Supreme Court of India
MARIA MARGARIDA SEQUERIA FERNANDES AND OTHERSversusERASMO JACK DE SEQUERIA(DEAD) THROUGH L.RS.
- Citation
- 2012 INSC 140
- Decided
- 21 March 2012
- Disposal
- Appeal(s) allowed
- Bench
- DALVEER BHANDARI
Holding
A caretaker holds the property only on behalf of the owner and cannot maintain a suit for injunction against the true owner; thus the injunction was not maintainable.
Summary
The appellant, a sister, owned a house in Goa purchased at auction, while her brother was allowed to occupy it as a caretaker. After the appellant returned to Goa in 1992, the brother filed a suit for a mandatory injunction to prevent her from taking possession, claiming a family arrangement. The trial court and High Court granted the injunction, but the Supreme Court held that the brother, as a caretaker, held no title or interest and could not sue the true owner under Section 6 of the Specific Relief Act. The Court emphasized that possession by a caretaker is deemed possession of the owner, and that false claims and frivolous litigation must be deterred. Consequently, the injunction was set aside, the brother was ordered to vacate, pay mesne profits and costs, and the appeal was allowed.
Issues considered
- Can a caretaker sue for a mandatory injunction against the true owner under Section 6 of the Specific Relief Act?
- Did the respondent have any title or legal right to continue possession of the suit property?
- Was the injunction decree granted by the lower courts maintainable?
- Should mesne profits be awarded to the true owner for unauthorized occupation?
- Did the lower courts comply with the principles of due process of law in granting the injunction?
Legislation cited
- Code of Civil Procedure, 1908s. 30
- Specific Relief Act, 1963s. 41, s. 6
Subjects
injunctioncaretakerpossessionSpecific Relief Actdue process of lawmesne profitsfalse claimreal estate litigationtitle of propertytruth in justicepleadings
Judgment
[2012] 3 S.C.R. 841
MARIA MARGARIDA SEQUERIA FERNANDES AND A
OTHERS
v.
ERASMO JACK DE SEQUERIA(DEAD) THROUGH L.RS.
(Civil Appeal No. 2968 of 2012)
B
MARCH 21, 2012
[DALVEER BHANDARI, H.L. DATIU AND DEEPAK
VERMA, JJ.]
Injunction: c
Suit for injunction - Maintainability of - Suit for injunction
filed by respondent-brother on ground that he was
dispossessed from the suit house by appellant-sister without
following the due process of law - Courts below decreed the D
suit- On appeal, held: The suit house was given by appellant-
sister to respondent-brother who was to act as a caretaker of
the house - Admittedly, respondent did not claim any title to
the suit property - Appellant had a valid title to the property
which was clearly proved from the pleadings and documents E
on record - The caretaker holds the property of the principal
only on behalf of the principal - The respondent's suit for
injunction against the true owner i.e. appellant was, therefore,
not maintainable, particularly when it was established beyond
doubt that the respondent was only a caretaker and he ought
to have given possession of the premises to the true owner F
of the suit property on demand - The judgments of courts
below set aside - Respondents directed to handover
possession of the suit house to appellant - In the peculiar
facts and circumstances of the case, LRs of respondent
granted three months time to vacate the suit premises and G
to pay Rs.1,00,0001- p.m. towards use and occupation of the
premises for a period of three months and to pay a cost of
Rs.50,0001- to the appellant.
841 H
842 SUPREME COURT REPORTS [2012] 3 S.C.R.
A Grant or refusal of injunction - Governing principles -
Discussed.
ADMINISTRATION OF JUSTICE: Truth as guiding star
in judicial process - Held: Truth alone has to be the
foundation of justice - Court must discharge its statutory
8
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 - In
the administration of justice, judges and lawyers play equal
roles - Like judges, lawyers also must ensure that truth
C triumphs in the administration of justice - Courts must give
greater emphasis on the veracity of pleadings and documents
in order to ascertain the truth.
PLEADINGS: Requirement of - Held: In pleadings, only
D the necessary and relevant material must be included and
unnecessary and irrelevant material must be excluded - In
civil cases, pleadings are extremely important for ascertaining
the title and possession of the property in question - Once
the title is prima facie established, it is for the person who is
E resisting the title holder's claim to possession to plead with
sufficient particularity on the basis of his claim to remain in
possession and place before the Court all such documents
as are expected to be there in the ordinary course of human
affairs - Only if the pleadings are sufficient, would an issue
F be struck and the matter sent to trial, where the onus will be
on him to prove the averred facts and documents.
Administration of justice:
Due process of Law - Meaning of - Discussed.
G
False claims and false defences - Held: False claims
and defences are really serious problems with real estate
litigation, predominantly because of ever escalating prices of
the real estate - In order to curb uncalled for and frivolous
H .litigation, the Courts have to ensure that there is no incentive
MARIAMARGARIDASEQUERIAFERNANDES v. ERASMO JACK 843
DE SEQUERIA (D) TR. L.RS.
or motive for uncalled .for litigation - This problem can be A
solved or at least be minimized if exemplary cost is imposed
for instituting frivolous litigation - 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 B
and sanctity of judicial proceedings.
MESNE PROFITS: Grant of, -when possession/title in
respect of property is claimed on the basis of false and
fabricated documents - Determinative factors - Discussed.
c
POSSESS/ON: Right over property - Claim for - Held:
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, D
watchman or seNant can never acquire interest in the property
irrespective of his long possession - The caretaker or seNant
has to give possession forthwith on demand - Courts are not
justified in protecting the possession of a caretaker, seNant
or any person who was allowed to live in the premises for E
some time either as a friend, relative, caretaker or as a
seNant - 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 F
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.
The appellant and .the respondent were sister and
brother. The case of the appellant was that the suit G
property situated in Goa belonged to her as it was
purchased by her in court auction from her aunt. The
husband of the appellant was in Navy and was posted
in different cities from time to time and, therefore, the
appellant stayed out of Goa. On the request of the H
844 SUPREME COURT REPORTS [2012] 3 S.C.R.
A resp.ondent, she granted permission to the responde-nt
to stay in the suit property as caretaker. In 1991 the
appellant decided to stay in the suit property. The
respondent returned the keys of the suit property and
shifted out of the suit property on 1;4.1991 and the
B appellant occupied the suit property. The respondent
filed suit for injunction. The case of the respondent was
that he was permitted to live in the suit premises because
of the family arrangement and, therefore, the respondent
remained in possession of the suit property for several
c yEfars and hence he could not be dispossessed without
due process of law. The trial court decreed the suit. The
High Court upheld the same. The instant appeal was filed
challenging the order of the High Court.
Allowing the appeal, the Court
D
HELD:
1. Truth as guiding star in judicial process
The truth should be the guiding star in the entire
E 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
F and bounden duty. Justice system will acquire credibility
only when people Will be convinced that justice is based
on the foundation of the truth. It is a well accepted and
settled principle that a Court must discharge its statutory
functions-whether discretionary or obligatory-according
G 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. A judge in the Indian System has to be
regarded as failing to exercise its jurisdiction and thereby
discharging its judicial duty, if in the guise of remaining
H neutral, he opts to remain passive to the proceedings
MARIA MARGARIDA SEQUERIA FERNANDES v. ERASMO JACK 845
DE SEQUERIA (D) TR. L.RS,
before him. He has to always keep in mind that "every trial A
is a voyage of discovery in which truth is the quest". In
order to bring on record the relevant fact, he has to play
an active role; no doubt within the bounds of the
statutorily defined procedural law. World over, modern
procedural Codes are increasingly relying on full B
disclosure by the parties. Managerial powers of the
Judge are being deployed to ensure that the scope of the
factual controversy is minimized. In civil cases,
adherence to Section 30 CPC would also help in
ascertaining the truth. It seems that this provision which c
ought to be frequently used is rarely pressed in service
by our judicial officers and judges. [Paras 31-34, 39, 41-
42) [865-E-G; 866-B-C; 867-A-B; 867-D-E] .
1.2. "Satyameva Jayate" (Literally: "Truth Stands
Invincible") is a mantra from the ancient scripture D
Mundaka Upanishad. Upon independence of India, it was
adopted as the national motto of India. It is inscribed in
Devanagari script at the base of the national emblem.
Malimath Committee on Judicial Reforms heavily relied on ,
the fact that in discovering truth, the judges of all Courts E
need to play an active role. In the administration of justice,
judges and lawyers play equal roles. Like judges, lawyers
also must ensure that truth triumphs in the administration
of justice. Truth is the foundation of justice. It must be the
endeavour of all the judicial officers and judges to F
ascertain truth in every matter and no stone should be
left unturned in achieving this object. Courts must give
greater emphasis on the veracity of pleadings and
documents in order to ascert~in the truth. [Paras 43-44,
51-52) (868-B-C-D; 871-F-H] G
Mohan/al Shamji Soni v. Union of India 1991 Supp (1)
SCC 271: 1991 (1) SCR 712; Ritesh Tewari and Another v.
