# MARIA MARGARIDA SEQUERIA FERNANDES AND OTHERS v. ERASMO JACK DE SEQUERIA(DEAD) THROUGH L.RS

- **Citation:** [2012] 3 S.C.R. 841
- **Court:** Supreme Court of India
- **Decided:** 2012-03-21
- **Case number:** Civil Appeal No. 2968 of 2012
- **Bench:** Dalveer Bhandari, H.L. Datiu, Deepak Verma
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/maria-margarida-sequeria-fernandes-and-others-v-erasmo-jack-de-sequeria-dead-28346
- **Pages:** 46

## Headnote

Injunction:
A
B
c
Suit for injunction - Maintainability of - Suit for injunction
filed by respondent-brother on ground that he was
dispossessed from the suit house by appellant-sister without
following the due process of law - Courts below decreed the
D
suit- On appeal, held: The suit house was given by appellantsister to respondent-brother who was to act as a caretaker of
the house - Admittedly, respondent did not claim any title to
the suit property - Appellant had a valid title to the property
which was clearly proved from the pleadings and documents
E
on record - The caretaker holds the property of the principal
only on behalf of the principal - The respondent's suit for
injunction against the true owner i.e. appellant was, therefore,
not maintainable, particularly when it was established beyond
doubt that the respondent was only a caretaker and he ought
to have given possession of the premises to the true owner
F
of the suit property on demand - The judgments of courts
below set aside - Respondents directed to handover
possession of the suit house to appellant - In the peculiar
facts and circumstances of the case, LRs of respondent
granted three months time to vacate the suit premises and
G
to pay Rs.1,00,0001- p.m. towards use and occupation of the
premises for a period of three months and to pay a cost of
Rs.50,0001- to the appellant.
841
H
842
SUPREME COURT REPORTS
[2012] 3 S.C.R.
A
Grant or refusal of injunction - Governing principles -
Discussed.
ADMINISTRATION OF JUSTICE: Truth as guiding star
in judicial process -
Held: Truth alone has to be the
8 foundation of justice - Court must discharge its statutory
functions-whether discretionary or obligatory-according to law
in dispensing justice because it is the duty of a Court not only
to do justice but also to ensure that justice is being done - In
the administration of justice, judges and lawyers play equal
roles - Like judges, lawyers also must ensure that truth
C triumphs in the administration of justice - Courts must give
greater emphasis on the veracity of pleadings and documents
in order to ascertain the truth.
PLEADINGS: Requirement of - Held: In pleadings, only
D the necessary and relevant material must be included and
unnecessary and irrelevant material must be excluded - In
civil cases, pleadings are extremely important for ascertaining
the title and possession of the property in question - Once
the title is prima facie established, it is for the person who is
E resisting the title holder's claim to possession to plead with
sufficient particularity on the basis of his claim to remain in
possession and place before the Court all such documents
as are expected to be there in the ordinary course of human
affairs - Only if the pleadings are sufficient, would an issue
F be struck and the matter sent to trial, where the onus will be
on him to prove the averred facts and documents.
G
Administration of justice:
Due process of Law - Meaning of - Discussed.
False claims and false defences - Held: False claims
and defences are really serious problems with real estate
litigation, predominantly because of ever escalating prices of
the real estate - In order to curb uncalled for and frivolous
H .litigation, the Courts have to ensure that there is no incentive
MARIAMARGARIDASEQUERIAFERNANDES v. ERASMO JACK 843
DE SEQUERIA (D) TR. L.RS.
or motive for uncalled .for litigation - This problem can be
A
solved or at least be minimized if exemplary cost is imposed
for instituting frivolous litigation - Imposition of heavy costs
would also. control unnecessary adjournments by the parties
- In appropriate cases, the Courts may consider ordering
prosecution otherwise it may not be possible to maintain purity
B
and sanctity of judicial proceedings.
MESNE PROFITS: Grant of, -when possession/title in
respect of property is claimed on the basis of false and
fabricated documents - Determinative factors - Discussed.
POSSESS/ON: Right over property - Claim for - Held:
No one acquires title

## Text

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[2012] 3 S.C.R. 841
MARIA MARGARIDA SEQUERIA FERNANDES AND
OTHERS
v.
ERASMO JACK DE SEQUERIA(DEAD) THROUGH L.RS.
(Civil Appeal No. 2968 of 2012)
MARCH 21, 2012
[DALVEER BHANDARI, H.L. DATIU AND DEEPAK
VERMA, JJ.]
