# Ashfaq Ali v. Smt Tahira & Ors

- **Citation:** (2020) 1 ILRA 321
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-20
- **Case number:** Correction Application No. 10 of 2019
- **Bench:** Ajay Bhanot
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ashfaq-ali-v-smt-tahira-ors-45058
- **Pages:** 11

## Headnote

Sri Chandra Kant Parekh, Sri C.K. Parekh,
Sri Vivek Mishra

A. An unauthorised occupant or third
person is not entitled to an injunction
against the true owner. (Para 14)

B. No one acquires title to the property if
he or she was allowed to stay in the
premises
gratuitously
even
by
long
possession such as caretaker, watchman
or servant can never acquire interest in
the property irrespective of his long
possession. (Para 58)

C. Code of Civil Procedure, 1908 - Section
100 - challenge to-decree of suit-trial
court
injucted
the
defendant
from
evicting the plaintiff except in accordance
with law-plaintiff is an unauthorised
occupant in the shop resisting the claim
of true owner- eviction in accordance
with law was substantial question of lawprocedure which upholds the law and
promotes
the
ends
of
justice-this
obligates every trial court and executing
court to adjudicate the matter in strict
adherence to a stipulated time frame,
under all circumstances-appellate court
acted in conformity with law by granting
decree of eviction against the plaintiff
and in favour of the defendant on the
counter claim. (Para 10, 21, 30 to 33, 53, 59)

D. 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.
(Para 58)

Second Appeal dismissed. (E-6)

List of cases cited: -

## Text

1 All. Asfaq Ali Vs. Smt. Tahira & Ors.
321
of custody of minor, referred hereinabove,
we are of the view that the conclusion
drawn by the court below vide judgment
and order dated 07.08.2018, is not liable to
be interfered. We do not find any infirmity
or illegality in the impugned judgment and
order
dated
07.08.2018
passed
by
Principal Judge, Family Court, Sitapur by
which custody/guardianship of the minor
child-Azazul Hussain has been denied to
appellant.

21. Accordingly, this appeal is
dismissed.

22. No order as to costs.
----------
(2020)1ILR 321

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.09.2019 &
14.11.2019

BEFORE
THE HON'BLE AJAY BHANOT, J.

Second Appeal No. 621 of 2016 & Civil Misc.
Correction Application No. 10 of 2019

Ashfaq Ali ...Appellant
Versus
Smt Tahira & Ors. ...Respondents

Counsel for the Appellant:
Sri Udai Chandani

Counsel for the Respondents:
Sri Chandra Kant Parekh, Sri C.K. Parekh,
Sri Vivek Mishra

A. An unauthorised occupant or third
person is not entitled to an injunction
against the true owner. (Para 14)

B. No one acquires title to the property if
he or she was allowed to stay in the
premises
gratuitously
even
by
long
possession such as caretaker, watchman
or servant can never acquire interest in
the property irrespective of his long
possession. (Para 58)

C. Code of Civil Procedure, 1908 - Section
100 - challenge to-decree of suit-trial
court
injucted
the
defendant
from
evicting the plaintiff except in accordance
with law-plaintiff is an unauthorised
occupant in the shop resisting the claim
of true owner- eviction in accordance
with law was substantial question of lawprocedure which upholds the law and
promotes
the
ends
of
justice-this
obligates every trial court and executing
court to adjudicate the matter in strict
adherence to a stipulated time frame,
under all circumstances-appellate court
acted in conformity with law by granting
decree of eviction against the plaintiff
and in favour of the defendant on the
counter claim. (Para 10, 21, 30 to 33, 53, 59)

D. 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.
(Para 58)

Second Appeal dismissed. (E-6)

List of cases cited: -

1. Sri Venkataramana Devaru & Ors. Vs. St. of
Mysore & Ors. AIR 1958 SC 255

2. Santosh Hazari Vs. Purushotam Tiwari, 2001
(3) SCC 179

3. Thomas Cook (India) Ltd. Vs. Hotel Imperial,
2006(88) DRJ 545

4. Maria Margarida Sequeira Fernandes (supra)
322 INDIAN LAW REPORTS ALLAHABAD SERIES
(Delivered by Hon'ble Ajay Bhanot, J.)