State of U.P. and Others (2010) 10 sec 677: 2010 (11) SCR
589; Chandra Shashi v. Anil Kumar Verma (1995) 1 SCC
421: 1994 (5) Suppl. SCR 465 - relied on. H
846 SUPREME COURT REPORTS [2012] 3 S.C.R.
A Jones v. National Coal Board 1957 2 QB 55; James v.
Giles et al. v. State of Maryland 386 U.S. 66, 87, S.Ct. 793;
United States v. J.Lee Havens 446 U.S. 620, 100 St.Ct.1912
- referred to.
2. Pleadings
8
2.1. Pleadings are the foundation of litigation. In
pleadings, only the necessary and relevant material must
be included and unnecessary and irrelevant material
must be excluded. Pleadings are given utmost
C importance in similar systems of adjudication, such as,
the United Kingdom and the United States of America. In
the United Kingdom, after the Woolf Report, Civil
Procedure Rules, 1998 were enacted. After enactment of
the Civil Procedure Rules 1998, much greater emphasis
D is given on pleadings in the United Kingdom. Similarly,
in the United States of America, much greater emphasis
is given on pleadings. [Paras 53, 54, 57] [872-A-C; 873-C]
2.2. In civil cases, pleadings are extremely important
E for ascertaining the title and possession of the property
in question. Possession is an incidence of ownership
and. can be transferred by the owner of an immovable
property to another such as in a mortgage or lease. A
licensee holds possession on behalf of the owner.
Possession is important when there are no title
F documents and other relevant records before the Court,
but, once the documents and records of title come before
the Court, it is the title which has to be looked at first and
due weightage be given to it. Possession cannot be
considered in vacuum. There is a presumption that
G possession of a person, other than the owner, if at all it
is to be called possession, is permissive on behalf of the
title-holder. Further, possession of the past is one thing,
and the right to remain or continue in future is another
thing. It is the latter which is usually more in controversy
H
MARIA MARGARIDA SEQUERIA FERNANDES v. ERASMO JACK 84 7
DE SEQUERIA (D) TR. L.RS.
than the former, and it is the latter which has seen much A
abuse and misuse before the Courts. A suit can be filed
by the title holder for recovery of possession or it can be
one for ejectment of an ex-lessee or for mandatory
injunction requiring a person to remove himself or it can
be a suit under Section 6 of the Specific Relief Act to B
recover possession. [paras 61-65) [874-B-F]
2.3. A title suit for possession has two parts - first,
adjudication of title, and second, adjudication of
possession. If the title dispute is removed and the title is
established in one or the other, then, in effect, it becomes C
a suit for ejectment where the defendant must plead and
prove why he must not be ejected. In an action for
recovery of possession of immovable property, or for
protecting possession thereof, upon the legal title to the
property being established, the possession or D
occupation of the property by a person other than the
holder of the legal title will be presumed to have been
under and in subordination to the legal title, and it will be
for the person resisting a claim for recovery of
possession or claiming a right to continue in possession, E
to establish that he has such a right. To put it differently,
wherever pleadings and documents establish title to a
particular property and possession is in question, it will
be for the person in possession to give sufficiently
detailed pleadings, particulars and documents to support F
his claim in order to continue in possession. In order to
do justice, it is necessary to direct the parties to give all
details of pleadings with particulars. Once the title is
prima facie established, it is for the person who is
resisting the title holder's claim to possession to plead G
with sufficient particularity on the basis of his claim to
remain in possession and place before the Court all such
documents as in the ordinary course of human affairs are
expected to be there. Only if the pleadings are sufficient,
would an issue be struck and the matter sent to trial,
H
848 SUPREME COURT REPORTS [2012] 3 S.C.R.
A where the onus will be on him to prove the averred facts
and documents. [Paras 66-68) [874-G-H; 875-A-E]
2.4. The person averring a right to continue in
possession shall, as far as possible, give a detailed
particularized specific pleading along with documents to
8 support his claim and details of subsequent conduct
which establish his possession. It would be imperative
that one who claims possession must give all such
details as enumerated hereunder. They are only
illustrative and not exhaustive. (a) who is or are the owner
C or owners of the property; (b) title of the property; (c) who
is in possession of the title documents; (d) identity of the
claimant or claimants to possession; (e) the date of entry
into possession; (f) how he came into. possession -
whether he purchased the property or inherited or got the
D same in gift or by any other method; (g) in case he
purchased the property, what is the consideration; if he
has taken it on rent, how much is the rent, license fee or
lease amount; (h) If taken on rent, license fee or lease -
then insist on rent deed, license deed or lease deed; (i) ·
E who are the persons in possession/occupation or
otherwise living with him, in what capacity; as family
rnembers, friends or servants etc.; (j) subsequent
conduct, i.e., any event which might have extinguished
his entitlement to possession or caused shift therein; and
F (k) basis of his claim that not to deliver possession but
continue in possession. [Paras 69-70) [875~F-H; 876-A-E]
2.5. Apart from these pleadings, the Court must insist
on documentary proof in support of the pleadings. All
those documents would be relevant which come into
G existence after the transfer of title or possession or the
encumbrance as is claimed. While dealing with the civil
suits, at the threshold, the Court must carefully and
critically examine pleadings and documents. The Court
will examine the pleadings for specificity as also the
H
MARIA MARGARIDA SEQUERIA FERNANDES v. ERASMO JACK 849
DE SEQUERIA (D) TR. L.RS.
supporting material for sufficiency and then pass A
appropriate orders. Discovery and production of
documents and answers to interrogatories, together with
an approach of considering what in ordinary course of
human affairs is more likely to have been the probability,
will prevent many a false claims or defences from sailing B
beyond the stage for issues. If the pleadings do not give
sufficient details, they will not raise an issue, and the
Court can reject the claim or pass a decree on admission.
On vague pleadings, no issue arises. Only when he so
establishes, does the question of framing an issue arise. c
Framing of issues is an extremely important stage in a
civil trial. Judges are expected to carefully examine the
pleadings and documents before framing of issues in a
given case. [Paras 71-75] [876-F-H; 877-A-C]
2.6. In pleadings, whenever a person claims right to D
continue in possession of another property, it becomes
necessary for him to plead with specificity about who was
the owner, on what date did he enter into possession, in
what capacity and in what manner did he conduct his
relationship with the owner over the years till the date of E
suit. He must also give details on what basis he is claiming
a right to continue in possession. Until the pleadings
raise a sufficient case, they will not constitute sufficient
claim of defence. The Court must ensure that pleadings
of a case must contain sufficient particulars. Insistence F
on details reduces the ability to put forward a non-
existent or false claim or defence. In dealing with a civil
case, pleadings, title documents and relevant records
play a vital role and that would ordinarily decide the fate
of the case. [Paras 76, 78-79] [877-D-G] G
Bell Atlantic Corporation et al. v. William Twombly 550
U.S. 544, 127 S.Ct. 1955; John. D. Ashcroft, Former Attorney
General, et al. v. Javaid Iqbal et al. 556 U.S. 662, 129
S.Ct.1937 - referred to.
850 . SUPREME COURT REPORTS [2012] 3 S.C.R.
A Dr. Arun Mohan in his classic treatise on "Justice, Courts
and Delays" - referred to.
Suit for Mandatory Injunction
3. It is a settled principle of law that no one can take
B law in his own hands. Even a trespasser in settled
possession cannot be dispossessed without recourse of
law. It must be the endeavour of the Court that if a suit
for mandatory injunction is filed, then it is its bounden
duty and obligation to critically examine the pleadings
C and documents and pass an order of injunction while
taking pragmatic realities including prevalent market rent
of similar premises in similar localities in consideration.
The· Court's primary concern has to be to do substantial
justice. Even if the Court in an extraordinary case decides
D to grant ex-parte ad interim injunction in favour of the
plaintiff who does not have a clear title, then at least the
plaintiff be directed to give an undertaking that in case
the suit is ultimately dismissed, then he would be required
to pay market rent of the property from the date when an
E ad interim injunction was obtained by him. It is the duty
and the obligation of the Court to at least dispose off
application of grant of injunction as expeditiously as
possible. It is the demand of equity and justice. [Para 80)
[877~H; 878-A-D]
F Thomas Cook (India) Limited v. Hotel Imperial 2006 (88)
DRJ 545 - approved.
4. Due process of Law
G Due process of law means nobody ought to be
condemned unheard. The due process of law means a
person in settled possession will not be dispossessed
except by due process of law. Due process means an
opportunity for the defendant to file pleadings including
H written statement and documents before the Court of law.
MARIA MARGARIDA SEQUERIA FERNANDES v. ERASMO JACK 851
DE SEQUERIA (D) TR. L.RS.
