Apex court digest - Jan.2017 [4],

Or.39, rule 1 and 2 C.P.C. - suit for injunction - interim application for interim injunction - Trial court rejected - High court granted - Apex court set aside the High court and restore the trial court order-  The Plaintiff along with his Maternal grand-mother  are in use, occupation and possession of the  premises-The Defendant Nos.1, 2, 3 and 5 are the Paternal uncles  of  the Plaintiff’s mother -Defendant No.6,  is a son of the Defendant No.5 and Defendant No.4 is the sister  of  Defendants1,2,3 and 5 -Mohammed Ali H. Tejani (called the said Deceased)  was  a  Co-owner along with Defendant Nos.1 to 5 in respect of a Plot of  Land  bearing Plot No.202-D, along with the building comprising of ground with  one  upper floor-The said deceased  executed a Will dated 28th September 1991 under which  the  deceased  bequeathed  his 1/7th share in the plot of land in favour of the Defendant Nos.1 to  5.  The said Will is probated in the High Court - the maternal grand-mother of the respondent  was merely allowed to  use  and occupy the suit premises by the defendants out of love and sympathy  without any fees or compensation -In  fact the suit does not claim any independent right either of his grand-mother  or of the respondent himself.- Apex court held that An occupation of the property by a person as  an agent or a servant acting at the instance of the owner will  not  amount  to actual physical possession - (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.” Thus, a person holding the premises gratuitously or in  the  capacity  as  a caretaker or a servant would not  acquire  any  right  or  interest  in  the property and even long possession in that capacity  would  be  of  no  legal
consequences. In the circumstances City Civil Court was right and  justified in rejecting the prayer for interim injunction and that decision  ought  not to have been set aside by the High Court. We therefore,  allow  the  appeal, set aside the judgment under appeal and restore the Order  dated  29.04.2013 passed by the Bombay City Civil Court in Notice of Motion No.344 of 2013  in
Suit No.408 of 2013.

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APEX COURT DIGEST - Jan.2017 [6]

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Or.39, Rule 1 & 2 and Sec. 151 and sec.94 of C.P.C - Police aid when to be granted - hear both parties when resisted - to avoid dispossession of actual possessor with the help of police aid - identify the property before issuing of police aid with the help of advocate commissioner if necessary - since the defendant pleaded that before the filing of suit and after filing of the suit ,he never trespassed into the suit schedule property nor violated interim injunction order - even though no evidence of violation of injunction not filed , the lower court feels that no prejudice would be caused to the respondent when police aid is granted -2013 A.P. msklawreports

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