-: 1 :- IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 2233 OF 2008 IN SUIT NO. 1870 OF 2008 Variegate Realestate Pvt. Limited. ..Plaintiff. Versus Miss Daulat Sheriar Ahrestani @ Miss Dolly Sheriar Irani & Ors. ..Defendants. Mr. Aspi Chinoy, Sr. counsel with Mr. S. V. Doijode, Mr. Kishore Mhatre and Mr. Gourav Mehta i/b Doijode & Associates for the Plaintiff. Mr. Shailesh Shah i/b Mr. Yatin R. Shah for defendant nos. 1 & 2. Mr. M. R. Irani - respondent no.3 – party-in-person. Coram : R. V. MORE, J. Date of Reservation : 10th March 2010. Date of Pronouncement : 28th April 2010. PC : 1. The plaintiff company has filed the above suit on 10th June 2008 for an injunction restraining defendant no.1 from inducting defendant no.2 & 3 on the first floor or from parting with possession of the same. The injunction is also sought restraining defendant nos. 2 & 3 from entering into or from remaining upon the suit property. The plaintiff alongwith the suit, has filed the present notice of motion for temporary injunction in terms of the prayer clauses in the suit. 2. The plaintiff acquired the property pursuant to the Memorandum of Intent dated 20th May 2004 and the Indenture of Sale dated 24th -: 2 :- February 2005. The property comprises of a bungalow known as “Dawn Bungalow”, having ground plus two floors situated at Bandra. 3. Defendant no.1 is 83 years old unmarried daughter of Sheriar Rustom Ahrestani, one of the co-owners, and is entitled to a right of residence in the said Bungalow in view of the last Will dated 17th April 1969 of said Sheriar Rustom Ahreshtani, which Will is duly probated. 4. It is the case of plaintiff that defendant no.1 in the year 2005 was occupying one room of 225 sq. ft on 1st floor of the said bungalow. However, defendant no.1 claims that although she is exclusively using one bedroom on first floor of the bungalow, she is also using other premises on the first floor alongwith other family members. Defendant nos. 2 & 3 are nephews of defendant no.1. It is the case of plaintiff that defendant no.2 usually visits defendant no.1 at Dawn Bungalow twice a day, once in the morning and once in the evening and brings food for defendant no.1 from his residence at Gharda Villa. It is further case of the plaintiff that defendant no.3 usually visits defendant no.1 at the Dawn Bungalow once or twice a week. Per contra, defendant no.2 claims that defendant no.1 created tenancy in his favour in the year 2005 in respect of the premises on the first floor and he asserted that he is residing there alongwith defendant no.1. Defendant no.3 claims possession of one room on the first floor of Dawn Bungalow, which he asserts, was given to him by defendant no.1 out of love and affection in -: 3 :- the year 2007. 5. The plaintiff apprehended that defendant nos. 2 & 3 might in the pretext of visiting defendant no.1, attempt to remain on the property and make false claims relating thereto and, therefore, has filed the above suit for permanent injunction in which the present notice of motion is taken out for temporary injunction. 6. This Court after hearing learned counsel for the respective parties granted limited ad-interim relief to the plaintiff thereby restrained the 1st defendant from creating third party interest in respect of the suit property and from inducting any third party (save and except the 2nd and 3rd defendants.) in the premises in her possession and notice of motion was made returnable after 12 weeks. The plaintiff being aggrieved by this order, preferred an appeal bearing Appeal No.489 of 2009 before the Appellate Bench of this Court. By the order dated 10th November 2009, the Division Bench of this Court directed this Court to decide the above notice of Motion within the period of three weeks. In view of this order of the appellate bench, the present notice of motion is placed before me for final disposal. 7. Mr. Aspi Chinoy, learned senior counsel appearing for the plaintiff submitted that the plaintiff has purchased the suit property, ie., Dawn Bungalow, from the predecessor-in-title of defendant no.1, including her father Sheriar Rustom Ahrestani, who was one of the co-owners. Said -: 4 :- Sheriar Rustom Ahrestani died leaving behind the Will dated 17th April 1969 thereby giving right of residence to defendant no.1 in the said bungalow. He submitted that in the year 2005 the plaintiff has purchased Dawn bungalow subject to 1st defendant’s right of residence in the said bungalow. In the year 2005, defendant no.1 was occupying only 1 room admeasruing 225 sq. ft. on the first floor of the said bungalow. Defendant no. 2 usually used to visit defendant no.1 at the said bungalow once or twice a day for giving food to defendant no.1 and defendant no.3 usually used to visit defendant no.1 at the said Bungalow once or twice a week. He submitted that defendant nos.2 & 3 were harassing the plaintiff’s guards and interfering with the plaintiff’s possession and use of the said bungalow. The plaintiff apprehended that defendant nos. 2 & 3 though have no right in the suit property, would make false claims relating thereto, therefore filed the abovesaid suit. He submitted that defendant no.1 has only right of residence in the suit property and therefore she could not create any interest in the said property in favour of defendant nos.2 & 3. He submitted that defendant no.1 being 88 years old, the plaintiff has no objection for