REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  2968          OF 2012 (Arising out of SLP (C) No. 15382 of 2009)

Maria Margarida Sequeria Fernandes and Others      …Appellants

Versus

Erasmo Jack de Sequeria(Dead) through L.Rs.       …Respondents

JUDGEMENT

Dalveer Bhandari, J.

1. Leave granted.

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 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,  

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  

families  of  Goa.   The  father  of  the  appellant  and  the  

respondent,  Dr.  Jack  D.  Sequeira  was  an  affluent  

businessman  and  a  well-known  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.  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  

small property which the appellant purchased through Court  

auction after paying full sale consideration.  The respondent-

brother  of  the  appellant  was  also  a  very  influential  and  

important Member of Parliament.  He was also very active in  

the local politics in Goa.

6. The  appellant  urged  that  the  suit  property  originally  

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  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  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 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 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  Chalta No.14 of P.T. Sheet No.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  

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  

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 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 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  

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 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 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  

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 require in his new place may be kept in the suit  

property.  According  to  the  appellant,  her  brother  before  

shifting to the 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 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 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.  

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

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  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  

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 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 issue as the respondent was merely in  

custody of the house on behalf of the appellant. According to  

her,  a  caretaker  can  never  sue  a  valid  title-holder  of  the  

property.   

16. The appellant further urged that a caretaker’s possession  

can never be a possession of individual’s right and no such  

suit for injunction under Section 6 of the Specific Relief Act  

was  maintainable.   The  appellant  contended  that  the  

respondent returned the keys of the suit property sometime in  

May 1991.  The appellant asserted that the respondent had  

manipulated  the  system  and  collected  false  and  fabricated  

evidence in the form of Panchnama in collusion with the local  

police and was designed to throw out the appellant from her  

own house.   

17. On 17.6.1992, the respondent filed a suit for permanent  

and mandatory injunction in the Court of Civil Judge, Senior  

Division at Panaji as a Special Civil  Suit No.131/92/A.  On

22.6.1992,  an  ex-parte  order  for  depositing  the  keys  was  

passed while the appellant and her family members were living  

in the suit premises.  The Trial Court decreed the suit.   

18. According  to  the  appellant,  the  impugned judgment  of  

the High Court is contrary to the ratio of the judgment of this  

Court  in  Rame  Gowda  (dead)  by  LRs. v.  M.  Varadappa  

Naidu  (dead)  by  LRs.  and  Another  (2004)  1  SCC  769  

wherein a three-Judge Bench of this Court has observed that  

possession is no good against the rightful owner and that the  

assumption that he is in peaceful possession will not work and  

cannot operate against the true lawful owner.   

19. Reliance  has  also  been  placed   by  the  appellant  on  

Southern Roadways Ltd., Madurai v. S.M. Krishnan (1989)  

4 SCC 603 wherein this Court has held that it is the settled  

law that agent has no possession of his own and caretaker’s  

possession is the possession of the principal.  This Court has  

taken the view that possession of the agent is the possession  

of the principal and in view of the fiduciary relationship, the  

agent cannot be permitted to claim his own possession.  Thus,

according to the appellant, the respondent had no right, title  

and/or  interest  in  the  suit  property  and was  not  in  lawful  

possession.  Therefore, the suit for injunction under Section 6  

of the Specific Relief Act is totally misconceived.  The appellant  

contended that the High Court in the impugned judgment has  

gravely erred in affirming the judgment of the Trial Court.   

20. According  to  the  case  of  the  respondent,  he  was  

permitted to live in the suit  premises because of  the family  

arrangement.  The respondent remained in possession of the  

suit  property  for  several  years  and  hence  he  cannot  be  

dispossessed without following due process of law.

21. It  is  also submitted by the respondent that  he  was in  

possession of the suit premises for 28 years and was forcibly  

dispossessed on 15.6.1992.  The respondent also submitted  

that he never conceded that the title of the suit property was  

with the appellant.  He also submitted that it is contrary to the  

records that the respondent was a caretaker.

