LPA/588/2009 of ROOP LALWANI & ORS. Vs SUNITA LALWANI & ORS.

* IN THE HIGH COURT OF DELHI AT NEW DELHI

Reserved on: 06.03.2014

Pronounced on: 10.03.2014

+LPA 588/2009, C.M. APPL. 1586/2013 & 1685/2013ROOP LALWANI AND ORS.…..PetitionersThrough: Sh. Dheeraj Malhotra and Sh. SandeepMittal, Advocates.

Versus

SUNITA LALWANI AND ORS.……..Respondents

Through: Ms. Karuna Nundy, Advocate.

CORAM:HON'BLE MR. JUSTICE S. RAVINDRA BHATHON'BLE MR. JUSTICE R.V. EASWAR

MR. JUSTICE S. RAVINDRA BHAT%

1.This plaintiffs’ appeal impugns the judgment and order of alearned Single Judge dated 12.10.2009 by which CS(OS)941/2002, asuit under Section 6 of the Specific Relief Act, 1963 (“the Act”), wasdismissed.

2.The parties shall be referred to in the course of judgment by thenomenclature assigned to them in the impugned judgment.

3.The plaintiffs are the brother and sisters of late M.N. Lalwani,who lived in R-791, New Rajendra Nagar, New Delhi, (“the suitproperty”). They alleged that during his lifetime, on 10.01.2002, lateSh. M.N. Lalwani accompanied them to Mumbai as he was gravely ill

and at that time the keys of the suit property were handed over tothem. Sh. M.N. Lalwani’s wife had predeceased him on 26.12.2001.He died on 24.02.2002 in Mumbai. It is claimed that after his death thephysical possession of the property was with the plaintiffs till thedefendants dispossessed them on 18.04.2002. It is alleged that on thelatter date, the defendants went to the suit premises with “some hiredpersons”, locksmith and changed the locks of the suit property anddispossessed the plaintiffs without their consent. The plaintiffs alsoclaimed that complaints were lodged with the concerned policeauthorities and that the defendants, despite repeated requests, did nothand back possession of the suit property.

4.The defendants are the widow and children of late Sh. P.N.Lalwani, the brother of late Sh. M.N. Lalwani, and the plaintiffs. Thewritten statement alleged that the said Sh. P.N. Lalwani was workingwith the Central Public Works Department (CPWD) and was posted inNew Delhi till 1960 and had been allotted, pursuant to his application,the suit property in draw of lots, on 07.08.1954, for which he haddeposited amounts from his own accounts. The defendants also reliedupon perpetual lease granted in favour of late Sh. P.N. Lalwani dated28.12.1961 with effect from 07.08.1954 and that Sh. P.N. Lalwanistarted residing in the suit property in 1964 and thereafter upon hismarriage in 1967 he lived with the fourth defendant, i.e. his wife.Upon the death of late Sh. P.N. Lalwani on 02.02.1980, the fourthdefendant, his widow, was put to considerable difficulty. The writtenstatement went on to allege that Sh. M.N. Lalwani perpetrated some

fraudulent acts upon the fourth defendant and started relying upon anaffidavit and Power of Attorney which allegedly resulted in his (Sh.M.N. Lalwani) being treated as owner of the property. It wascontended in the written statement that Sh. M.N. Lalwani stayed in thesuit property during the period of his posting on the permission of Sh.P.N. Lalwani, the owner of the property and that

“there were two sets of keys of the suit property – one with Sh.M.N. Lalwani and the other set was being retained by Sh. P.N.Lalwani during his lifetime and after his death, by DefendantNo.4. As stated above, Sh. P.N. Lalwani used to stay in the suitproperty during his posting in Delhi and thus kept with him thesecond set of keys. “It is totally incorrect and vehementlydenied that Sh. M.N. Lalwani handed-over the keys of the suitproperty to the plaintiffs on 10.01.2002 or at any time afterthat.”

