Krishna Ram Mahale v. Shobha Venkat Rao

The owner of a Bombay restaurant took back its possession from the woman who ran it under his licence. He did this secretly, without a court order. The Supreme Court held that a person in settled possession can be removed only by recourse to law, even by the owner.

Quick Revision

Parties

Krishna Ram Mahale (Dead), by his Lrs. — appellant; defendant No. 3 in the suit. He owned the restaurant business and took possession of it.

Mrs. Shobha Venkat Rao — respondent; the plaintiff in Suit No. 725 of 1959. She held the restaurant under an agreement (a set of promises the law enforces) with defendant No. 3 and was dispossessed.

Defendant No. 1 — held an agreement with the plaintiff dated 11 January 1958 to conduct the business. He later said he was never put in possession.

Defendant No. 2 — conducted the restaurant business. He filed no written statement and did not enter the witness box.

Mr. Tarkunde — counsel for the appellant.

Procedural History

1. The plaintiff filed Suit No. 725 of 1959 in the Bombay City Civil Court (para 3).
2. The Trial Court delivered judgment on 13 January 1969. It decreed possession for the plaintiff and ordered mesne profits (profits the wrongful possessor received or could have received) at Rs. 310 per month from the date of the suit until she was put in possession (para 6).
3. Defendant No. 3 appealed to the High Court of Bombay in First Appeal No. 283 of 1969. A Division Bench dismissed the appeal (paras 1, 7).
4. Defendant No. 3 then filed Suit No. 297 of 1974 in the High Court. It sought a declaration that the plaintiff had no right in the premises or business from 1 May 1965, and for an injunction (a court order to stop an act) against execution of the decree. His notice of motion for an interim injunction was dismissed on 23 April 1974 (para 10).
5. He appealed to the Supreme Court by special leave under Article 136 of the Constitution (para 1).

Facts

1. The plaintiff was the plaintiff in Suit No. 725 of 1959 in the Bombay City Civil Court. The appellant was defendant No. 3 (para 3).
2. On 25 December 1956 defendant No. 3 agreed to let the plaintiff conduct a restaurant called Meenakshi Bhuvan, later Central Cafe Udipi. He owned it and it ran in tenanted premises at Vishvas Nivas, King Edward Road, Parel, Bombay (para 4).
3. The agreement was for five years from 25 December 1956, with an option to renew. Defendant No. 3 was the "owner" and the plaintiff the "conductor". "Conductor" was defined to include her heirs, executors (people named in a will to carry it out), administrators and assigns (para 4).
4. The furniture, pots, pans and utensils listed in the agreement stayed with defendant No. 3, as the plaintiff admitted. She paid royalty to him (para 4).
5. On 11 January 1958 the plaintiff agreed with defendant No. 1 that he would conduct the business for the unexpired period of about four years. He would pay her Rs. 700 per month, and she would not bear any loss (para 4).
6. Although the agreement was with defendant No. 1, defendant No. 2 conducted the restaurant (para 4).
7. Before 18 May 1958 defendant No. 3 sent the plaintiff a notice. On 18 May 1958 he wrote that all his notices were cancelled and that the agreement of 25 December 1956 was changed in some terms (para 5).
8. The letter extended the period of the agreement to 30 April 1965. It noted certain payments and said in paragraph 3(H) that all other terms remained. It made no express change about the right to renew (para 5).
9. On 10 January 1959, according to defendant No. 3, his advocate B.M. Gujar sent a notice to the restaurant address. It gave one month's notice to the plaintiff to give back possession, failing which he would go to court. A second notice followed on 12 February 1959 at the same address (para 5).
10. The second notice said there was no reply and that defendant No. 3 would approach the plaintiff to take possession on 15 February 1959 (para 5).
11. The plaintiff said she never received the notices. She said they were deliberately sent to the restaurant, where she would not be present. She said defendant No. 3 took possession by colluding with defendants Nos. 1 and 2 (para 5).
12. Defendant No. 3, the only contesting defendant, gave inconsistent versions (para 5):
    • In his affidavit of 26 March 1959, he said the plaintiff gave him possession on 15 February 1959 with her knowledge and consent. He filed it on a notice of motion dated 4 March 1959.
    • In his written statement he said defendants Nos. 1 and 2 handed over possession on her behalf.
    • In evidence he gave different versions and at one stage said he could take possession without recourse to law.
13. Defendant No. 1 filed a written statement saying he was never put in possession and the agreement with the plaintiff was never acted upon. Defendant No. 2 filed none and was present throughout the trial but did not give evidence (para 5).
14. Mr. Gujar did not give evidence. His peon's evidence on service was found thoroughly unsatisfactory. The peon's story that the plaintiff's husband told him to deliver the notice at the restaurant was rightly disbelieved (para 5).
15. The Trial Court found that defendant No. 3 had given no consistent version, and that the plaintiff did not know he had taken possession when it happened. It found that on 15 February 1959 he unlawfully and secretly took possession of the restaurant and premises behind her back, in collusion with defendants Nos. 1 and 2 (para 5).