It does not mean the whole trial. Due process of law is A
satisfied the moment rights of the parties are adjudicated
by a competent Court. [Para 81] [878-E-F]
5. False claims and false defences
False claims and defences are really serious B
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 C
them by paying a huge amount. This happens because
of the enormous delay in adjudication of cases in our
Courts. If pragmatic approach is adopted, then this
problem can be minimized to a large extent. In order to
curb uncalled for and frivolous litigation, the Courts have o
to ensure that there is no incentive or motive for uncalled
for litigation. It is a matter of common experience that
Court's otherwise scarce time is consumed or more
appropriately, wasted in a large number of uncalled for
cases. This problem can be solved or at least be E
minimized if exemplary cost is imposed for instituting
frivolous litigation. 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
F
purity and sanctity of judicial proceedings. [Paras 84, 85]
[880-B-H]
Ramrameshwari Devi and Others v. Nirmala Devi and
Others (2011) 8 sec 249 - relied on.
G
6. Grant or refusal of an injunction
6.1. Grant or refusal of an injunction in a civil suit is
the most important stage in the civil trial. Due care,
caution, diligence and attention must be bestowed by the H
852 SUPREME COURT REPORTS [2012) 3 S.C.R.
A judicial officers and judges while granting or refusing
injunction. In most cases, the fate of the case is decided
by grant or refusal of an injunction. Experience has
shown that once an injunction is granted, getting it
vacated would become a nightmare for the defendant. In
8 order to grant or refuse injunction, the judicial officer or
the judge mustcarefully examine the entire pleadings and
documents with utmost care and seriousness. The safe
and better course is to give short notice on injunction
application and pass an appropriate order after hearing
both the sides. In case of grave urgency, if it becomes
C imperative to grant an ex-parte ad interim injunction, it
should be granted for a specified period, such as, for two
weeks. In those cases, the plaintiff will have no inherent
interest in delaying disposal of injunction application after
obtaining an ex-parte ad interim injunction. The Court, in
D order to avoid abuse of the process of law may also
record in the injunction order that if the suit is eventually
dismissed, the plaintiff undertakes to pay restitution,
actual or realistic costs. While passing the order, the
Court must take into consideration the pragmatic realities
E and pass proper order for mesne profits. The Court must
make serious endeavour to ensure that even-handed
justice is given to both the parties. [Paras 86-87] [881-A-
F]
F 6.2. Ordinarily, three main principles govern the grant
or refusal of injunction. Prima facie case; balance of
convenience; and irreparable injury, which guide the
Court in this regard. In the broad category of prima facie
case, it is imperative for the Court to carefully analyse the
G pleadings and the documents on record and only on that
basis the Court must be governed by the prima facie
case. In grant and refusal of injunction, pleadings and
documents play vital role. [Paras 88, 89) [881-G-H; 882-
A]
H
MARIA MARGARIDA SEQUERIA FERNANDES v. ERASMO JACK 853
DE SEQUERIA (D) TR. L.RS.
7. Mesne Profits A
Experience has shown that all kinds of pleadings are
introduced and even false and fabricated documents are
filed in civil cases because there is an inherent profit in
continuation of possession. In a large number of cases, B
honest litigants suffer and dishonest litigants get undue
benefit by grant or refusal of an injunction because the
Courts do not critically examine pleadings and
documents on record. In case while granting or refusing
injunction, the Court properly considers pleadings and c
documents and takes the pragmatic view and grants
appropriate mesne profit, then the inherent interest to
continue frivolous litigation by unscrupulous litigants
would be reduced to a large extent. The Court while
granting injunction should broadly take into
0
consideration the prevailing market rentals. in the locality
for similar premises. Based on that, the Court should fix
adhoc amount which the person continuing in
possession must pay and on such payment, the plaintiff
may withdraw after furnishing an undertaking and also E
making it clear that should the Court pass any order for
reimbursement, it will be a charge upon the property. The
Court can also direct payment of a particular amount and
for a differential, direct fu~nishing of a security by the
person who wishes to continue in possession. If such F
1
amount, as may be fixed by the Court, is not paid as
security, the Court may remove the person and appoint
·a receiver of the property or strike out the claim or
defence. This is a very important exercise for balancing
equities. Courts must carry out this exercise with extreme
care and caution while keeping pragmatic realities in mind G
and make a proper order of granting mesne profit. This
is the requirement of equity and justice. In the instant
case, if the Courts below would have carefully looked into
the pleadings and documents and had applied principle
of the grant of mesne profit, then injustice and illegality H
854 SUPREME COURT REPORTS [2012] 3 S.C.R.
A would not have perpetuated for more than two decades.
Admittedly, the respondent did not claim any title to the
suit property. Undoubtedly, the appellant has a valid title
to the property which was clearly proved from the
pleadings and documents on record. The respondent was
B not able to establish the family arrangement by which the
suit property was given to the respondent for his
residence. The courts below failed to appreciate that the
premises in question was given by the appellant to her
brother respondent as a caretaker. The appellant was
c married to a Naval Officer who was transferred from time
to time outside Goa. Therefore, on the request of her
brother she gave possession of the premises to him as
a caretaker. The caretaker holds the property of the
principal only on behalf of the principal. The
D respondent's suit for injunction against the true owner -·
the appellant was not maintainable, particularly when it
was established beyond doubt that the respondent was
only a caretaker and he ought to have given possession
of the premises to the true owner of the suit property on
E demand. Admittedly, the respondent did not claim any
title over the suit property and he had not filed any
proceedings disputing the title of the appellant. [Paras 90-
96] [882-8-H; 883-A-G]
Puran Singh v. The State of Punjab (1975) 4 SCC 518:
F 1975 (0) Suppl. SCR 299; Mahabir Prasad Jain v. Ganga
Singh (1999) 8 sec 274: 1999 (3) Suppl. SCR 415 - relied
on.
Sham Lal v. Rajinder Kumar & Others 1994 (30) DRJ
G 596 - approved.
8. Principles of law which emerged in this case are
crystallized as under:-
1. No one acquires title to the property if he or
H she was allowed to stay in the premises
MARIA MARGARIDA SEQUERIA FERNANDES v. ERASMO JACK 855
DE SEQUERIA (D) TR. L.RS.
gratuitously. Even by long possession of A
years or decades such person would not
acquire any right or interest in the said
property.
2. Caretaker, watchman or servant can never B
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 C
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 D
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 E
acquires no right or interest whatsoever for
himself in such property irrespective of his
long stay or possession. [Para 101] (885-C-H;
886-A]
F
9. In this view of the matter, the impugned judgment
of the High Court as also of the trial court are set aside
and we accordingly do so. Consequently, directions is
passed to hand over possession of the suit premises to
the appellant. In the peculiar facts and circumstances of G
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 H
856 SUPREME COURT REPORTS [2012] 3 S.C.R.
A 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
B 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
C 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
o of the premises by taking police help. 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. (The moderate cost imposed in view of the fact
that the original respondent has expired). [Paras 102-105]
E [886-8-H]
Rame Gowda (dead) by LRs. v. M. Varadappa Naidu
(dead) by LRs. and Another (2004) 1 SCC 769: 2003 (6 )
Suppl. SCR 850 - relied on.
F Southern Roadways Ltd., Madurai v. S.M. Krishnan
(1989) 4 SCC 603: 1989 (1) Suppl. SCR 410; Anima Mallick
v. Ajoy Kumar Roy and Another (2000) 4 SCC 119; Sopan
Sukhdeo Sable and Others v. Assistant Charity
Commissioner and Others (2004) 3 SCC 137: 2004 (1) SCR
G 100~; Automobile Products India Limited v. Oas John Peter
and Others (2010) 12 SCC 593: 2010 (8) SCR 764- referred
to.
Case Law Reference:
H 1999 (3) Suppl. SCR 415 relied on Paras 15, 98
MARIA MARGARIDA SEQUERIA FERNANDES v. ERASMO JACK 85 7
DE SEQUERIA (D) TR. L.RS.
2003 (6) Suppl. SCR 850 relied on Paras 18, 25 A
1989 (1) Suppl. SCR 410 referred to Para 19
(2000) 4 sec 119 referred to Para 26
2004 (1) SCR 1004 referred to Para 27
B
2010 (8) SCR 764 referred to Para 29
(2011) 8 sec 249 relied on Paras 29, 85
1991 (1) SCR 712 relied on Para 34
2010 (11) SCR 589 relied on Para 36 c
1994 (5) Suppl. SCR 465 relied on Para 45
386 U.S. 66, 87, S.Ct. 793 referred to Para 47
446 U.S. 620, 100 St.Ct.1912 referred to Para 48 D
550 U.S. 544, 127 S.Ct. 1955 referred to Paras 57, 58
556 U.S. 662, 129 S.Ct.1937 referred to Paras 57, 59
2006 (88) DRJ 545 approved Para 82
E
1975 (0) Suppl. SCR 299 relied on Para 97
1994 (30) DRJ 596 approved Paras 99, 100
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
2968 of 2012.
