Supreme Court of IndiaMaria Margadia Sequeria Fernandes & Ors vs Erasmo Jack De Sequeria (D) Tr.Lrs.& Ors on 21 March, 2012Equivalent citations: AIR 2012 SUPREME COURT 1727, 2012 AIR SCW 2162, 2012 (3) AIR BOM R 857, 2012 (5) SCC 370, (2012) 92 ALL LR 251, (2012) 2 CIVILCOURTC 344, (2013) 1 RENTLR 338, (2012) 2 RAJ LW 1765, (2012) 2 ICC 413, (2012) 3 SCALE 550, AIR 2012 SC (CIV) 1201, (2012) 1 CLR 731 (SC), (2012) 3 KCCR 181, (2012) 3 MAD LJ 1202, (2012) 4 ANDHLD 1, (2012) 2 ALL RENTCAS 325, (2012) 3 MAD LW 111, (2012) 1 ORISSA LR 945, (2012) 116 REVDEC 318, (2012) 1 WLC(SC)CVL 630, (2012) 113 ALLINDCAS 212 (SC), (2012) 4 CIVLJ 494, (2012) 4 ALL WC 3645, 2012 (2) KLT SN 46 (SC), (2012) 4 BOM CR 75Bench:Deepak Verma,H.L. Dattu,Dalveer BhandariREPORTABLE


                IN THE SUPREME COURT OF INDIA



                 CIVIL APPELLATE JURISDICTION



            CIVIL APPEAL NO.  2968          OF 2012

            (Arising out of SLP (C) No. 15382 of 2009)




Maria Margarida Sequeria Fernandes and Others      ...Appellants



      Versus



Erasmo Jack de Sequeria(Dead) through L.Rs.       ...Respondents





                           JUDGEMENTDalveer 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 2009.3.    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 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, 



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  



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.     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 



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.6.    The   appellant   urged   that   the   suit   property   originally 



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   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   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 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   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 

      Chalta No.14 of P.T. Sheet No.65 is confirmed."7.    According   to   the   appellant,   she   obtained   the   exclusive 



title of the plot and the house in question.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 



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.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 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 



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 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 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 



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 require in his new place may be kept in the suit 



property.   According   to   the   appellant,   her   brother   before 



shifting to the 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 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   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.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 


dispossessed   by   a   Court   in   a   suit   for   injunction.     The  



appellant submitted that underSection 6of 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   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 



affirmed is totally contrary to the law laid down by this Court 



inMahabir 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 ofSection 



6of   the   Special   Relief   Act,   1963.     In   the   instant   case,   the  



Courts below were oblivious of the principle underSection 6of 



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 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   no   such 



suit   for   injunction   underSection   6of   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 



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 



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.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 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   onSouthern Roadways Ltd., Madurai v. S.M. Krishnan(1989) 


4  SCC   603  wherein  this   Court  has   held  that   it  is  the   settled 



law   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,  


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 underSection 6of the Specific Relief Act is totally misconceived.  The appellant 



contended that the High Court in the impugned judgment has 



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 



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 



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 



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.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 



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 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 



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.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 underSection 6of the Specific Relief Act  



lies   against   the   true   owner.     The   appellant   submitted   that   a 



caretaker, agent, guardian etc. cannot file a suit underSection 



6of the Specific Relief Act.25.    According   to   lawlaid   down   bythis   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 



the   rightful   owner.     It   is   not   maintainable   against   the   true 



owner.26.    This   Court   in  Anima   Mallick  v.  Ajoy   Kumar   Roy   and  


Another  (2000)   4   SCC   119   held   that   where     the   sister   gave 


possession   as   gratuitous   to   the   brother,   this   Court   restored 



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   inSopan  


Sukhdeo   Sable   and   Others                 v.     Assistant   Charity  


Commissioner   and   Others(2004)   3   SCC   137   has   observed 


that no injunction can be granted against the true owner andSection   6of   the   Specific   Relief   Act   cannot   be   invoked   to  



protect the wrongdoer who suppressed the material facts from 



the Courts.28.    The   appellant   submitted   thatSection   41of   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   onAutomobile   Products   India  


Limited  v.  Das   John   Peter   and   Others(2010)   12   SCC   593 


and Ramrameshwari Devi and Others v. Nirmala Devi and  


Others(2011) 8 SCC 249 where the Court has laid down that 


dilatory   tactics,   misconceived   injunction   suits   create   only 



incentives for wrongdoers.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 process31.    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.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.33.    Justice   system   will   acquire   credibility   only   when   people 



will be convinced that justice is based on the foundation of the 



truth.34.InMohanlal Shamji Soni v. Union of India1991 Supp 



(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   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 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 



discovery, vindication and establishment of truth are the main 



purposes underlying the existence of the courts of justice.36.InRitesh   Tewari   and   Another  v.   State   of   U.P.   and  


Others(2010) 10 SCC 677 this Court reproduced often quoted 


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 



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  


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   some   foreign  

       countries."39.    Certainly,   the   above,   is   not   true   of   the   Indian   Judicial 



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 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.40.    Lord Denning further observed in the said case of  Jones  



(supra)  that   "`It's   all   very   well   to   paint   justice   blind,   but   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 



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   toSection   30CPC   would   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 30CPC reads as 



under:-30.  Power   to   order   discovery   and   the   like.  -Subject   to   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 

                    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;(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 affidavit43.    "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:"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."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 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 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 

       essential   for   maintenance   of   peace   and   law   and 

       order   in   the   society   doubt   and   gives   the   benefit   of 

       doubt   to     the     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   witnesses   to 

       undermine   the   opposing   case   and   to   discover 

       information the other side has not brought out.  The 

       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........"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 

       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 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 

       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   the 

       paramount   duty   of   everyone   to   assist   the   court   in 

       its quest for truth.45.InChandra Shashi v. Anil Kumar Verma(1995) 1 SCC 



421 to enable the Courts to ward off unjustified interference in 


their working, those who indulge in immoral acts 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   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.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 perjured testimony held that  such 



rules   existed   for   a   purpose   as   a   necessary   component   of   the  



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."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 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:-"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 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 cause of 

       truth by acting and speaking as if they do."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 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   - 

       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   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 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."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 



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.Pleadings53.    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 



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 



relevance and the same is reproduced 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 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(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 



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 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   summary 

                             judgment   against   a   claimant   or 

                             defendant   on   the   whole   of   a   claim   or 

                             on a particular issue if-(a)       it considers that-


                           (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)    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, 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  


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 



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. 



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, we are not bound to accept as true a 

              legal   conclusion   couched   as   a   factual 

              allegation ... ... ... only a complaint that states 

              a plausible claim for relief survives a motion to 

              dismiss."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 



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 on 



behalf of the owner.63.    Possession   is   important   when   there   are   no   title 



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.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 



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.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   underSection   6of   the   Specific   Relief   Act   to  



recover possession.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 ejected.67.    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 



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,   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 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   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 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  



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.(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



             (d)    identity   of   the   claimant   or   claimants   to 



                    possession;



             (e)    the date of entry into possession;



             (f)    how   he   came   into   possession   -   whether   hepurchased the property or inherited or got the 



                    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)    who are the persons in possession/occupation 



                    or otherwise living with him, in what capacity;as family members, friends or servants etc.;(j)    subsequent   conduct,   i.e.,   any   event   which 



                    might   have   extinguished   his   entitlement   to 



                    possession or caused shift therein; and(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 



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.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   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 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   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 documents before framing of issues in a given case.76.    In pleadings, whenever a person claims right to 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   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.77.    Dr.   Arun   Mohan   in   his   classic   treatise   on   "Justice, 



Courts   and   Delays"   has   dealt   with   these   fundamental 



principles of law exhaustively.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 



decide the fate of the case.Suit for Mandatory Injunction80.    It is a settled principle of law that no one can take 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   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 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 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.Due process of Law81.    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 



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 caseThomas Cook (India)  


Limited v. Hotel Imperial2006 (88) DRJ 545 held as under:"28.   The   expressions   `due   process   of   law',   `due 

       course   of   law'   and   `recourse   to   law'   have   been 

       interchangeably   used   in   the   decisionsreferred   to 

       abovewhich say that the settled possession of even 

       a   person   in   unlawful   possession   cannot   be 

       disturbed `forcibly' by the true owner taking law 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 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   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 


       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' 

       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 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'   stipulation 

       stands   satisfied   when   a   judicial   determination   is 

       made   with   regard   to   the   first   party's   protective 

       action.   Thus,   in   the   present   case,   the   plaintiff's 

       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   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 defences84.    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 



litigants   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.85.    This   Court   in   a   recent   judgment   inRamrameshwari  


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 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 



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 



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.Grant or refusal of an injunction86.    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 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 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   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 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 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.88.    Ordinarily,   three   main   principles   govern   the   grant   or 



refusal of injunction.a)     prima facie case;



             b)     balance of convenience; and


             c)    irreparable   injury,   which   guide   the   Court   in 



                   this regard.89.    In the broad category of prima facie case, it is imperative 



for   the   Court   to   carefully   analyse   the   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.Mesne Profits90.    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, 



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   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.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 pass any order for 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 



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 this exercise with extreme care and caution while keeping 



pragmatic   realities   in   mind   and   make   a   proper   order   of 


granting 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.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   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 



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 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  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.97.    This   Court   inPuran   Singh  v.  The   State   of   Punjab(1975) 4 SCC 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.98.    This   Court   inMahabir   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.99.InSham   Lal  v.  Rajinder   Kumar   &   Others1994   (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   '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 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.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 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,   (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 

         though  the  master may not be in actual  contact  of 

         the thing. It is in this light in which the concept of 

         possession has to be understood in the context of a 

         servant and & master."100. The   ratio   of   this   judgment   inSham   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  



had   entered   into   such   possession   of   the   property   as   would 



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 



crystallized as under:-1.       No one  acquires title to  the  property if he  or  she was 



            allowed to stay in the premises gratuitously.   Even by 



            long possession of years or decades such person would 



            not acquire any right or interest in the said property.2.     Caretaker,   watchman   or   servant   can   never   acquire 



          interest   in   the   property   irrespective   of   his   long 



          possession.     The   caretaker   or   servant   has   to   give  



          possession forthwith on demand.3.     The   Courts   are   not   justified   in   protecting   the 



          possession  of a caretaker, servant  or  any  person who 



          was   allowed   to   live   in   the   premises   for   some   time 



          either as a friend, relative, caretaker or as a servant.4.     The   protection   of   the   Court   can   only   be   granted   or 



          extended to the person who has valid, subsisting rent 



          agreement,   lease   agreement   or   license   agreement   in 



          his favour.5.     The caretaker or agent holds property of the principal 



          only on behalf of the principal.  He acquires no right or 



          interest   whatsoever   for   himself   in   such   property 



          irrespective of his long stay or possession.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 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   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 usual undertaking to this effect be 



filed   by   the   legal   representatives   of   the   respondent   in   this  



Court within two weeks.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  



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 



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 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.     (We   have   imposed   the   moderate   cost   in   view   of 



the   fact   that   the   original   respondent   has     expired).     Ordered  



accordingly...................................J.

                                                     (Dalveer Bhandari)




                                                 .................................J.

                                                     (H.L. Dattu)




                                                 .................................J.

                                                      (Deepak Verma)


New Delhi;March 21, 2012