Hanuman Prasad vs Sumitra Devi and Others

Dr. Vineet Kothari, J.—The present first appeal has been filed by the plaintiff - Hanuman Prasad s/o Jes Raj by caste Brahmin (Gaur) against the respondent defendants - Smt. Sumitra Devi and Bhagwan Sharma s/o Ramdeo Sharma being aggrieved by the rejection of his suit for possession No. 7/2006 on 9/10/2007 by the learned Addl. District Judge (Fast Track) No. 3, Bikaner.

The suit property in question is a residential house situated at 12/219, Mukta Prasad Colony, Bikaner, of which, according to the plaintiff, permissive possession was given to the defendants Smt. Sumitra Devi and her son, Bhagwan Sharma, in the year 2001 and according to the plaintiff, defendant Smt. Sumitra Devi wrongly claimed to be in possession of the said house as his wife, whereas, the plaintiff was already married to one Smt. Durga Devi and this fact was admitted by the defendant herself in her statement recorded by the learned trial court on 1/9/2007 as D.W.1. The alleged marriage of defendant Smt. Sumitra Devi with plaintiff Hanuman Prasad being void and non est, still the learned trial court rejected the suit filed by the plaintiff on the ground that the plaintiff failed to prove that he did not give any licence to the defendant No. 2 to reside in the said residential house in question while deciding issue No. 2 against the plaintiff. It would be relevant to quote the finding of learned trial court in this regard, which will also throw light on the incidental facts arising in the present case.

Learned counsel for the appellant-plaintiff, Mr. M.S. Purohit submitted that the learned trial court has taken note of the fact that the alleged claim of marriage of defendant No. 1 - Sumitra Devi with the plaintiff was void and this fact was further fortified by the decree passed on 16/5/2013 by the learned Family Court, Bikaner in civil misc. appeal No. 312/12 - Smt. Durga Devi vs. Hanuman Prasad and Sumitra Devi in which an application was filed under Section 5(1) read with Section 11 of the Hindu Marriage Act, 1955 and the learned Family Court has declared Smt. Durga Devi to be the legally wedded wife of Hanuman Prasad and the alleged marriage of Smt. Sumitra Devi with Hanuman Prasad as void ab initio. The relevant portion of the said judgment is also reproduced hereunder for ready reference:-

Learned counsel for the appellant Mr. M.S. Purohit, therefore, submitted that the oral licence giving permissive possession to the defendants to reside in the said house stood revoked and the plaintiff filed the present suit for possession against her and, therefore, the learned court below wholly erred in holding that the plaintiff failed to prove revocation of said licence by him against defendant Sumitra Devi. He, therefore, prayed that the present first appeal deserves to be allowed and the suit deserves to be decreed in favour of the plaintiff.

Learned counsel for the respondent-defendants, Mr. Ajay Vyas submitted that as far as the marriage of the defendant-Sumitra Devi with Hanuman Prasad is concerned, this fact was already noticed by the learned trial court that there could not be any valid marriage between the two and since Hanuman Prasad was already legally wedded with Smt. Durga Devi, without there being any valid decree of divorce between them, no second marriage could be recognized under the Hindu Law and, therefore, irrespective of the decree in favour of Smt. Durga Devi of the Family Court, Bikaner now produced by the learned counsel for the appellant plaintiff in the present case, the suit for possession was rightly dismissed by the learned trial court while deciding issue No. 2 against the plaintiff that he failed to prove revocation of licence in favour of the defendants to reside in the said residential house. He also submitted that the defendant had constructed some portion of the said residential house out of her own funds and, therefore, she has a right to retain possession of the same and the first appeal filed by the appellant-plaintiff deserves to be dismissed. Learned counsel for the respondent-defendants also read the statement of D.W.1-Sumitra Devi as well as P.W.1-Hanuman Prasad and other relevant evidence before this Court.

Having heard the learned counsels and upon perusal of the judgment under appeal and the relevant record including the statement read before this Court, this Court is of the opinion that the present first appeal deserves to be allowed and the suit for possession deserves to be decreed.

