Bindeshwari Yadav v. Shri Rai Bahadur Dalip Narain Singh & Ors.

plaintiff Rai Bahadur Dilip Narayan Singh Trust Estate, Munger has filed Title Suit No.24 of 1997 seeking relief for declaration of title and confirmation of possession over the suit premises which is a shop. The plaintiff claims that the property belongs to the Trust and the Trust is in possession through its tenant Suresh Prasad Gupta. The impugned order has been passed in T.S.No.24 of 1997. The case of the petitioner-defendant-respondent no.1 is that he had purchased the suit premises from Prem Lata Devi, wife of Raghubansh Narayan Singh, who had executed a Power of Attorney in favour of earlier Trustee Rai Bahadur Dilip Narayan Singh Trust through a valid sale deed dated 28.8.1996 and as such, the plaintiff has no title over the premises and itcannot get a declaration of title from the court. It may be mentioned here that the plaintiff had also filed a title suit bearing T.S. No. 97 of 1996 for grant of injunction against Prem Lata Devi and others to restrain them from transferring the property belonging to the plaintiff of the suit. The present petitioner was not a party in the said suit and as such, learned counsel submits that he is not in a position to give any comment regarding this aspect. The stand of the Patna High Court CWJC No.8689 of 2011 (6) dt.09-01-2013 3 respondent no.1 is that the said sale deed was executed by Prem Lata Devi during the pendency of T.S.No.97 of 1996 and as such, it is hit by the principle of lis pendence. Returning to the issues in the present application, it may be stated here that an application was filed on behalf of defendant-respondent no.1 that the possession of the suit premises should be restored in his favour which was contested by the plaintiff. The reasons for filing such an application was that it was the petitioners‟ case that he had come into possession of the suit premises after he had signed an agreement with the tenant Suresh Prasad Gupta who is said to have willingly handed over the shop and put the petitioner in possession thereof. The case of the respondent no.1, on the other hand, is that the stand of the petitioner is completely falsified by action taken by Suresh Prasad Gupta who had filed a criminal case alleging that the petitioner had forcibly entered into the shop, removed the belongings kept therein, and was forcibly evicted from the shops. Suresh Prasad Gupta has been examined as a witness in the case. Although he admitted the fact that Prem Lata Devi had executed a sale deed in favour of the petitioner, Patna High Court CWJC No.8689 of 2011 (6) dt.09-01-2013 4 he had specifically stated at paragraph no.10 of his deposition that he had not signed on any document which would indicate that he had willingly handed over possession of the shop or the furniture kept in the shop to the petitioner. It would also be relevant to mention here that during the pendency of the suit, respondent no.1 had filed an application under Order 39 Rule 1(2) of the Code of Civil Procedure (hereinafter referred to as the „Code‟,) which was decided in his favour by the learned Munsif-2, Munger by order dated 3.2.1999. The relevant part of the said order is quoted hereinbelow: “In view of the above circumstances, the court came to the conclusion that the plaintiff has strong prima facie case and that the balance of convenience lies in favour of the plaintiff. On refusal of the prayer of injunction, the plaintiff will suffer irreparable injury. So, the petition dated 7.7.1997 filed by the plaintiff is hereby allowed. Therefore, the defendants are directed to restrain by temporary injunction from dispossessing the plaintiff from the suit house till the disposal of the suit.” Being aggrieved by the order of the Munsif, the petitioner filed an appeal bearing Misc. Appeal No. 4 of 1999 which was dismissed. However, while dismissing the appeal, the appellate court has observed that “ it does not appear just and proper to interfere with the order of the learned lower court Patna High Court CWJC No.8689 of 2011 (6) dt.09-01-2013 5 as the learned lower court has specifically passed the order restraining the defendant from dispossessing the person who is in occupation of the suit house.” It is argued by the counsel for the petitioner, on the basis of the aforesaid discussions, that the person in occupation of the suit house is the tenant and as such, no relief was granted to the plaintiff-respondent no.1. This argument, however, cannot be sustained in view of the fact that the possession of the plaintiff, whether it be directly or indirectly, would be of the person who has been declared to be in possession. Obviously the trial court has declared the possession of the plaintiff over the suit premises and as such, the argument is not tenable with respect to the possession of the tenant. The question that would arise for consideration is whether a person, who has illegally entered a property, can be declared to be in possession of the property in question? The application filed by respondent no.1 as stated earlier, was for restoration of possession and as it was in violation of the order passed under order 39 Rule 2(a) of the Code. The application for restoration of possession was allowed by the Additional Munsif on 4.7.2010 taking into consideration the F.I.R. lodged Patna High Court CWJC No.8689 of 2011 (6) dt.09-01-2013 6 against the defendant no.1 that is Bindeshwari Yadav and his son Vijay Yadav. The result of lodging of the first information report was that the police had forcibly evicted the petitioner and at present, the property is in police possession. The order passed in favour of the petitioner was challenged by filing C.W.J.C.No.1309 of 2010 which was disposed of by order dated 20.1.2011 remanding the matter to the court below, on the ground that the order of the Additional Munsif, 4, Munger was passed without giving any reasons. The impugned order has been passed on remand from the high Court. Learned counsel for the petitioner submits that the impugned order restoring the possession of the petitioner ought not to be passed in view of the fact that it would amount to allowing the suit itself. The reliefs sought and as set out in para-12 of the plaint (Annexure-3) reads as follows: “12. YAH KI WADI NIMNALIKHIT ANUTOSH KE LIYE DAWA KARTA HAI; (KA) YAH KI PARISHISHT EK KI SAMPATTI PAR WADI KA SATYA DAKHAL EWAM KABJA GHOSIT KIYA JAI (KHA) YAH KI PRATIWADI GAN KO STHAYEE NISEDHAGYA DWARA UKT SAMPATTI PAR JANE SE ROKA JAI TATHA WADI KE SHANTIPURN DAKHAL PAR PRATIWDI GAN KE AWARODH KARNE SE ROKA JAI, (GA) (GA) YAH KI WAD KA KHARCHA PRATIWADI Patna High Court CWJC No.8689 of 2011 (6) dt.09-01-2013 7 GAN KO DILAYA JAI, (GHA) YAH KI ANYA KOI ANUTOSH JO NYAYALAYA KI DRISHTI MEIN UCHIT PRATIT HO WAH ANUTOSH WADI KE MUDALHAHUM KE KHILAF KIYA JAI.” The plea raised on behalf of the petitioner is not the acceptable to this court, in view of the fact, that even if the prayer in the plaint is for confirmation of possession and prayer to restrain the defendant from dispossessing the plaintiff, no party can take the law in to his own hands by forcibly taking possession in the teeth of the order of injunction, wherein, there is a finding that prima facie the plaintiff is in possession, whether it be directly or indirectly. The suit was for confirmation of possession, not for recovery, therefore, it cannot be said that the trial court by restoring the possession of the plaintiff has allowed the suit. The learned Munsif has considered all the documents with respect to this aspect of the matter specifically the F.I.R., the affidavit of the tenant Suresh Prasad Gupta and the police report submitted in the case. After looking into all the documents and discussing each of them, the Munsif has come to a finding that the defendant has forcibly entered the shop and Patna High Court CWJC No.8689 of 2011 (6) dt.09-01-2013 8 looted all the materials and dispossessed the tenant. The court below has also rejected the claim of the petitioner that the tenant Suresh Prasad Gupta had signed on a document, which has been filed in the court stating that Suresh Prasad Gupta had willingly handed over all the furniture of the shop to the plaintiff on payment of a price. The court below has come to the conclusion that the so-called signature of Suresh Prasad Gupta on this document, does not tally with the signature in the deposition. The trial court has thus, on the basis of all the facts aforesaid, restored the possession of the petitioner of the premises in question. A submission has also been raised on behalf of the petitioner that even if the court below holds that the petitioner had possibly evicted Suresh Prasad Gupta or had any doubt regarding this matter, the court ought to treat the property as the custodia legis and hand it over to the person who succeeds in the suit. The submission made on behalf of the petitioner would be tenable, if there was some dispute regarding the question as to who was prima facie in possession of the suit property. In this case the court has prima facie found the respondent no.1-plaintiff in possession. In view of the finding Patna High Court CWJC No.8689 of 2011 (6) dt.09-01-2013 9 given by the court below and its affirmation by the appellate court, regarding the fact that the plaintiff who is respondent no.1 in this case was found to be in prima facie possession of the suit property, this court finds no reason to hold that the property should be treated as custodia legis. Learned counsel for the petitioner has relied on a judgment in the case of Metro Marins and another Vs. Bonus Watch Co. Pvt. Ltd. & others reported in AIR 2005 SC-1444 to uphold the proposition that the finding given by reasoned order would amount to decree of a suit before the trial concluded. The facts of the case is distinguishable from the facts of the present case. The plaintiff had filed the suit for declaration of possession alleging that the defendant, who was