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Tuesday, January 10, 2017

the concept of “settled possession” it was observed in paragraph 9 as under: “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 straitjacket. 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 matter was further elaborated in subsequent decision of this Court in Maria Margarida (Supra) as under: “97. Principles of law which emerge in this case are crystallized as under: (1) 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. (2) 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. (3) 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. (4) 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. (5) 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.” Thus, a person holding the premises gratuitously or in the capacity as a caretaker or a servant would not acquire any right or interest in the property and even long possession in that capacity would be of no legal consequences. In the circumstances City Civil Court was right and justified in rejecting the prayer for interim injunction and that decision ought not to have been set aside by the High Court. We therefore, allow the appeal, set aside the judgment under appeal and restore the Order dated 29.04.2013 passed by the Bombay City Civil Court in Notice of Motion No.344 of 2013 in Suit No.408 of 2013. The matter having come up before this Court from an interim order and since the main suit itself is pending, any observations made by us shall not be taken as concluding the controversy and the merits of the matter will be gone into by the Court at the appropriate stage without being influenced by any observations made by us. Contempt Petition (Civil) No.368 of 2014 was filed by the appellants submitting inter alia that the interim order passed by this Court on 10.02.2014 was disobeyed by the respondent. No notice was issued in this contempt petition. As we have decided the main matter no separate orders are called for in the contempt petition and the same stands disposed of. No order as to costs.

                                                                  Reportable

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                   CIVIL APPEAL NO.   150         OF 2017
               (ARISING OUT OF SLP (CIVIL) NO. 35464 OF 2013)


Behram Tejani & Ors.                                          ….Appellants

                                   Versus

Azeem Jagani                                           …. Respondent

                                    WITH

               CONTEMPT PETITION (CIVIL) NO.368 OF 2014    IN
               Special Leave Petition (Civil) NO.35464 of 2013


                               J U D G M E N T

Uday Umesh Lalit, J.


Leave granted.


This appeal challenges the judgment and Order  dated  17.09.2013  passed  by
the High Court of  Bombay  in  Appeal  from  Order  (ST)  No.15590  of  2013
quashing and setting aside the Order dated 29.04.2013 passed by  the  Bombay
City Civil Court in Notice of Motion No.344 of 2013 in Suit No.408 of 2013.



On 4.02.2013, aforesaid Suit No.408 of 2013  was  filed  by  the  respondent
submitting inter alia:-

“The Plaintiff along with his Maternal grand-mother Mrs. Noorbanoo  Mohammed
Ali Tejani are in use, occupation and possession of the  premises  known  as
Tej Kunj, 1st Floor, Plot No.212 D,  Byramjee  Jeejeebhoy  Road,  Bandstand,
Bandra  (West),  Mumbai  400050,  hereinafter  referred  to  as  ‘the   suit
premises’…….The Defendant Nos.1, 2, 3 and 5 are the Paternal uncles  of  the
Plaintiff’s mother i.e. Mrs. Zeenat S. Jagani viz. the brothers of  deceased
father named Mohammed Ali H. Tejani (since deceased) and Defendant No.6,  is
a son of the Defendant No.5 and Defendant No.4 is the sister  of  Defendants
1,2,3 and 5…….Mohammed Ali H. Tejani (called the said Deceased)  was  a  Co-
owner along with Defendant Nos.1 to 5 in respect of a Plot of  Land  bearing
Plot No.202-D, along with the building comprising of ground with  one  upper
floor standing thereon and known as Tej Kunj ……..The said deceased  executed
a Will dated 28th September 1991 under which  the  deceased  bequeathed  his
1/7th share in the plot of land in favour of the Defendant Nos.1 to  5.  The
said Will is probated in the High Court T & I.J. Petition No.856 of 2003  as
per the Prabate granted on 6th December 2006.”



The respondent-plaintiff then adverted to Will dated 28.09.1991  and  Clause
7 thereof in particular.  It was averred:-

“The said deceased during his life time resided along with his  wife  namely
the said Smt. Noorbanoo Mohammed Ali Tejani and the family  members  on  the
entire First Floor of the said  property  including  the  plaintiff  herein.
The said deceased  died  on  22nd  March,  2003  and  since  then  the  said
Noorbanoo  Mohammed Ali Tejani and the plaintiff resided in the said flat.”