Injunction:
A
B
c
Suit for injunction - Maintainability of - Suit for injunction
filed by respondent-brother on ground that he was
dispossessed from the suit house by appellant-sister without
following the due process of law - Courts below decreed the
D
suit- On appeal, held: The suit house was given by appellantsister to respondent-brother who was to act as a caretaker of
the house - Admittedly, respondent did not claim any title to
the suit property - Appellant had a valid title to the property
which was clearly proved from the pleadings and documents
E
on record - The caretaker holds the property of the principal
only on behalf of the principal - The respondent's suit for
injunction against the true owner i.e. appellant was, therefore,
not maintainable, particularly when it was established beyond
doubt that the respondent was only a caretaker and he ought
to have given possession of the premises to the true owner
F
of the suit property on demand - The judgments of courts
below set aside - Respondents directed to handover
possession of the suit house to appellant - In the peculiar
facts and circumstances of the case, LRs of respondent
granted three months time to vacate the suit premises and
G
to pay Rs.1,00,0001- p.m. towards use and occupation of the
premises for a period of three months and to pay a cost of
Rs.50,0001- to the appellant.
841
H
842
SUPREME COURT REPORTS
[2012] 3 S.C.R.
A
Grant or refusal of injunction - Governing principles -
Discussed.
ADMINISTRATION OF JUSTICE: Truth as guiding star
in judicial process -
Held: Truth alone has to be the
8 foundation of justice - Court must discharge its statutory
functions-whether discretionary or obligatory-according to law
in dispensing justice because it is the duty of a Court not only
to do justice but also to ensure that justice is being done - In
the administration of justice, judges and lawyers play equal
roles - Like judges, lawyers also must ensure that truth
C triumphs in the administration of justice - Courts must give
greater emphasis on the veracity of pleadings and documents
in order to ascertain the truth.
PLEADINGS: Requirement of - Held: In pleadings, only
D the necessary and relevant material must be included and
unnecessary and irrelevant material must be excluded - In
civil cases, pleadings are extremely important for ascertaining
the title and possession of the property in question - Once
the title is prima facie established, it is for the person who is
E resisting the title holder's claim to possession to plead with
sufficient particularity on the basis of his claim to remain in
possession and place before the Court all such documents
as are expected to be there in the ordinary course of human
affairs - Only if the pleadings are sufficient, would an issue
F be struck and the matter sent to trial, where the onus will be
on him to prove the averred facts and documents.
G
Administration of justice:
Due process of Law - Meaning of - Discussed.
False claims and false defences - Held: False claims
and defences are really serious problems with real estate
litigation, predominantly because of ever escalating prices of
the real estate - In order to curb uncalled for and frivolous
H .litigation, the Courts have to ensure that there is no incentive
MARIAMARGARIDASEQUERIAFERNANDES v. ERASMO JACK 843
DE SEQUERIA (D) TR. L.RS.
or motive for uncalled .for litigation - This problem can be
A
solved or at least be minimized if exemplary cost is imposed
for instituting frivolous litigation - Imposition of heavy costs
would also. control unnecessary adjournments by the parties
- In appropriate cases, the Courts may consider ordering
prosecution otherwise it may not be possible to maintain purity
B
and sanctity of judicial proceedings.
MESNE PROFITS: Grant of, -when possession/title in
respect of property is claimed on the basis of false and
fabricated documents - Determinative factors - Discussed.
POSSESS/ON: Right over property - Claim for - Held:
No one acquires title to the property if he or she was allowed
c
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 - Caretaker,
D
watchman or seNant can never acquire interest in the property
irrespective of his long possession - The caretaker or seNant
has to give possession forthwith on demand - Courts are not
justified in protecting the possession of a caretaker, seNant
or any person who was allowed to live in the premises for
E
some time either as a friend, relative, caretaker or as a
seNant - 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 - The caretaker or agent holds property of the principal
F
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.
The appellant and .the respondent were sister and
brother. The case of the appellant was that the suit G
property situated in Goa belonged to her as it was
purchased by her in court auction from her aunt. The
husband of the appellant was in Navy and was posted
in different cities from time to time and, therefore, the
appellant stayed out of Goa. On the request of the
H
844
SUPREME COURT REPORTS
[2012] 3 S.C.R.
A resp.ondent, she granted permission to the responde-nt
to stay in the suit property as caretaker. In 1991 the
appellant decided to stay in the suit property. The
respondent returned the keys of the suit property and
shifted out of the suit property on 1;4.1991 and the
B appellant occupied the suit property. The respondent
filed suit for injunction. The case of the respondent was
that he was permitted to live in the suit premises because
of the family arrangement and, therefore, the respondent
remained in possession of the suit property for several
c yEfars and hence he could not be dispossessed without
due process of law. The trial court decreed the suit. The
High Court upheld the same. The instant appeal was filed
challenging the order of the High Court.
