPREME COURT REPORTS [2012] 3 S.C.R. A Dr. Arun Mohan in his classic treatise on "Justice, Courts and Delays" - referred to. Suit for Mandatory Injunction B

It is a settled principle of law that no one can take law in his own hands. Even a trespasser in settled possession cannot be dispossessed without recourse of law. It must be the endeavour of the Court that if a suit for mandatory injunction is filed, then it is its bounden duty and obligation to critically examine the pleadings C and documents and pass an order of injunction while taking pragmatic realities including prevalent market rent of similar premises in similar localities in consideration. The· Court's primary concern has to be to do substantial justice. Even if the Court in an extraordinary case decides D to grant ex-parte ad interim injunction in favour of the plaintiff who does not have a clear title, then at least the plaintiff be directed to give an undertaking that in case the suit is ultimately dismissed, then he would be required to pay market rent of the property from the date when an E ad interim injunction was obtained by him. It is the duty and the obligation of the Court to at least dispose off application of grant of injunction as expeditiously as possible. It is the demand of equity and justice. [Para 80) [877~H; 878-A-D] F Thomas Cook (India) Limited v. Hotel Imperial 2006 (88) DRJ 545 - approved.

Due process of Law G Due process of law means nobody ought to be condemned unheard. The due process of law means a person in settled possession will not be dispossessed except by due process of law. Due process means an opportunity for the defendant to file pleadings including H written statement and documents before the Court of law. MARIA MARGARIDA SEQUERIA FERNANDES v. ERASMO JACK 851 DE SEQUERIA (D) TR. L.RS. It does not mean the whole trial. Due process of law is A satisfied the moment rights of the parties are adjudicated by a competent Court. [Para 81] [878-E-F]

False claims and false defences False claims and defences are really serious B problems with real estate litigation, predominantly because of ever escalating prices of the real estate. Litigation pertaining to valuable real estate properties is dragged on by unscrupulous litigants in the hope that the other party will tire out and ultimately would settle with C them by paying a huge amount. This happens because of the enormous delay in adjudication of cases in our Courts. If pragmatic approach is adopted, then this problem can be minimized to a large extent. In order to curb uncalled for and frivolous litigation, the Courts have o to ensure that there is no incentive or motive for uncalled for litigation. It is a matter of common experience that Court's otherwise scarce time is consumed or more appropriately, wasted in a large number of uncalled for cases. This problem can be solved or at least be E minimized if exemplary cost is imposed for instituting frivolous litigation. Imposition of heavy costs would also control unnecessary adjournments by the parties. In appropriate cases, the Courts may consider ordering prosecution otherwise it may not be possible to maintain purity and sanctity of judicial proceedings. [Paras 84, 85] [880-B-H] F Ramrameshwari Devi and Others v. Nirmala Devi and Others (2011) 8 sec 249 - relied on.

Grant or refusal of an injunction G

6.1. Grant or refusal of an injunction in a civil suit is the most important stage in the civil trial. Due care, caution, diligence and attention must be bestowed by the H 852 SUPREME COURT REPORTS [2012) 3 S.C.R. A C judicial officers and judges while granting or refusing injunction. In most cases, the fate of the case is decided by grant or refusal of an injunction. Experience has shown that once an injunction is granted, getting it vacated would become a nightmare for the defendant. In 8 order to grant or refuse injunction, the judicial officer or the judge mustcarefully examine the entire pleadings and documents with utmost care and seriousness. The safe and better course is to give short notice on injunction application and pass an appropriate order after hearing both the sides. In case of grave urgency, if it becomes imperative to grant an ex-parte ad interim injunction, it should be granted for a specified period, such as, for two weeks. In those cases, the plaintiff will have no inherent interest in delaying disposal of injunction application after obtaining an ex-parte ad interim injunction. The Court, in D order to avoid abuse of the process of law may also record in the injunction order that if the suit is eventually dismissed, the plaintiff undertakes to pay restitution, actual or realistic costs. While passing the order, the Court must take into consideration the pragmatic realities E and pass proper order for mesne profits. The Court must make serious endeavour to ensure that even-handed justice is given to both the parties. [Paras 86-87] [881-A F] F