permitting defendant nos.2 & 3 to enter upon or remaining upon the said property only for the purpose of visiting or staying overnight with defendant no.1 and he has no objection if the temporary injunction claimed being modified to that effect. -: 5 :- 8. Mr.Aspi Chinoy, learned senior counsel also submitted that defendant nos. 2 & 3 are not in actual and settled position in any portion of Dawn bungalow and accordingly cannot resist the plaintiff’s prayer for grant of interim injunction restraining them from entering into or remaining on the first floor of the premises. In order to prove that defendant nos. 2 & 3 are not in possession of the first floor of Dawn Bungalow, Mr. Aspi Chinoy, learned senior counsel relied upon video recording and its transcript from March to July 2009 alongwith affidavits dated 17th April 2009, 16th June 2009, 1st July 2009 and 23rd September 2009. He submitted that video recordings disclose that defendant no.2 is visiting defendant no.1 at Dawn bungalow twice a day to bring food for her and defendant no.3 visits defendant no.1 once or twice a week. He submitted that defendant no.2 started staying at night in the bungalow only after July 2009. He submitted that intermittent visits of defendant nos. 2 & 3 to defendant no.1 at Dawn Bungalow can never constitute actual possession much less the settled possession. He lastly submitted that defendant nos.2 & 3 have no lawful right of possession or use of any part of Dawn Bungalow and if they are not in settled possession of any portion on the first floor of the said bungalow, the plaintiff is entitled for injunction as claimed in the notice of motion. He relied upon the Apex Court judgment in the matter of Rame Gowda v. Vardappa Naidu reported in (2004) 1 SCC 769. -: 6 :- 9. Mr. Shailesh Shah, learned counsel appearing on behalf of respondent nos.1 & 2, per contra, submitted that defendant no.1 has created the tenancy in favour of defendant no.2. He further submitted that life estate includes power to make transfer for necessity. He further submitted that defendant no.2 is staying along with defendant no.1 on the first floor of Dawn Bungalow since prior to the purchase of the property by the plaintiff. He relied upon number of documents to which I will make reference at later stage, to substantiate his case that defendant no.2 is in settled possession of the portion of the first floor of Dawn Bungalow. He submitted that suit is not maintainable in the absence of any relief for possession. He also took exception to the video recording on the ground that same is recorded subsequent to the date of filing of suit. 10. Defendant no.3 in person claims possession of one room on the floor floor of the said bungalow. He submitted that the possession of said room is given to him by defendant no.1 out of love and affection and he is using the said room since prior to the date of filing of the suit as his office. Defendant no.3 also relied upon number of documents to substantiate his case that he is in settled possession of the said room since prior to the date of filing of suit. 11. The concept of “settled possession” and the right of the possessor to protect his possession against the owner has been settled by catena of -: 7 :- decisions. The Apex Court in Rame Gowda case (supra) referred to the decisions in the matter of Munshi Ram v. Delhi Admn. reported in AIR 1968 SC 702, Puran Singh v. State of Punjab reported in (1975) 4 SCC 518 and Ram Rattan v. State of UP reported in (1977) 1 SCC 188. The Apex Court in paragraph no.9 in Rame Gowda case (supra) reiterated the test laid down in Puran Singh’s case (supra). The observations of the Apex Court in paragraph nos. 8 & 9 which are relevant read thus : “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 owner 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. The law will come to the aid of a person in peaceful and settled possession by injuncting even a rightful owner from using force or taking law in his own hands, and also by restoring him in possession even from the rightful owner (of course subject to the law of limitation), if the latter has dispossessed the prior possessor by use of force. In the absence of proof of better title, possession or prior peaceful settled possession is itself evidence of title. Law presumes the possession to go with the title unless rebutted. The owner of any property may prevent even by using reasonable force a trespasser from an attempted trespass, when it is in the process of being committed, or is of a flimsy character, or recurring, intermittent, stray -: 8 :- or casual in nature, or has just been committed, while the rightful owner did not have enough time to have recourse to law. In the last of he cases, the possession of the trespasser, just entered into would not be called as one acquiesced to by the true owner. “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 Ram and Ors. Vs. Delhi Administration (1968) 2 SCR 455, Puran Singh and Ors. Vs. The State of Punjab (1975) 4 SCC 518 and Ram Rattan and Ors. Vs. State of Uttar Pradesh (1977) 1 SCC 188. The authorities need not be multiplied. In Munshi Ram & Ors.'s case (supra), 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. But merely stray or even intermittent acts of trespass do not give such a right against the true owner. The possession which a trespasser is entitled to defend against the rightful owner must be settled