a licensee should hand over the possession of the property in question as the period of licence had expired, and that he was entitled to a decree of eviction of the suit property along with some other relief(s). In the suit, an interlocutory application was filed praying therein for a decree and also in the alternative for an injunction directing the defendant to immediately hand over vacant and peaceful possession of the suit property to the plaintiff. The learned Single Judge hearing the matter came to Patna High Court CWJC No.8689 of 2011 (6) dt.09-01-2013 10 the conclusion that he could not find any reason to pass any decree or to grant mandatory injunction directing the defendant to hand over the possession of the flat in view of the fact that the suit was still pending, the findings were reversed by the appellate court. Specifically the appellate court held that there was a relationship of licensee and licensor between the parties. It also came to a conclusion that the defendant was willing to voluntarily surrender the possession, but did not do so because the plaintiff did not agree to repay the security amount. It was also recorded that for the past four years, the property in question has been under a caretaker and such property was not used for commercial purposes. In this background the appellate court directed the defendant to hand over the possession to the plaintiff. In such circumstances, the apex court has held that an interim order directing handing over possession would amount to decreeing the suit. The facts of the present case are clearly distinguishable inasmuch as the defendant was never in possession of the suit premises rather the plaintiff was in possession, whereas in Metro Marins case there was a prayer on behalf of the plaintiff during the pendency of the suit to hand Patna High Court CWJC No.8689 of 2011 (6) dt.09-01-2013 11 over possession to the plaintiff on the ground that the term of licence had expired whereas in the present case, the plaintiff claims confirmation of possession. It is a specific case that the property in question was on rent and that it was in possession of the plaintiff through the tenant who has been forcibly evicted. This aspect of the matter has been prima facie decided in favour of the plaintiff. Learned counsel for the defendant respondent no.1, on the other hand, has referred to the case laws for the proposition that the court has the jurisdiction to restore the parties back in possession, if they have been dispossessed during the pendency of the suit. The first case relied upon by him is in the case of Tanusree Basu and others Vs. Shani Prasad Basu and others reported in (2008) 4 SCC 791. This case was for partition with respect to three flats which have been allotted to the owner as a result of development agreement. The co- owners were claiming that each of them were in possession of all the three flats. However, it was agreed between the parties that as part of a temporary settlement, each of them were occupying one of the three flats. It was held by the apex court that co-owners had exclusive possession of the property by Patna High Court CWJC No.8689 of 2011 (6) dt.09-01-2013 12 virtue of injunction. However, there cannot be general proposition of law that the possession of one co-owners would be treated as the possession of all. It was admitted that although the flats were allotted jointly to the parties, they had by mutual adjustment, came in possession of the three flats in question. In the circumstances, the court held that the parties seeking injunction, could not prove that there was an exclusive possession of the flats in question due to the mutual agreement of adjustment between the parties. The facts in the present case would be the similar to the facts in the aforesaid case. In this case, the petitioner was in possession and merely because the defendant had dispossessed the tenant through whom the petitioner was claiming the possession, it could not be said that restoring possession would amount to deciding the suit. If such a proposition was to be allowed, in the present facts, it would be to a situation of anarchy where the parties would take law in hand and forcibly dispossess the other party during the pendency of a suit and thereby derive undue advantage, taking a stand that restoration cannot be allowed, as it would amount to decreeing the suit before it is decided. Having heard learned counsels for the parties, in view Patna High Court CWJC No.8689 of 2011 (6) dt.09-01-2013 13 of the law discussed above, and after considering the facts of the case, this court finds that the order restoring the possession of the plaintiff is justified and accordingly, there being no jurisdictional error, this writ application is dismissed. As a consequence of the disposal of the writ application, the petitioner would be entitled to put back in possession of the suit property which would be subject to the final result of the suit. ahk/- (Sheema Ali Khan, J.)