6.2. Ordinarily, three main principles govern the grant or refusal of injunction. Prima facie case; balance of convenience; and irreparable injury, which guide the Court in this regard. In the broad category of prima facie case, it is imperative for the Court to carefully analyse the G pleadings and the documents on record and only on that basis the Court must be governed by the prima facie case. In grant and refusal of injunction, pleadings and documents play vital role. [Paras 88, 89) [881-G-H; 882- A] H MARIA MARGARIDA SEQUERIA FERNANDES v. ERASMO JACK 853 DE SEQUERIA (D) TR. L.RS.

Mesne Profits A Experience has shown that all kinds of pleadings are introduced and even false and fabricated documents are filed in civil cases because there is an inherent profit in continuation of possession. In a large number of cases, B honest litigants suffer and dishonest litigants get undue benefit by grant or refusal of an injunction because the Courts do not critically examine pleadings and documents on record. In case while granting or refusing injunction, the Court properly considers pleadings and c documents and takes the pragmatic view and grants appropriate mesne profit, then the inherent interest to continue frivolous litigation by unscrupulous litigants would be reduced to a large extent. The Court while injunction should broadly granting consideration the prevailing market rentals. in the locality for similar premises. Based on that, the Court should fix adhoc amount which the person continuing in possession must pay and on such payment, the plaintiff may withdraw after furnishing an undertaking and also E making it clear that should the Court pass any order for reimbursement, it will be a charge upon the property.

Principles of law which emerged in this case are crystallized as under:- H

No one acquires title to the property if he or she was allowed to stay in the premises MARIA MARGARIDA SEQUERIA FERNANDES v. ERASMO JACK 855 DE SEQUERIA (D) TR. L.RS.

5. gratuitously. Even by long possession of A years or decades such person would not acquire any right or interest in the said property. Caretaker, watchman or servant can never B acquire interest in the property irrespective of his long possession. The caretaker or servant has to give possession forthwith on demand. The Courts are not justified in protecting the possession of a caretaker, servant or any C person who was allowed to live in the premises for some time either as a friend, relative, caretaker or as a servant. The protection of the Court can only be D granted or extended to the person who has valid, subsisting rent agreement, lease agreement or license agreement in his favour. The caretaker or agent holds property of the principal only on behalf of the principal. He E acquires no right or interest whatsoever for himself in such property irrespective of his long stay or possession. [Para 101] (885-C-H; 886-A] F

In this view of the matter, the impugned judgment of the High Court as also of the trial court are set aside and we accordingly do so. Consequently, directions is passed to hand over possession of the suit premises to the appellant. In the peculiar facts and circumstances of G this case, the legal representatives of the respondent are granted three months time to vacate the suit premises. They are further directed that after the expiry of the three months period, the vacant and peaceful possession of the suit property be handed over to the appellant. The H 856 SUPREME COURT REPORTS [2012] 3 S.C.R. B A usual undertaking to this effect be filed by the legal representatives of the respondent in this Court within two weeks. The legal representatives of the respondent are also directed to pay Rs.1,00,000/- (Rupees one Lakh) per month towards the use and occupation of the premises for a period of three months.

This appeal emanates from the judgment and order dated 5.5.2009 passed by the High Court of Bombay, Bench at Goa in Civil Revision Application No.3 of 2009. B

3. Appellant No.1 and respondent No.1, Erasmo Jack de Sequeira (now dead) were sister and brother, hereinafter referred to as appellant and respondent respectively.