22. The  learned  counsel  for  the  parties  reiterated  the  

submissions  made  before  the  Courts  below.   The  appellant  

submitted  that  she  is  a  helpless  and  hapless  sister  of  the  

respondent who has been kept out from her own house for  

more than two decades.  The appellant is the owner of the suit  

property which is evident from the Certificate of the Probate  

Proceedings  known  as  Inventory  Proceeding  No.1075/935.  

She further submitted that the respondent, her brother, was a  

party  in  the  said  Probate  Proceedings  where  the  appellant  

acquired  the  title  of  the  suit  property  on  27.5.1972.   The  

respondent  collected  the  sale  consideration  amount  on  17th  

March, 1972 vide Cheque No.33559 drawn on Bank of India  

on behalf of his aunt in the auction proceedings.

23. The appellant submitted that the City Civil Court held that  

the appellant is the owner of the suit property and has the title  

and possession of the same which was never challenged by the  

respondent.  The appellant also submitted that apart from the  

title  of  the suit  property,  house tax records and wealth tax  

records indicate that she was and continued to be the owner of

the suit property.  She further submitted that the utility bills  

of  electricity,  water  and telephone  were  of  minimal  amount  

which show that the respondent had never resided in the suit  

premises.   The  appellant  submitted  that  the  finding  of  the  

Trial Court that the appellant had no funds to purchase the  

property  was  contrary  to  record.  The  High  Court  has  also  

erroneously affirmed the findings of the Trial Court.   

24. The appellant urged that the suit filed by the respondent  

is not based on  title. The family arrangement, as alleged by  

the respondent, is neither pleaded nor proved. The appellant  

asserted that no suit under Section 6 of the Specific Relief Act  

lies against the true owner.  The appellant submitted that a  

caretaker, agent, guardian etc. cannot file a suit under Section  

6 of the Specific Relief Act.   

25. According  to  law  laid  down  by  this  Court  in  Rame  

Gowda (dead) by LRs. (supra), it is the settled legal position  

that a possessory suit is good against the whole world except  

the  rightful  owner.   It  is  not  maintainable  against  the  true  

owner.  

26. This Court in  Anima Mallick v.  Ajoy Kumar Roy and  

Another (2000) 4 SCC 119 held that where  the sister gave  

possession as gratuitous to the brother,  this Court restored  

possession to the sister as it was purely gratuitous basis and  

the  sister  could  have  reclaimed  possession  even  without  

knowledge of the brother.  

27. According  to  the  appellant,  this  Court  in  Sopan  

Sukhdeo  Sable  and  Others  v.  Assistant  Charity  

Commissioner and Others (2004) 3 SCC 137 has observed  

that no injunction can be granted against the true owner and  

Section  6  of  the  Specific  Relief  Act  cannot  be  invoked  to  

protect the wrongdoer who suppressed the material facts from  

the Courts.

28. The appellant submitted that Section 41 of the Specific  

Relief  Act  debars  any  relief  to  be  given  to  such  an  erring  

person  as  the  respondent  who  is  guilty  of  suppression  of  

material facts.  

29. The  appellant  relied  on  Automobile  Products  India  

Limited v.  Das John Peter and Others (2010) 12 SCC 593

and Ramrameshwari Devi and Others v. Nirmala Devi and  

Others (2011) 8 SCC 249 where the Court has laid down that  

dilatory  tactics,  misconceived  injunction  suits  create  only  

incentives for wrongdoers.

30. The appellant submitted that for more than two decades  

the  appellant  is  without  the  possession  of  her  own  house  

despite the fact that she has valid title to the suit property.

Truth as guiding star in judicial process

31. In  this  unfortunate  litigation,  the  Court’s  serious  

endeavour has to be to find out where in fact the truth lies.  

The  truth  should  be  the  guiding  star  in  the  entire  judicial  

process.

32. 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 and bounden duty.

33. Justice system will acquire credibility only when people  

will be convinced that justice is based on the foundation of the  

truth.