D
Allowing the appeal, the Court
HELD:
1. Truth as guiding star in judicial process
The truth should be the guiding star in the entire
E judicial process. Truth alone has to be the foundation of
justice. The entire judicial system has been created only
to discern and find out the real truth. Judges at all levels
have to seriously engage themselves in the journey of
discovering the truth. That is their mandate, obligation
F and bounden duty. Justice system will acquire credibility
only when people Will be convinced that justice is based
on the foundation of the truth. It is a well accepted and
settled principle that a Court must discharge its statutory
functions-whether discretionary or obligatory-according
G to law in dispensing justice because it is the duty of a
Court not only to do justice but also to ensure that justice .
is being done. A judge in the Indian System has to be
regarded as failing to exercise its jurisdiction and thereby
discharging its judicial duty, if in the guise of remaining
H neutral, he opts to remain passive to the proceedings
MARIA MARGARIDA SEQUERIA FERNANDES v. ERASMO JACK 845
DE SEQUERIA (D) TR. L.RS,
before him. He has to always keep in mind that "every trial
A
is a voyage of discovery in which truth is the quest". In
order to bring on record the relevant fact, he has to play
an active role; no doubt within the bounds of the
statutorily defined procedural law. World over, modern
procedural Codes are increasingly relying on full
B
disclosure by the parties. Managerial powers of the
Judge are being deployed to ensure that the scope of the
factual controversy is minimized. In civil cases,
adherence to Section 30 CPC would also help in
ascertaining the truth. It seems that this provision which c
ought to be frequently used is rarely pressed in service
by our judicial officers and judges. [Paras 31-34, 39, 4142) [865-E-G; 866-B-C; 867-A-B; 867-D-E]
.
1.2. "Satyameva Jayate" (Literally: "Truth Stands
Invincible") is a mantra from the ancient scripture
D
Mundaka Upanishad. Upon independence of India, it was
adopted as the national motto of India. It is inscribed in
Devanagari script at the base of the national emblem.
Malimath Committee on Judicial Reforms heavily relied on ,
the fact that in discovering truth, the judges of all Courts
E
need to play an active role. In the administration of justice,
judges and lawyers play equal roles. Like judges, lawyers
also must ensure that truth triumphs in the administration
of justice. Truth is the foundation of justice. It must be the
endeavour of all the judicial officers and judges to
F
ascertain truth in every matter and no stone should be
left unturned in achieving this object. Courts must give
greater emphasis on the veracity of pleadings and
documents in order to ascert~in the truth. [Paras 43-44,
51-52) (868-B-C-D; 871-F-H]
G
Mohan/al Shamji Soni v. Union of India 1991 Supp (1)
SCC 271: 1991 (1) SCR 712; Ritesh Tewari and Another v.
State of U.P. and Others (2010) 10 sec 677: 2010 (11) SCR
589; Chandra Shashi v. Anil Kumar Verma (1995) 1 SCC
421: 1994 (5) Suppl. SCR 465 - relied on.
H
846
SUPREME COURT REPORTS
[2012] 3 S.C.R.
A
Jones v. National Coal Board 1957 2 QB 55; James v.
Giles et al. v. State of Maryland 386 U.S. 66, 87, S.Ct. 793;
United States v. J.Lee Havens 446 U.S. 620, 100 St.Ct.1912
- referred to.
8 2. Pleadings
2.1. Pleadings are the foundation of litigation. In
pleadings, only the necessary and relevant material must
be included and unnecessary and irrelevant material
must be excluded. Pleadings are given utmost
C importance in similar systems of adjudication, such as,
the United Kingdom and the United States of America. In
the United Kingdom, after the Woolf Report, Civil
Procedure Rules, 1998 were enacted. After enactment of
the Civil Procedure Rules 1998, much greater emphasis
D is given on pleadings in the United Kingdom. Similarly,
in the United States of America, much greater emphasis
is given on pleadings. [Paras 53, 54, 57] [872-A-C; 873-C]
2.2. In civil cases, pleadings are extremely important
E for ascertaining the title and possession of the property
in question. Possession is an incidence of ownership
and. can be transferred by the owner of an immovable
property to another such as in a mortgage or lease. A
licensee holds possession on behalf of the owner.
Possession is important when there are no title
F documents and other relevant records before the Court,
but, once the documents and records of title come before
the Court, it is the title which has to be looked at first and
due weightage be given to it. Possession cannot be
considered in vacuum. There is a presumption that
G possession of a person, other than the owner, if at all it
is to be called possession, is permissive on behalf of the
title-holder. Further, possession of the past is one thing,
and the right to remain or continue in future is another
thing. It is the latter which is usually more in controversy
H
MARIA MARGARIDA SEQUERIA FERNANDES v. ERASMO JACK 84 7
DE SEQUERIA (D) TR. L.RS.
