{"id":47780,"date":"2010-10-19T00:00:00","date_gmt":"2010-10-18T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/variegate-realestate-private-vs-tehmul-r-irani-on-19-october-2010"},"modified":"2015-07-29T20:56:02","modified_gmt":"2015-07-29T15:26:02","slug":"variegate-realestate-private-vs-tehmul-r-irani-on-19-october-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/variegate-realestate-private-vs-tehmul-r-irani-on-19-october-2010","title":{"rendered":"Variegate Realestate Private … vs Tehmul R. Irani on 19 October, 2010"},"content":{"rendered":"
Bombay High Court<\/div>\n
Variegate Realestate Private … vs Tehmul R. Irani on 19 October, 2010<\/div>\n
Bench: Dr. D.Y. Chandrachud<\/div>\n
    VBC                                   1                        app917-10-19.10\n\n\n            IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n                             O. O. C. J.\n\n\n\n\n                                                                                   \n                        APPEAL NO.917 OF 2010\n\n\n\n\n                                                           \n                                  IN\n                   NOTICE OF MOTION NO.2233 OF 2008\n                                  IN\n                         SUIT NO.1870 OF 2008 \n\n\n\n\n                                                          \n                                 WITH\n                     NOTICE OF MOTION 2233 OF 2008\n\n\n\n\n                                              \n    Variegate Realestate Private Limited, a \n    Private Limited Company incorporated \n                               \n    under the provisions of the \n    Companies Act, 1956, having its \n    registered office at Solitaire Building,\n                              \n    3rd Floor, Block No.3, 80, S.V.Road,\n     Santacruz (West), Mumbai-400 054.                        ...Appellant.\n                            Vs.\n    1. Tehmul R. Irani, of Mumbai Indian \n            \n\n\n         Inhabitant, residing in Gardha Villa,\n         First Floor, 48, Hill Road, Behind\n         \n\n\n\n         Elco Market, Bandra (West),\n         Mumbai-400 050.\n\n\n\n\n\n    2.  Mehervan R.Irani, \n         of Mumbai, Indian Inhabitant, \n         residing in Gardha Villa, First\n         Floor, 48, Hill Road, Behind Elco\n         Market, Bandra (West),\n\n\n\n\n\n         Mumbai-400 050.                               ...Respondents.\n                                    ....\n    Mr.Aspi   Chinoy,   Senior   advocate   with   Mr.S.V.Doijode   and \n    Mr.K.G.Mhatre i\/b. M\/s.Doijode Associates for   for the Appellant.\n    Mr.Shailesh Shah with Mr.Y.R.Shah  for Respondent Nos.1 and 2.\n    Mr.M.R.Irani, Respondent No.3 in person.\n                                    .....\n                \n\n\n\n\n                                                           ::: Downloaded on - 09\/06\/2013 16:33:21 :::\n     VBC                                     2                        app917-10-19.10\n\n\n                                   CORAM : SHRI MOHIT S.SHAH, C.J. AND\n                                                  DR.D.Y.CHANDRACHUD, J. \n\n\n\n\n                                                                                     \n               \n                                                  October 19, 2010.\n\n\n\n\n                                                            \n    JUDGMENT (PER DR.D.Y.CHANDRACHUD, J.):\n<\/pre>\n
    1.         Admit.  With the consent of all the Learned Counsel and <\/p>\n
    of the  Original Third Defendant who appears in person, the Appeal <\/p>\n
    has been taken up for hearing and final disposal.\n<\/p>\n
    2.         This appeal arises out of a judgment of a Learned Single <\/p>\n
    Judge on a motion for interim relief.  By the order of the Learned <\/p>\n
    Single   Judge:  (i)  The First  Defendant  has  been  restrained  by  an <\/p>\n
    interim injunction from creating any third party interests in the suit <\/p>\n
    property and from inducting any third party, save and except the <\/p>\n
    Second and Third Defendants into the suit premises; (ii) The First <\/p>\n
    Defendant has been restrained from creating any further interests <\/p>\n
    in   favour   of   the   Second   and   Third   Defendants;   and   (iii)   The <\/p>\n
    Defendants   have   been   restrained   from   interfering   with   the <\/p>\n
    possession of the Plaintiff over the rest of the suit property, save <\/p>\n
    and except for the First Floor of the building.  The original Plaintiff <\/p>\n
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\n     VBC                                       3                        app917-10-19.10<\/p>\n
    is in appeal.  The carving out of the exception for the Second and <\/p>\n
    Third Defendants gives rise to the appeal.\n<\/p>\n
    3.          The suit was instituted by the Plaintiff for an injunction <\/p>\n
    restraining   the   First   Defendant   from   inducting   the   Second   and <\/p>\n
    Third Defendants or any other person into the suit property and <\/p>\n
    from dealing with, disposing of, encumbering or creating any third <\/p>\n
    party   rights   by   inducting   any   third   party   into   the   property.   A <\/p>\n
    permanent injunction has been sought restraining the Second and <\/p>\n
    Third   Defendants   from   entering   upon   or   remaining   on   the   suit <\/p>\n
    property.     The   property   in   question   is     land   admeasuring   1406 <\/p>\n
