WONDERLAND DEVELOPMERS PVT. LTD Vs. RAYMOND JOHN PEREIRA

JUDGEMENT

(1.) THE Appeal No. 363 of 1996 has been admitted and it has been expedited. By the present Civil Application, the Appellants who are Defendants No. 17 in the Suit have prayed for stay of operation, execution and enforcement of the order dated 1st March 1996 passed by the learned Judge, City Civil Court, Bombay in Notice of Motion No. 5922 of 1995. The Plaintiffs in the suit have filed the present Suit purely for injunction restraining the Appellants i.e. Defendants No. 17 in the Suit for committing any act of trespass and/or carrying on any construction activity on the suit property. The plaint proceeds merely on title except that in para 1 thereof it has been averred that the Plaintiff and Defendant Nos. 1 to 11 have been in possession of the suit property. Apart from the bare avertment made in the plaint and apart from the revenue extracts, nothing else is there to show that the Plaintiffs have been in actual physical possession of the suit property. However, from the detailed affidavit in reply filed by the Appellants have been in actual possession. From the history which is given in the said affidavit, it appears that by an agreement dated 23rd February 1974 entered into between Pereiras and Misquittas who were Plaintiffs in their respective Suits and one Usman Peer Mohammad, the owners viz. Pereiras and Misquittas had agreed to sell the suit properties to Usman. On 3rd March 1974, Pereiras and others executed a power of attorney in favour of Usman wherein it was interalia recorded that Usman was put in physical possession by Pereiras and Misquittas. Thus, by the execution of the said document on 12th February 1974, Usman was put in vacant and peaceful possession of the suit property. Thereafter, Usman represented the said owners in respect of the suit property before Competent Authority under Urban Land (Ceiling and Regulation) Act 1975 and other authorities. Thereafter, on 30th September 1978, Pereiras entered into an agreement with the Defendant No.12 in the suit i.e. M/s Immaculate Constructions. Pereiras also executed a general power of attorney in favour of Anthony Dias under which inter alia Dias was authorised to adopt suitable proceedings as advised in Court of law against Usman on account of breaches committed and for recovery of possession and damages and other appropriate reliefs. On 3rd October 1978, Usman agreed to sell the suit property to one Chunawala. On 9th May, 1994, Chunawala agreed to sell the suit property to the Appellants. The said agreement recited that the agreement dated 3rd October 1979 between Usman and Chunawala was valid, subsiting and in full force and effect. It is the contention of the Appellants, which I accept, that the Appellants were put in physical possession and have continued to be in physical possession. Earlier, another suit was filed by Misquittas being Suit No. 7134 of 1994 which was filed on 30th November 1994. Surprisingly, the Appellants were not made a party to the said Suit. In the earlier Suit, on an ad-interim application made, a commissioner was appointed by the learned Judge. The Commissioner happened to be none else but a stenographer in the Court. It is surprising that normally when an officer of the Court is appointed as a Commissioner, a Stenographer was appointed. Be that as it may, the report which the so called Commissioner submitted clearly states that the Plaintiffs 'may' be in possession. It is an admitted fact that the suit land is neither fenced nor there is any boundary wall. There is nothing to show physical demarcation demarcating one plot from the other. The demarcation of the plot on paper is not enough to show the actual possession of a party. Reliance was placed on photographs which were taken in September 1994 by the Plaintiffs in order to show that the trucks of the Appellants have been passing over the suit land. Photographs in fact show that certain material has been lying on the suit land. In answer to the querry from the Court, it was mentioned on behalf of the original Plaintiffs that the Appellants have been throwing their debris on the suit land. This fact was not mentioned anywhere earlier. In my opinion, no reliance can be placed on the Commissioner's report. From the facts before me, it appears prima facie that the Appellants have been in possession of the suit property. Even when an advertisement was given in newspapers by the Attorneys for Chunawala specifically stating that Usman was in physical possession, no objections were lodged by the Plaintiffs. The fact that Usman was in possession was not denied. In the earlier Suit, a copy of the agreement in favour of Usman was not annexed. A copy of the power of attorney given to Usman was not annexed to the present Suit which otherwise would have shown that Usman was put in possession.

(2.) IN view of the above, it appears that in the guise of a Suit for injunction simplicitor, the Appellants are sought to be dispossessed by Pereiras and Misquittas. It is settled law that even a trespasser cannot dispossessed without due process of law. Shri J.L. Thakkar relied on decisions of the Supreme Court to the effect that possession of an agent is possession of the principal owner and therefore, there is no question of the agent claiming lawful possession. I cannot possibly have any quarrel with the said decisions. However, I am not impressed by such argument in view of the fact that the present matter is altogether different and the said ratio cannot be made applicable to it. Taking an overall view, in my opinion, the order under challenge requires consideration and therefore, the Appeal has been admitted. Prima facie, I am of the view that there is enough material to show that the Appellants have been in physical possession. In view thereof, the order passed by the learned Judge, City Civil Court, Bombay requires to be stayed. The Civil Application is allowed and relief in terms of prayer (a) granted, however, on the following conditions :-

(3.) THUS , with the above observations, the Civil Application is disposed off with no order as to costs. The Registrar, Appellate Side is directed to send a copy of this to the learned Judge, City Civil Court, Bombay.