F
From the Judgment & Order dated 5.5.2009 of the High
Court of Bombay at Goa in Civil Revision Application No. 3 of
2009.
D.N. Goburdhan, Prabal Bagchi, Aayush Chandra, Kartika
G
Sharma for the Appellants.
S. Ganesh, Pratap Venugopal, Namrata Sooda (for K.J.
John & Co.) for the Respondents.
The Judgment of the Court was delivered by
H
858 SUPREME COURT REPORTS [2012] 3 S.C.R.
A DALVEER BHANDARI, J.1. Leave granted.
2. This appeal emanates from the judgment and order
dated 5.5.2009 passed by the High Court of Bombay, Bench
at Goa in Civil Revision Application No.3 of 2009.
B 3. Appellant No.1 and respondent No.1, Erasmo Jack de
Sequeira (now dead) were sister and brother, hereinafter
referred to as appellant and respondent respectively.
4. According to the appellant, she is the sole owner and
c is in exclusive possession of the suit property. Her title of the
said suit property was clearly admitted, and never disputed by
the respondent, Erasmo Jack de Sequeira. According to the
appellant, the suit property was given to her brother as a
caretaker. The respondent has kept appellant, his own sister,
D out of her suit property for about two decades by suppressing
relevant material and pertinent information from the Court and
abusing the process of law.
5. Both the appellant and the respondent hail from the
State of Goa and belong to one of the leading and well known
E families of Goa. The father of the appellant and the respondent,
Dr. Jack D. Sequeira was an affluent businessman and a well-
known politician of Goa. Dr. Sequeira, during his lifetime, gave
a number of properties worth crores of rupees to the respondent
and also gave some properties to the appellant and her sisters.
F The respondent was given a soft drink factory at Goa, mining
leases of iron ore, agricultural lands and residential plots
including one situated at Dona Paula, which is located next to
the Governor's House. Though the respondent was given
properties worth several crores of rupees, he still eyed on a
G small property which the appellant purchased through Court
auction after paying full sale consideration. The respondent-
brother of the appellant was also a very influential and important
Member of Parliament. He was also very active in the local
politics in Goa.
H
MARIAMARGARIDASEQUERlAFERNANDES v. ERASMO JACK 859
DE SEQUERIA (D) TR. L.RS. [DALVEER BHANDARI, J.]
6. The appellant urged that the suit property originally A
belonged to her grandmother. Under the Portuguese Law, her
(grandmother's) children, i.e. two sons and a daughter (the
appellant's father, uncle and aunt) got 1/3rd share each in the
said suit property. The suit property of her grandmother was
put to auction and this suit property in question was purchased B
in auction by the appellant. In the Inventory Proceedings No.
1075/935 in the year 1968, she became the exclusive owner
of the suit property. Admittedly, the appellant has placed a
certified copy of the order of the Civil Judge, Senior Division
at Panaji dated 27th May, 1972 issued in favour of the c
appellant. According to the appellant, the possession and title
of the suit property in favour of the appellant is established from
the judgment of the Inquiry Officer of City Survey Tiswadi,
Panjim, Goa. The said order was not only passed in the
presence of the respondent, but also in the presence of his D
Attorney, Rodrigues who was also a senior executive officer of
the respondent. The relevant portion of that judgment is as
under:-
"The claim put forth by Shrimati Maria Teresa de Sequeria
from Panaji, in respect of Chalta No.14 of P.T. Sheet 65 E
was inquired into and it was found that the same belongs
to the said Maria Teresa de Sequeria in view of Inventory
Proceedings No.9-1968 [1075-935] - vide Certificate
issued by the Court of Civil Judge Senior Division, Panaji
dated 27.5.72 and as such her title and possession to the F
Chalta No.14 of P.T. SheetNo.65 is confirmed."
7. According to the appellant, she obtained the exclusive
title of the plot and the house in question.
G
8. It may be pertinent to mention that the respondent had
even participated in the said Court proceedings on behalf of
his handicapped aunt, Edna May Sequeria as a guardian and
received a cheque on her behalf. The appellant had deposited
Rs.40,000/-, the owelty money in the said Court proceedings
which became payable on account of the purchase of the said H
860 SUPREME COURT REPORTS [2012] 3 S.C.R.
A house. The said suit property stood registered in Panaji
Municipal Council in the name of the appellant. House tax was
paid by the appellant to the Municipality on self-occupation
basis. Further, it is submitted that the possession of the suit
property always remained with the appellant.
B
9. The Panaji Municipal Council, Goa issued a certificate
showing that possession of the suit premises was with the
appellant and the house tax of the suit property was paid by
her and she was the recorded owner of the same. According
c to the appellant, the respondent himself had acknowledged
possession and title of the suit property in favour of the
appellant.
.10. The appellant submitted that she got married on
8.9.1974 to an Officer of the Indian Navy who was posted from
D time to time in different places in India. She also submitted that
the respondent - her brother requested her that as his office is
just adjacent to the suit property, therefore, it would be
convenient for him to run his office and to keep an eye on the
suit property of the appellant. Therefore, the suit property was
E given to the respondent only as a caretaker.
11. The respondent executed a leave and licence
agreement in the name of his wife to shift with his family out of
the suit property completely on 1.4.1991 to Campo Verde
F Apartments at Caranzalem in Goa. The leave and licence
agreement executed by the respondent's wife for the new house
wherein the respondent and his family shifted on 1.4.1991 and
thereafter got the agreement renewed on 7 .3.1992. The
respondent also owned one flat in Goa and occupied on
G 17.4.1991.
12. According to the appellant, the respondent handed over
the suit property to his sister Maria in the first week of May, 1991
and requested her that some items which were already lying
in the suit property which the respondent did not immediately
H require in his new place may be kept in the suit property.
MARIA MARGARIDA SEQUERIA FERNANDES v. ERASMO JACK 861
DE SEQUERIA (D) TR. L.RS. [DALVEER BHANDARI, J.]
According to the appellant, her brother before shifting to the A
tenanted flat, handed over the keys of the house to the appellant.
The appellant did not take any receipt from her brother or click
a photograph to create evidence showing handing over of the
custodian possession of the suit property. The respondent
shifted to his new flat and the suit property was lying almost B
vacant because the appellant along with her husband was living
outside Goa on his different official postings.
13. According to the appellant, the details of electricity,
water and telephone bills clearly demonstrate that the house C
was locked and the small amounts payable in the said months,
i.e., August, September, October and November in the year
1991, February 1992 also showed very nominal payments of
Rs.30/-, Rs.33/-, Rs.68/- which conclusively proved that a house
comprising of several rooms, drawing, dining, bathrooms,
verandah, lawns etc. was lying vacant. D
14. On 20.5.1992, the appellant returned with her family
to Goa and occupied and enjoyed the said suit property. The ··
appellant submitted that she has a valid title/ownership and was
in possession of the suit property and she could not be E
dispossessed by a Court in a suit for injunction. The appellant
submitted that under Section 6 of the Specific Relief Act, the
appellant could not have been legally compelled to hand over
the possession to the respondent. It may be pertinent to mention
that the respondent had filed a suit for injunction before the Trial F
Court. The Trial Court granted injunction in favour of the
respondent and the same was upheld by the High Court in the
impugned judgment in Civil Revision Application.
15. According to the appellant, the impugned judgment of
the High Court by which the judgment of the Trial Court was G
affirmed is totally contrary to the law laid down by this Court in
Mahabir Prasad Jain v. Ganga Singh (1999) 8 SCC 274. It
was also asserted by the appellant that this Court in the
aforementioned case has laid down the parameters of Section
6 of the Special Relief Act, 1963. In the instant case, the Courts H
862 SUPREME COURT REPORTS [2012] 3 S.C.R.
A below were oblivious of the principle under Section 6 of the
Specific Relief Act. The appellant urged that the respondent's
suit for injunction was not maintainable as he could not claim
to be in lawful and legal possession of the premises at all. The
appellant argued that the Courts below have missed the main
B issue as the respondent was merely in custody of the house
on behalf of the appellant. According to her, a caretaker can
never sue a valid title-holder of the property.
16. The appellant further urged that a caretaker's
possession can never be a possession of individual's right and
C no such suit for injunction under Section 6 of the Specific Relief
Act was maintainable. The appellant contended that the
respondent returned the keys of the suit property sometime in
May 1991. The appellant asserted that the respondent had
manipulated the system and collected false and fabricated
D evidence in the form of Panchnama in collusion with the local
police and was designed to throw out the appellant from her
own house.
17. On 17.6.1992, the respondent filed a suit for permanent
E and mandatory injunction in the Court of Civil Judge, Senior
Division at Panaji as a Special Civil Suit No.131/92/A. On
22.6.1992, an ex-parte order for depositing the keys was
passed while the appellant and her family members were living
in the suit premises. The Trial Court decreed the suit.