    square meters   on which there is a bungalow, situated at Turner <\/p>\n
    Road,  Bandra.       The First  Defendant  who  was  about   eighty two <\/p>\n
    years   old,   when   the   suit   was   instituted   on   10   June   2008,   died <\/p>\n
    during the pendency of the suit on 16 August 2010.   The Second <\/p>\n
    and  Third   Defendants  are   nephews   of  the   First   Defendant.    The <\/p>\n
    Third Defendant, who has appeared in person, is an Advocate.  The <\/p>\n
    First Defendant was single and was a daughter of   Sheriar Rustom <\/p>\n
    Ahrestani.  Sheriar had acquired an interest in the property as co-\n<\/p>\n
    owner   under   a   registered   Deed   of   Conveyance   dated   29   August <\/p>\n
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\n     VBC                                         4                         app917-10-19.10<\/p>\n
    1944.  Sheriar died on 12 March 1979.  By a will executed by him <\/p>\n
    on   17   April   1969,   Sheriar   bequeathed   his   one   fourth   undivided <\/p>\n
    share in the  property to his three sons in equal proportion.  By the <\/p>\n
    will, the wife of the testator and the First Defendant  were allowed <\/p>\n
    a right of residence in the property.  The executors and the trustees <\/p>\n
    under the will were directed to maintain both of them as long as <\/p>\n
    they desired to live in the property at Bandra.   Sheriar’s will has <\/p>\n
    been probated.     The Plaintiff acquired title to the property by a <\/p>\n
    registered Deed of Conveyance dated 24 February 2005.  The Deed <\/p>\n
    of Conveyance records in clause 4 that a portion of the property on <\/p>\n
    the First Floor admeasuring about 225 sq.ft. was in the occupation <\/p>\n
    of Daulat (the First Defendant), the daughter of Sheriar.   Prior to <\/p>\n
    the   execution   of   the   Conveyance,   a  public   notice   was   issued   on <\/p>\n
    behalf  of the Plaintiff    on  28 May 2004 of the proposed sale  to <\/p>\n
    which the First Defendant  had raised an objection on 7 June 2004.\n<\/p>\n
    4.          The case of the Plaintiff is that save and except for an <\/p>\n
    area admeasuring 225 sq.ft. on the First Floor, which was in the <\/p>\n
    occupation of the First Defendant, the Plaintiff was in occupation of <\/p>\n
    the   rest   of   the   property.     According   to   the   Plaintiff,   the   Second <\/p>\n
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\n     VBC                                       5                        app917-10-19.10<\/p>\n
    Defendant   would   usually   visit   the   First   Defendant     twice   a   day, <\/p>\n
    once in the morning and once in the evening, to bring food for her <\/p>\n
    from his residence at Gharda Villa.  According to the Plaintiff, the <\/p>\n
    Third Defendant, who is a lawyer, would visit the First Defendant <\/p>\n
    once or twice a week.   According to the Plaintiff, the Second and <\/p>\n
    Third   Defendants   were   attempting   to   create   “a   semblance   of <\/p>\n
    possession”   on   the   property   and   were   threatening   the   security <\/p>\n
    guards deployed by the Plaintiff.  The case of the Plaintiff is that as <\/p>\n
    a lawful owner, the Plaintiff is in settled possession of the property <\/p>\n
    and it is only the First Defendant, who had a right of residence.\n<\/p>\n
    Apprehending   that   the   Second   and   Third   Defendants   were <\/p>\n
    attempting to interfere with the possession of the Plaintiff, the suit <\/p>\n
    for injunction was instituted.\n<\/p>\n
    5.          A motion for interim relief was moved by the Plaintiff, <\/p>\n
    seeking   an   injunction   restraining   the   First   Defendant   from <\/p>\n
    inducting the Second and Third Defendants or any other person in <\/p>\n
    the property and from dealing with or disposing of, or parting with <\/p>\n
    possession of the property and from inducting any third party or <\/p>\n
    entering into an agreement with any person including the Second <\/p>\n
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\n     VBC                                        6                        app917-10-19.10<\/p>\n
    and Third Defendants.   An injunction was also sought against the <\/p>\n
    Second and Third Defendants from entering upon or remaining on <\/p>\n
    the property.\n<\/p>\n
    6.          The   case   of   the   Second   Defendant   is   that   the   First <\/p>\n
    Defendant     had   created   a   tenancy   in   his   favour   in   2005   of   the <\/p>\n
    premises on the First Floor and his case was that he was  residing <\/p>\n
    together with the First Defendant.   The Third Defendant claimed <\/p>\n
    possession of one room on the First Floor of the bungalow which <\/p>\n
    according to him, was allowed to him by the First Defendant  since <\/p>\n
    2007 out of natural love and affection.  During the pendency of the <\/p>\n
    motion, an ad-interim order was passed by a Learned Single Judge <\/p>\n
    on 22 October 2008, restraining the First Defendant  from creating <\/p>\n
    third party interests in the suit property and from inducting any <\/p>\n
    third party, save and except for the Second and Third Defendants.\n<\/p>\n
    The First Defendant  was restrained from creating further interests <\/p>\n
    in  favour  of  the  Second  and Third  Defendants.     The Defendants <\/p>\n
    were restrained from interfering with the possession of the Plaintiff <\/p>\n