Issues Raised

The judgment does not frame issues in numbered form. The questions it decides are:

1. Can the owner dispossess a person in settled possession, even one with no right to remain, without recourse to law (paras 8-9)?
2. Does it matter that earlier cases arose in suits under Section 6 of the Specific Relief Act? This suit was filed within a few weeks of dispossession (para 9).
3. Should the appeal be entertained at all under Article 136, given the appellant's conduct (para 10)?
4. What order should be made to secure possession for the plaintiff (para 12)?

Arguments Contended

For the appellant (defendant No. 3), by Mr. Tarkunde:

• He did not argue the appreciation of evidence or the factual conclusions of the Trial Court and High Court (para 8).
• The period of licence expired long ago and the plaintiff was not entitled to renewal (para 8).
• With the licence ended, she had no right to stay in charge of the business or premises. At most she could claim damages for unlawful dispossession, even on the facts found by the High Court (para 8).
• Some of the observations in the earlier cases arose in suits under Section 6 of the Specific Relief Act, 1963 or the corresponding provisions of the 1877 Act (para 9).

For the respondent (plaintiff):

• The judgment records only her counsel's submission on the final order. The appellant's conduct gave reason to fear he would avoid the decree by putting an outsider in possession or by other underhand means. The Court was asked to direct the executing court to execute the decree with police help against any person in possession (para 12).
• The judgment does not record the other arguments for her in this Court.

Arguments before the lower courts, as recorded:

• Before the Trial Court, defendant No. 3 said possession should not be restored because the agreement, as extended, ran only to 13 April 1965 and had expired. The Trial Court rejected this. It held the right of renewal remained with the plaintiff (para 6).
• Before the High Court, he argued that the period of licence had expired. The High Court rejected the argument (para 7).

Court's Reasoning

The judgment has twelve numbered paragraphs and one opinion, delivered by Kania, J. for the Bench of K.N. Singh and M.H. Kania, JJ. Steps follow the order of the judgment.

Kania, J. (judgment of the Bench)

1. Noted: The appeal is against the judgment of a Division Bench of the Bombay High Court in First Appeal No. 283 of 1969, by special leave (the Supreme Court's permission to appeal) under Article 136. (para 1)
2. Noted: The Court first asks whether any interference with the High Court judgment is called for. It therefore takes note only of the relevant facts. (para 2)
3. Noted: The parties are called by their description in the suit. The respondent was plaintiff in Suit No. 725 of 1959 in the Bombay City Civil Court. The appellant was defendant No. 3. (para 3)
4. Noted: The Court sets out the agreement of 25 December 1956 and the plaintiff's agreement of 11 January 1958 with defendant No. 1. It stresses that "conductor" was defined to include heirs, executors, administrators and assigns. (para 4)
5. Noted: The Court records the letter of 18 May 1958, the notices of January and February 1959 and the conflict about what happened on 15 February 1959. (para 5)
6. Noted: The Court notes the inconsistent versions given by defendant No. 3. It records the weakness of the peon's evidence and the absence of Mr. Gujar and defendant No. 2 as witnesses. (para 5)
7. Noted: The Trial Court held that defendant No. 3 unlawfully deprived the plaintiff of the business and premises. It found the plaintiff's possession lawful at its start, so he could recover possession only by recourse to law. It decreed possession and mesne profits at Rs. 310 per month. (para 6)
8. Noted: The High Court agreed with the Trial Court's assessment of the evidence. It disbelieved the claim that possession was taken with the plaintiff's knowledge or consent. It found serious inconsistencies in his evidence and doubted some documents he produced. (para 7)
9. Noted: The High Court said defendant No. 3 acted high-handedly and his acts amounted to trespass (unlawful entry on another's land). It said it would be a travesty of justice to let him stay in possession. It also took the view that the agreements, though called licences, were really sub-leases, so the plaintiff's possession after the licence period was not unlawful. (para 7)
10. Noted: Mr. Tarkunde rightly did not go into the evidence or the factual conclusions. He argued that the licence had expired, the plaintiff had no right to renewal, and she could claim only damages. (para 8)
11. Held: The Court was totally unable to accept this submission. The law is well settled. A person in settled possession cannot be dispossessed by the owner except by recourse to law. This is so even if that person had no right to remain on the property. (para 8)
12. Noted: The Division Bench in Lallu Yeshwant Singh v. Rao Jagdish Singh cited with approval the Privy Council case of Midnapur Zamindary Company Limited v. Naresh Narayan Roy. That case said persons in India are not permitted to take forcible possession and must obtain it through a Court. (para 8)
13. Noted: A three-Judge Bench in Rant Rattan and Ors. v. State of Uttar Pradesh accepted the same proposition. A true owner may throw out a trespasser while he is in the act of trespassing. That right is not available if the trespasser has completed his possession to the owner's knowledge. The owner must then use the remedies under the law. (para 9)
14. Noted: The plaintiff did not enter as a trespasser. She entered the restaurant business and premises as a licensee in due course of law. (para 9)
15. Held: Defendant No. 3 was not entitled to dispossess the plaintiff unlawfully and behind her back. (para 9)
16. Held: It makes no difference that some earlier observations arose in suits under Section 6 of the Specific Relief Act, 1963 or the Act of 1877. This suit was filed a few weeks after the unlawful dispossession and much before six months expired. (para 9)
17. Held: In view of these conclusions, the Court does not decide whether the agreement between the plaintiff and defendant No. 3 was a licence or a sub-lease. (para 9)
18. Held: Apart from the above, the appellant's conduct is such that the Court should decline to entertain his appeal by special leave under Article 136. (para 10)
19. Why: He unlawfully took possession by collusion and behind the plaintiff's back. He tried to keep it by every means, right or wrong. (para 10)
20. Why: After the High Court dismissed his appeal, he did not comply with the decree or seek special leave at once. He filed Suit No. 297 of 1974 in the High Court, which the Court describes as bogus. He sought a declaration against the plaintiff and an injunction against execution. His notice of motion was dismissed on 23 April 1974. His evidence was totally disbelieved by both courts below. (para 10)
21. Why: On an earlier hearing his counsel, on instructions, said the respondent was dead. The Court says the instructions seem to have been given recklessly and without trying to find out the truth. (para 10)
22. Held: Article 136 is not intended to help such a party. This is not an appeal in which interference is called for. (para 10)
23. Held: The appeal fails and is dismissed with costs throughout. The plaintiff may withdraw the amount the appellant deposited in this Court. (para 11)
24. Noted: Counsel for the respondent said the appellant's conduct gave reason to fear he would avoid the decree by putting an outsider in possession or by other underhand means. He asked for a direction that the executing court execute the decree with police help against any person in possession. (para 12)
25. Held: Instead of directing the executing court, the Court appoints the Court Receiver of the Bombay High Court as Receiver of the business and premises. (para 12)
26. Held: The Receiver will take possession from whoever holds it and may apply for police help if he thinks fit. He will then put the plaintiff in possession as his agent, on usual terms, without security. This order lasts eight weeks from the Receiver's taking possession, subject to the executing court's orders after hearing the respondent. (para 12)

Authorities

• Lallu Yeshwant Singh v. Rao Jagdish Singh and Ors. (Division Bench of this Court; the source copy gives no citation). Relied on. It approved the Privy Council passage that people in India must obtain possession through a Court (para 8).
• Midnapur Zamindary Company Limited v. Naresh Narayan Roy, 51 I.A. 293 at p. 299 (Privy Council). Quoted with approval in Lallu Yeshwant Singh. In India persons are not permitted to take forcible possession (para 8).
• Rant Rattan and Ors. v. State of Uttar Pradesh (three-Judge Bench of this Court; the source copy gives no citation). Accepted. A true owner may throw out a trespasser in the act of trespassing, but not after the trespasser has completed possession to the owner's knowledge (para 9).

