Allowed

Maroti Jairam v. Mahadu Govind Kadam and Others

Bombay HC5 May 2010SA/545/1989

Case brief

AI extract

What is this about?

The High Court allowed a second appeal filed by a plaintiff regarding a suit for perpetual injunction. The court held that a person in settled possession is entitled to retain possession and cannot be forcibly evicted without following the due process of law, even against the true owner, relying on the principle of settled possession.

What did the court decide?

The second appeal was allowed, the judgment and decree of the first appellate court were set aside, the decree of the trial court was restored, and the appellant is entitled to injunction until evicte

Maroti Jairam Vs Mahadu Govind Kadam and Others — Property and Title | Bombay HC (2010)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD

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SECOND APPEAL NO.545 OF 1989

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Maroti s/o Jairam Kadam,
age major, occupation:
agril. r/o Kondha, TalukaAppellant/
and District Nanded.ori.Plaintiff

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versus

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1.Mahadu s/o Govind Kadam,
age major, occup. agril.
r/o Kondha, Taluka and
District Nanded.

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2. Sujanbai w/o Goivinda Kadam, age major, occupation agril. r/of Kondha, Tq.& Dist.Nanded

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3. Parwatibai w/o Mahadu Kadam age major, occupation agril. Respondents/ r/of Kondha, Taluka Nanded. orig.defendants

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------------------------------------------------------
Shri P.G. Godhamgaonkar, Advocate for the appellant.
Shri V.D.Patnoorkar,Advocate for Respondent Nos.1 & 2.

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Coram : P.R. Borkar, J.
Date : May 05, 2010

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ORAL JUDGMENT

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01.This appeal is preferred by original
plaintiff whose suit for perpetual injunction
simplicitor bearing R.C.S. No.482 of 1983 was

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decreed by the learned Civil Judge, Junior
Division, Nanded on 22.2.1985, but which judgment

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and decree was reversed by learned III Additional
District Judge in R.C.A. No.84 of 1985 decided on
7.10.1989.

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02.Briefly stated, it is the case of present
appellant-plaintiff that respondents-defendants
were the owners of southern side 2 hectare 8 R.
portion of land out of block No.52 of village
Kondha, Taluka and District Nanded. In 1982,
Respondents-defendants gave the said land on crop
share basis for a period of five years i.e. from
1982-83 to 1987-88 to the appellant-plaintiff.
Thus, the plaintiff was put in possession of the
suit property. Since Respondents-defendants
obstructed possession of the Plaintiff, suit was
filed by the plaintiff against defendants for
perpetual injunction.

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03.Respondents-defendants appeared in the

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suit and filed written statement at Exh.13. They
denied that the land was given to the plaintiffs
on crop share basis for a period of five years as
claimed by the plaintiff. Execution of Batai

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Patra was also denied and delivery of possession
to the plaintiff was also challenged. Defendants
denied to have put the plaintiff in possession of
the suit property. According to Defendants they
were in possession of and were cultivating the
suit property. On the basis of these pleadings,
they prayed for dismissal of the suit.

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04.The trial court came to the conclusion

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that the plaintiff was in possession and that his
possession was lawful and since there was
obstruction by defendants to the possession of the
plaintiff, plaintiff was held to be entitled to
injunction. The First appellate court framed only
two points for consideration and answered the same
in the negative which are reproduced below:

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(i) Whether the respondent/pltf. proves that, on 17-4-82 the defendants No. 1 and 2 executed Batainama in his favour ?

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No

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(ii) Whether the plaintiff proves that he has right to remain in possession of suit land permanently ?

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No

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Thus the appeal before the District Court by
defendants was allowed and the decree of the trial
court in favour of the plaintiff was set aside.

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05.It may be noted that the District Court
presumed that plaintiff was in possession of the
suit property as can be seen impliedly from point
No.2 as framed which is reproduced above.
However, it answered the question whether the
plaintiff had right to remain in possession
permanently in the negative on the ground that
Bataipatra is not proved.

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06. This appeal is admitted by order dated
18.12.1989 on substantial questions of law
involved in ground Nos.3,4,7,8,10 and 11 of the
appeal memo. However, at the time of arguments,
learned counsel of the appellant stated that this
appeal can be disposed of on one question of law,

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viz. whether, when the appellant-plaintiff has
been in settled possession of the suit property
legally or otherwise, respondents-defendants can
forcibly evict the plaintiff without following due

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process of law and submitted that this Court
should answer the said question in the negative
and allow the appeal and direct that the
plaintiff-appellant be not evicted except by due
process of law. For the purpose, learned Advocate
relied upon the case of Rame Gowda vs. M.
Varadappa Naidu, (2004) 1 SCC 769 and more
particularly paragraphs 8 and 9 thereof.