    over the suit property, save and except for the First Floor.   When <\/p>\n
    the ad-interim order was carried in appeal, a Division Bench by an <\/p>\n
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\n     VBC                                       7                        app917-10-19.10<\/p>\n
    order dated 10 November 2009, directed the Learned Single Judge <\/p>\n
    to dispose of the motion.  Accordingly, the motion was heard and <\/p>\n
    the impugned order has been passed.\n<\/p>\n
    7.          On behalf of the Plaintiff, it has been urged by Counsel <\/p>\n
    that the Plaintiff  acquired the property under a registered Deed of <\/p>\n
    Conveyance, dated 24 February 2005.  Under the will executed by <\/p>\n
    the father of the First Defendant, Sheriar, the First Defendant  had <\/p>\n
    only a right of residence in the suit property.  The acquisition of the <\/p>\n
    property by the Plaintiff was subject to the right of residence of the <\/p>\n
    First   Defendant.     The   First   Defendant   was   in   occupation   of   one <\/p>\n
    room on the First Floor of the bungalow.   The Second and Third <\/p>\n
    Defendants   have   absolutely   no   right   or   interest   in   the   property.\n<\/p>\n
    The Second Defendant would visit the First Defendant twice a day <\/p>\n
    to bring food to her, while the Third Defendant, who is a lawyer, <\/p>\n
    would visit her once or twice a week.  It was urged by the Plaintiff <\/p>\n
    that   it   had   absolutely   no   objection   to   the   Second   and   Third <\/p>\n
    Defendants visiting the Plaintiff, but the suit was instituted because <\/p>\n
    an effort was being made by the Second and Third Defendants to <\/p>\n
    create   evidence   that   they   were   in   possession   of   the   property <\/p>\n
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\n     VBC                                      8                        app917-10-19.10<\/p>\n
    together with the First Defendant.  The Plaintiff sought to rely upon <\/p>\n
    the records maintained by the security guards at the bungalow and <\/p>\n
    from 25 March 2009, the Plaintiff commenced a round the clock <\/p>\n
    Video recording.   A transcript of the Video recording and CDs were <\/p>\n
    filed  together with affidavits in support of the case of the Plaintiff <\/p>\n
    that the Second and Third Defendants were only visiting the First <\/p>\n
    Defendant     and   were   never   in   settled   possession   of   the   suit <\/p>\n
    property.  According to the Plaintiff, the affidavit filed by the First <\/p>\n
    Defendant   to   the   Motion   establishes   that   the   Second   Defendant <\/p>\n
    was only visiting the Plaintiff to bring food.   A complaint filed by <\/p>\n
    the Third Defendant on 9 May 2007 also records that the Second <\/p>\n
    Defendant was visiting the premises daily to bring food to the First <\/p>\n
    Defendant.  The submission which has been urged on behalf of the <\/p>\n
    Plaintiff   is that such intermittent acts on the part of the Second <\/p>\n
    and Third Defendants do not amount to settled possession and the <\/p>\n
    attempt   made   by   the   Second   and   Third   Defendants   to   create   a <\/p>\n
    record   of   paper   possession   cannot   support   a   case   of   settled <\/p>\n
    possession.  An affidavit filed by the Third Defendant on 4 October <\/p>\n
    2007   in   a   suit   before   this   Court   on   the   Original   Side   (Suit <\/p>\n
    1465\/86) also stated that both the Second and Third Defendants <\/p>\n
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\n     VBC                                          9                          app917-10-19.10<\/p>\n
    were   residing   at   Gharda   Villa.     This   according   to   the   Plaintiff, <\/p>\n
    would belie the case now sought to be put up by the Second and <\/p>\n
    Third   Defendants   of   being   in   possession   of   the   suit   property <\/p>\n
    together with the First Defendant.   The contention which has been <\/p>\n
    urged on behalf of the Plaintiff is that the Supreme Court held in <\/p>\n
    Rame Gowda   vs. M.Varadappa Naidu,1<\/a>  that settled possession <\/p>\n
    must be effective, undisturbed and to the knowledge of the owner or  <\/p>\n
    without any attempt at concealment by the trespasser.   It was urged <\/p>\n
    that the Supreme Court has emphasized that   possession which a <\/p>\n
    trespasser is entitled to defend against the rightful owner must be <\/p>\n
    settled possession, extending over a sufficiently long period of time <\/p>\n
    and acquiesced  to by the true owner.   Though the test laid down <\/p>\n
    by the Supreme Court has been  adverted to by the Learned Single <\/p>\n
    Judge, it was urged that the order of the Learned Single Judge does <\/p>\n
    not   apply   the   test   to   the   facts   of   the   case.     The   Learned   Single <\/p>\n
    Judge, it is urged, failed to appreciate that the Second and Third <\/p>\n
    Defendants     were   never   in   settled   possession.     An   undisguised <\/p>\n
    attempt   has   been   made   by   the   Second   and   Third   Defendants  to <\/p>\n
    build up a paper record which is belied by the affidavits filed by the <\/p>\n
    1 (2004) 1 SCC 769<\/p>\n
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\n     VBC                                      10                         app917-10-19.10<\/p>\n
    First Defendant, the Third Defendant  and by the other material on <\/p>\n
    the record.  All this material negates a case of settled possession.\n<\/p>\n
    8.          On the other hand, it has been urged on behalf of the <\/p>\n
    Second Defendant that the executors of the will of Sheriar,  who <\/p>\n
    were brothers of the First Defendant,  had not maintained her and <\/p>\n
    it was the Second and Third Defendants who had tended to her <\/p>\n
    needs.  The First Defendant in her affidavit had explained that she <\/p>\n
    was neglected by her brothers and that it was the mother of the <\/p>\n
    Second   and   Third   Defendants   who   had   provided   the   First <\/p>\n
    Defendant with food, clothes and medicine.   The First Defendant <\/p>\n
    stated  that   since   she   had  no   source   of   income   and   her  brothers <\/p>\n
    were threatening to dispossess her, she had inducted the Second <\/p>\n
    Defendant  as her tenant on the first floor of the bungalow and had <\/p>\n
    issued rent receipts to him.  On 24 February 2005 an incident took <\/p>\n
    place   when   the   Plaintiffs   brought   six   security   guards   to   the <\/p>\n
    premises on the first floor.  The First Defendant thereupon lodged a <\/p>\n
    complaint   with   the   local   police   station.     The   First   Defendant <\/p>\n
    complained that she was  being harassed by the Plaintiffs.  Counsel <\/p>\n
    for   the   Second   Defendant   relied   upon   certain   documentary <\/p>\n
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\n     VBC                                          11                         app917-10-19.10<\/p>\n
    material to buttress the contention that prior to the institution of <\/p>\n
    the suit in June 2008, the Second Defendant  was residing with the <\/p>\n
    First Defendant.  The documents on which reliance has been placed <\/p>\n
    by counsel, at the hearing are : (i) A  letter by the First Defendant <\/p>\n
    to   the   Assistant   Engineer,   Municipal   Corporation   of   Greater <\/p>\n
    Mumbai on 25 October 20052; (ii) Letters by the First Defendant to <\/p>\n
    the   Deputy   Commissioner   of   Police   and   to   the   Municipal <\/p>\n
    Corporation   on   17   February   20073;   (iii)   Rent   receipts   from   1 <\/p>\n
    November   20054;   (iv)   A   ration   card   in   which   the   name   of   the <\/p>\n
    Second Defendant is added on 30 July 20055; (v) A copy of the <\/p>\n
    Second Defendant’s pan card dated 4 October 20066.  On the basis <\/p>\n
    of these documents it was urged that the Second Defendant was in <\/p>\n
    settled possession.\n<\/p>\n
    9.               The   case   of   the   Third   Defendant   is   that   the   First <\/p>\n
    Defendant had permitted him to utilize a room on the first floor as <\/p>\n
    his   office   space.     The   document   on   which   the   Third   Defendant <\/p>\n
    placed reliance  at the hearing of the appeal are : (i) An application <\/p>\n
    2    Vol.   2 page 202.\n<\/p>\n
    3    Vol.   2 pages 203, 209.\n    4    Vol.   2 page 215.\n    5    Vol.   6 page 864.\n    6    Vol.   6 page 866.\n\n\n\n\n                                                                  ::: Downloaded on - 09\/06\/2013 16:33:21 :::<\/span>\n     VBC                                        12                        app917-10-19.10\n\n\n<\/pre>\n
    for inclusion in the electoral roll submitted on 16 March 20077; (ii) <\/p>\n
    An application made to a mobile service provider on 24 November <\/p>\n
    20078; (iii) Postcards  dated 25 March 2008 and 12 April 2008 9;\n<\/p>\n
    (iv) A docket in S.C. Suit 716 of 2008 dated 17 June 200510  and <\/p>\n
    (v) A Vakalatnama in S. C. Suit No.352 of 2005 dated 17 December <\/p>\n
    2007.    The  Third   Defendant  submitted  that  the  Plaintiffs  should <\/p>\n
    have prayed for possession in the suit and neither he nor the Third <\/p>\n
    Defendant can be dispossessed at the interim stage.\n<\/p>\n
    10.            These submissions would fall for consideration.\n<\/p>\n
    11.            The   First   Defendant   had   under   the   will   executed   by <\/p>\n
    Sheriar a right of residence during her lifetime.  The will has been <\/p>\n
    probated.     The   Plaintiffs   acquired   title   to   the   property   under   a <\/p>\n
    registered deed of conveyance dated 24 February 2005; Clause (4) <\/p>\n
    recognizes the First Defendant’s right of residence in a portion of <\/p>\n
    the property situated on the first floor.   The Plaintiffs moved the <\/p>\n
    Court   on   the   basis   that   the   Second   and   Third   Defendants   were <\/p>\n
    7 Vol.    6 page 886.\n<\/p>\n
    8 Vol.    6 page 889.\n    9 Vol.    2 page 278.\n    10 Vol.   2 page 288.\n\n\n\n\n                                                               ::: Downloaded on - 09\/06\/2013 16:33:21 :::<\/span>\n     VBC                                       13                         app917-10-19.10\n\n\n<\/pre>\n
    “dishonestly attempting to create a semblance of possession of the <\/p>\n
    said property” .    The Plaintiffs contended that they were informed <\/p>\n
    by   the   security   guards     that   the   Second   Defendant   visited   the <\/p>\n
    premises   twice   a   day,   while   the   Third   Defendant   visited   the <\/p>\n
    premises where the First Defendant resided twice a week.  The case <\/p>\n
    of the Plaintiffs was that the Second and Third Defendants did not <\/p>\n
