Divya Vasundhara Financiers Ltd. v. K.N Samant And Others.

Majmudar, J.:— These two company applications have been moved by the Court Committee for Divya Vasundhara Financiers P. Ltd. for getting suitable directions from this court for removal of alleged encroachment made on the company's properties by the concerned opponents.

2. In Company Application No. 25 of 1988, 24 such opponents are listed at list “A” while, in Company Application No. 43 of 1988, 19 opponents are listed at list “A”. Thus, these directions are sought against, in all, 43 opponents in both these applications. During the pendency of hearing of these applications, some of the opponents in Company Application No. 25 of 1988 have been made regular allottees of the concerned portions of land occupied by them and, therefore, Company Application No. 25 of 1988 will not survive against these opponents. They are at SI. Nos. 1, 2, 3, 4, 5, 21, 22, 23 and 24 at list “A” to Company Application No. 25 of 1988. Consequently, Company Application No. 25 of 1988 now survives against opponents Nos. 6 to 20 as listed at annexure “A” to that company application. So far as Company Application No. 43 of 1988 is concerned, as none of the opponents is regularised, it survives against all the 10 of them as mentioned in annexure “A” to that application. Now, it will be profitable to have a look at a few relevant facts leading to the present applications. By an order of this court (Coram: B.K Mehta J.) dated December 27, 1978, January 16/22, 1979, in Company Petition No. 18 of 1978 with other cognate matters, the applicant-Court Committee was constituted for administering the assets of the company pursuant to a scheme of compromise and arrangement between the said company on the one hand and its creditors and members on the other. The said scheme was made under section 391 of the Companies Act, 1956. The original chairman of the Court Committee was Shri N.M Miabhoy, a retired Chief Justice of this court and at present, the committee is presided over by another retired judge of this court, Shri N.H Bhatt. As per the said scheme, all the movable and immovable properties of the company are vested in the Court Committee and they were taken into custody by this court through the Court Committee as custodia legis. The Court Committee had taken steps to take possession of various properties. It was found that certain persons had encroached upon some of the properties which had vested in the Court Committee. In view of the said facts, the Court Committee earlier preferred Company Application No. 161 of 1985 with a prayer that the court may be pleased to appoint an officer of the court to take an inventory of the immovable properties of Divya Vasundhara Financiers P. Ltd. and to ascertain whether any encroachment on the immovable properties had been effected by any person or parties. It was also prayed that if the court, on the report of the officer, was satisfied that there was any encroachment on the immovable properties of DVF, the court may direct the officer to remove such encroachment and be authorised to take the assistance of the police authorities for removing such encroachment. This court (Coram: B.K Mehta J.) by an order dated September 19, 1985, in Company Application No. 161 of 1985, was pleased to appoint Mr. D.H Desai as special officer to make an inventory to this court. The said officer submitted his report on November 5, 1985. As per the said report, it was found that so far as the immovable properties in question in the present case are concerned, viz., lands situated at village Kansad (Sachin) bearing Nos. 183 (paiki) and 184 known as Rang Avadhut Colony were concerned, some encroachers were found squatting on the land and had put up huts thereon.

3. In the light of the pleadings of the parties, some common issues have been framed for my determination at exhibit 1. They are as under:

(1) Whether these applications, in the present form, are maintainable?

(2) Whether the applicants have an alternative remedy under section 6 of the Specific Relief Act and hence, these applications are not maintainable?

(3) Whether this court has jurisdiction to order summary eviction of the concerned opponents?

(4) Whether the opponents have any legal right to remain in possession of the properly occupied by them?

(5) Whether the opponents prove that they have become owners of the respective portions of the land occupied by them by the doctrine of adverse possession?

(6) What order?

4. My answers to these issues are as follows:

(1) In the affirmative.

(2) The first part in the affirmative, the second part in the negative.

(3) In the affirmative.

(4) In the negative.

(5) In the negative.

(6) As per final order.