34. In Mohanlal Shamji Soni v. Union of India 1991 Supp  

(1) SCC 271, this Court observed that in such a situation a  

question that arises for consideration is whether the presiding  

officer  of  a  Court  should simply sit  as  a mere umpire  at  a  

contest  between two  parties  and  declare  at  the  end  of  the  

combat who has won and who has lost or is there not any  

legal duty of his own, independent of the parties, to take an  

active  role  in  the  proceedings  in  finding  the  truth  and  

administering  justice?  It  is  a  well  accepted  and  settled  

principle that a 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.

35. What people expect is that the Court should discharge its  

obligation to find out where in fact the truth lies.  Right from

inception  of  the  judicial  system  it  has  been  accepted  that  

discovery, vindication and establishment of truth are the main  

purposes underlying the existence of the courts of justice.

36. In  Ritesh Tewari and Another  v.  State of U.P. and  

Others (2010) 10 SCC 677 this Court reproduced often quoted  

quotation which reads as under:

“Every trial is voyage of discovery in which truth is  the quest”  

37. This  Court  observed that  the  power is  to  be exercised  

with  an object  to  subserve  the  cause  of  justice  and  public  

interest and for getting the evidence in aid of a just decision  

and to uphold the truth.

38. Lord Denning, in the case of  Jones   v.  National Coal  

Board  [1957] 2 QB 55 has observed  that:

“In  the  system  of  trial  that  we  evolved  in  this   country,  the  Judge sits  to  hear  and  determine  the   issues  raised  by  the  parties,  not  to  conduct  an   investigation or examination on behalf of the society   at  large,  as  happens,  we  believe,  in  some  foreign   countries.”

39. Certainly,  the above,  is not true of  the Indian Judicial  

system.  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 neutral, he opts to  

remain  passive  to  the  proceedings  before  him.   He  has  to  

always keep in mind that “every trial 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.

40. Lord Denning further observed in the said case of Jones  

(supra) that “‘It’s all very well to paint justice blind, but she  

does better without a bandage round her eyes.  She should be  

blind indeed to favour or prejudice, but clear to see which way  

lies the truth…”

41. World  over,  modern  procedural  Codes  are  increasingly  

relying on full disclosure by the parties.  Managerial powers of  

the Judge are being deployed to ensure that the scope of the  

factual controversy is minimized.

42. In civil cases, adherence to Section 30 CPC would also  

help in ascertaining the truth.  It seems that this provision  

which ought to be frequently used is rarely pressed in service  

by our judicial officers and judges.  Section 30 CPC reads as  

under:-

30.  Power  to  order  discovery  and  the  like. –  Subject to such conditions and limitations as may  be prescribed, the Court may, at any time either of  its own motion or on the application of any party, -

(a)   make such orders as may be necessary or  reasonable in all  matters relating to the  delivery and answering of interrogatories,  the  admission  of  documents  and  facts,  and  the  discovery,  inspection,  production,  impounding  and  return  of  documents  or  other  material  objects  producible as evidence;

(b)  issue  summons  to  persons  whose  attendance  is  required  either  to  give  evidence  or  to  produce  documents  or  such other objects as aforesaid;

(c) order any fact to be proved by affidavit

43. "Satyameva Jayate" (Literally: "Truth Stands Invincible")  

is  a  mantra  from  the  ancient  scripture  Mundaka  Upanishad.  

Upon independence of India, it was adopted as the national motto

neutrality  never  takes  any  initiative  to  discover  truth.  He does not correct the aberrations in the  investigation  or  in  the  matter  of  production  of  evidence before court……..”   

2.15  “The  Adversarial  System  lacks  dynamism  because it has no lofty ideal to inspire.  It has not  been  entrusted  with  a  positive  duty  to  discover  truth  as  in  the  Inquisitorial  System.   When  the  investigation  is  perfunctory  or  ineffective,  Judges  seldom take any initiative to remedy the situation.  During  the  trial,  the  Judges  do  not  bother  if  relevant  evidence  is  not  produced  and  plays  a  passive  role  as  he  has  no  duty  to  search  for  truth…..”