1. This second appeal arises out of the
judgment and decree dated 17.05.2016
passed by the learned Additional District
Judge/Special
Judge(Prevention
of
Corruption Act), Varanasi in Civil Appeal
No. 45 of 2014, Mohd. Hussain Vs.
Ashfaq Ali and another, which reverses
the
judgement
and
decree
dated
18.02.2014 rendered by the learned
Additional Civil Judge, Varanasi in
Original Suit No. 472 of 1986, Ashfaq Ali
Vs. Smt. Tahira and Others.

2. This second appeal has been filed
by the plaintiff in the suit registered as
Original Suit No.472 of 1986, Ashfaq Ali
Vs. Smt. Tahira.

3. Civil action was brought by the
plaintiff-appellant against the defendantsrespondents, by instituting a suit registered
as Case No. 472 of 1986 (Ashfaq Ali Vs
Smt. Tahira and Others), before the
learned Additional Civil Judge, Varanasi.

4. The plaint states that the plaintiffappellant is a tenant in the disputed shop
w.e.f. 1980-81, which is an integral part of
House No. CK-67/25 at Dal Mandi,
District
Varanasi.
The
defendantsrespondents were the landlords.

5. The cause of action for the suit
arose on 24.04.1996, when the defendantsrespondents
tried
to
take
forcible
possession of the disputed premises by
physically evicting the plaintiff-appellant.
The attempted eviction was foiled. Relief
was claimed by the plaintiff-appellant to
permanently
injunct
the
defendantsrespondents from interfering with the
possession of the plaintiff-appellant over
the shop in dispute, by adopting means
which are contrary to law. The plaintiffappellant also prayed that his peaceful
possession over the shop in dispute may
not be disturbed by the defendantsrespondents.

6. The defendant no. 2-respondent
no. 2 resisted the suit by filing a written
statement and a counter claim for eviction
of the plaintiff-appellant.

7. The written statement while
denying the case of the plaintiff-appellant
stated that the parties commenced their
partnership business in the aforesaid shop
from the month of August, 1995. The
intentions of the plaintiff-appellant became
dishonest and the business folded up. The
written statement categorically denied the
landlord tenant relationship between the
plaintiff-appellant and defendant no. 2respondent no. 2. The defendant no. 2respondent no. 2 asserted that the plaintiffappellant was earlier a licensee in the
shop. However on the date of institution of
the suit, was the plaintiff-appellant was an
unauthorized occupant. The defendant no.
2-respondent no. 2 made a counter claim
to evict the plaintiff-appellant.

8. The issues relevant, framed by the
learned trial court for determination which
remain relevant are as under:

I. Whether the plaintiff-appellant
is the lawful tenant of the disputed shop?

II. Whether the defendant no. 2respondent no. 2 is the sole owner of the
disputed property?

III. Whether the defendant no. 2
respondent no.2 is entitled for eviction of
the plaintiff-appellant from the disputed
shop and to obtain possession of the same
on the foot of the assertions made in the
counter claim?
1 All. Asfaq Ali Vs. Smt. Tahira & Ors.
323

9. The trial court concluded that
there was no dispute about the ownership
of the shop property in issue. The learned
trial court opined that the plaintiffappellant could not prove his tenancy. The
landlord-tenant relationship between him
and the defendant no. 2-respondent no. 2
was not established. The learned trial court
also found that the plaintiff-appellant was
an unauthorized occupant. The plaintiffappellant was able to establish his
possession over the disputed shop, before
the trial court.

10. In the wake of the aforesaid
findings, the learned trial court held that the
plaintiff-appellant was entitled to be protected
from eviction by a procedure contrary to law.
Partly decreeing the suit, the learned trial
court issued a permanent injunction to the
defendants-respondents injuncting them from
evicting the plaintiff-appellant by adopting a
procedure which is contrary to law.

11. The counter claim of the
defendant no. 2- respondent no. 2 was
dismissed. The defendant no. 2-respondent no.
2 was granted liberty to file a suit for eviction,
which in the undertaking of the learned trial
court was the only procedure know to law.

12. The defendant no. 2-respondent no.2
carried the judgement of the learned trial court
in appeal. The appeal was registered as Civil
Appeal No. 45 of 2014, Mohd. Hussain Vs.
Ashfaq Ali and another before the Additional
learned District Judge, I, Varanasi. A cross
objection was filed by the plaintiff-appellant in
the aforesaid appeal.

13. The learned appellate court after
independent consideration of pleadings
and the evidence found that the plaintiffappellant could not establish his tenancy in
the shop in dispute. The finding of the
learned trial court that the plaintiffappellant was not a tenant in the shop in
dispute was upheld. The appellant court
was also in agreement with the learned
trial court that the plaintiff-appellant was
an unauthorized occupant in the shop in
dispute. The learned appellate court gave
weight to the admission made by the
plaintiff-appellant in his plaint, that the
defendant no. 2-respondent no. 2 was the
owner and the landlord of the disputed
shop. The ownership of the defendant no.
2-respondent no. 2 of the property in issue
was undisputed.

14. The learned appellate court applying
the well settled position of law to this case,
held that the plaintiff-appellant being an
unauthorized occupant, is not entitled to seek
an injunction against the defendant no.2respondent no.2 who is the true owner.

15. There was another aspect to the
controversy which was noticed by the learned
appellate court. The plaintiff-appellant had
stated in the plaint that he was a tenant in the
shop in dispute from 1980-81. The learned
appellate court took noticed from the record
details of P.A. Case No. 111 of 1980 (Tahira
Bibi Vs. Saeed Ahamad Khan) before the
prescribed authority, in regard to the disputed
premises. The records bears out the judgment
entered by the prescribed authority on
09.01.1981 directed eviction of the then
tenant Saeed Ahmed and the fact of
restoration of vacant possession to the
landlord on 14.03.1981. The learned appellate
court thus found that till 14.03.1981 the
disputed premises was not in the possession
of the plaintiff-appellant. The documentary
evidence in this regard marked as Paper no.
110-GA attested the aforesaid stand of the
defendant no. 2-respondent no. 2 as pleaded
in the written statement was also appreciated
while returning the finding.
324 INDIAN LAW REPORTS ALLAHABAD SERIES

16. Thus, the learned appellate court
found that the assertion in the plaint that
the plaintiff-appellant was tenant in the
premises from 1980-1981 was false. The
plaintiff-appellant had instituted the suit
by stating false facts and concealing
material evidence. The suit was liable to
be dismissed on the foot of this finding.

17. There were incurable faultlines in
the judgment of the learned trial court,
when it dismissed the counter claim of the
defendant-appellant no. 2.

18. Accordingly, the appellate court
found that the judgment of the learned trial
court rejecting the counter claim of the
defendant no. 2- appellant to be at variance
with law and was liable to be interfered
with. The counter claim of the defendant
no. 2- appellant was accordingly allowed.

19. The learned first appellate court
decreed the counter claim of the defendant
no. 2-respondent no.2 and set aside the
judgment dated 18.02.2014 and decree dated
01.03.2014 passed by the learned trial court.

20. The plaintiff-appellant was
directed by the learned appellate court to
make over the vacant possession of the
disputed shop to the defendant no. 2respondent no. 2 within a period of three
months from date of the judgment. The
appellate court also awarded damages
payable by the plaintiff-appellant.

21. Sri Udai Chandani, learned
counsel for the plaintiff-appellant contends
that the learned trial court as well as the
learned appellate court erred in law by
disbelieving the claim of the plaintiffappellant that he was a tenant in the
disputed premises. He further contends
that the plaintiff-appellant has been in
possession over the disputed property
since 1995 and the learned trial court
rightly injuncted the defendant no. 2respondent no. 2 from evicting the
plaintiff-appellant except in accordance
with law. The plaintiff-appellant could be
evicted only by instituting a civil suit for
eviction and not on the foot of a counter
claim.

22. Sri Udai Chandani, learned
counsel for the plaintiff-appellant submits
in the alternative that the plaintiffappellant is a licensee and not an
unauthorized occupant in the shop.

23. Per contra, Sri C. K. Parekh, learned
Senior Counsel assisted by Sri Vivek Mishra,
learned counsel for the defendant no. 2respondent no. 2 submits that the findings
against the claim of tenancy made by the
plaintiff-appellant are findings of fact which
were returned in light of the pleadings after
appreciation of evidence. There is no
perversity in the findings. He further contends
that the plaintiff-appellant had admittedly not
come to the learned trial court with clean hands
and stated false facts in the plaint. The suit was
liable to be dismissed on this ground alone.