      The respondent prayed, inter alia, for following reliefs:-

“a)   That this Hon’ble Court  be  pleased  to  grant  permanent  order  and
injunction restraining the defendants,  their  respective  servants,  agents
and  person or persons claiming through or under them  from  in  any  manner
dispossessing the plaintiff from the suit  premises  without  following  due
process of law.



b)    That pending hearing and  final  disposal  of  the  above  suit,  this
Hon’ble     Court  be  pleased  to  grant  temporary  order  and  injunction
restraining the defendants, their respective servants, agents and person  or
persons claiming  through or under them from  in  any  manner  dispossessing
the plaintiff from the  suit  premises  without  following  due  process  of
law………”




   By Will dated 28.09.1991 which was referred to  by  the  respondent,  the
testator  had  appointed  his  brother  Amirali  Huseinali  Tejani  and  his
daughter  Zeenat  Shafique  Jagani  as  the  executors  and  trustees.   The
principal bequests made by the testator in the Will were:

“5.   I give, devise and bequeath all types of investments and assets  which
are in the form or  nature  of  moveables  and  which  are  in  my  own  and
beneficial name or my four married  daughters  namely  1)  Mrs.  Nasreen  I.
Fazal, 2) Mrs. Zeenat S. Jagani, 3) Mrs. Shahnaz R. Butt and  4)  Mrs.  Tina
D. Gai in equal shares.



7.    I own and hold undivided one half share right title  and  interest  in
the immovable property known as “Fatmabai Building’   on  Plot  No.  115  at
Nowroji Hill Road No.2, Nowroji Hill Estate, Bombay  400  009,  one  seventh
share right title and interest in “Tej-Kunj” Building  on  Plot  No.  96  at
Nowroji Hill Road No.5, Bombay 400 009 and  also  one  seventh  share  right
title and interest in a small residential  Building  “A”  on  Plot  No.212-D
(CTS No. B-764) at B.J. Road, Band Stand, Bandra, Bombay 400  050.   I  give
devise  and  bequeath  all   my   aforesaid   fractional   shares   in   the
abovementioned  immovable  properties  to  my  brother  Amirali  H.  Tejani,
Behram H. Tejani, Nasir H. Tejani and Feroze H. Tejani absolutely  in  equal
shares.  However, my brother Amirali H. Tejani will administer  the  affairs
of and deal with the  aforesaid  properties  or  any  part  thereof  in  his
absolute discretion and as he deems fit and proper seeing to the  prevailing
conditions and circumstances.  The 2nd floor flat in the aforesaid  Building
“A” at Bandra is in use and occupation of my brother Amirali and his  family
and they can continue to use, occupy  and  maintain  the  same  without  any
question or disturbance and hindrance from anyone and so also the other  co-
owners thereof.”





As stated in the aforesaid suit, the Will  was  probated  on  06.12.2006  in
Petition No.856 of 2003 and one of the executors was Zeenat Shafique  Jagani
i.e. mother of the respondent. It appears that the testator was residing  on
the first floor and after his death his wife continued to be  in  occupation
of said first floor. The respondent-plaintiff asserted that he was  also  in
use, occupation and possession of said first floor  alongwith  his  maternal
grand-mother and thus prayed for aforesaid reliefs  in  the  suit.  He  also
preferred Notice of Motion No.344 of 2013 praying inter alia  for  grant  of
temporary injunction restraining  the  defendants  from  dis-possessing  the
respondent- plaintiff from the suit premises without following  due  process
of law.



In the affidavit in  reply  filed  on  behalf  of  the  defendant-appellants
herein, it was submitted inter alia that after the death  of  the  testator,
the maternal grand-mother of the respondent  was merely allowed to  use  and
occupy the suit premises by the defendants out of love and sympathy  without
any fees or compensation; that the suit premises belonged to the  defendants
as co-owners;  that  the  testator  had  bequeathed  his  right,  title  and
interest in the building “Tej Kunj” to his four brothers  namely  defendants
Nos.1, 2, 3 and 5 and that the plaintiff and  his  grand-mother  were  fully
aware that no right, not even provision for  residence   was  created  under
the Will in her favour.  It was further submitted:-

