High Court of Judicature at Allahabad
Case Law Search
Sachin Jain v. State Of U.P. Thru' Collector, Muzaffarnagar And Others - WRIT - C No. 11373 of 2004  RD-AH 6478 (23 March 2006)
Civil Misc. Writ Petition No. 11373 of 2004
State of U.P. & Ors.
Hon'ble Dr. B.S. Chauhan, J.
Hon'ble Dilip Gupta, J.
This writ petition has been filed for issuing a direction upon the respondent nos. 3 and 4 to handover the possession of the secured assets (double storied house) situate at Manglapuri Mandi, Shahpur, Pargana Shikarpur, Tehsil Budhana, District Muzaffarnagar (hereinafter called the ''premises in dispute) to the petitioner.
The facts and circumstances giving rise to this case are that the respondent no.6, a partnership firm, of which Shri Amit Jain is the sole proprietor, had taken loan from the said respondent nos. 3 and 4 (hereinafter called the ''Bank') for establishment of an industry. The present petitioner alongwith his father stood guarantor. In order to secure the loan, there had been a mortgage of the premises in dispute with the said Bank. As the loan could not be repaid, the Bank initiated proceedings by issuing notice dated 30.10.2002 under Section 13(2) of ''The Securitisation & Reconstruction of Financial Assets & Enforcement of Security Interest Act, 2002' (hereinafter called the ''Act 2002'). In pursuance thereof, a notice under Section 13(4) of the Act 2002 was issued on 04.04.2003. Subsequent thereto, the matter had been settled amicably between the respondent no.6 and the said Bank. The loan stood liquidated and the guarantors stood discharged. However, petitioner's grievance has been that the premises in dispute which had been mortgaged to the said Bank and possession of which had been taken by the Bank during the proceedings under the Act 2002, has not been handed over to the petitioner rather, in collusion with the employees of the Bank, the respondent no.5 has taken forcible possession of the same. Therefore, this Court must issue direction to the respondent Bank to hand over the said premises to the petitioner with the aid of the district administration, after evicting the respondent no.5 from the same.
Shri Ravi Kiran Jain, learned Senior Counsel appearing for the petitioner has submitted that it was the solemn duty of the Bank to hand over the possession of the premises in dispute to the petitioner after the loan had been repaid as per the settlement between the parties. In collusion with the respondent no.5, the possession has been handed over to him, therefore, the petitioner is entitled for the relief sought.
On the other hand, Shri Sanjeev Singh, learned counsel appearing for the Bank has vehemently opposed the petition contending that the respondent no.5 is the family member of the petitioner and Shri Amit Jain, the proprietor of respondent no.6 and there was a dispute amongst the family members. There had been no collusion on the part of the Bank authorities. Between the said parties, a Civil Suit is pending which has been filed in January, 2004 while this writ petition was filed on 17th March, 2004. Private disputes of parties cannot be adjudicated upon in writ jurisdiction.
Similarly, Shri Pankaj Mittal, learned counsel appearing for the respondent no.5 has submitted that it was the property of the respondent no.5 and had been mortgaged by the present petitioner without any authorisation. The respondent no.5 is residing therein since his birth and the Civil Suit No. 71 of 2004, Arinjai Kumar Jain & Ors. Vs. Sachin & Ors. is pending for declaration and injunction between the parties. This Court cannot be used to achieve an ulterior purpose to evict him from his own house. Thus, the petition is liable to be dismissed.
We have considered the rival submissions made by learned counsel for the parties and perused the record.
Admittedly, the family tree drawn in the plaint, a copy of which has been annexed as CA-1 with the counter affidavit filed by respondent no.5, shows that the petitioner Sachin Jain is the son of one Subhash Chand and the respondent no.5 Arinjai Jain is the real brother of said Subhash Chand as both are sons of Shri Sumat Prasad Jain. In the plaint, Shri Sumat Prasad Jain is also one of the plaintiffs along with respondent no.5 and present petitioner as well as his father are defendants.
It has been stated in the plaint as well as in the counter affidavit on behalf of the respondent no.5 that the premises in dispute belong to them and taking over possession of the said premises by the Bank etc. had been collusive proceedings with the present petitioner. The person in settled possession cannot be dispossessed without taking recourse to law and if the petitioner is so aggrieved, he must prove his title before the Civil Court or take recourse to appropriate legal course to evict the respondent no.5.
The counter affidavit had been filed two years ago. No rejoinder affidavit has been filed till today. Thus, there is no rebuttal to the averments taken therein. The issue of title cannot be adjudicated upon in writ jurisdiction and even if the said respondent no.5 is a trespasser, he cannot be thrown out at this stage in exercise of the writ jurisdiction because in such a fact situation.
It is settled legal proposition that even a trespasser is to be dispossessed with due process of the law. No one is to be thrown out of possession forcibly. Where a person is in settled possession of property, even on the assumption that he has no right to remain in possession, he can be evicted only by taking recourse to law. In Ram Rattan Vs. State of U.P., AIR 1977 SC 619, the Hon'ble Supreme Court held that an owner of the property has every right to dispossess or throw-out a trespasser while he is in the act of or process of trespassing, but this right is not available to the true owner, if the trespasser has been successful in accomplishing his possession to the knowledge of the true owner. In such a circumstance, the law requires that the true owner should dispossess the trespasser by taking recourse to the remedies provided under the law. Similar view has been taken in Lallu Yeshwant Singh (dead) by his LRs. Vs. Rao Jagdish Singh & Ors., AIR 1968 SC 620; and Krishna Ram Mahale Vs. Mrs. Shobha Venkat Rao, AIR 1989 SC 2097, wherein the Apex Court considered and approved the law laid down by the Privy Council in Midnapur Zamindary Co. Ltd. Vs. Naresh Narayan Roy, AIR 1924 PC 144.
In Nagarpalika, Jind Vs. Jagat Singh, AIR 1995 SC 1377, the Hon'ble Apex Court has observed that "Section 6 of the Specific Relief Act, 1963 is based on the principle that even a trespasser is entitled to protect his possession except against the true owner and purports to protect a peson in possession from being dispossessed except in due process of law".
In Ram Gowda (Dead) by LRs. & Anr. Vs. M. Varadappa Naidu (Dead) by LRs. & Anr., (2004) 1 SCC 769, similar view has been reiterated by the Hon'ble Apex Court placing reliance upon large number of its earlier judgments including Munshi Ram Vs. Delhi Admn., AIR 1968 SC 702; and Puran Singh Vs. State of Punjab, AIR 1975 SC 1674.
In Munshi Ram (supra), it was held that no one, including the true owner, has a right to dispossess the trespasser by force if the trespasser is in settled possession of the land and in such a case unless he is evicted with the due course of law, he is entitled to defend his possession even against the rightful owner. But merely stray or even intermittent acts of trespass do not give such a right against the true owner.
Thus, it is evident from the aforesaid discussion that any person, who is in settled possession of the property, cannot be thrown out forcibly without resorting to the procedure prescribed by law.
In view of the above, as the petition raises disputed questions of fact regarding the title and in respect of the same, the suit is pending between the private parties and there is nothing on record to show that the Bank had been in collusion with the respondent no.5 and handed over possession to him, we are not inclined to exercise our discretionary jurisdiction.
Petition is devoid of any merit and is accordingly dismissed. However, any observation made herein shall not adversely affect the merit of the case of either of the parties before the appropriate forum regarding the title etc. of the premises in dispute.
Double Click on any word for its dictionary meaning or to get reference material on it.