F 18. According to the appellant, the impugned judgment of
the High Court is contrary to the ratio of the judgment of this
Court in Rame Gowda (dead) by LRs. v. M. Varadappa Naidu
(dead) by LRs. and Another (2004) 1 SCC 769 wherein a
three-Judge Bench of this Court has observed that possession
G is no good against the rightful owner and that the assumption
that he is in peaceful possession will not work and cannot
operate against the true lawful owner.
19. Reliance has also been placed by the appellant on
H Southern Roadways Ltd., Madurai v. S.M. Krishnan (1989) 4
MARIA MARGARIDA SEQUERIA FERNANDES v. ERASMO JACK 863
DE SEQUERIA (D) TR. L.RS. [DALVEER B\""IANDARI,
..,
J.]
SCC 603 wherein this Court has held that it is the settled law A
that agent has no possession of his own and caretaker's
possession is the possession of the principal. This Court has
taken the view that possession of the agent is the possession
of the principal and in view of the fiduciary relationship, the agent
cannot be permitted to claim his own possession. Thus, B
according to the appellant, the respondent had no right, title
and/or interest in the suit property and was not in lawful
possession. Therefore, the suit for injunction under Section 6
of the Specific Relief Act is totally misconceived. The appellant
contended that the High Court in the impugned judgment has c
gravely erred in affirming the judgment of the Trial Court.
20. According to the case of the respondent, he was
permitted to live in the suit premises because of the family
arrangement. The respondent remained in possession of the
suit property for several years and hence he cannot be D
dispossessed without following due process of law.
21. It is also submitted by the respondent that he was in
possession of the suit premises for 28 years and was forcibly
dispossessed on 15.6.1992. The respondent also submitted E
that he never conceded that the title of the suit property was
with the appellant. He also submitted that it is contrary to the
records that the respondent was a caretaker.
22. The learned counsel for the parties reiterated the
submissions made before the Courts below. The appellant F
submitted that she is a helpless and hapless sister of the
respondent who has been kept out from her own house for more
than two decades. The appellant is the owner of the suit
property which is evident from the Certificate of the Probate
Proceedings known as Inventory Proceeding No.1075/935. G
She further submitted that the respondent, her brother, was a
party in the said Probate Proceedings where the appellant
acquired the title of the suit property on 27 .5.1972. The
respondent collected the sale consideration amount on 17th
March, 1972 vide Cheque No.33559 drawn on Bank of India H
864 SUPREME COURT REPORTS [2012] 3 S.C.R.
A on behalf of his aunt in the auction proceedings.
23. The appellant submitted that the City Civil Court held
that the appellant is the owner of the suit property and has the
title and possession of the same which was never challenged
by the respondent. The appellant also submitted that apart from
8
the title of the suit property, house tax records and wealth tax
records indicate that she was and continued to be the owner
of the suit property. She further submitted that the utility bills of
electricity, water and telephone were of minimal amount which
show that the respondent had never resided in the suit
C premises. The appellant submitted that the finding of the Trial
Court that the appellant had no funds to purchase the property
was contrary to record. The High Court has also erroneously
affirmed the findings of the Trial Court.
D 24. The appellant urged that the suit filed by the respondent
is not based on title. The family arrangement, as alleged by the
respondent, is neither pleaded nor proved. The appellant
asserted that no suit under Section 6 of the Specific Relief Act
lies against the true owner. The appellant submitted that a
E caretaker, agent, guardian etc. cannot file a suit under Section
6 of the Specific Relief Act.
25. According to law laid down by this Court in Rame
Gowda (dead) by LRs. (supra), it is the settled legal position
that a·possessory suit is good against the whole world except
F the rightful owner. It is not maintainable against the true owner.
26. This Court in Anima Mallick v. Ajay Kumar Roy and
Another (2000) 4 SCC 119 held that where the sister gave
possession as gratuitous to the brother, this Court restored
G possession to the sister as it was purely gratuitous basis and
the sister could have reclaimed possession even without
knowledge of the brother.
27. According to the appellant, this Court in Sopan
H Sukhdeo Sable and Others v. Assistant Charity
MARIA MARGARIDA SEQUERIA FERNANDES v. ERASMO JACK 865
DE SEQUERIA (D) TR. L.RS. [DALVEER BHANDARI, J.]
Commissioner and Others (2004) 3 SCC 137 has observed A
that no injunction can be granted against the true owner and
Section 6 of the Specific Relief Act cannot be invoked to
protect the wrongdoer who suppressed the material facts from
the Courts.
B
28. The appellant submitted that Section 41 of the Specific
Relief Act debars any relief to be given to such an erring person
as the respondent who is guilty of suppression of material facts.
29. The appellant relied on Automobile Products India
Limited v. Das John Peter and Others (2010) 12 SCC 593 and C
Ramrameshwari Devi and Others v. Nirrnala Devi and Others
(2011) 8 SCC 249 where the Court has laid down that dilatory
tactics, misconceived injunction suits create only incentives for
wrongdoers.
D
30. The appellant submitted that for more than two
decades the appellant is without the possession of her own
house despite the fact that she has valid title to the suit
property.
Truth as guiding star in judicial process E
31. 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.
F
32. 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.
G
33. Justice system will acquire credibility only when people
will be convinced that justice is based on the foundation of the
truth.
34. In Mohan/al Shamji Soni v. Union of India 1991 Supp H
866 SUPREME COURT REPORTS [2012] 3 S.C.R.
A (1) SCC 271, 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
B 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
c the duty of a Court not only to do justice but also to ensure that
justice is being done.
35. 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
D discovery, vindication and establishment of truth are the main
purposes underlying the existence of the courts of justice.
36. In Ritesh Tewari and Another v. State of U.P. and
Others (2010) 10 SCC 677 this Court reproduced often quoted
E quotation which reads as under:
"Every trial is voyage of discovery in which truth is the
quest"
37. This Court observed that the power is to be exercised
F with an object to subserve the cause of justice and public
interest and for getting the evidence in aid of a just decision
and to uphold the truth.
38. Lord Denning, in the case of Jones v. National Coal
G Board [1957) 2 QB 55 has observed that:
"In the system of trial that we evolved in this country, the
Judge sits to hear and determine the issues raised by the
parties, not to conduct an investigation or examination on
behalf of the society at large, as happens, we believe, in
H some foreign countries."
MARIAMARGARIDASEQUERIAFERNANDES v. ERASMOJACK 867
DE SEQUERIA (D) TR. L.RS. [DALVEER BHANDARI, J.]
39. Certainly, the above, is not true of the Indian Judicial A
system. A judge in the Indian System has to be regarded as
failing to exercise its jurisdiction and thereby discharging its
judicial duty, if in the guise of remaining neutral, he opts to
remain passive to the proceedings before him. He has to
always.keep in mind that "every trial is a voyage of 9iscovery B
in which truth is the quest". In order to bring on record the
relevant fact, he has to play an active role; no doubt within the
bounds .of the statutorily defined procedural law.
40. Lord Denning further observed in the said case of
Jones (supra) that "'It's all very well to paint justice blind, but C
she does better without a bandage round her eyes. She should
be blind indeed to favour or prejudice, but clear to see which
way lies the truth ... "
41. World over, modern procedural Codes are increasingly D
relying on full disclosure by the parties. Managerial powers of
the Judge are being deployed to ensure that the scope of the
factual controversy is minimized.
42. In civil cases, adherence to Section 30 CPC would E
also help in ascertaining the truth. It seems that this provision
which ought to be frequently used is rarely pressed in service
by our judicial officers and judges. Section 30 CPC reads as
under:- ·
30. Power to order discovery and the like. - Subject to F
such conditions and limitations as may be prescribed, the
Court may, at any time either of its own motion or on the
application of any party, -
(a) make such orders as may be necessary or G
reasonable in all matters relating to the delivery and
answering of interrogatories; the admission of
documents and facts, and the discovery, inspection,
production, impounding and return of documents or
other material objects producible as evidence;
H
868 SUPREME COURT REPORTS [2012] 3 S.C.R.
A (b) issue summons to persons whose attendance is
required either to give evidence or to produce
documents or such other objects as aforesaid;
(c) order any fact to be proved by affidavit
B
43. "Satyameva Jayate" (Literally: "Truth Stands Invincible")
is a mantra from the ancient scripture Mundaka Upanishad.
Upon independence of India, it was adopted as the national
motto of India. It is inscribed in Devanagari script at the base
of the national emblem: The meaning of full mantra is as follows:
c
"Truth alone triumphs; not falsehood. Through truth the
divine path is spread out by which the sages whose
desires have been completely fulfilled, reach where that
supreme treasure of Truth resides."
D
44. Malimath Committee on Judicial Reforms heavily
relied on the fact that in discovering truth, the judges of all Courts
need to play an active role. The Committee observed thus:
2.2 ... . : ..... In the adversarial system truth is supposed to.
E emerge from the respective versions of the facts presented
by the prosecution and the defence before a neutral judge.