Also cited in footnotes: the judgment has no footnotes.

Provisions

• Article 136, Constitution of India: the Supreme Court's special leave jurisdiction. The Court declined to entertain the appeal under it because of the appellant's conduct (paras 1, 10).
• Section 6, Specific Relief Act, 1963 and the corresponding provisions of the Specific Relief Act, 1877: mentioned by the Court as the provisions under which some earlier observations arose. The judgment does not set out what they provide. The Court notes this suit was filed a few weeks after dispossession, well before six months, and holds that it makes no difference (para 9).

Judgement

1. The appeal is dismissed with costs throughout (para 11).
2. The amount the appellant deposited in the Supreme Court may be withdrawn by the plaintiff, the respondent (para 11).
3. The Court Receiver of the Bombay High Court is appointed Receiver of the restaurant business and the premises in which it was conducted (para 12).
4. The Receiver will take possession of the business and premises from whoever is in possession. He may apply for police help if he thinks fit (para 12).
5. The Receiver will then put the plaintiff in possession as his agent, on usual terms, without security. The Receiver puts her in possession on payment of such outgoings as he may think fit, and without asking for any royalty (para 12).
6. This order remains in force for eight weeks from the day the Receiver takes possession. It is subject to any orders the executing court may pass after hearing the respondent (para 12).
7. Lower-court decisions as recorded: the Trial Court's decree for possession and mesne profits at Rs. 310 per month from the date of the suit until possession was put (para 6). The High Court dismissed the appeal (para 7). The Supreme Court upheld them.

Legal Principle / Ratio

A person in settled possession of property cannot be dispossessed by the owner except by recourse to law. This holds even if the person had no right to remain. Key holding: "he cannot be dispossessed by the owner of the property except by recourse to law".

Critical Analysis

Analysis based on the judgment text.

• The Court does not decide whether the agreement was a licence or a sub-lease. The High Court's view that they were sub-leases is recorded but left open (para 9).
• The Court treats the plaintiff's entry as lawful at its start. The judgment does not say how long possession must last before it is "settled".
• The Court notes that earlier cases arose under Section 6. It gives a reason only for this case: the suit was filed within weeks (para 9).
• The Court gives two grounds: the settled-possession rule, and the appellant's conduct under Article 136. The second ground is stated as separate from the first (para 10).
• The judgment records the dates of the agreement extension as 30 April 1965 (para 5) and 13 April 1965 (para 6). It does not explain the difference.

Significance

• It repeats and applies the rule that self-help to recover possession is not allowed, even for an owner.
• Commentary: the Court rejected the argument that the licence had expired (para 8), so the rule applies even after a licence period ends.
• It shows the Court will refuse special leave under Article 136 to a party whose conduct is reckless or aimed at delay.
• It shows a practical step for enforcement: a Court Receiver appointed to take possession and hand it to the decree-holder.

Exam-Important Points

• Rule first: a person in settled possession cannot be dispossessed by the owner except by recourse to law, even if he had no right to remain (para 8).
• Trap: the rule is not limited to a suit under Section 6 of the Specific Relief Act. Here the suit was filed within weeks, well before six months (para 9).
• A true owner may remove a trespasser in the act of trespassing, but not once the trespasser has completed possession to his knowledge (para 9).
• The Court did not decide whether the agreement was a licence or a sub-lease (para 9).
• Article 136 relief can be refused because of the appellant's conduct: collusion, a bogus suit and a reckless statement that the respondent was dead (para 10).
• Directions: costs throughout; deposit released to the plaintiff; Court Receiver for eight weeks, with police help if needed (paras 11-12).

Prepared from the full text of the judgment. Paragraph numbers follow the official Supreme Court judgment text; law reports may number the same paragraph differently.