than the former, and it is the latter which has seen much
A
abuse and misuse before the Courts. A suit can be filed
by the title holder for recovery of possession or it can be
one for ejectment of an ex-lessee or for mandatory
injunction requiring a person to remove himself or it can
be a suit under Section 6 of the Specific Relief Act to
B
recover possession. [paras 61-65) [874-B-F]
2.3. A title suit for possession has two parts - first,
adjudication of title, and second, adjudication of
possession. If the title dispute is removed and the title is
established in one or the other, then, in effect, it becomes
C
a suit for ejectment where the defendant must plead and
prove why he must not be ejected. In an action for
recovery of possession of immovable property, or for
protecting possession thereof, upon the legal title to the
property being established, the possession or D
occupation of the property by a person other than the
holder of the legal title will be presumed to have been
under and in subordination to the legal title, and it will be
for the person resisting a claim for recovery of
possession or claiming a right to continue in possession,
to establish that he has such a right. To put it differently,
wherever pleadings and documents establish title to a
particular property and possession is in question, it will
E
be for the person in possession to give sufficiently
detailed pleadings, particulars and documents to support
F
his claim in order to continue in possession. In order to
do justice, it is necessary to direct the parties to give all
details of pleadings with particulars. Once the title is
prima facie established, it is for the person who is
resisting the title holder's claim to possession to plead
G
with sufficient particularity on the basis of his claim to
remain in possession and place before the Court all such
documents as in the ordinary course of human affairs are
expected to be there. Only if the pleadings are sufficient,
would an issue be struck and the matter sent to trial,
H
848
SUPREME COURT REPORTS
[2012] 3 S.C.R.
A where the onus will be on him to prove the averred facts
and documents. [Paras 66-68) [874-G-H; 875-A-E]
2.4. The person averring a right to continue in
possession shall, as far as possible, give a detailed
particularized specific pleading along with documents to
8 support his claim and details of subsequent conduct
which establish his possession. It would be imperative
that one who claims possession must give all such
details as enumerated hereunder. They are only
illustrative and not exhaustive. (a) who is or are the owner
C or owners of the property; (b) title of the property; (c) who
is in possession of the title documents; (d) identity of the
claimant or claimants to possession; (e) the date of entry
into possession; (f) how he came into. possession -
whether he purchased the property or inherited or got the
D same in gift or by any other method; (g) in case he
purchased the property, what is the consideration; if he
has taken it on rent, how much is the rent, license fee or
lease amount; (h) If taken on rent, license fee or lease -
then insist on rent deed, license deed or lease deed; (i) ·
E who are the persons in possession/occupation or
otherwise living with him, in what capacity; as family
rnembers, friends or servants etc.; (j) subsequent
conduct, i.e., any event which might have extinguished
his entitlement to possession or caused shift therein; and
F (k) basis of his claim that not to deliver possession but
continue in possession. [Paras 69-70) [875~F-H; 876-A-E]
2.5. Apart from these pleadings, the Court must insist
on documentary proof in support of the pleadings. All
those documents would be relevant which come into
G existence after the transfer of title or possession or the
encumbrance as is claimed. While dealing with the civil
suits, at the threshold, the Court must carefully and
critically examine pleadings and documents. The Court
will examine the pleadings for specificity as also the
H
MARIA MARGARIDA SEQUERIA FERNANDES v. ERASMO JACK 849
DE SEQUERIA (D) TR. L.RS.
supporting material for sufficiency and then pass A
appropriate orders. Discovery and production of
documents and answers to interrogatories, together with
an approach of considering what in ordinary course of
human affairs is more likely to have been the probability,
will prevent many a false claims or defences from sailing
B
beyond the stage for issues. If the pleadings do not give
sufficient details, they will not raise an issue, and the
Court can reject the claim or pass a decree on admission.
On vague pleadings, no issue arises. Only when he so
establishes, does the question of framing an issue arise. c
Framing of issues is an extremely important stage in a
civil trial. Judges are expected to carefully examine the
pleadings and documents before framing of issues in a
given case. [Paras 71-75] [876-F-H; 877-A-C]
2.6. In pleadings, whenever a person claims right to
D
continue in possession of another property, it becomes
necessary for him to plead with specificity about who was
the owner, on what date did he enter into possession, in
what capacity and in what manner did he conduct his
relationship with the owner over the years till the date of E
suit. He must also give details on what basis he is claiming
a right to continue in possession. Until the pleadings
raise a sufficient case, they will not constitute sufficient
claim of defence. The Court must ensure that pleadings
of a case must contain sufficient particulars. Insistence
F
on details reduces the ability to put forward a nonexistent or false claim or defence. In dealing with a civil
case, pleadings, title documents and relevant records
play a vital role and that would ordinarily decide the fate
of the case. [Paras 76, 78-79] [877-D-G]
G
Bell Atlantic Corporation et al. v. William Twombly 550
U.S. 544, 127 S.Ct. 1955; John. D. Ashcroft, Former Attorney
General, et al. v. Javaid Iqbal et al. 556 U.S. 662, 129
S.Ct.1937 - referred to.
850
. SUPREME COURT REPORTS
[2012] 3 S.C.R.
A
Dr. Arun Mohan in his classic treatise on "Justice, Courts
and Delays" - referred to.
Suit for Mandatory Injunction
3. It is a settled principle of law that no one can take
B law in his own hands. Even a trespasser in settled
possession cannot be dispossessed without recourse of
law. It must be the endeavour of the Court that if a suit
for mandatory injunction is filed, then it is its bounden
duty and obligation to critically examine the pleadings
C and documents and pass an order of injunction while
taking pragmatic realities including prevalent market rent
of similar premises in similar localities in consideration.