24. Lastly Sri C. K. Parekh, learned
Senior Counsel submits that the law is
well settled that an unauthorized occupant
or third person is not entitled to an
injunction against the true owner.

25. Both the courts concurrently
found upon consideration of pleadings and
appreciation of evidence, that the plaintiffappellant was not a tenant in the disputed
shop. The landlord tenant relationship
between the parties was not established.
The learned counsel for the appellant
could not point out any substantial
question of law which arises from the said
1 All. Asfaq Ali Vs. Smt. Tahira & Ors.
325
factual determination. This Court finds
that these pure findings of facts are
impeccable and no substantial question of
law arises for determination on these
findings.

26. The issue of oral partnership
between the parties and the status of the
plaintiff-appellant as licensee was not
posed for determination before the both
learned courts of earlier instance. This
point was never pressed by the parties
before both the courts of earlier instance.

27. Plaintiff-appellant never claimed
to be a licensee at any stage. There is no
foundation to support a claim of licensee
in the plaint. Evidence in this regard is
absent. On the contrary, the plaintiffappellant affirmatively asserted that he
was a tenant of the premises in dispute.
Both the courts of earlier instance did not
enquire into nor return any finding on this
point. This point was clearly abandoned by
both parties in the earlier stages of
litigation. The plaintiff-appellant cannot
resile from his earlier stand and set up a
new case at this stage to the detriment of
the defendant no. 2-respondent no. 2, after
his defence was invalidated by both courts.

28. A substantial question of law has
to emerge from reading of the judgments
of the courts of earlier instance, in light of
the material before the courts, issues
framed for determination and findings
thereon. Issues of disputed facts which
require evidence for adjudication, and
which were not posed for determination
before the courts of both instances, are not
substantial questions of law under Section
100 of the Civil Procedure Code.

29. In this regard, a reference may be
made with profit to the law laid down by
the Hon'ble Supreme Court in the case of
Sri Venkataramana Devaru and others v.
The State of Mysore and others, reported
at AIR 1958 SC 255.

"14. Mr. M. K. Nambiar invited
our attention to Exhibit A-2, which is a
copy of an award dated November 28,
1847, wherein it is recited that the temple
was originally founded for the benefit of
five
families
of
Gowda
Saraswath
Brahmins. He also referred us to Exhibit
A-6, the decree in the scheme suit, O.S.
No. 26 of 1915, wherein it was declared
that the institution belonged to that
community. He contended on the basis of
these documents and of other evidence in
the case that whether the temple was a
private or public institution was purely a
matter of legal inference to be drawn from
the
above
materials,
and
that,
notwithstanding that the point was not
taken in the pleadings, it could be allowed
to be raised as a pure question of law. We
are unable to agree with this submission.
The object of requiring a party to put
forward his pleas in the pleadings is to
enable the opposite party to controvert
them and to adduce evidence in support of
his case. And it would be neither legal nor
just to refer to evidence adduced with
reference to a matter which was actually
in issue and on the basis of that evidence,
to come to a finding on a matter which
was not in issue, and decide the rights of
parties on the basis of that finding. We
have accordingly declined to entertain this
contention. We hold, agreeing with the
Courts below, that the Sri Venkataramana
Temple at Moolky is a public temple, and
that it is within the operation of Act V of
1947.

30. The phrase substantial question
of law occurring in Section 100 of the
Code of Civil Procedure has been
326 INDIAN LAW REPORTS ALLAHABAD SERIES
interpreted by the Hon'ble Supreme Court
in a long line of consistent authorities. The
Hon'ble Supreme Court in the case of
Santosh Hazari v. Purushotam Tiwari,
reported at 2001 (3) SCC 179 held as
under:

"14. A point of law which admits
of no two opinions may be a proposition of
law but cannot be a substantial question of
law. To be 'substantial', a question of law
must be debatable, not previously settled
by law of the land or a binding precedent,
and must have a material bearing on the
decision of the case, if answered either
way, in so far as the rights of the parties
before it are concerned. To be a question
of law 'involving in the case' there must be
first a foundation for it laid in the
pleadings and the question should emerge
from the sustainable findings of fact
arrived at by court of facts and it must be
necessary to decide that question of law
for a just and proper decision of the case.
An entirely new point raised for the first
time before the High Court is not a
question involved in the case unless it goes
to the root of the matter. It will, therefore,
depend on the facts and circumstance of
each case whether a question of law is a
substantial one and involved in the case,
or
not;
the
paramount
overall
consideration being the need for striking a
judicious
balance
between
the
indispensable obligation to do justice at
all stages and impelling necessity of
avoiding prolongation in the life of any
list.