possession, extending over a sufficiently long period of time and acquiesced to by the true owner. A casual act of possession would not have the effect of interrupting the possession of the rightful owner. The rightful owner may re-enter and re-instate himself provided he does not use more force than is necessary. Such entry will be viewed only as resistance to an intrusion upon his possession which has never been lost. A stray act of trespass, or a possession which has not matured into settled possession, can be obstructed or removed by the true owner even by using necessary force. In Puran Singh and Ors.'s case (supra), the Court clarified that it is difficult to lay down any hard and -: 9 :- fast rule as to when the possession of a trespasser can mature into settled possession. The 'settled possession' must be (i) effective, (ii) undisturbed, and (iii) to the knowledge of the owner or without any attempt at concealment by the trespasser. The phrase 'settled possession' does not carry any special charm or magic in it; nor is it a ritualistic formula which can be confined in a strait-jacket. An occupation of the property by a person as an agent or a servant acting at the instance of the owner will not amount to actual physical possession. The court laid down the following tests which may be adopted as a working rule for determining the attributes of 'settled possession' : (i) that the trespasser must be in actual physical possession of the property over a sufficiently long period; (ii) that the possession must be to the knowledge (either express or implied) of the owner or without any attempt at concealment by the trespasser and which contains an element of animus possidendi. The nature of possession of the trespasser would, however, be a matter to be decided on the facts and circumstances of each case; iii) the process of dispossession of the true owner by the trespasser must be complete and final and must be acquiesced to by the true owner; and iv) that one of the usual tests to determine the quality of settled possession, in the case of culturable land, would be whether or not the trespasser, after having taken possession, had grown any crop. If the crop had been grown by the trespasser, then even the true owner has no right to destroy the crop grown by the trespasser and take forcible possession.” -: 10 :- 12. The above observations of the Apex Court make it abundantly clear that if the trespasser is in settled possession, the rightful owner will have to take recourse to the law. He cannot take law in his own hands and interfere with the possession of the person who is in settled possession. It is further clear from the above observations that defendant nos. 2 & 3 in order to show that they are in settled possession of the property, must prove their actual physical possession to the suit property for sufficiently long period and that said possession is without any attempt at concealment by them and which contain an element of animus possidendi. 13. In the light of the above settled legal position, now let us consider whether defendant nos. 2 & 3, prima facie, prove their settled possession to the suit property or whether they are visiting the suit premises intermittent ly and their possession is not actual, physical and continuous. 14. The plaintiff in order to show that defendant no.2 visits the suit premises once or twice a day to see aunt (defendant no.1), heavily relied upon the video recording and its transcripts alongwith various affidavits. The said video recording was done during March 2009 to July 2009, i.e., subsequent to the date of suit and Notice of Motion which came to be filed on 10th June 2008. Video recording, in my view, does not help the -: 11 :- plaintiff’s case as the same is recorded at a much later point of time after the date of filing of suit. While considering the claim for temporary injunction, the Court will have to consider the possession as on the date of the suit. In that view of the matter, video recording will not help the plaintiff to prove that defendant nos. 2 & 3 are only intermediately visiting defendant no.1 and they are not in settled possession of the suit premises. 15. As stated above, defendant no.2 relied upon various documents in order to prove his possession over the first floor of the suit premises much prior to the date of filing of the suit. I propose to make reference to those documents hereinbelow. (1) Defendant no.2 has produced a copy of the Ration Card, which is at page 1 of the Compilation. The said ration card is issued on 30th August 2005. The address of defendant no.2 is shown as Dawn bungalow. (2) Copy of the Pan Card is produced at page 3 of the compilation. Same is issued on 4th October 2006 to defendant no.1 and address of defendant no.2 is shown as Dawn Bungalow. (3) At page no.6 of the compilation of documents, defendant no.2 has produced N.C. complaint bearing No. 567 of 2007. This complahnt was given by defendant no.2 on 16th February 2007 on which his address is shown as Dawn Bungalow. (4) Page nos. 7 to 10 of the compilation are the rent receipts -: 12 :- dated 1st November 2005, 2nd August 2006 and 1st April 2007 and 1st January 2008 in respect of the 1st floor of Dawn Bungalow issued by defendant no.1 in favour of defendant no.2. (5) Page nos. 18 & 19 of the compilation are the envelopes dated 12th February 2007 alongwith letter dated 10th February 2007 addressed to