# Smt. Savrunisha & Ors v. Bhola Nath

- **Citation:** (2019) 4 ILRA 11
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-11-08
- **Case number:** Second Appeal No. 521 of 2016
- **Bench:** Ajay Bhanot
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-savrunisha-ors-v-bhola-nath-44852
- **Pages:** 5

## Headnote

A.Civil Law - Specific Relief Act - Sections
36 & 38 - Permanent Injunction - Suit by
tenant against true owner - Tenant
inducted
as
tenant
without
valid
allocation order under U.P. Act No. 13 of
1972 - such tenant an illegal trespasser
in
possession
-
Not
entitled
to
permanent injunction against true owner
(Para 12)

B. Civil Law - Eviction of unauthorized
occupant - lawful process of eviction of
unauthorized occupant by a true owner -
means grant of an opportunity to the
parties to tender their defence & its
adjudication by a court of law - Once
court finds that the occupant is in
unauthorized
occupation
-
such
unauthorized occupant does not have
any further right to possession over the
disputed premises - said unauthorized
occupant has to vacate the premises
voluntarily, after the adjudication - upon
failure to do so, the said person is liable
to
be
evicted
through
execution
proceedings (Para 21)

Second Appeal dismissed. (E-5)

List of cases cited: -

## Text

4 All. Smt. Savrunisha & Ors. Vs. Bhola Nath
11
interference by this Court. The learned
Additional Sessions Judge after noticing that
there was no admissible evidence on record
indicating the complicity of the opposite party
nos.2 and 3 in the commission of the offence.
The learned trial court has rightly rejected the
application
moved
by
the
complainant/revisionist. This Court after
careful consideration does not find any
illegality, improbability or infirmity in the
impugned order.

11. The revision lacks merit and is
accordingly, dismissed.
----------

(2019)12 ILR A11

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.11.2019

BEFORE

THE HON'BLE AJAY BHANOT, J.

Second Appeal No. 521 of 2016

Smt. Savrunisha & Ors. ...Appellants
Versus
Bhola Nath ...Respondent

Counsel for the Appellants:
Sri Narendra Kumar Chaturvedi, Sri Vivek
Singh Shrinet

Counsel for the Respondent:
Sri Umesh Chandra Tripathi

A.Civil Law - Specific Relief Act - Sections
36 & 38 - Permanent Injunction - Suit by
tenant against true owner - Tenant
inducted
as
tenant
without
valid
allocation order under U.P. Act No. 13 of
1972 - such tenant an illegal trespasser
in
possession
-
Not
entitled
to
permanent injunction against true owner
(Para 12)

B. Civil Law - Eviction of unauthorized
occupant - lawful process of eviction of
unauthorized occupant by a true owner -
means grant of an opportunity to the
parties to tender their defence & its
adjudication by a court of law - Once
court finds that the occupant is in
unauthorized
occupation
-
such
unauthorized occupant does not have
any further right to possession over the
disputed premises - said unauthorized
occupant has to vacate the premises
voluntarily, after the adjudication - upon
failure to do so, the said person is liable
to
be
evicted
through
execution
proceedings (Para 21)

Second Appeal dismissed. (E-5)

List of cases cited: -

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

(Delivered by Hon'ble Ajay Bhanot, J.)

1. The second appeal arises from a
judgment and decree dated 11.02.2016
passed in Civil Appeal No.85 of 2015
(Bhola Nath Vs. Savrunisha and others),
rendered by the learned appellate court,
allowing the appeal after reversing the
judgment and decree dated 30.07.2015,
passed by the learned trial court in
Original Suit No.718 of 2007 {Mohd.
Rafeeq (since deceased) Through L.Rs.
Vs. Bhola Nath}. The appellate court
dismissed the suit of the plaintiffsappellants. The learned trial court had
decreed the suit, by granting an injunction
in favour of the plaintiffs-appellants.

2. The suit was originally instituted
by one Mohd. Rafeeq.

3. The plaintiff had filed a suit for
injunction
against
the
defendant-
12 INDIAN LAW REPORTS ALLAHABAD SERIES
respondent,
from
interfering
in
his
possession, over the property in dispute.

4. The suit was registered as
Original Suit No.718 of 2007 {Mohd.
Rafeeq (since deceased) Through L.Rs.
Vs. Bhola Nath}, before the learned
Additional Civil Judge, (Junior Division),
Court No.2, Gorakhpur.

5. The plaintiff asserted that he was
a tenant of the defendant-respondent in
the disputed premises. The defendant
respondent was trying to evict him
forcibly, by recourse to illegal means. The
relief sought in the suit, was to injunct
defendant-respondent, from evicting the
plaintiffs, except in accordance with law.

6. During the pendency of the suit,
the plaintiff, Mohd. Rafeeq, died. The
legal heirs/legal representatives of the
plaintiff Mohd. Rafeeq (since deceased)
were substituted after his death. The
litigation was thereafter prosecuted by the
legal heirs of the plaintiff Mohd. Rafeeq
(since deceased). This appeal has been
filed by the legal heirs of the plaintiff,
who were substituted as plaintiffs.

7. The defendant-respondent filed a
written statement, traversing the claim set
up in the plaint. The defence taken in the
written statement was fourfold. Firstly,
the plaintiff was a habitual defaulter who
defaulted in payment of rent, and other
dues including water tax. Secondly, the
plaintiff had sublet the premises to his
brother. Thirdly, the plaintiff was also
inducted without an allotment order. The
subtenant too was inducted without an
allotment order. In any case the tenancy
was fixed for 11 months. After expiry of
11 months, the tenancy was not renewed.