2.16.9. Truth being the cherished ideal and ethos of  India, pursuit of truth should be the guiding star of  the Criminal Justice System.  For justice to be done  truth must prevail.  It is truth that must protect the  innocent and it is truth that must be the basis to  punish the guilty.  Truth is the very soul of justice.  Therefore truth should become the ideal to inspire  the  courts  to  pursue.  This  can  be  achieved  by  statutorily  mandating the courts to become active  seekers  of  truth.   It  is  of  seminal  importance  to  inject vitality into our system if we have to regain  the lost confidence of the people.  Concern for and  duty to seek truth should not become the limited  concern  of  the  courts.  It  should  become  the  paramount duty of everyone to assist the court in  its quest for truth.

45. In Chandra Shashi v. Anil Kumar Verma (1995) 1 SCC  

421 to enable the Courts to ward off unjustified interference in

their working, those who indulge in immoral acts like perjury,  

pre-variation  and  motivated  falsehoods  have  to  be  

appropriately  dealt  with,  without  which  it  would  not  be  

possible for any Court to administer justice in the true sense  

and to the satisfaction of those who approach it in the hope  

that truth would ultimately prevail. People would have faith in  

Courts  when they  would  find  that  truth alone  triumphs in  

Courts.  

46. Truth  has  been  foundation  of  other  judicial  systems,  

such as, the United States of  America, the United Kingdom  

and other countries.

47. In James v. Giles et al. v. State of Maryland 386 U.S.  

66, 87, S.Ct. 793), the US Supreme Court, in ruling on the  

conduct of prosecution in suppressing evidence favourable to  

the defendants and use of perjured testimony held that such  

rules existed for a purpose as a necessary component of the  

search for truth and justice that judges, like prosecutors must  

undertake.  It further held that the State’s obligation under

the Due Process Clause “is not to convict, but to see that so  

far as possible, truth emerges.”  

48. The  obligation  to  pursue  truth  has  been  carried  to  

extremes. Thus, in  United States  v. J.Lee Havens 446 U.S.  

620, 100 St.Ct.1912, it was held that the government may use  

illegally obtained evidence to impeach a defendant’s fraudulent  

statements  during  cross-examination  for  the  purpose  of  

seeking justice, for the purpose of “arriving at the truth, which  

is a fundamental goal of our legal system”.

49. Justice Cardozo in his widely read and appreciated book  

“The Nature of the Judicial Process” discusses the role of the  

judges.  The relevant part is reproduced as under:-

“There  has  been  a  certain  lack  of  candour,”  “in  much  of  the  discussion  of  the  theme  [of  judges’  humanity],  or  rather  perhaps  in  the  refusal  to  discuss  it,  as  if  judges  must  lose  respect  and  confidence by the reminder that they are subject to  human limitations.” I do not doubt the grandeur of  conception which lifts them into the realm of pure  reason, above and beyond the sweep of perturbing  and  deflecting  forces.   None  the  less,  if  there  is  anything  of  reality  in  my  analysis  of  the  judicial  process, they do not stand aloof on these chill and  distant heights; and we shall not help the cause of  truth by acting and speaking as if they do.”

50. Aharon Barak, President of Israeli Supreme Court from  

1995 to 2006 takes the position that:

“For  issues  in  which  stability  is  actually  more  important than the substance of the solution – and  there are many such case – I will join the majority,  without restating my dissent each time.  Only when  my  dissenting  opinion  reflects  an  issue  that  is  central for me – that goes to the core of my role as a  judge – will I not capitulate, and will I continue to  restate my dissenting opinion: “Truth or stability –  truth is preferable”.

“On  the  contrary,  public  confidence  means  ruling  according  to  the  law and  according  to  the  judge’s  conscience,  whatever  the  attitude  of  the  public  may  be.   Public  confidence  means  giving  expression  to  history,  not  to  hysteria.   Public  confidence  is  ensured by  the  recognition  that  the  judge is doing justice within the framework of the  law and its provisions.  Judges must act – inside  and outside the court – in a manner that preserves  public confidence in them.  They must understand  that judging is not merely a job but a way of life. It  is a way of life that does not include the pursuit of  material wealth or publicity; it is a way of life based  on spiritual wealth; it is a way of life that includes  an objective and impartial search for truth.”

51. 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.