The· Court's primary concern has to be to do substantial
justice. Even if the Court in an extraordinary case decides
D to grant ex-parte ad interim injunction in favour of the
plaintiff who does not have a clear title, then at least the
plaintiff be directed to give an undertaking that in case
the suit is ultimately dismissed, then he would be required
to pay market rent of the property from the date when an
E ad interim injunction was obtained by him. It is the duty
and the obligation of the Court to at least dispose off
application of grant of injunction as expeditiously as
possible. It is the demand of equity and justice. [Para 80)
[877~H; 878-A-D]
F
Thomas Cook (India) Limited v. Hotel Imperial 2006 (88)
DRJ 545 - approved.
4. Due process of Law
G
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
H written statement and documents before the Court of law.
MARIA MARGARIDA SEQUERIA FERNANDES v. ERASMO JACK 851
DE SEQUERIA (D) TR. L.RS.
It does not mean the whole trial. Due process of law is
A
satisfied the moment rights of the parties are adjudicated
by a competent Court. [Para 81] [878-E-F]
5. False claims and false defences
False claims and defences are really serious
B
problems with real estate litigation, predominantly
because of ever escalating prices of the real estate.
Litigation pertaining to valuable real estate properties is
dragged on by unscrupulous litigants in the hope that the
other party will tire out and ultimately would settle with
C
them by paying a huge amount. This happens because
of the enormous delay in adjudication of cases in our
Courts. If pragmatic approach is adopted, then this
problem can be minimized to a large extent. In order to
curb uncalled for and frivolous litigation, the Courts have o
to ensure that there is no incentive or motive for uncalled
for litigation. It is a matter of common experience that
Court's otherwise scarce time is consumed or more
appropriately, wasted in a large number of uncalled for
cases. This problem can be solved or at least be
E
minimized if exemplary cost is imposed for instituting
frivolous litigation. Imposition of heavy costs would also
control unnecessary adjournments by the parties. In
appropriate cases, the Courts may consider ordering
prosecution otherwise it may not be possible to maintain
purity and sanctity of judicial proceedings. [Paras 84, 85]
[880-B-H]
F
Ramrameshwari Devi and Others v. Nirmala Devi and
Others (2011) 8 sec 249 - relied on.
6. Grant or refusal of an injunction
6.1. Grant or refusal of an injunction in a civil suit is
G
the most important stage in the civil trial. Due care,
caution, diligence and attention must be bestowed by the
H
852
SUPREME COURT REPORTS
[2012) 3 S.C.R.
A judicial officers and judges while granting or refusing
injunction. In most cases, the fate of the case is decided
by grant or refusal of an injunction. Experience has
shown that once an injunction is granted, getting it
vacated would become a nightmare for the defendant. In
8 order to grant or refuse injunction, the judicial officer or
the judge mustcarefully examine the entire pleadings and
documents with utmost care and seriousness. The safe
and better course is to give short notice on injunction
application and pass an appropriate order after hearing
both the sides. In case of grave urgency, if it becomes
C imperative to grant an ex-parte ad interim injunction, it
should be granted for a specified period, such as, for two
weeks. In those cases, the plaintiff will have no inherent
interest in delaying disposal of injunction application after
obtaining an ex-parte ad interim injunction. The Court, in
D order to avoid abuse of the process of law may also
record in the injunction order that if the suit is eventually
dismissed, the plaintiff undertakes to pay restitution,
actual or realistic costs. While passing the order, the
Court must take into consideration the pragmatic realities
E and pass proper order for mesne profits. The Court must
make serious endeavour to ensure that even-handed
justice is given to both the parties. [Paras 86-87] [881-AF]
F
6.2. Ordinarily, three main principles govern the grant
or refusal of injunction. Prima facie case; balance of
convenience; and irreparable injury, which guide the
Court in this regard. In the broad category of prima facie
case, it is imperative for the Court to carefully analyse the
G pleadings and the documents on record and only on that
basis the Court must be governed by the prima facie
case. In grant and refusal of injunction, pleadings and
documents play vital role. [Paras 88, 89) [881-G-H; 882A]
H
MARIA MARGARIDA SEQUERIA FERNANDES v. ERASMO JACK 853
DE SEQUERIA (D) TR. L.RS.
7. Mesne Profits
A
Experience has shown that all kinds of pleadings are
introduced and even false and fabricated documents are
filed in civil cases because there is an inherent profit in
continuation of possession. In a large number of cases,
B
honest litigants suffer and dishonest litigants get undue
benefit by grant or refusal of an injunction because the
Courts do not critically examine pleadings and
documents on record. In case while granting or refusing
injunction, the Court properly considers pleadings and c
documents and takes the pragmatic view and grants
appropriate mesne profit, then the inherent interest to
continue frivolous litigation by unscrupulous litigants
would be reduced to a large extent. The Court while
granting injunction should broadly take
into 0
consideration the prevailing market rentals. in the locality
for similar premises. Based on that, the Court should fix
adhoc amount which the person continuing in
possession must pay and on such payment, the plaintiff
may withdraw after furnishing an undertaking and also E
making it clear that should the Court pass any order for
reimbursement, it will be a charge upon the property. The
Court can also direct payment of a particular amount and
for a differential, direct fu~nishing of a security by the
person who wishes1 to continue in possession. If such
F
amount, as may be fixed by the Court, is not paid as
security, the Court may remove the person and appoint
·a receiver of the property or strike out the claim or
defence. This is a very important exercise for balancing
equities. Courts must carry out this exercise with extreme
care and caution while keeping pragmatic realities in mind G
and make a proper order of granting mesne profit. This
is the requirement of equity and justice. In the instant
case, if the Courts below would have carefully looked into
the pleadings and documents and had applied principle
of the grant of mesne profit, then injustice and illegality H
854
SUPREME COURT REPORTS
[2012] 3 S.C.R.