8. The trial court after exchange of
pleadings formulated the following issues
for determination:

I. Whether the plaintiff was
entitled to an injunction against the
defendant to the effect that the plaintiff
could not be evicted from shop in dispute
except in accordance with process of law?

II.
Whether
the
suit
was
maintainable? What was the nature relief
to which the plaintiff was entitled to?

III. Whether the plaintiff was a
lawful tenant of the premises in dispute?

9. Learned trial court found that the
plaintiffs-appellants, were the tenants of
the
defendant-respondent.
Since
the
defendant-respondent had accepted the
fact of the tenancy of the plaintiffsappellants, the plaintiffs-appellants had
established their case. The learned trial
court, accordingly reasoned that the
plaintiffs-appellants were entitled to an
injuction. The learned trial court rendered
a judgment and decree dated 30.07.2015,
in favour of the plaintiffs-appellants,
injuncting the defendant-respondent from
dispossessing
the
plaintiffs-appellants
without adopting the procedure as per
law.

10. Being aggrieved the defendantrespondent carried the judgment and
decree of the learned trial court in appeal.

11. The appeal was registered as
Civil Appeal No. 85 of 2015 (Bhola Nath
Vs. Savrunisha and others), before the
learned appellate court. The appellate
court formulated the following questions
for determination.
4 All. Smt. Savrunisha & Ors. Vs. Bhola Nath
13

I. Whether the plaintiff was the
tenant of the premises in dispute?

II. Whether the plaintiff was
trespasser over the premises in dispute?

12. The appellate court found that the
plaintiffs-respondents, were inducted into
possession, in violation of the procedure
prescribed under Sections 11, 12, 13, 17 and
21 of the Uttar Pradesh Urban Buildings
(Regulation of Letting, Rent and Eviction)
Act, 1972 (hereinafter referred to as U.P. Act
No. 13 of 1972). The learned appellate court
held that without a valid allocation under the
U.P. Act No. 13 of 1972, no person could be
inducted as a tenant, in a premises coming
under the purview of the said Act. According
to the appellate court, any person who is
inducted as a tenant, in violation of the
aforesaid provisions of law, like the
plaintiffs-appellants, was nothing but an
illegal trespasser in possession. Such persons
were liable to be evicted.

13. The learned appellate court
found that the plaintiffs-appellants, were
tenants who consistently defaulted in
payment of rent. On this line of reasoning
too, the learned appellate court held that
the plaintiffs-appellants, were in illegal
possession
over
the
premises,
and
declared them to be trespassers.

14. In the wake of the aforesaid
findings, the learned appellate court
opined the plaintiffs-appellants being in
illegal possession cannot be granted an
injunction by the court against the true
owner.

15. By the judgment and decree
dated 11.02.2016, the learned appellate
court accordingly allowed the appeal of
the defendant-respondent, and dismissed
the suit of the plaintiffs-appellants.

16. The findings of the learned
appellate court rest on the material and
evidence in the record, and are backed by
cogent reasons. No illegality can be found
in the aforesaid findings.

17. There is another aspect to the
matter, which may be considered.

18. The method of "due process of law"
to be adopted by a true owner to evict an
unauthorized occupant, and the import of the
phrase, "eviction in accordance with law", is
settled by authority.

19. Faced with the question of 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 explained the phrases
"due process of law", "due course of law"
and "recourse to law" in similar fact
situation to enduring effect:

"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.

 Now, this `due process' or `due
course' condition is satisfied the moment
14 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

20. The Hon'ble Supreme Court
placing reliance on 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
the principal. He acquires no right or
4 All. Smt. Richa Gaur Vs. Kamal Kishore Gaur
15
 interest whatsoever for himself in such
property irrespective of his long stay or
possession."

21. The law has thus been settled,
that the lawful process of eviction of an
unauthorized occupant by a true owner,
essentially means grant of an opportunity
to the parties to tender their defence, and
its adjudication by a court of law. Once,
the courts of law have found that the
occupant is a trespasser, or a person in
unauthorized occupation, against the
claim
of
the
lawful
owner;
such
unauthorized occupant does not have any
further right to possession over disputed
premises. The said unauthorized occupant
has to vacate the premises voluntarily,
after the adjudication is entered by the
courts. Upon failure to do so, the said
person is liable to be evicted by execution
of the judgement and decree, holding the
former
to
be
an
unauthorized
occupant/trespasser.

22. In such cases, the findings of
illegal occupation by an unauthorized
occupant, against the claim of a true
owner, rendered by the court, operate as
the lawful basis for eviction of such
illegal
occupant
through
execution
proceedings. No fresh suit for any further
adjudication is necessary.

23. This Court in a Second Appeal
No. 621 of 2016, Ashfaq Ali Vs. Smt.
Tahira and 2 Others, held thus:

"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."

24. The instant appeal is squarely
covered with the law settled in the
authorities referenced in the preceding
paragraphs. No substantial questions of
law as such arise in the instant second
appeal.

25. Further, learned counsel for the
appellant could not point out any
substantial question of law which arises in
this appeal. The questions of law stated in
the memo of appeal are all issues of fact,
and do not pose any substantial question
of law for determination.

26. In light of the preceding
narrative, the Second Appeal is liable to
be dismissed and stands, accordingly,
dismissed.
----------

(2019)12 ILR A15

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.10.2019

BEFORE
THE HON'BLE VIVEK KUMAR BIRLA, J.

First Appeal No. 704 of 2019

Smt. Richa Gaur ...Appellant/Defendant
Versus
Kamal Kishore Gaur
 ...Plaintiff/Respondent

Counsel for the Appellant:
Sri Shyam Shanker Pandey

Counsel for the Respondent: