A. Ananda vs A Krishna Reddy and others. Writ Petition 13456/2020 decided on 7 January 2021.
Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/357576/1/WP13456-20-07-01-2021.pdf
Relevant paragraphs: 4-F. The unconscionable stand of the JDrs needs to be mentioned here; when there was no dispute as to the identity of the property either in the suit or in the RFA, the JDrs by their wily tactics are trying to generate one in the execution proceedings; in fact, their application filed under Order XLI Rule 27 seeking leave to produce additional documents in the RFA has been rejected by the Division Bench disbelieving the unregistered Settlement Deed dated 10.09.1968; the DB did not believe the version of the JDrs that they were in the possession of the suit property and not the DHr; strangely and unconscionably the JDrs are unjustibiably re-agitating the same issue before the Executing Court and before this Court as well; this virtually amounts to abuse of process of the court; this is yet another ground for the writ court to deny relief to the petitioner.
4-H Further added to the above, Sec.6 of the 1963 Act employs the expression ‘recover possession’; the so called possession of the JDrs cannot be termed to be possession in law which is a sine qua non for invoking this provision because: (i) Possession consists of two ingredients which Salmond on jurisprudence (7th ed.) page 297-308 mentions viz., (i) corpus possessionis and (ii) animus possidendi; the former, he says, comprises of both the power to use the thing possessed and the existence of grounds for the expectation that the possessor’s use will not be interfered with by others; the later consists of an intent to appropriate to oneself the exclusive use of the thing possessed; learned author P.J.Fitzgerald who edited ‘Salmond on Jurisprudence’ (12th edition) at page 272 adds: “(i) The distinction between animus and corpus was made in Roman law: Dig.41.2.3.1., and has been accepted by such jurists as Savigny, Thering, Pollock, Salmond and Holmes”. Apex Court too in the case of Poonaram Vs. Motiram AIR 2019 SC 813 at paragraph 9 has considered and approved this view; (ii) The great Lexicographer Mr.Ramnath Iyer in his magnum opus ‘The Law Lexicon’ 3rd Edn.- 2012 writes: “Possession and occupation: Bare occupation and possession are two different things. The concept of possession, at any rate as it is understood in legal terminology, is a complex one which need not include actual occupation. It comprises rather the right to possess, and the right and ability to exclude others from possession and control coupled with a mental element namely, the animus possidendi, that is to say, knowledge of these rights and the desire and intention of exercising them if need be. The adverse possession of which the law speaks does not necessarily denote actual physical ouster from occupation but an ouster from all those rights which constitute possession in law. It is true that physical occupation is ordinarily the best and the most conclusive proof of possession in this sense but the two are not the same. It is also true that there must always be physical ouster from these rights but that does not necessarily import physical ouster from occupation especially when this is of just a small room or two in a house and when this occupation is shared with others”
4-I Lastly, the JDrs resistance to the execution of the decree, that is structured on the provisions of Sec.6 of the 1963 Act, cannot be agreed to; a Division Bench of the Bombay High Court in AMIRUDDIN vs. MOHAMED JAMAL, ILR 15 BOM 685 decided way back in the year 1891, has held that Sec.9 of the old Act which was in pari material with Sec.6 of the new Act is not invocable by a person who has no juridical possession; the same view is taken by several other High Courts in the country viz., NEYVELI LIGNITE CORPORATION vs. K.S.NARAYANA IYER, AIR 1965 MADRAS 122; EMPEROR vs. BANDHU SINGH, AIR 1928 PATNA 124, NRITTO LALL MITTER vs. RAJENDRO NARAIN DEB, (1895) ILR 22 CALCUTTA 562 SOBHA vs. RAM PHAL, AIR 1957 ALLAHABAD 394; if the petitioner arguably has put up the structure in the suit property, it is only by high handedness and in gross disobedience of the injunctive decree granted by the trial Court and affirmed by the Division Bench of this Court; his usurpation of the suit property therefore cannot be termed as juridical possession; such a stand apart from being an after- thought is an affront to the judicial process, to say the least; such unscrupulous litigants who spoil the stream of justice do not deserve a discretionary remedy at the hands of the writ court, exercising a limited jurisdiction constitutionally vested in it.
In the above circumstances, this writ petition being thoroughly devoid of merits is liable to be rejected and accordingly it is, costs having been made easy.
Compiled by S. Basavaraj, Advocate, Daksha Legal.
Daksha Legal 