5.Apparently, the plaintiffs had initially filed suit for partition[CS(OS)872/2002]. This partition suit was thereafter withdrawn andthe suit for possession under Section 6 of the Act was filedsubsequently. On 04.03.2008, following issues were framed forconsideration:

“1.Whether the plaintiffs were given actual physicalpossession of the suit property by late Shri M.N. Lalwanion 10.1.2002 and whether the plaintiffs were in settledactual physical possession of the suit property on or afterthe death of Shri M.N. Lalwani on 24.2.2002. If so, theeffect thereof? (OPP).

2.Whether the plaintiffs were dispossessed by thedefendants on 18.4.2002, otherwise than in the due courseof law? (OPP).

3.Whether the plaint is liable to be rejected onaccount of deficiency of Court fee? (OPD).

4.Whether the suit as framed is not maintainableunder Section 6 of the Specific Relief Act against thedefendants? (OPD).

5.Whether any claim can be made by the plaintiffsqua the suit property as consequence of the unconditionalwithdrawal of CS(OS) No.872 of 2002? Roop Lalwani andOrs. v. Sunita Lalwani and Ors. (OPD).

Relief.”

6.By the same order, the Court also stated that since Issue Nos. 3to 5 were purely legal, they would be treated as preliminary. Duringthe hearing, counsel for the parties stated that the defendants have fileda suit seeking declaration that some documents relied on by late M.N.Lalwani and the plaintiffs are not legal and binding. The plaintiffs areresisting the suit, and have not claimed any relief in any otherproceeding.

7.It was in these circumstances that the suit – as far as it pertainedto Issue Nos. 3 to 5 – was heard and decided by the impugnedjudgment. The learned Single Judge, by the impugned judgment,decided the fifth issue in favour of the plaintiffs and recorded that thethird issue – framed at the behest of the defendants – was not urged.After noticing Section 6 of the Specific Relief Act, 1963 and thedefendants’ contention that the plaintiffs were never in actual physical

possession of the suit property, the learned Single Judge referred toSection 4(1) of the Benami Transactions (Prohibition) Act, 1988 whichwas relied upon by the defendants. Thereafter, the learned SingleJudge relied upon the judgment in Rame Gowda (dead) by LRs v. M.Varadappa Naidu (Dead) by LRs and Anr., 2004 (1) SCC 769 and onappreciation of law, observed that physical possession could only besaid to have been with the plaintiffs. The findings in this regard in theimpugned judgment are as follows:

“16.The actual possession of the suit property cannot byany stretch of imagination be said to have been with theplaintiffs. They were only in possession of the keys to thesame. The plaintiffs‟ contention that they had posted security guard at the suit property and were therefore inpossession of the same is claimed to be unfounded andwrong as the security guard was hired on 23 March, 2002and was posted for only about 26 days. Further, plaintiff‟s letter dated 22 March, 2002 to the Delhi Vidyut Board forcharging basic charges clearly states that “no one is stayingin the premises form January 2002 and hence there is noconsumption of electricity.”

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18.It is settled law that the question/existence of title inthe suitproperty is immaterial as far as Section 6 of theSpecific Relief Act is concerned. In view of the observationof the Supreme Court as stated above, and under thecircumstances of the present case, it seems to me that itcannotbesaidthattheplaintiffswerein“settledpossession‟ of the suit property. The plaintiffs never actually resided in the suit property and are asserting their “actualpossession” of the same on the basis of the security guarddeployed there for mere 26 days. Though the defendantsdid not reside in the suit property for much time either, the

onus of proving “settled possession‟ is on the plaintiffs and I believe that thesame has not been satisfactorilydischarged.

19.Such being the circumstances of the present suit, Ifind that the present suit is not maintainable under Section 6of the Specific Relief Act, 1963. Thus issue No.4 is decided infavour of the defendants andagainst the plaintiffs.Consequently, the suit of the plaintiffs is dismissed. Allpending applications, if any, also stand disposed of in viewof the orders passed in Issue No. 4. No costs.”

8.The plaintiffs argued that having framed issues on 04.03.2008,the learned Single Judge ought not to have assumed that possessionwas never with them on narrow appreciation of the pleadings alone.Learned counsel for the appellants highlighted that there was wealthof material which was on the record in the form of list of documentswhich disclose that continuous physical possession was with Sh. M.N.Lalwani, who at the time of his death, had handed over the keys tothem. Learned counsel urged that even the impugned judgmentconcedes that on 10.01.2002 when Sh. M.N. Lalwani left Delhi forBombay to be with his siblings, i.e. the plaintiffs, the keys were withhim and were subsequently handed over to them. It was argued that inthese circumstances, their possession is undeniable and the Court couldnot have reasoned that they were never in possession.

9.Learned counsel asserted that the materials on record whichwere noticed to limited extent by the learned Single Judge was to theeffect that security guards had been positioned in the suit premises atthe plaintiffs’ behest and that the defendants, without their permission,changed the locks and forcibly took over possession. Learned counsel

relied upon the decision of the Supreme Court reported as Puran Singhand Ors. v. The State of Punjab 1975 (4) SCC 518 to say that theexpression “settled possession” does not carry any special meaningand should not be treated as ritualistic formula. Particular reliance wasplaced upon the following element outlined in Puran Singh (supra):

“(i)that the trespasser must be in actualphysical possession of the property over sufficientlylong period;

(ii)thatthepossessionmustbetotheknowledge (either express or implied) of the owneror without any attempt at concealment by thetrespasser and which contains an element of animuspossidendi.Thenatureofpossessionofthetrespasser would, however, be matter to be decidedon the facts and circumstances of each case;

(iii)the process of dispossession of the trueowner by the trespasser must be complete and finaland must be acquiesced to by the true owner; and

(iv)that one of the usual tests to determine thequality of settled possession, in the case of culturableland, would be whether or not the trespasser, afterhaving taken possession, had grown any crop. If thecrop had been grown by the trespasser, then even thetrue owner, has no right to destroy the crop grown bythe trespasser and take forcible possession.”

10.It was argued that besides the objective circumstances such asthe handing over of the keys and its continued retention by theplaintiffs as well as the deployment of security guards which wereevidenced by the receipts issued by the agency concerned, theplaintiffs had also relied upon the e-mail addressed by the husband of

one of the defendants, i.e. daughters of late Sh. P.N. Lalwani. Thiscategorically conceded that possession of the property was with theplaintiffsatthecontemporaneousperiodoftime.Inthesecircumstances, the defendants could not, regardless of whether thedefendants could claim equal ownership rights or exclusive title, upsetthe plaintiffs’ lawful possession. Thus, the suit was not onlymaintainable but had to be tried and adjudicated on merits inaccordance with law.

11.Learned counsel relied upon the rulings in Abdul Aziz Sk. ImamMusalman and Ors. v. Sk. Amir Sk. Burham Musalman and Anr. AIR1941 Nag 130 and Munshi Ram and Ors. v. Delhi Administration AIR1968 SC 702, to state that settled possession does not refer to anydefinitive period or length of time and would have to be judged in thecontext of circumstances of each case. Learned counsel for theplaintiffs contended that since late M.N. Lalwani was owner of theproperty and as his surviving siblings, were his heirs and clearly withinrights to contend that possession continued with them as legitimateheirs to the property. In that sense, late M.N. Lalwani’s possessioncontinued with them upon his death and all rights, including thepossession, devolved upon them.

12.Counsel for the defendants argued that the plaintiffs had notshown by any manner known to law that they were in possession of theproperty even for day. It was submitted that the plaint was premisedon alleged constructive possession, which had never been assertedagainst the defendants, who concededly were in possession, since they

had keys to the premises and very frequently visited it. Submitting thatmere constructive possession of the nature relied upon did not fallwithin the contemplation of foundational rights capable of enforcementunder Section 6 of the Act, the defendants say that their right topossession as co-owners got enlarged when late M.N. Lalwani died,into exclusive possession of the property and the suit premises.