    reside   with   the   First   Defendant   in   the   premises.     The   Plaintiffs <\/p>\n
    relied upon the records maintained by the security guards.\n<\/p>\n
    12.         Now   a   prima   facie   evaluation   of   the   material   on   the <\/p>\n
    record brings out the following circumstances :\n<\/p>\n
                (i) On 9 May 2007  a police complaint was lodged by the <\/p>\n
    Third   Defendant   at   the   Bandra   Police   Station11.     The   Third <\/p>\n
    Defendant states in the complaint that his aunt who was aged 82 <\/p>\n
    years   resided   on   the   first   floor   of   the   bungalow.     The   Third <\/p>\n
    Defendant   stated   that   his   brother,   the   Second   Defendant   would <\/p>\n
    visit  the   premises  daily  to   give   lunch,   tea   etc.   to   the   First <\/p>\n
    Defendant.  The complaint was that he was obstructed at the gate;\n<\/p>\n
                (ii) The First Defendant in an affidavit filed to oppose the <\/p>\n
    11 N.C. Case 1721\/2007 lodged at 11.45 hrs. on 9 May 2007 – (Vol.2 page 277A)<\/p>\n
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\n     VBC                                       14                          app917-10-19.10<\/p>\n
    Notice of Motion specifically mentioned as follows :\n<\/p>\n
                “I say that every day the Defendant No.2 brings food, tea,
\n                fruits   and   other   eatables   from   his   father’s   residence <\/p>\n
                which   is   convenient   for   both   of   us.     I   say   that   the
\n                Defendant No.3 attends his office at the Dawn Bungalow
\n                as per his requirements.” (emphasis supplied)<\/p>\n
    The   First   Defendant   further   stated   that   “Defendant   Nos.2   and   3 <\/p>\n
    have a right to visit me and remain with me on the first floor of the <\/p>\n
    ‘Dawn’ bungalow as they are nephews”.  The First Defendant then <\/p>\n
    attempted to set up a case that the Second Defendant was residing <\/p>\n
    with her as a tenant and that the Third Defendant had an office on <\/p>\n
    the first floor;  <\/p>\n
                (iii) An affidavit was filed by the Third Defendant on 4 <\/p>\n
    October 2007 in a suit instituted by his father on the Original Side <\/p>\n
    of   this   Court12.   In   the   said   affidavit,   the   Third   Defendant   has <\/p>\n
    averred as follows :\n<\/p><\/blockquote>\n
                “I   say   that   the   said   Plaintiff’s   residential   premises   is
\n                situated  on  Plot   No.83,   Hill   Road.     I say  that  the  said
\n                property   known   as   Gharda   Compound   has   not   been
\n                legally  sub-divided hence  there is no adjoining Plot.    I
\n                deny   that   the   Plaintiff   is   residing   in   the   residential
\n                premises   only   with   his   son   Mr.   Mehervan   Irani   (a
\n                practicing   lawyer   and   a   Constituted   Attorney   of   the
\n    12 Rustom Boman Irani v. Municipal Corpn. of Gr. Mumbai – NM 2360\/2007 in Suit
\n      1465 of 1986 (Vol 6 pg 911).\n<\/p><\/blockquote>\n
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     VBC                                         15                          app917-10-19.10<\/p>\n
                Plaintiff).  I say that the Plaintiff’s other son Mr. Tehmul
\n                R. Irani is also residing with him.”  (emphasis supplied)<\/p>\n
    Clearly   therefore   the   averment   of   the   Third   Defendant   was   that <\/p>\n
    both he and his brother, the Second Defendant, were residing in <\/p>\n
    residential  premises known as Gharda Compound.  This material, <\/p>\n
    prima facie, is consistent with the case of the Plaintiff that neither <\/p>\n
    the Second nor the Third Defendant resided in the suit property <\/p>\n
    and   that   as   a   matter   of   fact   both   of   them   resided   in   premises <\/p>\n
    situated at Gharda Compound.   Despite this, in the affidavits that <\/p>\n
    were filed in the Notice of Motion a false case was sought to be put <\/p>\n
    up to the effect that the Second Defendant was residing as a tenant <\/p>\n
    of   the   First   Defendant  on   the   first   floor   of  the  suit  premises   for <\/p>\n
    which the First Defendant had issued rent receipts13.   In a further <\/p>\n
    affidavit14  the Second Defendant set up a palpably false denial of <\/p>\n
    the fact that he was residing with his family at Gharda Villa and <\/p>\n
    that the Third Defendant was operating from his residence at the <\/p>\n
    same place.   These affidavits are palpably false and show a scant <\/p>\n
    regard for the truth.\n<\/p><\/blockquote>\n<\/blockquote>\n
    13 The affidavit of the First Defendant is at Vol. 1 page 66 (at para 4 page 67)
\n    14 Vol. 1 page 142 (at page 148).\n<\/p><\/blockquote>\n
                                                                  ::: Downloaded on – 09\/06\/2013 16:33:21 :::<\/span><\/p>\n
     VBC                                         16                          app917-10-19.10<\/p>\n<\/blockquote>\n
    13.         The   Plaintiff   has   relied   upon   video   recordings   which <\/p>\n
    commenced from March 2009 following up on the reports of the <\/p>\n
    security   guards   at   the   premises.     According   to   the   Plaintiff <\/p>\n
    transcripts together with the CDs have been filed together with an <\/p>\n
    affidavit deposing to the authenticity of the record which has been <\/p>\n