4. According to the appellant, she is the sole owner and c is in exclusive possession of the suit property. Her title of the said suit property was clearly admitted, and never disputed by the respondent, Erasmo Jack de Sequeira. According to the appellant, the suit property was given to her brother as a caretaker. The respondent has kept appellant, his own sister, D out of her suit property for about two decades by suppressing relevant material and pertinent information from the Court and abusing the process of law. E

5. Both the appellant and the respondent hail from the State of Goa and belong to one of the leading and well known families of Goa. The father of the appellant and the respondent, Dr. Jack D. Sequeira was an affluent businessman and a well known politician of Goa. Dr. Sequeira, during his lifetime, gave a number of properties worth crores of rupees to the respondent and also gave some properties to the appellant and her sisters. F The respondent was given a soft drink factory at Goa, mining leases of iron ore, agricultural lands and residential plots including one situated at Dona Paula, which is located next to the Governor's House. Though the respondent was given properties worth several crores of rupees, he still eyed on a G small property which the appellant purchased through Court auction after paying full sale consideration. The respondent brother of the appellant was also a very influential and important Member of Parliament. He was also very active in the local politics in Goa. H MARIAMARGARIDASEQUERlAFERNANDES v. ERASMO JACK 859 DE SEQUERIA (D) TR. L.RS.

[DALVEER BHANDARI, J.]

6. The appellant urged that the suit property originally A belonged to her grandmother. Under the Portuguese Law, her (grandmother's) children, i.e. two sons and a daughter (the appellant's father, uncle and aunt) got 1/3rd share each in the said suit property. The suit property of her grandmother was put to auction and this suit property in question was purchased B in auction by the appellant. In the Inventory Proceedings No. 1075/935 in the year 1968, she became the exclusive owner of the suit property. Admittedly, the appellant has placed a certified copy of the order of the Civil Judge, Senior Division at Panaji dated 27th May, 1972 issued in favour of the c appellant. According to the appellant, the possession and title of the suit property in favour of the appellant is established from the judgment of the Inquiry Officer of City Survey Tiswadi, Panjim, Goa. The said order was not only passed in the presence of the respondent, but also in the presence of his D Attorney, Rodrigues who was also a senior executive officer of the respondent. The relevant portion of that judgment is as under:- "The claim put forth by Shrimati Maria Teresa de Sequeria from Panaji, in respect of Chalta No.14 of P.T. Sheet 65 E was inquired into and it was found that the same belongs to the said Maria Teresa de Sequeria in view of Inventory Proceedings No.9-1968 [1075-935] - vide Certificate issued by the Court of Civil Judge Senior Division, Panaji dated 27.5.72 and as such her title and possession to the F Chalta No.14 of P.T. SheetNo.65 is confirmed. "

7. According to the appellant, she obtained the exclusive title of the plot and the house in question.

8. It may be pertinent to mention that the respondent had even participated in the said Court proceedings on behalf of his handicapped aunt, Edna May Sequeria as a guardian and received a cheque on her behalf. The appellant had deposited Rs.40,000/-, the owelty money in the said Court proceedings which became payable on account of the purchase of the said H G 860 SUPREME COURT REPORTS [2012] 3 S.C.R. A house. The said suit property stood registered in Panaji Municipal Council in the name of the appellant. House tax was paid by the appellant to the Municipality on self-occupation basis. Further, it is submitted that the possession of the suit property always remained with the appellant. B

9. The Panaji Municipal Council, Goa issued a certificate showing that possession of the suit premises was with the appellant and the house tax of the suit property was paid by her and she was the recorded owner of the same. According c to the appellant, the respondent himself had acknowledged possession and title of the suit property in favour of the appellant. D .10. The appellant submitted that she got married on 8.9.1974 to an Officer of the Indian Navy who was posted from time to time in different places in India. She also submitted that the respondent - her brother requested her that as his office is just adjacent to the suit property, therefore, it would be convenient for him to run his office and to keep an eye on the suit property of the appellant. Therefore, the suit property was E given to the respondent only as a caretaker.