5. Issue No. 1.— So far as this issue is concerned, sections 391 and 392 of the Companies Act are relevant. As per section 391 of the said Act, where a compromise or arrangement is proposed between a company and its creditors or any class of them or between a company and its members or any class of them, the court may, on the application of the company or of the creditor or member of the company or in the case of a company which is being wound up, of the liquidator, order a meeting of the creditors or class of creditors, or of the members or class of members, as the case may be, and if, in such meetings, the majority in number representing three-fourths in value of the creditors or class of creditors, or members, or class of members, as the case may be, present and voting, approve such scheme of compromise or arrangement, the same should be sanctioned by the court. As per section 392 of the Act, for making an order under section 391 sanctioning a compromise or an arrangement in respect of the company, the High Court shall have power to supervise the carrying out of the compromise or arrangement and the High Court may, at the time of making such order or at any time thereafter, give such directions in regard to any matter or make such modifications in the compromise or arrangement as it may consider necessary for the proper working of the compromise or arrangement. It is not in dispute that the scheme of compromise or arrangement was sanctioned by this court so far as the present company is concerned as per section 391(2) of the Act. While sanctioning the said scheme, the applicant-Court Committee was appointed as managing committee to do all that is necessary for working out the scheme. The basis of the scheme under section 391 was to ensure payment to all the creditors within a reasonable time, to complete and/or dispose of the outstanding incomplete projects and realise the dues, to sell the properties and liquidate the investments and to disburse the amounts recovered from outright sale of certain properties as well as from various projects and from amounts due to the company. Thus, the applicant-Court Committee is charged with the duty to realise the value of the properties and to disburse the amount realised amongst the creditors. So far as the present land is concerned, Part III of the scheme covers the same. It deals with the incomplete project at the preliminary stage. At item No. 5 is found Rang Avadhut Colony at Sachin which is the disputed property. So far as this project is concerned, the sanctioned scheme provides that this project should be disposed of by the company with the existing incomplete construction with the balance floor space index instead of making attempts at completing this project and thereby delaying the repayment of money to the depositors. The amount so realised on “as is where is” basis be worked out and provided so as to enable incorporation of the same in the repayment schedule to depositors. It, therefore, cannot be gainsaid that the Court Committee is charged with the obligation to realise the full market value of the incomplete structure and to make money available for disbursement to the depositors. It is for that very purpose that the applicant-Court Committee has got accepted by the court the offer of Unique Builders to purchase this property on “as is where is” basis and has to hand over vacant and peaceful possession thereof to Unique Builders and to complete their title on receipt of the balance of purchase price. It cannot also be disputed that this cannot be done unless those who are squatting on the land are cleared off the land and possession is handed over to Unique Builders. As these opponents are alleged to be squatting on the land without any right, title or interest therein, handing over of possession of the said colony to Unique Builders is held up and the balance of the purchase price is not paid by Unique Builders and the full amount of the said proceeds is uptil now not realised by the Court Committee for being disbursed to depositors. Thus, so far as the property in question is concerned, there is an impediment in the implementation of the scheme on account of the presence of the opponents on the Spot. It is this impediment which is sought to be removed by way of the present company applications. The question is whether section 391 read with section 392(2)(a) and (b) can permit such exercise and whether such an application is maintainable under the aforesaid provisions. Mr. Desai, for the applicant, invited my attention to the relevant Companies (Court) Rules under which such summons are contemplated and he submitted that the court can certainly direct clearance of the encroachment on the spot so that the purpose of the scheme may be fructified and such directions can be issued under the aforesaid provisions.

6. Mr. Bachani for the opponents, on the other hand, contends that such applications are not maintainable because the opponents are third parties and the direction can be issued by the court only against parties to the scheme of arrangement or compromise, viz., creditors and members of the company. On a mere look at the relevant provisions of sections 391 and 392, it is not possible to agree with this proposition canvassed by Mr. Bachani. It is no doubt true that the scheme of compromise or arrangement is between the company and its creditors or any class of them and between the company and its members or any class of them and they can be said to be parties to the scheme and the scheme is binding on them But so far as section 392 is concerned, the powers of the High Court for enforcing the compromise or arrangement extend to the general supervision for carrying out the compromise or arrangement and the court can, at the time of making the order or even subsequently, give directions in regard to the matters which are necessary for proper working of compromise or arrangement. It cannot be gainsaid that, for realising the full market value of the property of the company managed by the Court Committee with a view to disbursing the amount amongst the depositors as part and parcel of the scheme, any impediment or obstruction caused therein would be required to be removed for the proper working of the compromise or arrangement. Section 391(1)(b) nowhere provides that the directions can be given by the company court only against parties to the scheme and against no one else. Therefore, on a conjoint reading of section 391(1) and section 392(1)(a) and (b), it is not possible to accept the submission of Mr. Bachani that the court in no case can issue any directions against the persons other than creditors and members who are parties to the sanctioned scheme. The only requirement of a direction under section 392(1)(b) is that such direction must be necessary for the proper working of the compromise or arrangement. However, Mr. Bachani strongly relied on the decision of the court in K.N Samant's case, [1983] 1 GLR 44; [1984] 56 Comp Cas 487. It is true that, in that case, B.K Mehta J., while considering the powers of the court for issuing suitable directions in the case of this very company and in connection with this very court committee, laid down the scope and ambit of sections 391 and 392 of the Act in the following terms (headnote of GLR):