    maintained   on   a   round-the-clock   basis.     Learned   Senior   Counsel <\/p>\n
    submitted that it was after these transcripts and recordings were <\/p>\n
    placed   before   the   Court   that   the   Second   and   Third   Defendants <\/p>\n
    sought   to   alter   the   existing   pattern   but   even   that   would   not <\/p>\n
    constitute settled possession on the date of the suit.  At this stage, <\/p>\n
    the evidentiary value of the video recording and of the reports of <\/p>\n
    the security guards  is yet to be established.  This must await the <\/p>\n
    trial   of   the   suit.     We   have   hence   evaluated   the   material   on   the <\/p>\n
    record   independent   of   the   video   recordings   and   transcripts.\n<\/p><\/blockquote>\n
    Independent of the video recordings and transcripts,  the material <\/p>\n
    which has been adverted to above is sufficient  to indicate that both <\/p>\n
    the Second and the Third Defendants used to visit the suit property <\/p>\n
    and were not in settled possession.  The Second Defendant visited <\/p>\n
    the suit property twice a day to bring  food to the First Defendant <\/p>\n
                                                                  ::: Downloaded on – 09\/06\/2013 16:33:21 :::<\/span>
\n     VBC                                        17                         app917-10-19.10<\/p>\n
    who     was   his   aged   aunt   while   the   Third   Defendant   visited   her <\/p>\n
    occasionally.   Both the Second and the Third Defendants resided <\/p>\n
    separately   in   Gharda   Villa.     What   the   Second   and   Third <\/p>\n
    Defendants, however, attempted to do is to create a paper record to <\/p>\n
    buttress their plea of being in possession of the premises during the <\/p>\n
    lifetime of the Plaintiff.\n<\/p>\n
    14.<\/p>\n
                Before   evaluating   the   other   documentary   material   it   is <\/p>\n
    necessary to advert to the position in law.  In  Rame Gowda’s case <\/p>\n
    a Bench of three Learned Judges of the Supreme Court held that <\/p>\n
    the law will come to the aid of a person in  peaceful and settled <\/p>\n
    possession by injuncting even a rightful owner from using force or <\/p>\n
    taking   the   law   in   his   own   hands   and   also   by   restoring   him   in <\/p>\n
    possession   even   from   the   rightful   owner,   if   the   latter   has <\/p>\n
    dispossessed the prior possessor by use of force.   The owner of a <\/p>\n
    property may prevent even by using reasonable force, a trespasser <\/p>\n
    from   an   attempted   trespass,   when   it   is   in   the   process   of   being <\/p>\n
    committed, or is of a flimsy character, or recurring, intermittent, <\/p>\n
    stray or casual in nature.   The Supreme Court has held that “it is <\/p>\n
    the settled possession or effective possession of a person without <\/p>\n
                                                                ::: Downloaded on – 09\/06\/2013 16:33:21 :::<\/span>
\n     VBC                                        18                          app917-10-19.10<\/p>\n
    title   which   would   entitle   him   to   protect   his   possession   even   as <\/p>\n
    against   the   true   owner”.     What   constitutes   settled   possession   is <\/p>\n
    elucidated in the following observations of the Supreme Court :\n<\/p>\n
                “The   possession   which   a   trespasser   is   entitled   to
\n                defend   against   the   rightful   owner   must   be   settled <\/p>\n
                possession, extending over a sufficiently long period
\n                of time and acquiesced to by the true owner.  A casual
\n                act   of   possession   would   not   have   the   effect   of
\n                interrupting  the  possession   of  the  rightful  owner.    The <\/p>\n
                rightful   owner   may   reenter   and   reinstate   himself
\n                provided he does not use more force than is necessary.\n<\/p><\/blockquote>\n
                Such   entry   will   be   viewed   only   as   resistance   to   an
\n                intrusion upon his possession which has never been lost. <\/p><\/blockquote>\n
                A   stray   act   of   trespass,   or   a   possession   which   has   not <\/p>\n
                matured   into   settled   possession,     can   be   obstructed   or
\n                removed   by   the   true   owner   even   by   using   necessary
\n                force.  In Puran Singh case15 the Court clarified that it is
\n                difficult to lay down any hard-and-fast rule   as to when <\/p>\n
                the   possession   of   a   trespasser   can   mature   into   settled
\n                possession.    The   “settled   possession”   must   be   (i) <\/p>\n
                effective, (ii) undisturbed, and (iii) to the knowledge
\n                of the owner or without any attempt at concealment
\n                by the trespasser.” (emphasis supplied)<\/p>\n
    The test that must be applied before it can be held that a person is <\/p>\n
    in   settled   possession   is   that   the   possession   must   be   effective, <\/p>\n
    undisturbed   and  to   the   knowledge   of   the   owner   or   without   any <\/p>\n
    attempt at concealment by the trespasser.\n<\/p>\n
    15 (1975) 4 SCC 518.\n<\/p>\n
                                                                 ::: Downloaded on – 09\/06\/2013 16:33:21 :::<\/span><\/p>\n