“Nonetheless, out of sympathy, close blood relationship and  out  of  filial
love and affection, Mrs. Tejani has been allowed to use the  suit  premises.
I say that since she has no right, title or interest in  the  suit  premises
she could have no right to permit any other person much less  the  Plaintiff
to interfere with the ownership right of the co-owners. I say that it is  on
record that since the co-owners including myself came  to  learn  that  Mrs.
Tejani is wrongfully and without any  such  authority  from  the  Defendants
allowing the members of Jagani family, the Defendants  by  their  Advocates’
letter dated 12th January, 2013 addressed to Mrs.  Tejani  pointed  out  her
deliberate acts of commission and  omission  and  called  upon  her  not  to
interfere with the valuable rights of the defendants qua the suit  premises.
By the said  letter,  it  was  pointed  out  that  Mrs.  Tejani  should  not
illegally deal with the said premises in any manner whatsoever  as  long  as
she is freely allowed to reside therein and called  upon  here  to  let  the
Defendants know as to why and  under  what  circumstances  and  under  whose
authority, she has been intermeddling with the absolute ownership rights  of
the defendants qua the  suit  premises  and  requested  not  to  create  any
encumbrances of any nature whatsoever to the detriment of the  interests  of
the defendants. No reply has been sent  to  the  said  letter.  It  is  thus
evident that the members of Jagani family including Mrs.  Zeenat  Jagani  or
the Plaintiff could have no right in the suit premises.”

      With the aforesaid averments the defendants-appellants  opposed  grant
of any interim relief.


 Said Notice of Motion No.344 of 2013 was dismissed  by  Bombay  City  Civil
Court vide Order  dated  29.04.2013.  While  rejecting  the  prayer  it  was
observed as under:-

“It is specific submission of defendant that Noorbanoo herself has no  right
in this premises. Only on sympathetic ground she is allowed  to  occupy  the
premises. If such is fact, when plaintiff is coming  before  Court  claiming
equitable relief like injunction, he has to prima facie show some rights  to
claim  relief.  If  protection  is  asked  for,  one   must   clearly   seek
ascertaining his legal  rights.  Defendant  has  rightly  pointed  out  that
plaintiff is not submitting his legal right to possess  the  suit  premises.
He is merely claiming that he is residing with Noorbanoo  and  if  Noorbanoo
herself is not having right in the property, I am  of  the  view  that  such
type of protection  cannot  be  granted  in  favour  of  plaintiff.  Neither
Noorbanoo is made party to the suit, nor there  is  sufficient  material  to
indicate that Noorbanoo has any legal right to  allow  plaintiff  to  reside
with her in the suit property for and on behalf of her. I  am  of  the  view
that there is no any substantial right made out on behalf  of  plaintiff  to
entitle him for such equitable relief like injunction.”





The order of dismissal of Notice of Motion was challenged by  filing  Appeal
from Order No.15590 of 2013 in the High Court of Bombay  which  was  allowed
by judgment and Order dated 17.09.2013 and which is presently under  appeal.
It was observed by the High Court in Paragraphs 10 and 11  of  its  judgment
as under:-

“10.  The learned Judge, in view of the above position on record,  wrong  in
rejecting the motion on a foundation of ownership of  the  Defendants,  even
by  accepting  the  submission  of  the  Defendants-Respondents  that   Mrs.
Noorbanoo Mohammed Ali Tejani maternal grandmother herself has no  right  in
the premises. The legal right of possession as even observed by the  Supreme
Court in a case of Rame Gowda  (Supra)  just  cannot  be  the  basis  unless
adjudicated, to overlook the “settled possession”. The  requirement  is  the
physical possession of the property of the  occupant/person  like  Appellant
who is seeking the protection of his possession, though there  is  no  claim
and/or submission even made by the Appellant that he  is  the  owner  and/or
right in the property in question  at  least  in  the  present  case.  While
deciding the possession right  of  the  Appellant,  the  learned  Judge  has
actually given finding against the maternal  grandmother  and  decided  even
that she has no right to occupy the premises and therefore  no  question  of
permitting  the  Appellant  to  reside  therein.  The  concept  of  “settled
possession” cannot be equated with in  all  matters-“legal  possession”.  It
depends upon facts and circumstances of case, as  recorded  in  the  present
case.