“By section 392 of the Companies Act, the High Courts have been empowered to enforce compromises and arrangements sanctioned in respect of company under section 391. The nature of the power is, therefore, a power of superintendence so that the object of the compromise or arrangement is not allowed to be frustrated by any of its parties in implementation thereof. In course of that power of supervision, the court may either at the time of making such order according sanction, or at any time thereafter, issue such directions in regard to any matter or make such modification in the compromise or arrangement, as it may consider necesr sary, for the proper working of the compromise or arrangement. If the court is satisfied that a sanctioned compromise or arrangement is not satisfactorily workable, even with modifications, it may, suo motu, or on an application of any interested person in the affairs of the company, make an order of winding up of such company, and on such an order being made, it is deemed to be one made under section 433 of the Companies Act. The legistative guideline for exercise of the power under section 392(1)(b) is the only consideration for the proper working of compromise or arrangement. No doubt, the power contained in section 392(1)(b) of the Companies Act is of wide amplitude, but it cannot be said that it is a power without any limitation. There is an inbuilt limitation on the power of the court in the section itself. The inbuilt limitation is that it can be invoked only for purposes of proper working of a compromise or arrangement.

7. The power cannot be invoked for purposes of determination or adjudication of any right or interest claimed by a company against persons who are not parties to the scheme of compromise or arrangement, and who dispute such rights or interest in fact or in law.

8. Therefore, the company court had no power or authority under section 392 of the Companies Act in exercise of its jurisdiction of supervision over the scheme or arrangement between the company and its creditors and/or members approved by it, to adjudicate upon the rights and interest claimed by such company against third parties.”

9. At first blush, the aforesaid decision appears to support the contention of Mr. Bachani, but on a closer scrutiny, it is not found to do so. In, that case, the Court Committee of this company had sought for a direction from the company court against the owner of the property who had agreed to sell the same to the company. The Court Committee instead of filing a suit for specific performance, had sought a direction from the learned company judge praying for such relief. The third party who was admittedly the owner of his properly covered by the agreement of sale with the company had opposed the claim of the Court Committee to purchase this property and objected to any direction for specific performance. It is in the background of these peculiar facts that B.K Mehta J. made the aforesaid observations and held that such question cannot be decided in company applications under sections 391 and 392 and the Court Committee should file a substantive suit for specific performance. B.K Mehta J. in para 11 of the report, while considering the amplitude of power under section 392(1)(b) of the Act, in terms, observed as under (at page 495 of 56 Comp Cas):

“No doubt, the power contained in section 392(1)(b) of the Companies Act, 1956, is of wide amplitude, but it cannot be said that it is a power without any limitation. There is an inbuilt limitation on the power of the court in the section itself. The inbuilt limitation is that it can be invoked only for purposes of proper working of a compromise or arrangement. In exercise of that power, it cannot be doubted that the company court can issue necessary directions with a view to remove any impediment, difficulty or obstruction which may arise in the working of such scheme of compromise or arrangement. No straitjacket formula can be laid down so as to provide for all situations as to when that power can be invoked, or when the court can refuse to exercise such power. It is to be judged in the context of a given situation arising from time to time. The crux of the problem, whenever such power is invoked, is for the court to ask itself whether a proper working of the arrangement or compromise is obstructed by any contingency or a situation which was not envisaged nor could have been anticipated at the time of framing or sanctioning the scheme, and if the court finds, on consideration of the relevant material placed before it on affidavit or otherwise, that the proper functioning of the scheme of compromise or arrangement is jeopardized, the court may give such directions or make such modifications in the scheme itself as it may consider necessary in order to ensure a proper and efficient working thereof.”

10. Placing reliance on the decision of the Supreme Court in S.K Gupta v. K.P Jain, [1979] 49 Comp Cas 342; (1979) 3 SCC 54 : AIR 1979 SC 734, B.K Mehta J. observed:

“Power is a power of superintendence which is to be exercised by issuing appropriate directions or effecting necessary modifications as to ensure the proper working of such compromise or arrangement. But this power cannot be invoked for the purpose of determination or adjudication of any right or interest claimed by a company against persons who are not parties to the scheme of compromise or arrangement and who dispute such rights or interest in fact or in law.”

