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Harshadkumar Sundarlal Dalal and ors. Vs. Hasmukhben Wd/O Chimanlal Bhogtlal Desai and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Judge
Reported in(1983)1GLR383
AppellantHarshadkumar Sundarlal Dalal and ors.
RespondentHasmukhben Wd/O Chimanlal Bhogtlal Desai and ors.
Cases ReferredYeshwant Singh v. Jagdish Singh A.I.R.
Excerpt:
- - 6. as pointed out earlier, the trial court, after appreciating the oral as well as documentary evidence, recorded a finding that deceased chimanlal and after his death his heirs were merely licensees and not tenants of the suit room. under section 9 of the specific relief act it is well settled that question of title is irrelevant in a suit under that section......brought on record. the suit was decreed; and the defendants were directed to open the door of the suit room by removing the lock and chain applied by them from inside and to hand over possession to the plaintiffs. the defendants, therefore, filed an appeal against the said judgment and decree in the court of the district judge, kaira, being regular civil appeal no. 16 of 1979. that court held the appeal to be not maintainable in view of the bar contained in section 6(3) of the act. the petitioners who are defendant nos. 3 to 5 have therefore, filed this revision application challenging the judgment and decree passed by the learned trial judge.2. a few facts giving rise to this civil revision application may now be stated. chimanlal bhogilal desai, husband of plaintiff no. 1 and father.....
Judgment:

G.T. Nanavati, J.

1. Opponent Nos. 1 to 6, who are original plaintiffs, filed Regular Civil Suit No. 423 of 1972 in the Court of the Civil Judge (Senior Division), Nadiad against Chandraprasad Motibhai Pandya, under Section 6 of the Specific Relief Act, 1963 (hereafter referred to as 'the Act') for recovery of possession of the suit premises. Chandraprasad died during the pendency of the suit and his heirs were brought on record. The suit was decreed; and the defendants were directed to open the door of the suit room by removing the lock and chain applied by them from inside and to hand over possession to the plaintiffs. The defendants, therefore, filed an appeal against the said judgment and decree in the Court of the District Judge, Kaira, being Regular Civil Appeal No. 16 of 1979. That Court held the appeal to be not maintainable in view of the bar contained in Section 6(3) of the Act. The petitioners who are defendant Nos. 3 to 5 have therefore, filed this revision application challenging the judgment and decree passed by the learned trial Judge.

2. A few facts giving rise to this Civil Revision Application may now be stated. Chimanlal Bhogilal Desai, husband of plaintiff No. 1 and father of plaintiff Nos. 2 to 6 took on lease a part of the house, belonging to Chandraprasad. It consisted of a room, kitchen, chowk and bath room on the ground floor, one room on the first floor and one room on the second floor. He had agreed to pay a monthly rent of Rs. 12/-. According to the plaintiffs, deceased Chimanlal wanted some more space as he found it difficult to run his office in the premises in his possession. He, therefore, requested Chandraprasad to give one more room to him on the first floor. Chandraprasad agreed to give the suit room on the condition that rent was increased and that he was allowed to use the said room for the purpose of passage. Chimanlal accepted both these conditions; and, therefore, the suit room was let out by Chandraprasad to him. The rent was increased from Rs. 12/- to Rs. 20/-. Till his death in February, 1970, Chimanlal used that room as his office and thereafter, the plaintiffs started using the same for residential purposes. On 15-5-1972, Chandraprasad, all of a sudden, closed the door on the suit room from inside without their consent and thus deprived them of the use thereof. The plaintiffs, therefore, alleging dispossession, otherwise than in due course of law, filed the suit for a mandatory injunction directing the defendants to open the door of the suit room by removing the lock and chain applied by them from inside and for recovering possession.

3. The suit was resisted on the ground that the suit room was not given on lease to deceased Chimanlal, but he was merely allowed to use the same and thus he was only a licensee of that room. No. rent was charged from him for the use of the said room. Chandraprasad had requested Chimanlal to remove his goods from the suit room, but he had not paid any heed. After his death in February, 1970 the plaintiffs were also requested to hand over possession by removing their goods as the licence in favour of Chimanlal had expired on his death, but the plaintiffs did not comply with the request and, therefore, a notice was given to the plaintiffs formally terminating their licence. Thereafter various attempts to persuade them were made, but they did not comply with the requests made by Chandraprasad and, therefore, Chandraprasad was constrained to close the door of that room from inside, It was contended that, after termination of the licence neither Chimanlal nor his heirs had any right to remain in possession of the suit room and they had become trespassers thereafter.

4. The learned Civil Judge, on appreciation of the oral and documentary evidence, held that deceased Chimanlal was in possession of the suit room only as a licensee and not as a tenant. He however, decreed the suit on the ground that the plaintiffs who are the heirs of deceased Chimanlal, were in lawful possession of the suit room till they were dispossessed against their will by Chandraprasad and they were thus entitled to the relief under Section 6 of the Specific Relief Act. The lower appellate Court also agreed with the finding recorded by the trial Court that deceased Chimanlal was not a tenant of the suit room and was merely a licensee. The appellate Court also agreed with the finding that the plaintiffs were in lawful possession of the suit room till they were dispossessed by Chandraprasad. On that ground and also on the ground that the appeal itself was not maintainable, the lower appellate Court dismissed the appeal and confirmed the judgment and decree passed by the trial. Court.