A would not have perpetuated for more than two decades.
Admittedly, the respondent did not claim any title to the
suit property. Undoubtedly, the appellant has a valid title
to the property which was clearly proved from the
pleadings and documents on record. The respondent was
B not able to establish the family arrangement by which the
suit property was given to the respondent for his
residence. The courts below failed to appreciate that the
premises in question was given by the appellant to her
brother respondent as a caretaker. The appellant was
c married to a Naval Officer who was transferred from time
to time outside Goa. Therefore, on the request of her
brother she gave possession of the premises to him as
a caretaker. The caretaker holds the property of the
principal only on behalf of the principal. The
D respondent's suit for injunction against the true owner -·
the appellant was not maintainable, particularly when it
was established beyond doubt that the respondent was
only a caretaker and he ought to have given possession
of the premises to the true owner of the suit property on
E demand. Admittedly, the respondent did not claim any
title over the suit property and he had not filed any
proceedings disputing the title of the appellant. [Paras 9096] [882-8-H; 883-A-G]
Puran Singh v. The State of Punjab (1975) 4 SCC 518:
F 1975 (0) Suppl. SCR 299; Mahabir Prasad Jain v. Ganga
Singh (1999) 8 sec 274: 1999 (3) Suppl. SCR 415 - relied
on.
Sham Lal v. Rajinder Kumar & Others 1994 (30) DRJ
G 596 - approved.
8. Principles of law which emerged in this case are
crystallized as under:-
1.
No one acquires title to the property if he or
H
she was allowed to stay in the premises
MARIA MARGARIDA SEQUERIA FERNANDES v. ERASMO JACK 855
DE SEQUERIA (D) TR. L.RS.
2.
3.
4.
5.
gratuitously. Even by long possession of A
years or decades such person would not
acquire any right or interest in the said
property.
Caretaker, watchman or servant can never B
acquire interest in the property irrespective of
his long possession. The caretaker or servant
has to give possession forthwith on demand.
The Courts are not justified in protecting the
possession of a caretaker, servant or any C
person who was allowed to live in the
premises for some time either as a friend,
relative, caretaker or as a servant.
The protection of the Court can only be D
granted or extended to the person who has
valid, subsisting rent agreement, lease
agreement or license agreement in his favour.
The caretaker or agent holds property of the
principal only on behalf of the principal. He
E
acquires no right or interest whatsoever for
himself in such property irrespective of his
long stay or possession. [Para 101] (885-C-H;
886-A]
F
9. In this view of the matter, the impugned judgment
of the High Court as also of the trial court are set aside
and we accordingly do so. Consequently, directions is
passed to hand over possession of the suit premises to
the appellant. In the peculiar facts and circumstances of G
this case, the legal representatives of the respondent are
granted three months time to vacate the suit premises.
They are further directed that after the expiry of the three
months period, the vacant and peaceful possession of
the suit property be handed over to the appellant. The
H
856
SUPREME COURT REPORTS
[2012] 3 S.C.R.
A usual undertaking to this effect be filed by the legal
representatives of the respondent in this Court within two
weeks. The legal representatives of the respondent are
also directed to pay Rs.1,00,000/- (Rupees one Lakh) per
month towards the use and occupation of the premises
B for a period of three months. The said amount for use and
occupation be given to the appellant on or before the 10th
of every month. In case the legal representatives of the
respondent are not willing to pay the amount for use and
occupation as directed by this Court, they must hand
C over the possession of the premises within two weeks
from the date of this judgment. Thereafter, if the legal
representatives of the respondent do not hand over
peaceful possession of the suit property, in that event,
the appellant would be at liberty to get the possession
o of the premises by taking police help. In the facts and
circumstances of the case, the respondents are directed
to pay a cost of Rs.50,000/- to the appellant within four
weeks. (The moderate cost imposed in view of the fact
that the original respondent has expired). [Paras 102-105]
E [886-8-H]
Rame Gowda (dead) by LRs. v. M. Varadappa Naidu
(dead) by LRs. and Another (2004) 1 SCC 769: 2003 (6 )
Suppl. SCR 850 - relied on.
