- (1.) Rejoinder affidavit filed is taken on record. Heard counsel for the parties. It appears from the order dated 28.7.2006 that this second appeal was admitted but question of law has not been formulated.
(2.) Counsel for the appellant submits that the appeal was admitted on the substantial question of law, "Whether the lower appellate court erred in law in dismissing the suit as even a trespasser or an unauthorised occupant cannot be dispossessed except in accordance with law".
(3.) In support of his contention, he has relied upon paragraph No. 9 of the judgment rendered in Krishna Ram Mahale v. Shobha Venkat Rao, 1989 AIR(SC) 2097 which reads thus: This proposition was also accepted by a Division Bench of this Court in Ram Rattan v. State of U.P., 1977 AIR(SC) 619 . The Division Bench comprising of three learned Judges held that a true owner has every right to dispossess or throw out a trespasser while he is in the act or process of trespassing but this right is not available to the true owner if the trespasser has been successful in accomplishing his possession to the knowledge of the true owner. In such circumstances, the law requires that the true owner should dispossess the trespasser by taking recourse to the remedies under the law. In the present case, we may point out that there was no question of the plaintiff entering upon the premises as a trespasser at all as she had entered into the possession of the restaurant business and the premises where it was conducted as a licensee and in due course of law. Thus, defendant No. 3 was not entitled to dispossess the plaintiff unlawfully and behind her back as has been done by him in the present case. It was pointed out by Mr. Tarkunde that some of the observations referred to above were in connection with a suit filed under S. 6 of the Specific Relief Act, 1963 or analogous provisions in the earlier Specific Relief Act, 1877. To our mind, this makes no difference in this case as the suit has been filed only a few weeks of the plaintiff being unlawfully deprived of possession of the said business and the premises and much before the period of six months expired. In view of the aforesaid conclusions arrived by us, we do not propose to consider the question whether the agreement between the plaintiff and defendant No. 3 amounted to a licence or a sub-lease.;