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Savrunisha & Others v/s Bhola Nath

Company & Directors' Information:- NATH PRIVATE LIMITED [Active] CIN = U31908PN2013PTC148540

Company & Directors' Information:- NATH AND CO LTD [Strike Off] CIN = U15141KL1946PLC000796

    Second Appeal No. 521 of 2016

    Decided On, 08 November 2019

    At, High Court of Judicature at Allahabad



Judgment Text

The second appeal arises from a judgment and decree dated 11.02.2016 passed in Civil Appeal No.85 of 2015 (Bhola Nath vs. Savrunisha and others), rendered by the learned appellate court, allowing the appeal after reversing the judgment and decree dated 30.07.2015, passed by the learned trial court in Original Suit No.718 of 2007 {Mohd. Rafeeq (since deceased) Through L.Rs. vs. Bhola Nath}. The appellate court dismissed the suit of the plaintiffs-appellants. The learned trial court had decreed the suit, by granting an injunction in favour of the plaintiffs-appellants.

2. The suit was originally instituted by one Mohd. Rafeeq.

3. The plaintiff had filed a suit for injunction against the defendant-respondent, from interfering in his possession, over the property in dispute.

4. The suit was registered as Original Suit No.718 of 2007 {Mohd. Rafeeq (since deceased) Through L.Rs. vs. Bhola Nath}, before the learned Additional Civil Judge, (Junior Division), Court No.2, Gorakhpur.

5. The plaintiff asserted that he was a tenant of the defendant-respondent in the disputed premises. The defendant respondent was trying to evict him forcibly, by recourse to illegal means. The relief sought in the suit, was to injunct defendant-respondent, from evicting the plaintiffs, except in accordance with law.

6. During the pendency of the suit, the plaintiff, Mohd. Rafeeq, died. The legal heirs/legal representatives of the plaintiff Mohd. Rafeeq (since deceased) were substituted after his death. The litigation was thereafter prosecuted by the legal heirs of the plaintiff Mohd. Rafeeq (since deceased). This appeal has been filed by the legal heirs of the plaintiff, who were substituted as plaintiffs.

7. The defendant-respondent filed a written statement, traversing the claim set up in the plaint. The defence taken in the written statement was fourfold. Firstly, the plaintiff was a habitual defaulter who defaulted in payment of rent, and other dues including water tax. Secondly, the plaintiff had sublet the premises to his brother. Thirdly, the plaintiff was also inducted without an allotment order. The subtenant too was inducted without an allotment order. In any case the tenancy was fixed for 11 months. After expiry of 11 months, the tenancy was not renewed.

8. The trial court after exchange of pleadings formulated the following issues for determination:

I. Whether the plaintiff was entitled to an injunction against the defendant to the effect that the plaintiff could not be evicted from shop in dispute except in accordance with process of law?

II. Whether the suit was maintainable? What was the nature relief to which the plaintiff was entitled to?

III. Whether the plaintiff was a lawful tenant of the premises in dispute?

9. Learned trial court found that the plaintiffs-appellants, were the tenants of the defendant-respondent. Since the defendant-respondent had accepted the fact of the tenancy of the plaintiffs-appellants, the plaintiffs-appellants had established their case. The learned trial court, accordingly reasoned that the plaintiffs-appellants were entitled to an injuction. The learned trial court rendered a judgment and decree dated 30.07.2015, in favour of the plaintiffs-appellants, injuncting the defendant-respondent from dispossessing the plaintiffs-appellants without adopting the procedure as per law.

10. Being aggrieved the defendant-respondent carried the judgment and decree of the learned trial court in appeal.

11. The appeal was registered as Civil Appeal No. 85 of 2015 (Bhola Nath vs. Savrunisha and others), before the learned appellate court. The appellate court formulated the following questions for determination.

I. Whether the plaintiff was the tenant of the premises in dispute?

II. Whether the plaintiff was trespasser over the premises in dispute?

12. The appellate court found that the plaintiffs-respondents, were inducted into possession, in violation of the procedure prescribed under Sections 11, 12, 13, 17 and 21 of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as U.P. Act No. 13 of 1972). The learned appellate court held that without a valid allocation under the U.P. Act No. 13 of 1972, no person could be inducted as a tenant, in a premises coming under the purview of the said Act. According to the appellate court, any person who is inducted as a tenant, in violation of the aforesaid provisions of law, like the plaintiffs-appellants, was nothing but an illegal trespasser in possession. Such persons were liable to be evicted.

13. The learned appellate court found that the plaintiffs-appellants, were tenants who consistently defaulted in payment of rent. On this line of reasoning too, the learned appellate court held that the plaintiffs-appellants, were in illegal possession over the premises, and declared them to be trespassers.

14. In the wake of the aforesaid findings, the learned appellate court opined the plaintiffs-appellants being in illegal possession cannot be granted an injunction by the court against the true owner.

15. By the judgment and decree dated 11.02.2016, the learned appellate court accordingly allowed the appeal of the defendant-respondent, and dismissed the suit of the plaintiffs-appellants.

16. The findings of the learned appellate court rest on the material and evidence in the record, and are backed by cogent reasons. No illegality can be found in the aforesaid findings.