F
Southern Roadways Ltd., Madurai v. S.M. Krishnan
(1989) 4 SCC 603: 1989 (1) Suppl. SCR 410; Anima Mallick
v. Ajoy Kumar Roy and Another (2000) 4 SCC 119; Sopan
Sukhdeo Sable and Others v.
Assistant Charity
Commissioner and Others (2004) 3 SCC 137: 2004 (1) SCR
G
100~; Automobile Products India Limited v. Oas John Peter
and Others (2010) 12 SCC 593: 2010 (8) SCR 764- referred
to.
Case Law Reference:
H
1999 (3) Suppl. SCR 415
relied on
Paras 15, 98
MARIA MARGARIDA SEQUERIA FERNANDES v. ERASMO JACK 85 7
DE SEQUERIA (D) TR. L.RS.
2003 (6) Suppl. SCR 850
relied on
Paras 18, 25
A
1989 (1) Suppl. SCR 410
referred to Para 19
(2000) 4 sec 119
referred to Para 26
2004 (1) SCR 1004
referred to Para 27
B
2010 (8) SCR 764
referred to Para 29
(2011) 8 sec 249
relied on
Paras 29, 85
1991 (1) SCR 712
relied on
Para 34
2010 (11) SCR 589
relied on
Para 36
c
1994 (5) Suppl. SCR 465
relied on
Para 45
386 U.S. 66, 87, S.Ct. 793
referred to Para 47
446 U.S. 620, 100 St.Ct.1912 referred to Para 48
D
550 U.S. 544, 127 S.Ct. 1955 referred to Paras 57, 58
556 U.S. 662, 129 S.Ct.1937 referred to Paras 57, 59
2006 (88) DRJ 545
approved
Para 82
1975 (0) Suppl. SCR 299
relied on
Para 97
E
1994 (30) DRJ 596
approved
Paras 99, 100
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
2968 of 2012.
F
From the Judgment & Order dated 5.5.2009 of the High
Court of Bombay at Goa in Civil Revision Application No. 3 of
2009.
D.N. Goburdhan, Prabal Bagchi, Aayush Chandra, Kartika
G
Sharma for the Appellants.
S. Ganesh, Pratap Venugopal, Namrata Sooda (for K.J.
John & Co.) for the Respondents.
The Judgment of the Court was delivered by
H
858
SUPREME COURT REPORTS
[2012] 3 S.C.R.
A
DALVEER BHANDARI, J.1. Leave granted.
B
2. This appeal emanates from the judgment and order
dated 5.5.2009 passed by the High Court of Bombay, Bench
at Goa in Civil Revision Application No.3 of 2009.
3. Appellant No.1 and respondent No.1, Erasmo Jack de
Sequeira (now dead) were sister and brother, hereinafter
referred to as appellant and respondent respectively.
4. According to the appellant, she is the sole owner and
c is in exclusive possession of the suit property. Her title of the
said suit property was clearly admitted, and never disputed by
the respondent, Erasmo Jack de Sequeira. According to the
appellant, the suit property was given to her brother as a
caretaker. The respondent has kept appellant, his own sister,
D out of her suit property for about two decades by suppressing
relevant material and pertinent information from the Court and
abusing the process of law.
5. Both the appellant and the respondent hail from the
State of Goa and belong to one of the leading and well known
E families of Goa. The father of the appellant and the respondent,
Dr. Jack D. Sequeira was an affluent businessman and a wellknown politician of Goa. Dr. Sequeira, during his lifetime, gave
a number of properties worth crores of rupees to the respondent
and also gave some properties to the appellant and her sisters.
F The respondent was given a soft drink factory at Goa, mining
leases of iron ore, agricultural lands and residential plots
including one situated at Dona Paula, which is located next to
the Governor's House. Though the respondent was given
properties worth several crores of rupees, he still eyed on a
G small property which the appellant purchased through Court
auction after paying full sale consideration. The respondentbrother of the appellant was also a very influential and important
Member of Parliament. He was also very active in the local
politics in Goa.
H
MARIAMARGARIDASEQUERlAFERNANDES v. ERASMO JACK 859
DE SEQUERIA (D) TR. L.RS. [DALVEER BHANDARI, J.]
6. The appellant urged that the suit property originally
A
belonged to her grandmother. Under the Portuguese Law, her
(grandmother's) children, i.e. two sons and a daughter (the
appellant's father, uncle and aunt) got 1/3rd share each in the
said suit property. The suit property of her grandmother was
put to auction and this suit property in question was purchased
B
in auction by the appellant. In the Inventory Proceedings No.