13.The defendants also argued that even if the plaint averments andthe documents are taken as whole they do not make out case fortrial because the actual possession relied upon to maintain the suit wasthe pleaded continuous possession of the property of M.N. Lalwani,not that of the plaintiffs. Arguendo, without admitting the documentsto be true, all that they could lead the Court to infer or conclude wasthat the plaintiffs had possession to keys to the premises and that theyhad deployed security guards near it. The email relied on at bestshowed that the keys were with the plaintiffs; at any rate that was notby the defendants, and was disputed document. The absence of theplaintiffs pleadings that they were ever physically present in thepremises belied their argument that they were dispossessed from it.Learned counsel relied on the decision of the Supreme Court reportedas Subramani and Ors. v. State of Tamil Nadu, 2002 (7) SCC 210 andDarshan Singh and Ors. v. Gujjar Singh (Dead) by LRs and Ors., 2002(2) SCC 62 to say that for anyone to contend that he was in settledpossession, sufficient time should have elapsed. Reliance was alsoplaced on the judgment reported as East India Hotels v. SyndicateBank, 1992 Supp (2) SCC 29.

14.It was argued that the suit was filed only to harass thedefendants, particularly the fourth defendant, wife of late P.N.Lalwani, widow aged 80 years in an attempt to tire them out and grabthe property. It was contended that late M.N. Lalwani had dubiouslysecured documents which gave away the rights of the plaintiffs,without any rhyme or reason, when they were minors, after theirfather’s death. Counsel reiterated that M.N. Lalwani could never haveclaimed lawful ownership and the reliance placed upon the alleged willof late P.N. Lalwani is unsupportable because it is disputed and thesubject matter of the pending declaratory suit.

15.From the above discussion what this Court has to decide iswhether the impugned judgment was correct in dismissing the suit, byholding that the plaintiffs were disentitled to maintain the proceedings,given the factual circumstances pleaded in the plaint. The nub of thecontroversy here is whether the plaintiffs can be said to have been inpossession so as to be entitled to claim the relief in equity – as oneunder the Specific Relief Act undoubtedly is – of restoration ofpossession, sans any enquiry as to title to the property.

16.There is consistent authority (Nair Service Society Ltd. v. Rev.Father K.C. Alexander and Ors. AIR 1968 SC 1165, East India Hotels(supra)) that suit under Section 6 embodies summary remedy,intendedsolelyatrestorationofpossessionoftheplaintiff,desegregating that aspect from the issue of title. The authorities haveemphasized upon the summary nature of the proceedings, to say thatthis is meant to secure swift restitution, leaving the determination of

title to regular proceedings. To emphasize that such determinations areto be speedy and would not be subjected to further appeals, Section6(3) establishes bar to appeals. Thus, the Courts are not expected togo into elaborate evidence and have to decide in summary mannerwhether the complaint of loss of possession is justified as to call for anorder or decree under the provision. Viewed from this perspective, theapproach of the learned Single Judge – who took note of the fact thatwhile casting issues, the Court had separated Issue No. 4 as requiringdecision as preliminary issue – cannot be faulted.

17.As to what is “settled possession” was explained in East India(supra), where the Supreme Court took note of several previousdecisions. This included Puran Singh (supra) relied on by theplaintiffs. The Court held that when the plaintiff, bank, handed overthe possession – under somewhat compelling circumstances, butvoluntarily, nevertheless – its status as licensee was lost and it couldnot claim possession under Section 6:

“38………………….The rightful owner may re-enter andreinstate himself provided he does not use more forcethan was necessary. Such entry will be viewed as aresistance to an intrusion upon possession which hasnever been lost. The person in possession by stray act oftrespass, possession which has not matured into settledpossession, constitute an unlawful assembly, giving rightto the true owner, though not in actual possession at thetime, to remove the obstruction even by using necessaryforce". In Puran Singh v. State of Punjab (1975) SCR299, while following the ratio in Munshi Ram's case, this