52. Truth  is  the  foundation  of  justice.  It  must  be  the  

endeavour of all the judicial officers and judges to 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 ascertain  

the truth.

Pleadings

53. 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 importance in similar systems of  

adjudication,  such  as,  the  United  Kingdom and  the  United  

States of America.

54. In  the  United  Kingdom,  after  the  Woolf  Report,  Civil  

Procedure Rules, 1998 were enacted.  Rule 3.4(2) has some  

relevance and the same is reproduced as under:

(2) The Court may strike out a statement of  case if it appears to the Court -

(a) that  the statement of  case discloses  no reasonable grounds for bringing or  defending the claim;

(b) that  the  statement  of  case  is  an  abuse  of  the  Court’s  process  or  is  otherwise  likely  to  obstruct  the  just  disposal of the proceedings; or

(c) that  there  has  been  a  failure  to  comply with a rule, practice direction  or Court order.

55. In so far as denials are concerned,  Rule 16.5 provides  

that where the defendant denies an allegation, he must state  

his reasons for doing so, and if he intends to put forward a  

different version of events from that given by the plaintiff, he  

must state his own version.

56. The various practice directions and prescribed forms give  

an indication of the particulars required.  In fact,  the 1998  

Rules go further  and provide for  summary judgment.   Rule  

24.2 of the Civil Procedure Rules, 1998 reads as under:

24.2 The  Court  may  give  summary  judgment  against  a  claimant  or  defendant on the whole of a claim or  on a particular issue if-

(a) it considers that-

(i) that  claimant  has  no  real  prospect of  succeeding on the  claim or issue; or

(ii) that  defendant  has  no  real  prospect  of  successfully  defending  the  claim  or  issue;  and

(b) there is no other compelling reason  why the case or issue should be disposed  of at a trial.

57. After enactment of the Civil Procedure Rules 1998, much  

greater emphasis is given on pleadings in the United Kingdom.  

Similarly,  in  the  United  States  of  America,  much  greater  

emphasis  is  given  on  pleadings,  particularly  after  two  well  

known decisions of the US Supreme Court, viz., Bell Atlantic  

Corporation et al. v.  William Twombly [550 U.S. 544, 127  

S.Ct.  1955]  and  John.  D. Ashcroft,  Former  Attorney  

General, et al.  v.  Javaid Iqbal  et al. [556 U.S. 662, 129  

S.Ct.1937].

58. In  Bell  Atlantic (supra),  the  Court  has  observed  that  

factual  allegations must be enough to raise a right  to relief  

above  the  speculative  level.   The  pleadings  must  contain

something more than a statement of facts that merely creates  

a suspicion of a legally cognizable right of action.  

59. In  Ashcroft  (supra)  the  majority  Judges  of  the  U.S.  

Supreme Court observed as under:

“Threadbare recitals of the elements of  a cause of  action,  supported  by  mere  conclusory  statements,  do not suffice.   Although for  the  purposes of a motion to dismiss we must take  all of the factual allegations in the complaint  as a true, we are not bound to accept as true a  legal  conclusion  couched  as  a  factual  allegation … … … only a complaint that states  a plausible claim for relief survives a motion to  dismiss.”

60. The aforementioned two decisions of the U.S. Supreme  

Court  re-emphasized  and  reiterated  the  importance  of  

pleadings.

61. In  civil  cases,  pleadings  are  extremely  important  for  

ascertaining  the  title  and  possession  of  the  property  in  

question.  

62. 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.  

63. Possession  is  important  when  there  are  no  title  

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.  

64. There is a presumption that 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 than the former, and it is the latter which has  

seen much abuse and misuse before the Courts.  

65. 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  

recover possession.  

66. 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 a suit for ejectment  

where the defendant must plead and prove why he must not  

be ejected.   

67. 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  

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  be  for  the  person  in  possession  to  give

sufficiently detailed pleadings, particulars and documents to  

support his claim in order to continue in possession.

68. 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 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, where the onus will be on him to  

prove the averred facts and documents.  