1075/935 in the year 1968, she became the exclusive owner
of the suit property. Admittedly, the appellant has placed a
certified copy of the order of the Civil Judge, Senior Division
at Panaji dated 27th May, 1972 issued in favour of the c
appellant. According to the appellant, the possession and title
of the suit property in favour of the appellant is established from
the judgment of the Inquiry Officer of City Survey Tiswadi,
Panjim, Goa. The said order was not only passed in the
presence of the respondent, but also in the presence of his
D
Attorney, Rodrigues who was also a senior executive officer of
the respondent. The relevant portion of that judgment is as
under:-
"The claim put forth by Shrimati Maria Teresa de Sequeria
from Panaji, in respect of Chalta No.14 of P.T. Sheet 65
E
was inquired into and it was found that the same belongs
to the said Maria Teresa de Sequeria in view of Inventory
Proceedings No.9-1968 [1075-935] - vide Certificate
issued by the Court of Civil Judge Senior Division, Panaji
dated 27.5.72 and as such her title and possession to the
F
Chalta No.14 of P.T. SheetNo.65 is confirmed."
7. According to the appellant, she obtained the exclusive
title of the plot and the house in question.
8. It may be pertinent to mention that the respondent had
even participated in the said Court proceedings on behalf of
G
his handicapped aunt, Edna May Sequeria as a guardian and
received a cheque on her behalf. The appellant had deposited
Rs.40,000/-, the owelty money in the said Court proceedings
which became payable on account of the purchase of the said
H
860
SUPREME COURT REPORTS
[2012] 3 S.C.R.
A
house. The said suit property stood registered in Panaji
Municipal Council in the name of the appellant. House tax was
paid by the appellant to the Municipality on self-occupation
basis. Further, it is submitted that the possession of the suit
B
property always remained with the appellant.
9. The Panaji Municipal Council, Goa issued a certificate
showing that possession of the suit premises was with the
appellant and the house tax of the suit property was paid by
her and she was the recorded owner of the same. According
c to the appellant, the respondent himself had acknowledged
possession and title of the suit property in favour of the
appellant.
.10. The appellant submitted that she got married on
8.9.1974 to an Officer of the Indian Navy who was posted from
D time to time in different places in India. She also submitted that
the respondent - her brother requested her that as his office is
just adjacent to the suit property, therefore, it would be
convenient for him to run his office and to keep an eye on the
suit property of the appellant. Therefore, the suit property was
E given to the respondent only as a caretaker.
11. The respondent executed a leave and licence
agreement in the name of his wife to shift with his family out of
the suit property completely on 1.4.1991 to Campo Verde
F Apartments at Caranzalem in Goa. The leave and licence
agreement executed by the respondent's wife for the new house
wherein the respondent and his family shifted on 1.4.1991 and
thereafter got the agreement renewed on 7 .3.1992. The
respondent also owned one flat in Goa and occupied on
G 17.4.1991.
12. According to the appellant, the respondent handed over
the suit property to his sister Maria in the first week of May, 1991
and requested her that some items which were already lying
in the suit property which the respondent did not immediately
H require in his new place may be kept in the suit property.
MARIA MARGARIDA SEQUERIA FERNANDES v. ERASMO JACK 861
DE SEQUERIA (D) TR. L.RS. [DALVEER BHANDARI, J.]
According to the appellant, her brother before shifting to the
A
tenanted flat, handed over the keys of the house to the appellant.
The appellant did not take any receipt from her brother or click
a photograph to create evidence showing handing over of the
custodian possession of the suit property. The respondent
shifted to his new flat and the suit property was lying almost
B
vacant because the appellant along with her husband was living
outside Goa on his different official postings.
13. According to the appellant, the details of electricity,
water and telephone bills clearly demonstrate that the house
C
was locked and the small amounts payable in the said months,
i.e., August, September, October and November in the year
1991, February 1992 also showed very nominal payments of
Rs.30/-, Rs.33/-, Rs.68/- which conclusively proved that a house
comprising of several rooms, drawing, dining, bathrooms,
verandah, lawns etc. was lying vacant.
D
14. On 20.5.1992, the appellant returned with her family
to Goa and occupied and enjoyed the said suit property. The · ·
appellant submitted that she has a valid title/ownership and was
in possession of the suit property and she could not be
E
dispossessed by a Court in a suit for injunction. The appellant
submitted that under Section 6 of the Specific Relief Act, the
appellant could not have been legally compelled to hand over
the possession to the respondent. It may be pertinent to mention
that the respondent had filed a suit for injunction before the Trial
F
Court. The Trial Court granted injunction in favour of the
respondent and the same was upheld by the High Court in the
impugned judgment in Civil Revision Application.
15. According to the appellant, the impugned judgment of
the High Court by which the judgment of the Trial Court was
G
affirmed is totally contrary to the law laid down by this Court in
Mahabir Prasad Jain v. Ganga Singh (1999) 8 SCC 274. It
was also asserted by the appellant that this Court in the
aforementioned case has laid down the parameters of Section
6 of the Special Relief Act, 1963. In the instant case, the Courts
H
862
SUPREME COURT REPORTS
[2012] 3 S.C.R.
A below were oblivious of the principle under Section 6 of the
Specific Relief Act. The appellant urged that the respondent's
suit for injunction was not maintainable as he could not claim
to be in lawful and legal possession of the premises at all. The
appellant argued that the Courts below have missed the main
B issue as the respondent was merely in custody of the house
on behalf of the appellant.