     VBC                                       19                         app917-10-19.10<\/p>\n
    15.         The   Learned   Single   Judge   proceeded   to   rely   on   the <\/p>\n
    documentary material, to which a reference has been made earlier <\/p>\n
    and in the impugned judgment, to arrive at a prima facie finding <\/p>\n
    that the Second and Third Defendants were in possession.       The <\/p>\n
    judgment   of   the   Learned   Single   Judge,   with   respect,   misses   the <\/p>\n
    issue of settled possession in the application of the law to the facts <\/p>\n
    of this case.  The Learned Single Judge cited the decision in Rame <\/p>\n
    Gowda.     The   documentary   material,   however,   has   not   been <\/p>\n
    evaluated on the  anvil of the test laid down by the Supreme Court <\/p>\n
    in Rame Gowda.  Whether there was an act of acquiescence on the <\/p>\n
    part of owner and whether the Second and Third Defendants were <\/p>\n
    in effective and undisturbed possession with the knowledge of the <\/p>\n
    owner and without any attempt at concealment by the Second and <\/p>\n
    Third Defendants has not been considered.  Hence, we find merit in <\/p>\n
    the contention of the counsel for the Appellant  that the Learned <\/p>\n
    Single Judge has not correctly appreciated the test that has been <\/p>\n
    enunciated   by   the   Supreme   Court   in  Rame   Gowda’s   case.     To <\/p>\n
    constitute   settled   possession,   there   has   to   be   possession   to   the <\/p>\n
    knowledge   of   the   owner,   which   must   extend   over   a   sufficiently <\/p>\n
    long period of time and must be acquiesced in  by the true owner.\n<\/p>\n
                                                               ::: Downloaded on – 09\/06\/2013 16:33:21 :::<\/span><\/p>\n
     VBC                                           20                           app917-10-19.10<\/p>\n
    In the present case, it is evident that a paper record was sought to <\/p>\n
    be created by the Second and the Third Defendants to buttress a <\/p>\n
    plea   of   possession.     This   is,   however,   belied   by   the <\/p>\n
    contemporaneous material to which a reference has already been <\/p>\n
    made which shows that neither of them was in settled possession.\n<\/p>\n
    16.          There has been an undisguised attempt   on the part of <\/p>\n
    the Second and Third Defendants to create a documentary record <\/p>\n
    to further their case of possession.   This despite the existence of <\/p>\n
    sufficient   material   including   the   statements   of   the   First   and   the <\/p>\n
    Third Defendants on affidavit that (i) The Second Defendant used <\/p>\n
    to   visit   the   suit   premises   twice   a   day   to   bring   food   to   the   First <\/p>\n
    Defendant;   (ii)   Both   the   Second   and   Third   Defendants   did   not <\/p>\n
    reside in the suit premises and on the contrary resided  at Gharda <\/p>\n
    Villa.   There is merit in the contention of the Plaintiff that it was <\/p>\n
    after the Plaintiff obtained title to the suit property on 24 February <\/p>\n
    2005 that the Second and Third  Defendants attempted to create <\/p>\n
    some sort of documentary record.  For instance on 26 March 2008, <\/p>\n
    a little prior to the institution of the suit in June 2008 the Third <\/p>\n
    Defendant   addressed   a   letter   to   the   Prothonotary   and   Senior <\/p>\n
                                                                     ::: Downloaded on – 09\/06\/2013 16:33:21 :::<\/span>
\n     VBC                                        21                         app917-10-19.10<\/p>\n
    Master of this Court seeking to bring on record of the Original Side <\/p>\n
    registry   his   new   office   address   at   the   suit   premises.     The   rent <\/p>\n
    receipts   upon   which   reliance   has   been   placed   by   the   Second <\/p>\n
    Defendant are dated 1 November 2005 (evidencing the payment of <\/p>\n
    a sum of Rs.1,000\/-); 2 August 2006 (evidencing the payment of <\/p>\n
    an amount of Rs.1,200\/-), 1 April 2007 (evidencing the payment of <\/p>\n
    Rs.3,600\/-) and 21 January 2008 (evidencing the payment of Rs.\n<\/p>\n
    7,200\/-).  All these payments purport to have been made in cash.\n<\/p>\n
    The name of the Second Defendant was inserted in the ration card <\/p>\n
    of the First Defendant on or about 30 September 2005.  These are <\/p>\n
    all   documents   unilaterally   obtained   by   the   Second   and   Third <\/p>\n
    Defendants.  If the Second and Third Defendants were in juridical <\/p>\n
    possession of the suit premises, such documentary material could <\/p>\n
    possibly have lent support to the contention of being in possession <\/p>\n
    of the suit premises.  A person who has otherwise no right, title or <\/p>\n
    interest   to   or   in   immovable   property   must,   however,   establish   a <\/p>\n
    case of settled possession before he can set up a valid defence to a <\/p>\n
    claim to injunction of the lawful owner.  That is why the Supreme <\/p>\n
    Court   has   postulated   that   settled   possession   as   a   basis   for <\/p>\n
    defending   a   claim   of   the   rightful   owner   must   extend   over   a <\/p>\n
                                                                ::: Downloaded on – 09\/06\/2013 16:33:21 :::<\/span>
\n     VBC                                        22                          app917-10-19.10<\/p>\n