From the facts and evidence available on record, it is clear that the ownership and title of the plaintiff Hanuman Prasad over the suit house situated at 12/219, Mukta Prasad Colony, Bikaner is not in dispute and he owned and possessed the said house much prior to the entry of defendant No. 1 - Sumitra Devi in the year 2001. The statement of Smt. Sumitra Devi also reflects that there were some criminal cases lodged by her against some persons under Section 376 IPC, which ultimately were decided against her and acquittal of accused persons took place at the hands of criminal court. The plaintiff also alleged before the learned trial court that she employed anti-social elements to prevent his entry in his own house, rather he was compelled to leave his own house after he gave permissive possession in the year 2001.

The claimed second marriage of defendant Sumitra Devi with plaintiff Hanuman Prasad was obviously void-ab-initio and she had admitted in her statement itself that plaintiff Hanuman Prasad was already married to one Smt. Durga Devi, who later on in the course of time obtained the said decree from the Family Court, Bikaner on 16/5/2013.

As far as permissive possession or the licence and its revocation is concerned, the very fact that the plaintiff filed the present suit for possession is enough to establish that the licence or the permission to reside stood revoked by the plaintiff even though no written notice was served by the plaintiff.

The defendant No. 2 - Bhagwan Sharma is son of defendant No. 1 - Smt. Sumitra Devi from her husband Ramdeo Sharma, from whom she alleged to have parted ways long back but no legal divorce decree was obtained from the competent court. Therefore, the plaintiff was entitled to seek possession of the residential house in question, title and ownership of the same is not in dispute.

The Hon''ble Apex Court in the case of Maria Margarida Sequeria Fernandes and Others Vs. Erasmo Jack de Sequeria (Dead) through L. Rs., also held that possession on the basis of title of property is always better claim as against the claim on the basis of adverse possession. The Hon''ble Supreme Court in a very detailed and researching judgment, detailing the four types of possession under property law; Easements Act, 1882, Transfer of Property Act, 1882 and Specific Relief Act, 1963, dealing with a case of a well known and respected Christian family of Goa where the permissive and free of cost possession of suit premises was given by a sister to her brother as a caretaker, while the sister with her husband was out of Goa in relation to his service in Navy and which brother illegally denied her possession of her own house with title undisputed for 20 longs years. The Hon''ble Supreme Court allowing the sister''s appeal with costs of Rs. 50,000/- and mesne profits of Rs. 1 lac per month for the residential house, held in para 32 to 36 as under:-

"Truth as guiding star in judicial process

In this unfortunate litigation, the Court''s serious endeavour has to be to find out where in fact the truth lies.

The truth should be the guiding star in the entire judicial process. Truth alone has to be the foundation of justice. The entire judicial system has been created only to discern and find out the real truth. Judges at all levels have to seriously engage themselves in the journey of discovering the truth. That is their mandate, obligation and bounden duty. Justice system will acquire credibility only when people will be convinced that justice is based on the foundation of the truth.

In Mohanlal Shamji Soni Vs. Union of India and another, , this Court observed that in such a situation a question that arises for consideration is whether the presiding officer of a Court should simply sit as a mere umpire at a contest between two parties and declare at the end of the combat who has won and who has lost or is there not any legal duty of his own, independent of the parties, to take an active role in the proceedings in finding the truth and administering justice? It is a well accepted and settled principle that a Court must discharge its statutory functions - whether discretionary or obligatory-according to law in dispensing justice because it is the duty of a Court not only to do justice but also to ensure that justice is being done.

What people expect is that the Court should discharge its obligation to find out where in fact the truth lies. Right from inception of the judicial system it has been accepted that discovery, vindication and establishment of truth are the main purposes underlying the existence of the courts of justice.

In Ritesh Tewari and Another Vs. State of U.P. and Others, this Court reproduced often quoted quotation which reads as under:

".....Every trial is voyage of discovery in which truth is the quest" ..........The quest of truth continues........, also in this case.