11. So far as reference to third parties is concerned, in the fact-situation of the case before B.K Mehta J., it is obvious that the rights of any third party who is, in the real sense, a third party and who claims independent right, title or interest of his own, in any property cannot be affected by seeking mere directions under section 392(1)(b) and that the proper procedure against such third party would be to file a substantive suit. The observa-tions of B.K Mehta J., in the aforesaid case, will have to be read in the light of the peculiar facts before B.K Mehta J. In that case, it was not in dispute that the third party was an admitted owner of the immovable property which was sought to be purchased by the Court Committee under an agreement. It is this agreement which was sought to be specifically performed by the Court Committee through the intervention of the company court by seeking a direction under section 392(1)(b). Such type of relief obviously could not have been given under that provision for the simple reason that the property did not belong to the company nor could it be managed by the Court Committee under the scheme. There was no impediment in the working of the scheme qua that property and that property was to be first purchased by the Court Committee before it could be sold off by the Court Committee and the amount of purchase price could be disbursed amongst the creditors. The Court Committee was put in management of the admitted properties of the company. The property in question before B.K Mehta J. was still to be acquired after the contract of purchase was specifically performed. Consequently, the third party was a genuine third party against whom no direction could be issued under section 392(1)(b). Such is not the situation in the present case. In the present case, Rang Avadhut Colony at Sachin admittedly belonged to Divya Vasundhara Financiers P. Ltd. As seen above, the scheme of compromise and arrangement does cover this property and enjoins on the Court Committee to sell out the same on “as is where is” basis and realise the sale price for disbursing the amount amongst the depositors of the company. It is this admitted property of the company which is allegedly encroached upon by the opponents whose presence has created an obstacle in the smooth functioning of the scheme qua that property and this impediment is sought to be removed by the present proceedings. Such a factual situation is squarely covered by section 392(1)(b). It falls within the supervisory jurisdiction of the court through its Court Committee and it calls for a direction for proper working of the scheme of compromise or arrangement. It is easy to visualise that, if this impediment is not removed, years will roll by. The property cannot be sold to Unique Builders, the purchase price cannot be obtained and funds cannot be made available for disbursing to the creditors. Consequently, on an entirely different nature of facts in the present case, the ratio of decision of B.K Mehta J. in K.N Samant's case, [1983] 1 GLR 44; [1984] 56 Comp Cas 487 (Guj) cannot be pressed into service by Mr. Bachani for the opponents. It may be that, if it is found that the opponents have some right, title or interest in the property which they can effectively put forward against the Court Committee and the company, then the Court Committee may have to take steps by filing proper suits for getting the opponents cleared from the site. If, on the other hand, they are shown not to have any right, title or interest in the property and they are found to be rank encroachers, then necessarily, the impediment caused by them in the smooth working of the scheme qua Rang Avadhut Colony at Sachin can legitimately be got removed by the Court Committee by filing the present applications. It is, therefore, not possible to accept the objection of Mr. Bachani that the present applications are not maintainable against the opponents under the provisions of sections 391 and 392 of the Companies Act. The first issue, therefore, is answered in the affirmative.

12. Issue No. 2.— So far as the question of an alternative remedy is concerned, it is no doubt true that section 6 of the Specific Relief Act does give an alternative remedy to the Court Committee to file a suit for possession without reference to title. But, if the present application is maintainable, it cannot be held to be barred under section 6 of the said Act. All that section 6 of the Act provides is that, if any person is dispossessed, without his consent, of immovable property, otherwise than in due course of law, he or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in the suit. I fail to appreciate how the said provision can be said to be cutting across the powers conferred on the company court under section 392(1)(b) of the Act if occasion demands such exercise of powers. If a person is dispossessed of his immovable property, he, of course, has to follow the procedure of section 6 of the said Act or if he relies on his title, he may file a substantive suit on the strength of his title. But so far as the Court Committee is concerned, it is functioning on behalf of the court and is implementing the scheme sanctioned by the court. The court, in its supervisory capacity, has to see to it that any impediment in the smooth running of the scheme is removed. So far as the power of the court is concerned, it flows from the scheme of sections 391 and 392 of the Act. This is in no way whittled down by the provisions of section 6 of the Specific Relief Act. Even assuming that the Court Committee could have filed such suits, it cannot be urged with any emphasis that, instead of taking that course, the Court Committee has illegally followed the procedure as contemplated by section 392(1)(b). Mr. Bachani would have been right if the powers under section 392(1)(b) would have been subject to the provisions of section 6 of the Specific Relief Act, but that is not so for obvious reasons. So far as the scheme of compromise and arrangement is concerned, it is to be supervised by the court with a view to seeing that the scheme of compromise and arrangement does not meet with rough weather or get impeded and that it is fully implemented. In that process, if there are any obstructions by persons who have prima facie no right, title or interest in the company's property, such obstructions can be eradicated by issuing suitable directions. So far as that power is concerned, it is an independent power available to the court in connection with the scheme of compromise and arrangement and such power cannot obviously be fettered by the provisions contained in general law like section 6 of the Specific Relief Act. Of course, if such an application was not maintainable, then a suit would have been required to be filed under section 6 or for that matter, even on the strength of title for possession against trespassers. But, as it is found on issue No. 1 that such applications are maintainable, it cannot be effectively urged that the applications should be held to be barred by section 6 of the Specific Relief Act. Issue No. 2 is, therefore, answered in the affirmative, meaning thereby, that despite the remedy under section 6 being available to the Court Committee, the present applications are maintainable.