17. There is another aspect to the matter, which may be considered.

18. The method of "due process of law" to be adopted by a true owner to evict an unauthorized occupant, and the import of the phrase, "eviction in accordance with law", is settled by authority.

19. Faced with the question of the remedy available in law to a true owner to eject an unlawful occupant, the Hon'ble Delhi High Court in the case of Thomas Cook (India) Ltd. vs. Hotel Imperial, reported at, (2006) 88 DRJ 545, in eloquent words explained the phrases "due process of law", "due course of law" and "recourse to law" in similar fact situation to enduring effect:

"28. The expressions `due process of law', due course of law' and recourse to law' have been interchangeably used in the decisions referred to above which say that the settled possession of even a person in unlawful possession cannot be disturbed `forcibly' by the true owner taking law in his own hands. All these expressions, however, mean the same thing ejectment from settled possession can only be had by recourse to a court of law. Clearly, `due process of law' or `due course of law', here, simply mean that a person in settled possession cannot be ejected without a court of law having adjudicated upon his rights qua the true owner.

Now, this `due process' or `due course' condition is satisfied the moment the rights of the parties are adjudicated upon by a court of competent jurisdiction. It does not matter who brought the action to court. It could be the owner in an action for enforcement of his right to eject the person in unlawful possession. It could be the person who is sought to be ejected, in an action preventing the owner from ejecting him. Whether the action is for enforcement of a right (recovery of possession) or protection of a right (injunction against dispossession), is not of much consequence. What is important is that in either event it is an action before the court and the court adjudicates upon it. If that is done then, the `bare minimum' requirement of `due process' or `due course' of law would stand satisfied as recourse to law would have been taken. In this context, when a party approaches a court seeking a protective remedy such as an injunction and it fails in setting up a good case, can it then say that the other party must now institute an action in a court of law for enforcing his rights i.e., for taking back something from the first party who holds it unlawfully, and, till such time, the court hearing the injunction action must grant an injunction anyway? I would think not. In any event, the `recourse to law' stipulation stands satisfied when a judicial determination is made with regard to the first party's protective action. Thus, in the present case, the Plaintiff's failure to make out a case for an injunction does not mean that its consequent cessation of user of the said two rooms would have been brought about without recourse to law."

20. The Hon'ble Supreme Court placing reliance on the law laid down by the Hon'ble Delhi High Court, in the case of Thomas Cook (supra), reiterated the same position of law in the case of Maria Margarida Sequeira Fernandes (supra) by holding thus:

"79. 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 written statement and documents before the Court of law. It does not mean the whole trial. Due process of law is satisfied the moment rights of the parties are adjudicated by a competent Court.

97. Principles of law which emerge in this case are crystallized as under:

1. No one acquires title to the property if he or she was allowed to stay in the premises gratuitously. Even by long possession of years or decades such person would not acquire any right or interest in the said property.

2. Caretaker, watchman or servant can never acquire interest in the property irrespective of his long possession. The caretaker or servant has to give possession forthwith on demand.

3. The Courts are not justified in protecting the possession of a caretaker, servant or any person who was allowed to live in the premises for some time either as a friend, relative, caretaker or as a servant.

4. The protection of the Court can only be granted or extended to the person who has valid, subsisting rent agreement, lease agreement or license agreement in his favour.

5. The caretaker or agent holds property of the principal only on behalf of the principal. He acquires no right or interest whatsoever for himself in such property irrespective of his long stay or possession."

21. The law has thus been settled, that the lawful process of eviction of an unauthorized occupant by a true owner, essentially means grant of an opportunity to the parties to tender their defence, and its adjudication by a court of law. Once, the courts of law have found that the occupant is a trespasser, or a person in unauthorized occupation, against the claim of the lawful owner; such unauthorized occupant does not have any further right to possession over disputed premises. The said unauthorized occupant has to vacate the premises voluntarily, after the adjudication is entered by the courts. Upon failure to do so, the said person is liable to be evicted by execution of the judgement and decree, holding the former to be an unauthorized occupant/trespasser.

22. In such cases, the findings of illegal occupation by an unauthorized occupant, against the claim of a true owner, rendered by the court, operate as the lawful basis for eviction of such illegal occupant through execution p

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roceedings. No fresh suit for any further adjudication is necessary. 23. This Court in a Second Appeal No. 621 of 2016, Ashfaq Ali vs. Smt. Tahira and 2 Others, held thus: "53. A judgment by a court, holding a person to be an unauthorized occupant against the claim of a true owner fully constitutes the lawful basis of eviction of the unauthorized occupant. This determination is conclusive for securing the eviction of an unauthorized occupant. In the face of the said adjudication, it does not matter who brought the suit. No further judicial enquiry or adjudication by the courts is required for eviction of the unauthorized occupant." 24. The instant appeal is squarely covered with the law settled in the authorities referenced in the preceding paragraphs. No substantial questions of law as such arise in the instant second appeal. 25. Further, learned counsel for the appellant could not point out any substantial question of law which arises in this appeal. The questions of law stated in the memo of appeal are all issues of fact, and do not pose any substantial question of law for determination. 26. In light of the preceding narrative, the Second Appeal is liable to be dismissed and stands, accordingly, dismissed.