31. The issue whether the plaintiffappellant was a licencee or not, is a factual
issue in this case and does not satisfy the
tests of a substantial question of law, as
laid down by Hon'ble Supreme Court in
Santosh Hazari (supra) and cannot be
entertained view of the restriction posed in
Sri Venkataramana Devaru (supra).

32. In these facts the plaintiffappellant cannot urge at this stage that he
was a licensee. The plaintiff-appellant
cannot introduce a pure question of fact
for the first time which requires evidence
for determination under the guise of a
substantial question of law.

33. The learned counsels for the
parties then agree that the following
questions of law arise for determination in
this second appeal:

I. Whether the suit was liable to
be dismissed on the ground that the
plaintiff did not come to the court with
clean hands, by asserting false facts in the
plaint and concealing material facts and
evidence from the court?

II. Whether the learned appellate
court erred in law in granting the decree of
eviction against the plaintiff-appellant and
in favour of the defendant no.2-respondent
no.2 on the counter claim of the latter and
whether
failure
of
defendant
no.2respondent no.2 to file a separate suit for
eviction of the plaintiff-appellant was fatal
to the case of eviction against the plaintiffappellant? As a corollary what is the
import
of
the
phrase
"eviction
in
accordance with law" when the claim of a
lawful
owner
is
pitted
against
an
unauthorised occupant in terms of the
pleadings?

Substantial Question of Law No. 1

34. The learned appellate court found
that the plaintiff-appellant had stated false
facts and concealed material evidence
before the court. The finding is made on
the
foot
of
admitted
facts
and
unimpeachable
evidence.
The
1 All. Asfaq Ali Vs. Smt. Tahira & Ors.
327
consequences of such conduct of the
plaintiff-appellant is the key to answering
the first substantial question of law.

35. Truth to facts is the first rule of
equitable conduct. To keep the stream of
justice pure and to protect the credibility of the
process of law equitable conduct of parties is
non negotiable. The court will investigate
whether the party did its utmost to preserve
fidelity to the facts. Preserving fidelity to the
facts is the essence of equitable conduct.

36. Fair conduct of a party before the
court alone entitles it to discretionary relief
from the court, while unfair conduct would
preclude grant of relief by the court.

37. The learned appellate court
followed the right line of enquiry and
correctly found that the plaintiff-appellant
had not come to court with clean hands.

38. The learned appellate court in light of
the facts established above and the settled
position of law recorded that the relief of
injunction is an equitable relief and the conduct
of the plaintiff-appellant disentitled him to the
equitable relief of grant of injunction. The
finding of fact by the learned appellate court is
beyond reproach and the statement of law is
unassailable.

The substantial question of law
no. 1 is accordingly answered as follows:

39. The plaintiff-appellant was not entitled
to the equitable relief of grant of injunction, since
he had stated false facts and come to the court
with unclean hands and his suit was liable to be
dismissed on this ground alone.

Substantial Question of Law
No. 2

40. The answer to the second
substantial question of law would turn on
the interpretation of the phrase "eviction in
accordance with law."

41. Claims of lawful owners against
unauthorized occupants of the properties
of the former, take long years to decide in
our judicial system. This Court takes
notice of the fact that even where the title
of the true owner against an unauthorized
occupant is not in serious dispute, the
claims of the former are decided after
many decades. The unauthorized or
unlawful
occupants
are
the
only
beneficiaries
of
this
anomaly.
Such
unlawful or unauthorized occupants retain
illegal possession against true owners
simply by delaying adjudication by courts.
The defence of illegal occupants against
their eviction by true owners is "rule of
law"! The delay in such cases perverts law
and defeats justice. Perversion of law has
to be prevented, rule of law has to be
established and justice has to be dispensed.

42. Further, as a corollary what is the
true import of the phrase "eviction in
accordance with law", in matters where the
claim of a true owner for possession is resisted
by an unauthorized occupant in courts of law.