5. As the appeal filed by (he petitioners was not maintainable, other findings recorded by the lower appellate Court will have to be ignored; and this revision application is treated as directed against the judgment and decree passed by the trial Court. What was urged by the learned advocate for the petitioners was that the learned Civil Judge decreed the suit without bearing in mind the important aspect that after the licence of the plaintiffs was terminated, they had become mere trespassers and had no right to claim any relief under Section 6 of the Specific Relief Act. It was submitted that the judgment and decree being thus contrary to law deserve to be set aside. In support of his submission, reliance was placed upon the judgment of this Court in First Appeal No. 820 of 1960 (Coram : B.J. Divan and V.R. Shah, JJ.) decided on November 25, 1968, wherein it has been held:

In the case of a revocable licence what happens is that the licensee gets permission to occupy a particular immoveable property in question and when the licence is revoked, his permission to occupy comes to an end from that moment onwards, he becomes a mere trespasser. The licensee has no right or interest in the immoveable property and he has merely a personal right, by which what would otherwise be an act of trespass is converted into a lawful action. Once the permission to occupy is withdrawn by revocation, the act of entering upon an immoveable property or continuance thereon would amount to an act of trespass and the owner of an immoveable property has always a right to make use of reasonable force to evict a trespasser from his own property.

6. As pointed out earlier, the trial Court, after appreciating the oral as well as documentary evidence, recorded a finding that deceased Chimanlal and after his death his heirs were merely licensees and not tenants of the suit room. The petitioners have heavily relied upon this finding. On the other hand, the learned advocate for opponent Nos. 1 to 6 - original plaintiffs made a feeble attempt to challenge the same as erroneous. The plaintiffs could not produce any documentary evidence to prove that the suit room was also let out by Chandraprasad to Chimanlal. Their case stands disproved by the rent note Exh. 49 and the endorsement made below it. It is also proved that formerly Chimanlal and after his death the plaintiffs were not using the suit room exclusively and that it was also used by Chandraprasad. In my view, the learned Civil Judge was right in holding that Chimanlal was given only a licence to use the suit room. On 16-8-1971, Chandraprasad had given a notice to the plaintiffs calling upon them to vacate the suit room and to remove their goods therefrom. Obviously by the said notice, the licence stood terminated and it was against the will of the defendants that the plaintiffs continued to occupy the suit room. The plaintiffs had no other title or right to occupy and use the suit room. After termination of the licence, their possession was that of trespassers, and it cannot be said that they continued to be in lawful possession thereof. The learned Civil Judge missed the correct legal position and erroneously proceeded on the basis that the plaintiffs, till they were dispossessed, were in lawful possession of the suit room.

7. It was next urged by Mr. M.C. Shah that even if the plaintiffs are held to be trespassers and not in lawful possession of the suit room, yet, the defendants could not have deprived them of their occupation and use of the suit room by using force and in an illegal manner. It was submitted that even from a trespasser, the owner is not entitled to recover possession by using force. In support, the following observations of the Supreme Court in Yeshwant Singh v. Jagdish Singh A.I.R. 1968 S.C. 620 were relied upon.

Under Section 9 of the Specific Relief Act it is well settled that question of title is irrelevant in a suit under that section.... The view that under the general law applicable to a lessor and a lessee there was no rule or principle which made it obligatory for the lessor to resort to court and obtain an order for possession before he could eject lessee is not correct.

8. This decision of the Supreme Court was considered by the Division Bench of this Court in First Appeal No. 820 of 1960 and thereafter it observed that once the 'licensor has validly revoked the licence, there cannot be any question as regards his right to take back possession by using such reasonable force as was necessary to get back the possession from the trespasser and such a trespasser who has been thrown out or whose goods or articles have been removed from the property by the owner, cannot claim back possession against the true owner or claim damages against the true owner in respect of his forcible eviction by the true owner.'

9. The Supreme Court, in Yeshwant Singh's case (supra), quoted with approval the following observations:.Under Section 9 of the Specific Relief Act a tenant who has ceased to be a tenant may sue for possession against his landlord if the landlord deprives him of possession otherwise than in due course of law, but a trespasser who has been thrown out of possession cannot go to Court under Section 9 and claim possession against the true owner.

10. This being the correct legal position, the defendants were fully justified in closing the door in order to prevent the plaintiffs who were trespassers only from making intrusions over their property. It cannot be said that in doing so, they had used more force than necessary. It is also not possible to say that they had not waited for a reasonable time before taking that action. The view taken by the trial Court that the plaintiffs were in lawful possession of the suit room till they were forcibly dispossessed by the defendants is obviously erroneous. Therefore, the decree passed on that basis will have to be reversed.

11. In the result, this revision application is allowed. The judgment and decree passed by the trial Court and confirmed by the lower appellate Court are set aside, and the suit filed by the plaintiffs-opponents No. 1 to 6 is dismissed. Rule is made absolute with no order as to costs. Interim relief granted by this Court is vacated forthwith.


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