Court held that it is difficult to lay clown any hard andfast rule as to when the possession of trespasser canmature into settled possession. But what this Court reallymeant was that the possession of trespasser must beeffective, undisturbed and to the knowledge of the owneror without any attempt at concealment. There is nospecial charm or magic in the words " settled possession" nor is it ritualistic formula which can be confined in astraight jacket but it has been used to mean such clearand effective possession of person, even if he is atrespasser, who gets the right under the criminal law todefend his properly against attack even by the true owner.It would be reiterated that the possession must be withinthe knowledge either express or implied, of the owner orwithout any attempt at concealment and which containsanelementofanimuspossedendic.Inthatcase possession for 14 days was held to be settledpossession since they raised the crops in the land. Thisview was reiterated again in Ram Ratan v. State ofU.P. (1977)2 SCR 2323, laying therein that the trueowner has every right to dispossess or throw out atrespasser while he is in the act or process of trespassingbut this right is not available to the true owner if thetrespasserhasbeensuccessfulinaccomplishinghis possession to the knowledge of the true owner. In suchcircumstances the law requires that the true owner shoulddispossess the trespasser by taking recourse to theremedies under the law.39. This court thus firmly laid the rule that stray orintermittent acts of possession does not constitute settledpossession. person in settled possession is entitled toresist the attempt of even the owner or persons claimingunderhimtodispossessthetrespasser.Theonly

exception was that recent or concealed possession doesnot enable trespasser to defend his possession.”

18.The decisions from Puran Singh (supra) onwards, includingEast India (supra) and Rame Gowda (supra) were rendered in thecontext of claims by parties whose actual physical possession wasdisrupted, leading to actions under Section 6. Whilst on the subject,it would be interesting to notice that “possession” was the subjectmatter of another decision, Gurucharan Singh v. Kamla Singh andOrs.[1976] 1 SCR739 where the Supreme Court held that:

“There are, therefore, three requisites of possession. First,there must be actual or potential physical control.Secondly,physicalcontrolisnot possession,unlessaccompanied by intention; hence, if thing is put into thehand of sleeping person, he has not possession of it.Thirdly, the possibility and intention must be visible orevidence (sic) by external signs, for if the thing shows nosigns of being under the control of anyone, it is notpossessed! In the end of all, however, the meaning of‘possession' must depend on the context (ibid p. 153). Maybe, in certain situations, possession may cover right topossess.ItisthusclearthatinAnglo-Americanjurisprudence also, possession is actual possession and ina limited set of cases, may include constructive possession,but when there is bare right to possess bereft of anydomination or factum of control, it will be strange legaltravesty to assert that an owner is in possession merelybecause he has right to possess when rival, in the teethof owner's opposition, is actually holding dominion andcontrol over the land adversely, openly and continuously.”

19.The plaintiffs do not state, in their averments, nor assert in theirarguments, that they ever lived with late M.N. Lalwani or actuallypossessed the property, save the manner stated by them. That M.N.

Lalwani lived or stayed there, had the property mutated in his name, orpaid municipal taxes, electricity or water bills, would not in anymanner confer an advantage upon them. Consequently, even if theirallegation that keys were given to them by late Lalwani is correct, itprecisely means that and nothing more. Keys were entrusted; theplaintiffs do not rely on any further material on this score. They do notassert that they ever visited the suit premises and exercised domainover the property except deploying security guards outside theproperty. Given these circumstances, they cannot be said to have“possessed” the property within the meaning as can be reasonablyunderstood in the context of something deserving protection underSection 6 of the Act. Whilst law undoubtedly abhors unilateral actionby anyone – the State, its agencies or private citizens – the remediesprovided by way of restitution in equity such as Section 6 cannot bebased on vague or tenuous claims, which this Court has no manner ofdoubt the present one involves.