11.   The leaned Judge has committed an error by relying upon wrong  footing
of law that the possession can be granted only  to  the  person  who  has  a
legal right to occupy the premises and no other one. In view of the  reasons
so given in above paragraphs, the learned Judge  has  committed  wrong  even
invoking the principle of equity against the  Appellant-Plaintiff.  Let  the
due course of law with a foundation to dispossess the person  in  possession
of the premises be only after due trial. In view of above, I am inclined  to
observe  that  the  order  passed  by  the  learned  Judge  deserves  to  be
interfered with, as it is against the settled principle of law  with  regard
to the possession of the property. It is made  clear  that  we  are  dealing
with the protection of the possession of the premises and not ownership  and
/or title of Mrs. Noorbanoo Mohammed Ali Tejani  maternal  grandmother.  All
points are kept open, including the observations given by the  earned  Judge
regarding ownership/title of the maternal grandmother.”





    Appearing for  the  defendants-appellants  Mr.  Dushyant  Dave,  learned
Senior Advocate submitted that the High Court had erred in granting  interim
relief in favour of the respondent. He submitted that the reliance  on  Rame
Gowda (Dead) by LRS. v. M. Varadappa Naidu(Dead) by LRs. and  Anrs.[1]   was
completely erroneous; that the respondent, at best, was a  relative  staying
with a gratuitous licensee; and that the case was covered by   the  decision
of this Court  in Maria Margarida Sequeira Fernandes and  others  v.  Erasmo
Jack De Sequeira (Dead ) through LRS.[2].Ms. Indu Malhotra,  learned  Senior
Advocate  appearing  for  the  plaintiff-respondent   submitted   that   the
respondent had been in settled  possession  and  as  such  was  entitled  to
protection. In her submission, the matter was fully covered by the  decision
of this Court in Rame Gowda (supra).



The Will adverted to in the plaint bequeathed the entire interest  that  the
testator had in the building in favour of his brothers.   The  Will  further
appointed mother of the respondent as one of  the  executors  and  trustees.
It is not the case of the respondent that  either  he  or  his  grand-mother
have any right independent of the Will or that the Will had  bequeathed  any
interest in respect of the premises in question in their  favour.   In  fact
the suit does not claim any independent right either of his grand-mother  or
of the respondent himself.



Having gone through the record, the submission of the  appellants  that  the
grand-mother of the respondent  though  did  not  have  any  right  qua  the
premises was permitted to occupy purely out of love  and  affection  is  not
without  merit. The status of the  grand-mother  is  thus  of  a  gratuitous
licensee and that of the respondent is purely of a   relative  staying  with
such gratuitous  licensee.



Rame Gowda (supra) was a case in which two adjoining  owners  were  claiming
independent right of ownership in respect of a  strip  of  land  in  between
their holdings.  That piece of land was in possession of the  plaintiff  and
as such while dealing with the  controversy, this Court  held that a  person
in peaceful possession is  entitled  to  retain  his  possession.   However,
while dealing with the concept of “settled possession” it  was  observed  in
paragraph 9 as under:

“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 straitjacket. 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 matter was further elaborated in subsequent decision of  this  Court  in
Maria Margarida (Supra) as under:
“97. Principles of law which emerge in this case are crystallized as under:

(1) 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.
(2) 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.
(3) 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.
(4) 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.
(5) 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.”


Thus, a person holding the premises gratuitously or in  the  capacity  as  a
caretaker or a servant would not  acquire  any  right  or  interest  in  the
property and even long possession in that capacity  would  be  of  no  legal
consequences. In the circumstances City Civil Court was right and  justified
in rejecting the prayer for interim injunction and that decision  ought  not
to have been set aside by the High Court. We therefore,  allow  the  appeal,
set aside the judgment under appeal and restore the Order  dated  29.04.2013
passed by the Bombay City Civil Court in Notice of Motion No.344 of 2013  in
Suit No.408 of 2013.

The matter having come up before this Court from an interim order and  since
the main suit itself is pending, any observations made by us  shall  not  be
taken as concluding the controversy and the merits of  the  matter  will  be
gone into by the Court at the appropriate stage without being influenced  by
any observations made by us.


Contempt Petition (Civil)  No.368  of  2014  was  filed  by  the  appellants
submitting inter alia that  the  interim  order  passed  by  this  Court  on
10.02.2014 was disobeyed by the respondent.  No notice was  issued  in  this
contempt petition.  As we have decided the main matter  no  separate  orders
are called for in the contempt petition and the same stands disposed of.


No order as to costs.
                                                           ..…..……………………..J.
(Pinaki Chandra Ghose)
                                        ……………………J.
(Uday Umesh Lalit)

New Delhi,
January 6, 2017
-----------------------
[1]    2004 (1) SCC 769
[2]    2012 (5) SCC 370


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