    sufficiently long period of time and must be acquiesced in by the <\/p>\n
    true owner.   Casual, intermittent or stray acts do not amount to <\/p>\n
    settled possession.   Settled possession has to be to the knowledge <\/p>\n
    of   the   owner   or   without   any   attempt   at     concealment   by   the <\/p>\n
    trespasser.   There is absolutely no material in the present case to <\/p>\n
    lead to the conclusion that the Second and Third Defendants were <\/p>\n
    in   settled   possession   of   the   suit   premises.     There   is   nothing   to <\/p>\n
    indicate  that  they were  in possession  of such nature or  for such <\/p>\n
    period of time or in such circumstance should lead even prima facie <\/p>\n
    to the inference that it was acquiesced in by the true owner.  There <\/p>\n
    is a conspicuous lack of any material whatsoever that would lead to <\/p>\n
    a prima facie inference of facts that would impute knowledge to <\/p>\n
    the owner.  The totality of the material on the record is indicative <\/p>\n
    of the circumstance that it was the First Defendant who had a right <\/p>\n
    of   residence   in   the   suit   premises.     The   Second   and   Third <\/p>\n
    Defendants   visited   the   suit   premises   where   their   aged   aunt,   the <\/p>\n
    First Defendant resided.   The Second Defendant brought her food <\/p>\n
    twice a day and the Third Defendant visited her on occasion.  Both <\/p>\n
    of them resided at Gharda Villa and not in the suit premises. In <\/p>\n
    these circumstances, a case was made out by the Plaintiffs for the <\/p>\n
                                                                 ::: Downloaded on – 09\/06\/2013 16:33:21 :::<\/span>
\n     VBC                                       23                         app917-10-19.10<\/p>\n
    grant   of   an   interlocutory   injunction   pending   the   disposal   of   the <\/p>\n
    suit.     The   basis   on   which   the   injunction   was   sought   was   the <\/p>\n
    apprehension   of   the   Plaintiffs   that   the   Second   and   Third <\/p>\n
    Defendants   were   creating   a   record   to   show   a   semblance   of <\/p>\n
    possession   over   the   suit   property.     The   Second   and   Third <\/p>\n
    Defendants have no right, title or interest in the suit property.   In <\/p>\n
    the absence of their being in  settled possession,  a prima facie case <\/p>\n
    was   made   out   by   the   Plaintiff   for   the   grant   of   interlocutory <\/p>\n
    injunction.  The balance of convenience must necessarily follow in <\/p>\n
    favour of the rightful owner in whom the title to the property rests.\n<\/p>\n
    The   error,   with   respect,   in   the   approach   of   the   Learned   Single <\/p>\n
    Judge is that though the impugned   judgment refers to the tests <\/p>\n
    laid down by the Supreme Court in  Rame Gowda,  the judgment <\/p>\n
    does not apply those tests to the factual material on the record.  A <\/p>\n
    paper record which was sought to be created by the Second and <\/p>\n
    Third Defendants must remain what it is, namely on paper alone;\n<\/p>\n
    particularly where the facts on the record belie the defence that the <\/p>\n
    Second and Third Defendants were in settled possession.\n<\/p>\n
    17.         For all these reasons, we are of the view that the Appeal <\/p>\n
                                                               ::: Downloaded on – 09\/06\/2013 16:33:21 :::<\/span>
\n     VBC                                   24                   app917-10-19.10<\/p>\n
    must be allowed and the order of the Learned Single Judge must be <\/p>\n
    set aside.  There shall accordingly be an order in these terms.  The <\/p>\n
    Motion instituted by the Plaintiff (Notice of Motion 2233 of 2008) <\/p>\n
    shall accordingly stand absolute in terms of prayer clause (b) which <\/p>\n
    reads as follows :\n<\/p>\n
               “(b) that pending the hearing and final disposal of the
\n               suit, Defendant Nos.2 and 3 be restrained by temporary <\/p>\n
               order and injunction of this Hon’ble Court from entering
\n               upon or remaining on the said property described in the
\n               Schedule at Exhibit ‘A’ to the Plaint or any part thereof <\/p>\n
               without the permission of the Plaintiff.”<\/p><\/blockquote>\n
               In the circumstances of the case, there shall be no order <\/p>\n
    as to costs.\n<\/p>\n
                                               CHIEF JUSTICE<\/p>\n
                                          DR.D.Y.CHANDRACHUD, J.\n<\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 16:33:21 :::<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Variegate Realestate Private … vs Tehmul R. Irani on 19 October, 2010 Bench: Dr. D.Y. Chandrachud VBC 1 app917-10-19.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. APPEAL NO.917 OF 2010 IN NOTICE OF MOTION NO.2233 OF 2008 IN SUIT NO.1870 OF 2008 WITH NOTICE OF MOTION 2233 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-47780","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nVariegate Realestate Private ... vs Tehmul R. Irani on 19 October, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/variegate-realestate-private-vs-tehmul-r-irani-on-19-october-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Variegate Realestate Private ... vs Tehmul R. 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