43. The question as we have seen is
not only a substantial question of law but a
question of public importance.

44. Inordinate delay in deciding the
claim of a lawful owner against an
unauthorised
occupant
indefinitely
prolongs the illegal occupation of the latter
and negates the lawful title of the former.
The delay misdirects the process of law to
a point, where force of possession prevails
over the legitimacy of title and the
distinction between lawful title and illegal
328 INDIAN LAW REPORTS ALLAHABAD SERIES
possession ceases. This state of affairs
dents the faith in the legal process. It
impairs the credibility of the process of the
courts and incentivizes resort to means
which are not lawful. In short, such delay
is fatal to the rule of law and causes
complete miscarriage of justice. The
phrase "eviction as per law" has to mean a
procedure which upholds the law and
promotes the ends of justice. This
obligates every trial court, appellate court
and executing court to adjudicate the
matter in strict adherence to a stipulated
time frame, under all circumstances. While
deciding this appeal this Court is called
upon to determine the said time frame and
procedure.

45. The courts are charged with the
duty of upholding the law and dispensing
justice. These twin objectives can be
fulfilled in the facts situation discussed in
the preceding paragraphs, only if the
courts evolve speedy procedure and
dispense justice in a reasonable period of
time, without compromising the standards
of law.

46. Considering the situation being
faced by the courts today because of delay
in deciding such matters and the threat
such delayed possesses to the root of law,
the phrase "reasonable period of time"
cannot be left to be defined by individual
preference. The succeeding paragraphs
will define the phrase "reasonable period
of time" by stipulating the specific time
frame within which matters in which a true
owner has made a claim against an
unauthorized occupant and where there is
no serious dispute of title shall be decided.

47. No party which seeks to benefit
from unauthorized occupancy, shall be
granted any unnecessary adjournment. In
fact, in such cases, the courts may well be
advised to decline any adjournments.
Adjournments if any shall be granted only
in the rarest of rare cases after full
satisfaction of the court is recorded that it
is solely in the interests of justice and after
payment of exemplary costs.

48. The claim of eviction made by the
lawful
owner
and
the
claim
of
damages/compensation
for
unauthorized
occupancy shall be divided into the parts.
The courts shall decide the issue of
unauthorized occupation as the first issue
and in case the courts find that the
occupation
of
the
property
was
unauthorized,
the
eviction
of
such
unauthorized occupant shall be ordered
forthwith along with the decree of eviction.
This process of deciding the issue of
unauthorized occupation and the eviction of
such occupant shall be completed by the
learned trial court in strictly within a period
of one year from the date of institution of the
suit. The legality of defence of the
unauthorized occupant be that of valid
tenancy, or license or a tenant who is
holding or any other claim in defence of
possession howsoever tenors, shall be
decided within the aforesaid period of one
year. The courts shall proceed with the
hearing of such suits on a day to day basis if
necessary to adhere to the stipulated time
period of one year. Similarly, the executing
courts shall also proceed on a day to day
basis
and
complete
the
execution
proceedings in all circumstances within a
period of six months. The claim of
compensation/damages shall be decided
alongside or if possible within the stipulated
period of time or may be decided soon
thereafter.

49. The appellate court shall decide
the appellate within six months. All courts
1 All. Asfaq Ali Vs. Smt. Tahira & Ors.
329
shall ensure this stipulated time frame is
not deviated from and is adhered to in all
circumstances.

50. This is the essence of the rule of
law. The eviction by rule of law obligates
the courts to be alerted to the existing
realities and evolve timely responses.
Adherence to the aforesaid procedure, is
the full and true import of the phrase
"eviction in accordance with law".

51. The high purpose of law is to
dispense justice in a speedy manner and
not to draw parties into endless litigation.
Courts have looked askance at multiplicity
of litigation on the same cause of action.

52. The issue of possession of an
unauthorized occupant was pitted against
the claim of the true owner of the property
before the both courts of earlier instance in
this
case.
Both
the
courts
after
adjudicating the controversy found that the
plaintiff-appellant was an unauthorized
occupant who was resisting the claim of
the true owner defendant no. 2-respondent
no. 2 for possession over the property.

53. A judgment by a court, holding a
person to be an unauthorized occupant
against the claim of a true owner fully
constitutes the lawful basis of eviction of
the
unauthorized
occupant.
This
determination is conclusive for securing
the eviction of an unauthorized occupant.
In the face of the said adjudication, it does
not matter who brought the suit. No further
judicial enquiry or adjudication by the
courts is required for eviction of the
unauthorized occupant.