The judge acts like an umpire to see whether the
prosecution has been able to prove the case beyond
reasonable doubt. The State discharges the obligation to
F protect life, liberty and property of the citizens by taking
suitable preventive and punitive measures which also
serve the object of preventing private retribution so
es.sential for maintenance of peace and law and order in
the society doubt and gives the benefit of doubt to the
G accused. It is the parties that determine the scope of
dispute and decide largely, autonomously and in a
selective manner on the evidence that they decide to
present to the court. The trial is oral, continuous and
confrontational. The parties use cross-examination of
H witnesses to undermine the opposing case and to
MARIA MARGARIDA SEQUERIA FERNANDES v. ERASMO JACK 869
DE SEQUERIA (D) TR. L.RS. [DALVEER BHANDARI, J.]
discover information the other side has not brought out. The A
judge in his anxiety to maintain his position of neutrality
never takes any initiative to discover truth. He does not
correct the aberrations in the investigation or in the matter
of production of evidence before court ........ "
B
2.15 "The Adversarial System lacks dynamism because
it has no lofty ideal to inspire. It has not been entrusted with
a positive duty to discover truth as in the Inquisitorial
System. When the investigation is perfunctory or
ineffective, Judges seldom take any initiative to remedy the
situation. During the trial, the Judges do not bother if C
relevant evidence is not produced and plays a passive role
as he has no duty to search for truth .... ."
2.16.9. Truth being the cherished ideal and ethos of India,
pursuit of truth should be the guiding star of the Criminal D
Justice System. For justice to be done truth must prevail.
It is truth that must protect the innocent and it is truth that
must be the basis to punish the guilty. Truth is the very soul
of justice. Therefore truth should become the ideal to
inspire the courts to pursue. This can be achieved by E
statutorily mandating the courts to become active seekers
of truth. It is of seminal importance to inject vitality into our
system if we have to regain the lost confidence of the
people. Concern for and duty to seek truth should not
become the limited concern of the courts. It should become F
the paramount duty of everyone to assist the court in its
quest for truth.
45. In Chandra Shashi v. Anil Kumar Verma (1995) 1
sec 421 to enable the Courts to ward off unjustified
interference in their working, those who indulge in immoral acts G
like perjury, pre-variation and motivated falsehoods have to be
appropriately dealt with, without which it would not be possible
for any Court to administer justice in the true sense and to the
satisfaction of those who approach it in the hope that truth
would ultimately prevail. People would have faith in Courts when . H
870 SUPREME COURT REPORTS [2012) 3 S.C.R.
A they would find that truth alone triumphs in Courts.
46. Truth has been foundation of other judicial systems,
such as, the United States of America, the United Kingdom.and
other countries.
B 47. In 'James v. Giles et al. v. State of Maryland 386 U.S.
66, 87, S.Ct. 793), the US Supreme Court, in ruling on the
conduct of prosecution in suppressing evidence favourable to
the defendants and use of p1erjured testimony held that such
rules existed for a purpose as a necessary component of the
C search for truth and justice that judges, like prosecutors must
undertake. It further held that the State's obligation under the
Due Process Clause "is not to convict, but to see that so far
as possible, truth emerges."
0 48. The obligation to pursue truth has been carried to
extremes. Thus, in United States v. J.Lee Havens 446 U.S.
620, 100 St.Ct.1912, it was held that the government may use
illegally obtained evidence to impeach a defendant's fraudulent
statements during cross-examination for the purpose of seeking
E justice, for the purpose of "arriving at the truth, which is a
fundamental goal of our legal system".
49. Justice Cardozo in his widely read and appreciated
book 'The Nature of the Judicial Process" discusses the role
of the judges. The relevant part is reproduced as under:-
F
"There has been a certain lack of candour,· "in much of the
discussion of the theme [of judges' humanity], or rather
perhaps in the refusal to discuss it, as if judges must lose
respect and confidence by the reminder that they are
G subject to human limitations." I do not doubt the grandeur
of conception which lifts them into the realm of pure reason,
above and beyond the sweep of perturbing and deflecting
forces. None the less, if there is anything of reality in my
analysis of the judicial process, they do not stand aloof on
these chill and distant heights; and we shall not help the
H
MARIAMARGARIDASEQUERIA FERNANDES v. ERASMO JACK 871
DE SEQUERIA (D) TR. L.RS. [DALVEER BHANDARI, J.]
cause of truth by acting and speaking as if they do." A
50. Aharon Barak, President of Israeli Supreme Court from
1995 to 2006 takes the position that:
"For issues in which stability is actually more important
than the substance of the solution - and there are many B
such case - I will join the majority, without restating my
dissent each time. Only when my dissenting opinion
reflects an issue that is central for me - that goes to the
core of my role as a judge - will I not capitulate, and will I
continue to restate my dissenting opinion: "Truth or stability c
- truth is preferable".
"On the contrary, public confidence means ruling
according to the law and according to the judge's
conscience, whatever the attitude of the public may be.
Public confidence means giving expression to history, not D
to hysteria. Public confidence is ensured by the recognition
that the judge is doing justice within the framework of the
law and its provisions. Judges must act - inside and
outside the court - in a manner that preserves public
confidence in them. They must understand that judging is E
not merely a job but a way of life. It is a way of life that does
not include the pursuit of material wealth or publicity; it is
a way of life based on spiritual wealth; it is a way of life
that includes an objective and impartial search for truth."
F
51. In the administration of justice, judges and lawyers play
equal roles. Like judges, lawyers also must ensure that truth
triumphs in the administration of justice.
52. Truth is the foundation of justice. It must be the
endeavour of all the judicial officers and judges to ascertain G
truth in every matter and no. stone should be left unturned in
achieving this object. Courts must give greater emphasis on
the veracity of pleadings and documents in order to ascertain
the truth. ·
H
872, SUPREME COURT REPORTS [2012] 3 S.C.R.
A Pleadings
53. Pleadings are the foundation of litigation. In pleadings,
only the necessary and relevant material must be included and
unnecessary and irrelevant material must be excluded.
Pleadings are given utmost importance in similar systems of
B adjudication, such as, the United Kingdom and the United
States of America.
54. In the United Kingdom, after the Woolf Report, Civil
Procedure Rules, 1998 were enacted. Rule 3.4(2) has some
c relevance and the same is reprcduced as under:
(2) The Court may strike out a statement of case if it
appears to the Court -
(a) that the statement of case discloses no reasonable
D grounds for bringing or defending the claim;
(b) that the statement of case is an abuse of the Court's
process or is otherwise likely to obstruct the just
disposal of the proceedings; or
E (c) that there has been a failure to comply with a rule,·
practice direction or Court order.
55. In so far as denials are concerned, Rule 16.5 provides
that where the defendant denies an allegation, he must state
F his reasons for doing so, and if he intends to put forward a
different version of events from that given by the plaintiff, he
must state his own version.
56. The various practice directions and prescribed forms
G give an indication of the particulars required. In fact, the 1998
Rules go further and provide for summary judgment. Rule 24.2
of the Civil Procedure Rules, 1998 reads as under:
24.2 The Court may give summ~ry judgment against a
claimant or defendant on the whole of a claim or on
H a particular issue if-
MARIAMARGARIDASEQUERIAFERNANDES v. ERASMO JACK 873
DE SEQUERIA (D) TR. L.RS. [DALVEER BHANDARI, J.]
(a) it considers that- A
(i) that claimant has no real prospect of succeeding
on the claim or issue; or
(ii) that defendant has no real prospect of successfully
defending the claim or issue; and B
(b) there is no other compelling reason why the case
or issue should be disposed of at a trial.
57. After enactment of the Civil Procedure Rules 1998, C
much greater emphasis is given on pleadings in the United
Kingdom. Similarly, in the United States of America, much
greater emphasis is given on pleadings, particularly after tWo ·
well known decisions of the US Supreme Court, viz., Bell
Atlantic Corporation et al. v. William Twombly [550 U.S. 544,
127 S.Ct. 1955] and John. D. Ashcroft, Former Attorney 0
General, et al. v. Javaid Iqbal et al. [556 U.S. 662, 129
S.Ct.1937].
58. In Bell Atlantic (supra), the Court has observed that
factual allegations must be enough to raise a right to relief E
above the speculative level. The pleadings must contain
something more than a statement of facts that merely creates
a suspicion of a legally cognizable right of action.
59. In Ashcroft (supra) the majority Judges of the U.S.
F
Supreme Court observed as under:
"Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.
Although for the purposes of a motion to dismiss we must
take all of the factual allegations in the complaint as a true, G
we are not bound to accept as true a legal conclusion
couched as a factual allegation ......... only a complaint
a
that states plausible claim for relief survives a motion to
dismiss."
H
874 SUPREME COURT REPORTS [2012] 3 S.C.R.
A 60. The aforementioned two decisions of the U.S.
Supreme Court re-emphasized and reiterated the importance
of pleadings.
61. In civil cases, pleadings are extremely important for
ascertaining the title and possession of the property in
8
question.