Deprecating false claims and defences, which are considered really serious problems with real estate litigation, predominantly because of ever-escalating prices of the real estate, the Hon''ble Supreme Court in the aforesaid judgment in para 81 and 82 observed as under:-

"False claims and defences are really serious 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 them by paying a huge amount. This happens because of the enormous delay in adjudication of cases in the Courts. The Supreme Court in Rameshwari Devi and Others Vs. Nirmala Devi and Others, aptly observed that unless wrongdoers are denied profit from frivolous litigation, it would be difficult to prevent it. In order to curb uncalled for and frivolous litigation, the courts have to ensure that there is no incentive or motive for uncalled for litigation. This problem can be solved or at least can be minimised if exemplary costs is imposed for instituting frivolous litigation. Imposition of actual, realistic or proper costs and/or ordering prosecution in appropriate case would go a long way in controlling the tendency of introducing false pleadings and forged and fabricated documents by the litigants. 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." 13. And then finally, allowing the sister''s appeal as aforesaid and laying down the principles of law in para 97 to 101, the Hon''ble Supreme Court held as under:-

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

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.

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.

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.

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.

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.

In this view of the matter, the impugned judgment of the High Court as also of the Trial Court deserve to be set aside and we accordingly do so. Consequently, this Court directs that the possession of the suit premises be handed over to the appellant, who is admittedly the owner of the suit property.

In the peculiar facts and circumstances of 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 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. The said amount for use and occupation be given to the appellant on or before the 10th of every month. In case the legal representatives of the respondent are not willing to pay the amount for use and occupation as directed by this Court, they must hand over the possession of the premises within two weeks from the date of this judgment. Thereafter, if the legal representatives of the respondent do not hand over peaceful possession of the suit property, in that event, the appellant would be at liberty to get the possession of the premises by taking police help.

As a result, the appeal of the appellant is allowed. In the facts and circumstances of the case, the respondents are directed to pay a cost of Rs. 50,000/- to the appellant within four weeks. (We have imposed the moderate cost in view of the fact that the original respondent has expired). Ordered accordingly."

Thus, strongly deprecating the holding over of possession by the persons like care-takers and persons with permissive possession, Chowkidars etc., the Hon''ble Apex Court allowed the plaintiff''s appeal in that case with exemplary cost of Rs. 50000/- and mesne profit of Rs. 1,00,000/- in respect of a residential house situated at Goa.

Therefore, this Court is clearly of the opinion that the learned trial court has fallen into an error in rejecting the suit filed by the plaintiff and not granting decree of possession in favour of the plaintiff and the present first appeal of the plaintiff deserves to be allowed and the suit deserves to be decreed.

Accordingly, the present first appeal of the plaintiff is allowed. The judgment and decree of the trial court dated 9/10/2007 is set aside.

The defendant-Smt. Sumitra Devi and Bhagwan Sharma shall hand over the peaceful and vacant possession of the suit premises to the plaintiff-appellant within a period of six months from today i.e. on or before 1st September, 2015 and shall pay mesne profit @ Rs. 1,000/- per month from March, 2015 before 15th of next month either to appellant-plaintiff directly or in his Bank account, details of which may be supplied by the appellant-plaintiff, till vacant possession is handed over and in case there is any default in payment of mesne profit, the period of six months for eviction shall stand reduced and the decree of eviction would become executable forthwith. The respondent-defendants or other persons in possession, if any, shall also further not sub-let, assign or part with the possession of the suit premises or any part thereof in favour of any one else and would not create any third party interest in the same during the aforesaid period and the same would be treated as void and such third party will also be bound by this decree. The respondent-defendant shall furnish a written undertaking incorporating the aforesaid conditions in the trial court within three month and one copy thereof along with affidavit, in this Court. It is made clear that if the peaceful and vacant possession of the suit house is not handed over to the appellant-plaintiff within a period of six months from today or mesne profits are not paid as directed above, besides the expeditious execution of the decree in normal course, the appellant-plaintiff shall also be entitled to invoke the contempt jurisdiction of this Court. Copy of this order be sent to the parties concerned and the court below forthwith.