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"8.It is thus clear that so far as the
Indian law is concerned, the person in
peaceful possession is entitled to retain
his possession and in order to protect
such possession he may even use
reasonable force to keep out a
trespasser. A rightful owner who has
been wrongfully dispossessed of land may
retake possession if he can do so
peacefully and without the use of
unreasonable force. If the trespasser is
in settled possession of the property
belonging to the rightful owner, the
rightful owners shall have to take
recourse to law; he cannot take the law
in his own hands and evict the trespasser
or interfere with his possession....."

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9.It is the settled possession or
effective possession of a person without
title which would entitle him to protect
his possession even as against the true
owner. The concept of settled possession
and the right of the possessor to protect
his possession against the owner has come
to be settled by a catena of decisions.
Illustratively, we may refer to Munshi

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Ram vs. Delhi Admn., Puran Sing v. State
of Punjab and Ram Rattan v. state of U.P.
The authorities need not be multiplied.
In Munshi Ram case, it was held that no
one, including the true owner, has a
right to dispossess the trespasser by
force if the trespasser is in settled
possession of the land and in such a case
unless he is evicted in the due course of
law, he is entitled to defend his
possession even against the rightful
owner. ........"

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07.So, following substantial question of law

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is reformulated as below and advocates of parties
are heard thereon.

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"Whethertheappellant-plaintiff
proved that he had been in settled
possession of the suit property and as
such, entitled to injunction against
respondents-defendants ?"

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08.Learned counsel for respective parties,

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together, have taken me through entire record and
judgments of the trial court, so also of the
District Court. The Trial court has come to the
conclusionthatafterconsidering
"Bataipatra" (Exh.29) and oral evidence on

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record, plaintiff was found in actual possession
of the suit property. It also relied upon revenue

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record for the year 1983-84 produced with list

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Exhibit 4/2. Plaintiff's possession was shown even
in revenue record for the period 1984-85 as can be
seen from Exhibit 39.

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09.The first appellate court framed points
for consideration as stated above. If we consider
paragraph 5 of the judgment of the District Court,
the same makes clear it clear that what was
argued on behalf of defendants-appellants before
the District Court was that the plaintiff
(respondent before the District Court) was not
entitled to continue to be in possession of the
suit land and that tenancy rights were not
declared by the competent court and, therefore,
plaintiff cannot claim protection from civil
court. It was also argued that the V.F. 7x12
extracts and the agreement are false and
inadmissible in evidence.

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10.The learned counsel for the appellant-
plaintiff submitted that the order of injunction
continued against the respondents-defendants after
it was passed by the decree of trial court passed

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on 22.2.1985, by way of interim reliefs. He

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particularly referred to order passed on

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18.12.1989 in Civil Application No.2972 of 1989 by
this Court, whereby interim relief in terms of

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prayer clause (B) was granted which is to the
effect that pending hearing and final disposal of
the appeal, respondents-defendants be restrained
by an order of injunction from interfering in
possession of the petitioner-plaintiff over the
suit land. That order was confirmed on 2.9.1991
and the said civil application was disposed of.
It is, therefore, clear that, the injunction has
remained in force from 18.12.1989 till this date.

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11.Considering above circumstances and the

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ratio laid down in the case of Rame Gowda (supra),
in my opinion, this appeal will have to be
allowed. Accordingly, this second appeal is
allowed and disposed of. The judgment and decree

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of the first appellate court is set aside and that
of the trial court court is restored. Appellant
is entitled to injunction until he is evicted by
due process of law.

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It is, however, made clear that this

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court has not observed anything on the question of
legality or illegality of possession of the
appellant-plaintiff. The Second appeal is decided
only on the basis of settled possession of the
plaintiff as on the date of the suit. This court
cannot decide question of tenancy raised by the
appellant-plaintiff.

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pnd/sa545.89(P.R.BORKAR, J.)

Maroti Jairam v. Mahadu Govind Kadam and Others

Case brief

What is this about?

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Maroti Jairam v. Mahadu Govind Kadam and Others

Case brief

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