62. Possession is an incidence of ownership and can be
transferred by the owner of an immovable property to another
such as in a mortgage or lease. A licensee holds possession
C on behalf of the owner.
63. Possession is important when there are nci title
documents and other relevant records before the Court, but,
once the documents and records of title come before the Court,
0 it is the title which has to be looked at first and due weightage
be given to it. Possession cannot be considered in vacuum.
64. There is a presumption that possession of a person,
other than the owner, if at all it is to be called possession, is
permissive on behalf of the title-holder. Further, possession of
E the past is one thing, and the right to remain or continue in future
is another thing. It is the latter which is usually more in
controversy than the former, and it is the latter which has seen
much abuse and misuse before the Courts.
F 65. A suit can be filed by the title holder for recovery of
possession or it can be one for ejectment of an ex-lessee or
for mandatory injunction requiring a person to remove himself
or it can be a suit under Section 6 of the Specific Relief Act to
recover possession.
G 66. A title suit for possession has two parts - first,
adjudication of title, and second, adjudication of possession. If
the title dispute is removed and the title is established in one
or the other, then, in effect, it becomes a suit for ejectment
where the defendant must plead and prove why he must not be
H ejected.
MARIAMARGARIDASEQUERIAFERNANDES v. ERASMO JACK 875
DE SEQUERIA (D) TR. L.RS. [DALVEER BHANDARI, J.]
67. In an action for recovery o.f possession of immovable A
property, or for protecting possession thereof, upon the legal
title to the property being established, the possession or
occupation of the property by a person other than the holder of
the legal title will be presumed to have been under and in
subordination to the legal title, and it will be for the person B
resisting a claim for recovery of possession or claiming a right
to continue in possession, to establish that he has such a right.
To put it differently, wherever pleadings and documents
establish title to a particular property and possession is in
question, it will be for the person in possession to give c
sufficiently detailed pleadings, particulars and documents to
support his claim in order to continue in possession.
68. In order to do justice, it is necessary to direct the parties
to give all details of pleadings with particulars. Once the title is
prima facie established, it is for the person who is resisting the D
title holder's claim to possession to plead With sufficient
particularity on the basis of his claim to remain in possession
and place before the Court all such documents as in the ordinary
course of human affairs are expected to be there. Only if the
pleadings are sufficient, would an issue be struck and the matter E
sent to trial, where the onus will be on him to prove the averred
facts and documents.
69. The person averring a right to continue in possession
shall, as far as possible, give a detailed particularized specific F
pleading along with documents to support his claim and details
of subsequent conduct which establish his possession.
70. It would be imperative that one who claims possession
must give all such details as enumerated hereunder. They are
only illustrative and not exhaustive. G
(a) who is or are the owner or owners of the property;
(b) title of the property;
(c) who is in possession of the title documents H
876 SUPREME COURT REPORTS [201-2] 3 S,C.R.
A (d) identity of the claimant or claimants to possession;
(e) the date of entry into possession;
(f) how he came into possession - whether he
purchased the property or inherited or got the same
8 in gift or by any other method;
(g) in case he purchased the property, what is the
consideration; if he has taken it on rent, how much
is the rent, license fee or lease amount;
c (h) If taken on rent, license fee or lease - then insist on
rent deed, license deed or lease deed;
(i) who are the persons in possession/occupation or
otherwise living with him, in what capacity; as family
D members, friends or servants etc.;
0) subsequent conduct, i.e., any event which might
have extinguished his entitlement to possession or
caused shift therein; and
E (k) basis of his claim that not to deliver possession but·
continue in possession.
71. Apart from these pleadings, the Court must insist on
documentary proof in. support of the pleadings. All those
F documents would be relevant which come into existence after
the transfer of title or possession or the encumbrance as is
claimed. While dealing with the civil suits, at the threshold, the
Court must carefully and critically examine pleadings and
documents.
G
72. The Court will examine the pleadings for specificity as
also the supporting material for sufficiency and then pass .
appropriate orders.
73. Discovery and production of documents and answers
H to interrogatories, together with an approach of considering
MARIA MARGARIDA SEQUERIA FERNANDES v. ERASMO JACK 877
DE SEQUERIA (D) TR. L.RS. [DALVEER BHANDARI, J.]
what in ordinary course of human affairs is more likely to have A
been the probability, will prevent many a false claims or
defences from sailing beyond the stage for issues.
74. If the pleadings do not give sufficient details, they will
not raise an issue, and the Court can reject the claim or pass
B
a decree on admission.
•
75. On vague pleadings, no issue arises. Only when he so
establishes, does the question of framing an issue arise.
Framing of issues is an extremely important stage in a civil trial.
Judges are expected to carefully examine the pleadings and c
documents before framing of issues in a given case.
a
76. In pleadings, whenever person claims right to
continue in possession of another property, it becomes
necessary for him to plead with .specificity about who was the
D
owner, on what date did he enter into possession, in what
capacity and in what manner did he conduct his relationship
with the owner over the years till the date of suit. He must also
give details on what basis he is claiming a right to continue in
possession. Until the pleadings raise a sufficient case, they will
not constitute sufficient claim of defence. E
77. Dr. Arun Mohan in his classic treatise on "Justice,
Courts and Delays" has dealt with these fundamental principles
of law exhaustively.
F
78. The Court must ensure that pleadings of a case must
contain sufficient particulars. Insistence on details reduces the
ability to put forward a non-existent or false claim or defence.
79. In dealing with a civil case, pleadings, title documents
and relevant records play a vital role and that would ordinarily G
decide the fate of the case.
Suit for Mandatory Injunction
80. It is a settled principle of law that no one can take law
H
878 SUPREME COURT REPORTS [2012] 3 S.C.R.
A in his own hands. Even a trespasser in settled possession
cannot be dispossesl>ed without recourse of law. It must be the
endeavour of the Court that if a suit for mandatory injunction is
filed, then it is its bounden duty and obligation to critically
examine the pleadings and documents and pass an order of
B injunetion while taking pragmatic realities including prevalent
market rent of similar premises in similar localities in
consideration. The Court's primary concern has to be to do
substantial justice. Even if the Court in an extraordinary case
decides to grant ex-parte ad interim injunction in favour of the
c plaintiffwho does not have a clear title, then at least the plaintiff
be directed to give an undertaking that in case the suit is
ultimately dismissed, then he would be required to pay market
rent of the property from the date when an ad interim injunction
was obtained by him. It is the duty and the obligation of the
D Court to at least dispose off application of grant of injunction
as expeditiously as possible. It is the demand of equity and
justice ..
Due process of Law
E 81. Due process of law means nobody ought to be
condemned unheard. The due process of law means a person
in settled possession will not be dispossessed except by due
process of law. Due process means an opportunity for the
defendant to file pleadings including written statement and
F documents before the Court of law. It does not mean the whole .
trial. Due process of law is satisfied the moment rights of the
parties are adjudicated by a competent Court.
82. The High Court of Delhi in a case Thomas Cook
(India) Limited v. Hotel Imperial 2006 (88) DRJ 545 held as
G under:
"28. The expressions 'due process of law', 'due course of
law' and 'recourse to law' have been interchangeably used
in the decisions referred to above which say that the settled
H possession of even a person in unlawful possession
MARIA MARGARIDA SEQUERIA FERNANDES v. ERASMO JACK 879
DE SEQUERIA (D) TR. L.RS. [DALVEER BHANDARI, J.]
cannot be disturbed 'forcibly' by the true owner taking law A
in his own hands. All these expressions, however, mean
the same thing - ejectment from settled possession can
only be had by recourse to a court of law. Clearly, 'due
process of law' or 'due course of law', here, simply mean
that a person in settled possession cannot be ejected B
without a court of law having adjudicated upon his rights
qua the true owner.
Now, this 'due process' or -'due course' condition is
satisfied the moment the rights of the parties are
adjudicated upon by a court of competent jurisdiction. It C
does not matter who brought the action to court. It could
be the owner in an action for enforcement of his right to
eject the person in unlawful possession. It could be the
person who is sought to be ejected, in an action preventing
the owner from ejecting him. Whether the action is for D
enforcement of a right (recovery of possession) or
protection of a right (injunction against dispossession), is
not of much consequence. What is important is that in
either event it is an action before the court and the court
adjudicates upon it. If that is done then, the 'bare minimum' E
requirement of 'due process' or 'due course' of law would
stand satisfied as recourse to law would have been taken.
In this context, when a party approaches a court seeking
a protective remedy such as an injunction and it fails in
setting up a good case, can it then say that the other party F
must now institute an action in a court of law for enforcing
his rights i.e., for taking back something from the first party
who holds it unlawfully, and, till such time, the court hearing
the injunction action must grant an injunction anyway? I
would think not. In any event, the 'recourse to law' G
stipulation stands satisfied when a judicial determination
is made with regard to the first party's protective action.