defendant no.2 at Dawn Bungalow. (6) Page Nos. 23 to 25, defendant no.2 has produced application dated 16th March 2007 for inclusion of his name in the Electoral roll alongwith receipt dated 16th March 2007 of the said application wherein his address is shown at Dawn Bungalow. (7) At page no.26, defendant no.2 has produced Prepaid Application dated 24th November 2007 for Vodafone card. The said application discloses his address as Dawn Bungalow. (8) At Page 202 of the compilation, defendant no.2 has produced letter dated 25th October 2005 addressed by defendant no.1 to Assistant Engineer, MCGB stating therein that defendant no.2 is residing with her at Dawn Bungalow. (9) At page 203, defendant no.2 has produced letter dated 17th February 2007 addressed by defendant no.1 to Deputy Commissioner of Police and others stating therein that defendant no.2 is residing with her at Dawn Bungalow. (10) At page 209 of the said compilation, defendant no.2 produced letter dated 17th February 2007 addressed by defendant no.2 to the Executive Engineer, Building Proposals Department, H/West M.C.G.B stating that -: 13 :- defendant no.2 is residing with her at Dawn Bungalow. (11) At page nos. 215, 216, 217 and 218 of the Compilation, defendant no.2 has produced counter foils of Rent Receipts dated 1st November 2005, 2nd August 2006, 1st April 2007 and 21st January 2008 issued to defendant no.2 by defendant no.1 for 1st floor of Dawn Bungalow. (12) At page Nos. 614 and 620 of the Compilation(Volume-III of Appeal paper book), defendant no.2 has produced N.C. Complaint No. 3003/07 dated 6th August 2007 lodged by Security guard Mohammed wherein he has stated that defendant no.2 is residing at Dawn bungalow. (13) At page nos. 625 and 626of the Compilation(Volume-III of Appeal paper book), defendant no.2 has produced N.C. complaint No.3037 of 2007 dated 8th August 2007 lodged by security guard Arvind Yadav stating therein that defendant no.2 is residing in the said bungalow. (14) Defendant nos. 1 & 2 have filed Short Causes Suit No. 2173 of 2008 on 30th April 2008 wherein in the cause title of the suit the address of defendant no.2 is shown as Dawn Bungalow. 16. After perusal of the aforesaid documents, prima facie, I am of the view that defendant no.2 is residing at 1st floor of Dawn Bungalow, at least from August 2005. The ration card dated 30th August 2005 strongly supports the case of defendant no.2. Even the complaints filed by the plaintiff’s own security guards in the month of August 2007, i.e., much prior to the date of filing of suit, also disclose that defendant no.2 -: 14 :- was residing at Dawn Bungalow. 17. So far as the documents relied by defendant no.3 are concerned, I am making reference to those documents hereinafter. (1)At pages 278 and 280 of compilation of documents (Volume-II of Appeal paper book) defendant no.3 has produced Post Cards dated 25th March 2008 and 12th April 2008 addressed to defendant no.3 at his address at Dawn Bungalow. (2) Defendant no.3 during the course of arguments has tendered vakalatnama dated 2nd December 2006 filed by him in S.C. Suit No. 353 of 2005 showing his office address at Dawn Bungalow. (3)Defendant no.3 during the course of arguments has tendered letter dated 26th March 2008 addressed by him to the Prothonotary and Senior Master of this Court requesting her to record his new address at the Dawn Bungalow. (4)At pages 288 of compilation of documents (Volume-II of Appeal paper book) defendant no.3 has produced Docket dated 7th June 2008 of an affidavit in reply filed in a proceedings of his client wherein his office address is shown as Dawn Bungalow. (5)At pages 289 of compilation of documents (Volume-II of Appeal paper book) defendant no.3 has produced Docket dated 9th June 2008 showing his office address at Dawn Bungalow. -: 15 :- 17. The perusal of the above documents, prima facie, indicates that defendant no.3 is using one room on the first floor of the Dawn Bungalow as his office since much prior to the date of filing of the suit. 18. Mr. Aspi Chinoy, learned senior counsel appearing for the plaintiff submitted that the documents on which defendant nos.2 & 3 have placed reliance, are acquired by them post acquisition of the property by the plaintiff in the year 2005, in order to show their possession and therefore are irrelevant. I do not find any merit in the said submission. Defendant nos.2 & 3 can resist the relief of temporary injunction in the absence of any title provided they prove their settled possession to the suit property. It is the claim of defendant nos.2 & 3 that they are in peaceful possession since much prior to the filing of suit and in order to show that they are in peaceful and settled possession of the suit property they have relied upon documents mentioned above. In order to show that defendant nos. 2 & 3 are not in peaceful possession and settled possession of the suit property, the plaintiff mainly relied upon the video recording, which in my view are not relevant as same is recorded subsequent to the date of suit. The defendants have prima facie case inasmuch as they are in peaceful possession of the 1st floor of Dawn Bungalow since much prior to the date of suit. In these circumstances, the balance of convenience also lies in their favour. 19. In the above said facts and circumstances, I am of the opinion that -: 16 :- the plaintiff is not entitled for the relief as claimed in the