The respondent executed a leave and licence agreement in the name of his wife to shift with his family out of the suit property completely on 1.4.1991 to Campo Verde F Apartments at Caranzalem in Goa. The leave and licence agreement executed by the respondent's wife for the new house wherein the respondent and his family shifted on 1.4.1991 and thereafter got the agreement renewed on 7 .3.1992. The respondent also owned one flat in Goa and occupied on G 17.4.1991.

According to the appellant, the respondent handed over the suit property to his sister Maria in the first week of May, 1991 and requested her that some items which were already lying in the suit property which the respondent did not immediately require in his new place may be kept in the suit property. H MARIA MARGARIDA SEQUERIA FERNANDES v. ERASMO JACK 861 DE SEQUERIA (D) TR. L.RS. [DALVEER BHANDARI, J.] According to the appellant, her brother before shifting to the A tenanted flat, handed over the keys of the house to the appellant. The appellant did not take any receipt from her brother or click a photograph to create evidence showing handing over of the custodian possession of the suit property. The respondent shifted to his new flat and the suit property was lying almost B vacant because the appellant along with her husband was living outside Goa on his different official postings.

According to the appellant, the details of electricity, water and telephone bills clearly demonstrate that the house C was locked and the small amounts payable in the said months, i.e., August, September, October and November in the year 1991, February 1992 also showed very nominal payments of Rs.30/-, Rs.33/-, Rs.68/- which conclusively proved that a house comprising of several rooms, drawing, dining, bathrooms, verandah, lawns etc. was lying vacant. D

On 20.5.1992, the appellant returned with her family to Goa and occupied and enjoyed the said suit property. The · · appellant submitted that she has a valid title/ownership and was in possession of the suit property and she could not be E dispossessed by a Court in a suit for injunction. The appellant submitted that under Section 6 of the Specific Relief Act, the appellant could not have been legally compelled to hand over the possession to the respondent. It may be pertinent to mention that the respondent had filed a suit for injunction before the Trial F Court. The Trial Court granted injunction in favour of the respondent and the same was upheld by the High Court in the impugned judgment in Civil Revision Application.

According to the appellant, the impugned judgment of the High Court by which the judgment of the Trial Court was G affirmed is totally contrary to the law laid down by this Court in Mahabir Prasad Jain v. Ganga Singh (1999) 8 SCC 274. It was also asserted by the appellant that this Court in the aforementioned case has laid down the parameters of Section 6 of the Special Relief Act, 1963. In the instant case, the Courts H 862 SUPREME COURT REPORTS [2012] 3 S.C.R. A below were oblivious of the principle under Section 6 of the Specific Relief Act. The appellant urged that the respondent's suit for injunction was not maintainable as he could not claim to be in lawful and legal possession of the premises at all. The appellant argued that the Courts below have missed the main issue as the respondent was merely in custody of the house on behalf of the appellant. According to her, a caretaker can never sue a valid title-holder of the property. B

The appellant further urged that a caretaker's possession can never be a possession of individual's right and C no such suit for injunction under Section 6 of the Specific Relief Act was maintainable. The appellant contended that the respondent returned the keys of the suit property sometime in May 1991. The appellant asserted that the respondent had manipulated the system and collected false and fabricated D evidence in the form of Panchnama in collusion with the local police and was designed to throw out the appellant from her own house.

On 17.6.1992, the respondent filed a suit for permanent E and mandatory injunction in the Court of Civil Judge, Senior Division at Panaji as a Special Civil Suit No.131/92/A. On 22.6.1992, an ex-parte order for depositing the keys was passed while the appellant and her family members were living in the suit premises. The Trial Court decreed the suit. F G

According to the appellant, the impugned judgment of the High Court is contrary to the ratio of the judgment of this Court in Rame Gowda (dead) by LRs. v. M. Varadappa Naidu (dead) by LRs. and Another (2004) 1 SCC 769 wherein a three-Judge Bench of this Court has observed that possession is no good against the rightful owner and that the assumption that he is in peaceful possession will not work and cannot operate against the true lawful owner.

