The Bombay High Court earlier this month said that the law respects possession and forbids forcible dispossession. It said that even if a person doesn't have a right to property but is in peaceful possession of the same, s/he cant be dispossessed only after following the due process of law.
A bench of Justice Bharati Dangre was dealing with a plea filed by Manjulaben Shah, who claims to be the second wife of one Meghji Shah, challenging the decision of a city civil court that had passed orders in favor of Madhuriben Shah, the first wife of Meghji, with regards to the possession of a flat in Borivali.
As per the original suit filed by Madhuriben under the Specific Relief Act, she claimed that she was in a 'settled and continuous' possession of the flat from 1983 till July 2008, when Manjulaben along with some men forcibly dispossessed her.
Madhuriben claimed that she was living in the said flat along with her daughters since 1983, however, in July 2008, Manjulaben along with some men, entered the house, when it was being furnished by carpenters. She claimed that the men locked the carpenters in a room and threw all her furniture and other belongings on the building's terrace.
Justice Dangre noted the fact that to prove her continuous possession, Madhuriben had adduced evidence such as the ration card, election, and other identity cards, slips of various deliveries made to her at the address of the said flat. She even furnished the electricity bills in her name to prove her peaceful possession.
On the other hand, Manjulaben contended that just because she and Madhuriben had cordial relations, she had allowed her to stay in the subject flat as her (Madhuriben) only son was harassing her. She claimed that the keys to the said flat were always with her. She even argued that Madhuriben had no entitlement to the house as she wasn't the original owner. The city civil court, however, considered only the specific issue of possession and not ownership and accordingly passed orders in favor of Madhuriben.
Considering the facts of the case, Justice Dangre said, "Law respects possession and forbids forcible dispossession, even with the basis of the title, a person who is in settled possession of the property, even on the assumption that he had no right to remain on the property, cannot be dispossessed except, by due process of law."
"The disputed questions of title would be decided by the competent court by adhering to the prescribed process of law, but the peaceful possession is to be protected from the trespasser without regard to the question of the origin of the possession," the judge added.
"Madhuriben being in peaceful possession of the suit property is entitled to retain her possession and in order to protect her possession, she may be entitled to use reasonable force to keep out the defendant (Manjulaben), who is not the owner of the premises," Justice Dangre said, adding, "Law comes to the aid of a person who is in peaceful and settled possession, by injuncting even a rightful owner from using force and also by restoring him in possession even from the rightful owner, if the latter dispossesses the prior possessor by use of force."
"In absence of proof of better title, possession or prior peaceful settled possession is itself admissible as evidence of title, since law presumes possession to go with the title unless rebutted. If the possession is settled or effective, though, without title, it would be entitled to be protected even as against the two owners," the judge added.
"A casual act of possession would not have the effect of interrupting the possession of the rightful owner. The rightful owner may reenter and reinstate himself provided he does not use more force than necessary. Such entry will be viewed only as a resistance to an intrusion upon possession that has never been lost. The persons in possession by a stray act of trespass, a possession which has not matured into settled possession, constitute an unlawful assembly, giving the right to the true owner, though not in actual possession at the time, to remove the obstruction even by using necessary force," the judge observed further.
The bench accordingly dismissed the plea filed by Manjulaben.