54. In the wake of these established
facts, it then was wholly contrary to law,
to direct the defendant no. 2-respondent
no. 2 to institute civil action afresh for
eviction of the plaintiff-appellant and a
travesty of justice to prolong an almost a
three and a half decade old litigation.

55. The judgment of the learned trial
court is a perversion of the phrase
"eviction in accordance with law." The
true meaning of the phrase "eviction in
accordance with law" was found by the
learned appellate court in its judgment.

56. The method of due process of
law to be adopted to evict an unauthorized
occupant and the import of the phrase,
"eviction in accordance with law", fell for
consideration before the Courts. The
judicial authority in point will now be
referenced.

57. Faced with the remedy available
in law to a true owner to eject an unlawful
occupant, the Hon'ble Delhi High Court in
the case of Thomas Cook (India) Ltd. Vs.
Hotel Imperial, reported at 2006(88) DRJ
545, in eloquent words laid down an
enduring statement of law:

"28.
The
expressions
`due
process of law', `due course of law' and
`recourse
to
law'
have
been
interchangeably used in the decisions
referred to above which 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.
330 INDIAN LAW REPORTS ALLAHABAD SERIES

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."

58. The Hon'ble Supreme Court
placing reliance of the law laid down by
the Hon'ble Delhi High Court in the case
of Thomas Cook (supra), reiterated the
same position of law in the case of Maria
Margarida Sequeira Fernandes (supra)
by holding thus:

"79. 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.

97. 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
1 All. Smt. Tasneem & Ors. Vs. The State of U.P. & Ors.
331
the principal. He acquires no right or
interest whatsoever for himself in such
property irrespective of his long stay or
possession."

59. In the wake of the preceding
narrative, the substantial question of law
no. 2, is answered as follows:

A. The learned appellate court
acted in conformity with law by granting
the decree of eviction against the plaintiffappellant and in favour of the defendant
no. 2-respondent no. 2 on the counterclaim
of the latter. The defendant no. 2respondent no. 2 was not required to file a
separate suit for eviction of the plaintiffappellant.

B. The import of the phrase
"eviction in accordance with law" in a
matter where the claim of eviction of an
unauthorized occupant is made by the true
owner, mandates the courts to adjudicate
such claim within the following stipulated
periods of time:

a. The suit for eviction or
counterclaim for eviction, as the case may
be, shall be decided within a period of one
year from the date of institution of such
suit or claim in all circumstances.

b. The appeal against such
decree shall be decided within a period of
four months from the date of institution of
such appeal.

c. The execution case shall be
decided and the decree shall be executed
within a period of six months from the date
of institution of the execution proceedings.

d. If necessary, the court shall
proceed with the hearing on day to day
basis to ensure strict compliance with the
aforesaid timeline in all circumstances.

60. The second appeal is dismissed.
----------
(2020)1ILR 331

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.10.2019

BEFORE
THE HON'BLE VIVEK KUMAR BIRLA, J.

First Appeal No. 692 of 2001
connected with
First Appeal No. 691 of 2001

Smt. Tasneem & Ors. ...Appellants
Versus
The State of U.P. & Ors. ...Respondents

Counsel for the Appellants:
Sri Ashutosh Srivastava, Sri Iqbal Ahmed

Counsel for the Respondents:
Sri S.K. Singh, S.C.

Code of Civil Procedure, 1908 - Section 96 -
Land Acquisition Act, 1894 - Section 51-A-
registered
document-presumption
of
genuineness-rebuttable-raising
a
presumption doses not amount to proof- it
only shifts the burden of proof against whom
the presumption operates for disproving ittransactions recorded in the document may
be treated as evidence-it is for the court to
weigh all the pros and cons to decide the real
price of the land concerned-the parties shall
not be permitted either to produce any
additional evidence or lead any further
evidence except rebuttal evidence in regard
to certified copies of the sale deeds already
produced. (Para 17 to 28)

First Appeal allowed. (E-6)

List of cases cited: -

1. Union of India Vs. Dyagala Devamma & Ors
2018 (11) SCC 485

2. Vinod Bansal Vs. St. of Haryana & Anr. 2013 (5)
SCC 622

3. Mehrawal Khewaji Trust (regd.) Faridkot &
Ors. Vs. St. of Punjab & Ors. 2012 (5) SCC 432