Thus, in the present case, the plaintiffs failure to make out
a case for an injunction does not mean that its consequent
cessation of user of the said two rooms would have been H
880 SUPREME COURT REPORTS [2012) 3 S.C.R.
A brought about without recourse to law."
83. We approve the findings of the High Court of Delhi on
.
this issue in the aforesaid case .
False claims and false defences
B
84. 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
c litiga~ts 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 our Courts. If pragmatic approach is adopted, then this
problem can be minimized to a large extent.
D 85. This Court in a recent judgment in Ramrameshwari
Devi and Others (supra) aptly observed at page 266 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
E incentive or motive for uncalled for litigation. It is a matter of
common experience that Court's otherwise scarce time is
consumed or more appropriately, wasted in a large number of
uncalled for cases. In this very judgment, the Court provided
that this problem can be solved or at least be minimized if
F exemplary cost is imposed for instituting frivolous litigation. The
Court observed at pages 267-268 that imposition of actual,
'•
~~
realistic or proper costs and/or ordering prosecution in
appropriate cases would go a long way in controlling the
· tendency of introducing false pleadings and forged and
G 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.
H
MARIA MARGARIDA SEQUERIA FERNANDES v. ERASMO JACK 881
DE SEQUERIA (D) TR. L.RS. [DALVEER BHANDARI, J.)
Grant or refusal of an injunction A
86. Grant or refusal of an injunction in a civil suit is the most
important stage in the civil trial. Due care, caution, diligence
and attention must be bestowed by the judicial officers and
judges while granting or refusing injunction. In most cases, the 8
fate of the case is decided by grant or refusal of an injunction.
Experience has shown that once an injunction is granted,
getting it vacated would become a nightmare for the defendant.
In order to grant or refuse injunction, the judicial officer or the
judge must carefully examine the entire pleadings and C
documents with utmost care and seriousness.
87. The safe and better course is to give short notice on
injunction application and pass an appropriate order after
hearing both the sides. In case of grave urgency, if it becomes
imperative to grant an ex-parte ad interim injunction, it should D
be granted for a specified period, such as, for two weeks. In
those cases, the plaintiff will have no inherent interest in
delaying disposal of injunction application after obtaining an ex-
parte ad interim injunction. The Court, in order to avoid abuse
of the process of law may also recor_s:t in the injunction order E
that if the suit is eventually dismissed, the plaintiff undertakes
to pay restitution, actual or realistic costs. While passing the
order, the Court must take into consideration the pragmatic
realities and pass proper order for mesne profits. The Court
must make serious endeavour to ensure that even-handed F
justice is given to both the parties.
88. Ordinarily, three main principles govern the grant or
refusal of injunction.
(a) prima facie case; G
(b) balance of convenience; and
(c) irreparable injury, which guide the Court in this
regard.
H
882 SUPREME COURT REPORTS · [2012] 3 S.C.R.
A 89. In the broad category of prima facie case, it is
imperative for the Court to carefully analyse the pleadings and
thedocuments on record and only on that basis the Court must
be governed by the prima facie case. In grant and refusal of
injunction, pleadings and documents play vital role. ·
8
Mesne Profits
·' 90. Experience has shown that all kinds of pleadings are
introduced and even false and fabricated documents are filed
in civil cases because there is an inherent profit in continuation
C of possession. In a large number of cases, honest litigants
suffer and dishonest litigants get undue benefit by grant or
refusal of an injunction because the Courts do not critically
examine pleadings and documents on record. In case while
granting or refusing injunction, the Court properly considers
D pleadings and documents and takes the pragmatic view and
grants appropriate mesne profit, then the inherent interest to
continue frivolous litigation by unscrupulous litigants would be
reduced to a large extent.
E 91. The Court while granting injunction should broadly take
into consideration the prevailing market rentals in the locality
for similar premises. Based on that, the Court should fix adhoc
amount which the person continuing in possession must pay
and on such payment, the plaintiff may withdraw after furnishing
an undertaking and also making it clear that should the Court
F pass any orderfor reimbursement, it will be a charge upon the
property.
92. The Court can also direct payment of a particular
amount and for a differential, direct furnishing of a security by
G the person who wishes to continue in possession. If such
amount, as may be fixed by the Court, is not paid as security,
the Court may remove the person and appoint a receiver of the
property or strike out the claim or defence. This is a very
important exercise for balancing equities. Courts must carry out
H this exercise with extreme care and caution while keeping
MARIA MARGARI DA SEQUERIA FERNANDES v. ERASMO JACK 883
DE SEQUERIA (D) TR. L.RS. [DALVEER BHANDARI, J.]
pragmatic realities in mind and make a proper order of granting A
mesne profit. This is the requirement of equity and justice.
93. In the instant case, if the Courts below would have
carefully looked into the pleadings, documents and had applied
principle of the grant of mesne profit, then injustice and illegality
would not have perpetuated for more than two decades. B
94. We have heard the learned counsel for the parties at
length and perused the relevant judgments cited at the Bar. In
the instant case, admittedly, the respondent did not claim any
title to the suit property. Undoubtedly, the appellant has a valid c
title to the property which is clearly proved from the pleadings
and documents on record.
95. The respondent has not been able to establish 'the
family arrangement by which this house was given to the
respondent for his residence. The Courts below have failed to D
appreciate that the premises in question was given by the
appellant to her brother respondent herein as a caretaker. The
appellant was married to a Naval Officer who was transferred
from time to time outside Goa. Therefore, on the request of her
brother she gave possession of the premises to him as a E
caretaker. The caretaker holds the property of the principal only
on behalf of the principal..
96. The respondent's suit for injunction against the true
owner - the appellant was not maintainable, particularly when
it was established beyond doubt that the respondent was only F
a caretaker and he ought to have given possession of the
premises to the true owner of the suit property on demand.
Admittedly, the respondent does not claim any title over the suit
property and he had not filed any proceedings disputing the title
. of the appellant. G
97. This Court in Puran Singh v. The State of Punjab
(1975) 4 sec 518 held that an occupation of the property by
a person as an agent or a servant at the instance of the owner
will not amount to actual physical possession. H
884 SUPREME COURT REPORTS [2012] 3 S.C.R.
A 98. This Court in Mahabir Prasad Jain (supra) has held
that the possession of a servant or agent is that of his master
or principal as the case. may be for all purposes and the former
cannot maintain a suit against the latter on the basis of such
possession.
B 99. In Sham Lal v. Rajinder Kumar & Others 1994 (30)
DRJ 596, the High Court of Delhi held thus:
"On the basis of the material available on record, it will be
a· misnomer to say that the plaintiff has been in
c 'possession' of the suit property. The plaintiff is neither a
tenant, nor a licensee, nor a person even in unlawful
possession of the suit property. Possession of servant is
possession of the real owner. A servant cannot be said to
be having any interest in the suit property. It cannot be said
D that a servant or a chowkidar can exercise such a
possession or right to possession over the property as to
exclude the master and the real owner of the property from
his possession or exercising right to possession over the
property.
E Possession is flexible term and is not necessarily
restricted to mere actual possession of the property. The
legal conception of possession may be in various forms.
The two elements of possession are the corpus and the
animus. A person though in physical possession may not ·
F be in possession in the eye of law, if the animus be
lacking. On the contrary, to be in possession, it is not
necessary that one must be in actual physical contact. To
gain the complete idea of possession, one must consider
(i) the person possessing, (ii) the things possessed and,
G (iii) the persons excluded from possession. A man may
hold an object without claiming any interest therein for
, himself. A servant though holding an object, holds it for his
master. He has, therefore, merely custody of the thing and
not the possession which would always be with the master
H though the master may not be in actual contact of the thing.
MARIA MARGARIDA SEQUERIA FERNANDES v. ERASMO JACK 885
DE SEQUERIA (D) TR L.RS. [DALVEER BHANDARI, J.]
It is in this light in which the concept of possession has to A
be understood in the context of a servant and & master."
100. The ratio of this judgment in Sham Lal (supra) is that
merely because the plaintiff was employed as a servant or
chowkidar to look after the property, it cannot be said that he B
had entered into such possession of the property as would
I
-ii entitle him to exclude even the master from enjoying or claiming
possession of the property or as would entitle him to compel
the master from staying away from his own property.
101. Principles of law which emerge in this case are c
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 D
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 E
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 F
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
G
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 H
886 SUPREME COURT REPORTS [2012] 3 S.C.R.
A property irrespective of his long stay or possession.
102. 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
8 the possession of the suit premises be handed over to the
appellant, who is admittedly the owner of the suit property.
103. In the peculiar facts and circumstances of this case,
the legal representatives of the respondent are grantedlhree
months time to vacate the suit premises. They are further
C 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.
D
104. 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
E 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
F 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.
105. As a result, the appeal of the appellant is allowed. In
G 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. (!Ne have imposed the moderate cost in view of the fact
that the original respondent has expired). Ordered accordingly.
H D.G. Appeal allowed.
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