20.The Court is of the opinion that the plaintiffs’ complaint that thesuit should not have been dismissed “summarily” without going intoelaborate evidence is groundless. The plaintiffs were forewarned ofthis possibility, when Issue No. 4 was framed as preliminary one(and legal one at that). Furthermore, the Court’s power to decidewhether on the face of the materials on record, triable cause of actionis made out is undeniable in view of Order VII Rule 11. This powerstands doubly reinforced in the case of proceedings of summarynature, as suits initiated under Section 6 are.

21.This juncture is apt for few observations concerning Section 6trials. Section 6 suit is special provision intended for specificpurpose: person who was in possession may, if dispossessed, regainpossession. The only two questions before the Court are whether (1)the person was factually in possession, and (2) whether the person hasbeen dispossessed.

22.The correctness of such possession, whether it was lawful, orbacked by valid title (for whatever reason) is to be ignored by theCourt. That matter is properly considered in full-fledged trial ontitle. Section 6 action on the other hand is – intended to be and mustremain – summary trial. It is no defence in such suit that theplaintiff was in possession illegally, or that he did not have title, orthat title vested with the defendants. Be that as it may, if the plaintiffwas in possession, and was later dispossessed by the defendants,Section 6 would be triggered. The very purpose of Section 6 is toprovide immediate and quick relief to those who have beendispossessed, distancing their fact of possession from their right topossess. Section 6 actions are not to be burdened with issues of title orclaims to ownership, howsoever indistinctly. In other words, the Courtmust only see whether the plaintiff was in possession, and not whetherhe/she should have been in possession.

23.This is the clear intent behind Section 6, which is supported byclear and express language. The Section envisages recovery ofpossession “notwithstanding any other title that may be set up in suchsuit.” Thus, the issue of title (even if facially in favour of the

defendant) is to be ignored. Rather, summary trial is to be conductedunder the limited confines of Section 6 to determine the fact ofpossession and subsequent dispossession, in order to return thepossessor to the land as quickly as possible. This leaves the parties toagitate the issue of title later through detailed evidence and trial. Thisurgency of Section 6 remedy is clear from the provision itself: thesuit must be filed within 6 months of the dispossession, and anyappeal or review is barred. The purpose is not to have truncated trialon title or the right to claim the land, but only to – in the interim –maintain the status quo as regards possession.

24.It is self-defeating exercise to have to prolong Section 6determination. The plaintiff in the present matter claims he wasdispossessed in 2002; the learned Single Judge decided the matter 7years after in 2009, and the appeal came up for final hearing in 2014.Independent of the outcome, the purpose of Section 6 – to decide onmatters of possession quickly first, and consider title later – has beenvitiated. That the learned Single Judge ultimately dismissed the suitmay be consolation here, but if decreed, the plaintiff would have hadto suffer dispossession for period of 7 years, denying the equitySection 6 seeks to protect.

25.With this in mind, this Court notes that Section 6 trials must beconducted in an expedited – though fair – manner. Courts shouldconsciously ensure that as far as possible, evidence is recorded by wayof affidavit; that the admission and denial of documents andproduction of any other evidence is expedited through the appointment

of local commissioners or through other means; and that the matter istaken up for final hearing within the third or fourth hearing, if notsooner. Every attempt should thus be made to ensure that the matter isconsidered as soon as possible, lest the equity embodied in Section 6decays with the passage of time. This Court is of opinion that theJudge-in-Charge of the Original Side of the High Court to prepare alist of all pending Section 6 actions as per the date of dispossession,and starting with the oldest matter, suitably devise system todistribute the case-load appropriately to ensure that these matters areconsidered as soon as possible. It would also be appropriate that rulesor practise directions are issued in this regard, ensuring that suchSection 6 suits are heard and disposed off as early as reasonablypossible.