69. The  person  averring  a  right  to  continue  in  possession  

shall, as far as possible, give a detailed particularized specific  

pleading  along  with  documents  to  support  his  claim  and  

details of subsequent conduct which establish his possession.

70. 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  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  

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) who are the persons in possession/occupation  

or otherwise living with him, in what capacity;  

as family members, friends or servants etc.;  

(j) subsequent  conduct,  i.e.,  any  event  which  

might  have  extinguished  his  entitlement  to  

possession or caused shift therein; and

(k) basis  of  his  claim  that  not  to  deliver  

possession but continue in possession.

71. 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 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.

72. The Court  will  examine the  pleadings for  specificity as  

also  the  supporting  material  for  sufficiency  and  then  pass  

appropriate orders.  

73. 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 beyond the stage for issues.   

74. 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.   

75. On vague pleadings, no issue arises.  Only when he so  

establishes,  does  the  question  of  framing  an  issue  arise.  

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.

76. In pleadings, whenever a person claims right to 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 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.   

77. Dr.  Arun  Mohan  in  his  classic  treatise  on  “Justice,  

Courts  and  Delays”  has  dealt  with  these  fundamental  

principles of law exhaustively.

78. The Court  must ensure that  pleadings of  a  case must  

contain sufficient particulars.   Insistence on details reduces  

the  ability  to  put  forward  a  non-existent  or  false  claim  or  

defence.

79. 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.  

Suit for Mandatory Injunction

80. It is a settled principle of law that no one can take 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 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 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 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.

Due process of Law

81. 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.

82. The High Court of Delhi in a case Thomas Cook (India)  

Limited v. Hotel Imperial 2006 (88) DRJ 545 held as under:

“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 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.”

83. We approve the findings of  the High Court of Delhi on  

this issue in the aforesaid case.

False claims and false defences

84. False  claims and  defences  are  really  serious  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 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.   

85. This  Court  in  a  recent  judgment  in  Ramrameshwari  

Devi  and  Others (supra) aptly  observed  at  page  266  that  

unless wrongdoers are denied profit from frivolous litigation, it  

would be difficult to prevent it.  In order to curb uncalled for  

and frivolous litigation, the Courts have 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.  In this very judgment, the Court provided  

that  this problem can be solved or at  least be minimized if  

exemplary cost is imposed for instituting frivolous litigation.  

The  Court  observed  at  pages  267-268  that  imposition  of  

actual, realistic  or proper costs and/or ordering prosecution

in appropriate cases would go a long way in controlling the  

tendency  of  introducing  false  pleadings  and  forged  and  

fabricated documents  by  the  litigants.   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.

Grant or refusal of an injunction

86. Grant or refusal  of  an injunction in a civil  suit  is  the  

most  important  stage  in  the  civil  trial.   Due  care,  caution,  

diligence  and  attention  must  be  bestowed  by  the  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  order  to  grant  or  refuse  

injunction,  the  judicial  officer  or  the  judge  must  carefully  

examine the entire pleadings and documents with utmost care  

and seriousness.  

87. 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  

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  

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 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.

88. Ordinarily,  three  main  principles  govern  the  grant  or  

refusal of injunction.  

a) prima facie case;

b) balance of convenience; and

c) irreparable  injury,  which  guide  the  Court  in  

this regard.  

89. In the broad category of prima facie case, it is imperative  

for  the  Court  to  carefully  analyse  the  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.   

Mesne Profits

90. 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,  

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  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.  

91. The Court while granting injunction should broadly take  

into 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 making it clear that  

should the Court pass any order for reimbursement, it will be  

a charge upon the property.  

92. The  Court  can  also  direct  payment  of  a  particular  

amount and for a differential, direct furnishing of a security by  

the  person who wishes  to  continue  in  possession.   If  such  

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  and  make  a  proper  order  of

granting mesne profit.  This is the requirement of equity and  

justice.

93. In  the  instant  case,  if  the  Courts  below  would  have  

carefully  looked  into  the  pleadings,  documents  and  had  

applied principle of the grant of mesne profit, then injustice  

and illegality would not have perpetuated for more than two  

decades.