Reliance has also been placed by the appellant on H Southern Roadways Ltd., Madurai v. S.M. Krishnan (1989) 4 MARIA MARGARIDA SEQUERIA FERNANDES v. ERASMO JACK 863 DE SEQUERIA (D) TR. L.RS. [DALVEER B\""IANDARI, J.] . ., SCC 603 wherein this Court has held that it is the settled law A that agent has no possession of his own and caretaker's possession is the possession of the principal. This Court has taken the view that possession of the agent is the possession of the principal and in view of the fiduciary relationship, the agent cannot be permitted to claim his own possession. Thus, B according to the appellant, the respondent had no right, title and/or interest in the suit property and was not in lawful possession. Therefore, the suit for injunction under Section 6 of the Specific Relief Act is totally misconceived. The appellant contended that the High Court in the impugned judgment has c gravely erred in affirming the judgment of the Trial Court.

According to the case of the respondent, he was permitted to live in the suit premises because of the family arrangement. The respondent remained in possession of the suit property for several years and hence he cannot be D dispossessed without following due process of law.

It is also submitted by the respondent that he was in possession of the suit premises for 28 years and was forcibly dispossessed on 15.6.1992. The respondent also submitted E that he never conceded that the title of the suit property was with the appellant. He also submitted that it is contrary to the records that the respondent was a caretaker.

The learned counsel for the parties reiterated the submissions made before the Courts below. The appellant F submitted that she is a helpless and hapless sister of the respondent who has been kept out from her own house for more than two decades. The appellant is the owner of the suit property which is evident from the Certificate of the Probate Proceedings known as Inventory Proceeding No.1075/935. G She further submitted that the respondent, her brother, was a party in the said Probate Proceedings where the appellant acquired the title of the suit property on 27 .5.1972. The respondent collected the sale consideration amount on 17th March, 1972 vide Cheque No.33559 drawn on Bank of India H 864 SUPREME COURT REPORTS [2012] 3 S.C.R. A on behalf of his aunt in the auction proceedings.

The appellant submitted that the City Civil Court held that the appellant is the owner of the suit property and has the title and possession of the same which was never challenged 8 by the respondent. The appellant also submitted that apart from the title of the suit property, house tax records and wealth tax records indicate that she was and continued to be the owner of the suit property. She further submitted that the utility bills of electricity, water and telephone were of minimal amount which show that the respondent had never resided in the suit C premises. The appellant submitted that the finding of the Trial Court that the appellant had no funds to purchase the property was contrary to record. The High Court has also erroneously affirmed the findings of the Trial Court. D

The appellant urged that the suit filed by the respondent is not based on title. The family arrangement, as alleged by the respondent, is neither pleaded nor proved. The appellant asserted that no suit under Section 6 of the Specific Relief Act lies against the true owner. The appellant submitted that a E caretaker, agent, guardian etc. cannot file a suit under Section 6 of the Specific Relief Act.

According to law laid down by this Court in Rame Gowda (dead) by LRs. (supra), it is the settled legal position that a·possessory suit is good against the whole world except the rightful owner. It is not maintainable against the true owner. F

This Court in Anima Mallick v. Ajay Kumar Roy and Another (2000) 4 SCC 119 held that where the sister gave possession as gratuitous to the brother, this Court restored G possession to the sister as it was purely gratuitous basis and the sister could have reclaimed possession even without knowledge of the brother.

According to the appellant, this Court in Sopan H Sukhdeo Sable and Others v. Assistant Charity MARIA MARGARIDA SEQUERIA FERNANDES v. ERASMO JACK 865 DE SEQUERIA (D) TR. L.RS. [DALVEER BHANDARI, J.] Commissioner and Others (2004) 3 SCC 137 has observed A that no injunction can be granted against the true owner and Section 6 of the Specific Relief Act cannot be invoked to protect the wrongdoer who suppressed the material facts from the Courts.

The appellant submitted that Section 41 of the Specific Relief Act debars any relief to be given to such an erring person as the respondent who is guilty of suppression of material facts. B