94. We  have  heard  the  learned  counsel  for  the  parties  at  

length and perused the relevant judgments cited at the Bar. In  

the instant case, admittedly, the respondent did not claim any  

title to the suit property.  Undoubtedly, the appellant has a  

valid  title  to  the  property  which  is  clearly  proved  from the  

pleadings and documents on record.   

95. The  respondent  has  not  been  able  to  establish  the  

family  arrangement  by which this  house was given to  the  

respondent for his residence.  The Courts below have failed to  

appreciate that  the premises in question was given by the  

appellant to her brother respondent herein as a caretaker.  

The  appellant  was  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.   

96. The  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  

demand.  Admittedly, the respondent does not claim any title  

over the suit property and he had not filed any proceedings  

disputing the title of the appellant.  

97. This  Court  in  Puran  Singh  v.  The  State  of  Punjab  

(1975) 4 SCC 518 held that an occupation of the property by a  

person as an agent or a servant at the instance of the owner  

will not amount to actual physical possession.

98. This  Court  in  Mahabir  Prasad Jain  (supra)  has  held  

that the possession of a servant or agent is that of his master

or principal as the case may be for all purposes and the former  

cannot maintain a suit against the latter on the basis of such  

possession.

99. In  Sham Lal  v.  Rajinder Kumar & Others  1994 (30)  

DRJ 596, the High Court of Delhi held thus:

“On the basis of the material available on record, it  will be a misnomer to say that the plaintiff has been  in 'possession' of the suit property. The plaintiff is  neither a tenant, nor a licensee, nor a person even  in  unlawful  possession  of  the  suit  property.  Possession  of  servant  is  possession  of  the  real  owner. A servant cannot be said to be having any  interest in the suit property. It cannot be said that a  servant  or  a  chowkidar  can  exercise  such  a  possession or right to possession over the property  as to exclude the master and the real owner of the  property from his possession or exercising right to  possession over the property.

Possession  is  flexible  term and  is  not  necessarily  restricted to mere actual possession of the property.  The  legal  conception  of  possession  may  be  in  various forms. The two elements of possession are  the  corpus  and  the  animus.  A  person  though  in  physical possession may not be in possession in the  eye  of  law,  if  the  animus  be  lacking.  On  the  contrary,  to  be  in  possession,  it  is  not  necessary  that one must be in actual physical contact. To gain  the complete idea of possession, one must consider  (i)  the person possessing, (ii) the things possessed  and, (iii)  the persons excluded from possession. A  man  may  hold  an  object  without  claiming  any

interest  therein  for  himself.  A  servant  though  holding an object, holds it for his master. He has,  therefore, merely custody of the thing and not the  possession which would always be with the master  though the master may not be in actual contact of  the thing. It is in this light in which the concept of  possession has to be understood in the context of a  servant and & master.”

100. The ratio of this judgment in  Sham Lal (supra) is that  

merely  because  the  plaintiff  was  employed  as  a  servant  or  

chowkidar to look after the property, it cannot be said that he  

had entered into  such possession of  the  property  as  would  

entitle  him  to  exclude  even  the  master  from  enjoying  or  

claiming possession of the property or as would entitle him to  

compel the master from staying away from his own property.

101. 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  

interest  whatsoever  for  himself  in  such  property  

irrespective of his long stay or possession.  

102. In this view of the matter, the impugned judgment of the  

High Court as also of the Trial Court deserve to be set aside  

and we accordingly do so.  Consequently, this Court directs

that the possession of the suit premises be handed over to the  

appellant, who is admittedly the owner of the suit property.  

103. In the peculiar facts and circumstances of 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 usual undertaking to this effect be  

filed  by  the  legal  representatives  of  the  respondent  in  this  

Court within two weeks.   

104. 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 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 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  of  the  

premises by taking police help.

105. As a result, the appeal of the appellant is allowed.  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.  (We have imposed the moderate cost in view of  

the fact that the original respondent has  expired).  Ordered  

accordingly.  

.….………………………..J.                                                (Dalveer Bhandari)

….………………………..J.                                       (H.L. Dattu)

….………………………..J.                                              (Deepak Verma)

New Delhi; March 21, 2012