13. Before parting with the discussion on issue No. 2, 1 may briefly refer to the decision of M.B Shah J. in the case of Mohammad Hussain Suleman Shaikh v. Batukbhai Valjibhai, [1984] 1 GLR 184; AIR 1984 Guj 66, on which reliance was placed by Mr. Desai for the Court Committee. In that case, the situation after decree under section 6 of the Specific Relief Act was considered and to what extent the defendant in such suit can, by filing a substantive suit on title, get injunction, was the question that was looked into. In my view, the said decision is of no avail to the applicant-Court Committee on the facts of the present case and, hence, it need not detain me any further.

14. The written submissions made by Mr. Bachani on this issue invoking article 21 of the Constitution are also totally misplaced. It is difficult to appreciate how deprivation of personal liberty is involved in the present case. It cannot be gainsaid that the procedure established by section 392(1)(b) of the Companies Act is a procedure established by law and if that procedure is available, article 21 would not get violated. Similarly, reliance placed on the decision in the case of Ramshree Mahavir v. Girdharilal Bholanath Agarwal, [1970] 11 GLR 971 cannot be of any avail to the opponents, as the opponents are not sought to be thrown out by muscle power or by taking law into their hands. On the contrary, the present proceedings which are judicial proceedings are being resorted to by the Court Committee. Reliance placed on the decision in the case of Yeshwant Singh v. Rao Jagdish Singh, AIR 1968 SC 620, also cannot be of any avail to the opponents as there is no question of “picking and choosing” against the opponents. The proceedings under section 392(2)(b) are sought to be invoked uniformly against all the opponents by the Court Committee and no one from the same class is sought to be given a more favourable treatment. Reliance placed by Mr. Bachani on the decisions in T. Cajee v. U. Jormanik Siem, AIR 1961 SC 276, Bishan Das & Others v. State Of Punjab & Others, AIR 1961 SC 1570, State of Patiala v. Mohinder Singh Natha Singh, AIR 1958 Punj 325 and Yar Muhammad v. Lakshmi Das, AIR 1959 All 1 [FB], taking a similar view also can be of no avail to Mr. Bachani for the opponents, as the Court Committee is not forcibly evicting the opponents from the premises in their occupation but is resorting to court proceedings by way of the present company applications.

15. Issues Nos. 3 and 4.— This leaves issues Nos. 4 and 5 which are the main issues on merits. From the evidence on record, both oral as well as documentary, it is to be found out whether the concerned opponents have any right, title or interest in the property in question. If they have such rights, then of course, they cannot be summarily evicted in the present proceedings. If they have no such right, then proper directions can be issued for getting the land cleared of the encroachments made by them on the spot so that the scheme in question qua that property can be properly implemented. So far as the alleged right, title and interest of the opponents are concerned, it must be stated that Mr. Bachani submitted two aspects of the matter for my consideration. He, firstly, submitted that most of the opponents are residing in the land in their huts for years and he further submitted that they have become owners by adverse possession. He did not dispute the title of the company to this property. His only plea was that the opponents have become owners by adverse possession. So far as possession of the opponents on the spot is concerned, it is not in dispute between the parties. The opponents are staying on land by putting up their huts. As I have noted earlier, in the light of the report of the Court Officer, Mr. D.H Desai, given in 1985, opponent No. 8 in Company Application No. 25 of 1988 was staying on the land in question for 7 to 8 years prior to 1985. Similarly, the opponents Nos. 17, 18, ‘19 and 20 in Company Application No. 25 of 1988 were staying there for 8 years prior to the date on which the said officer visited the site in 1985. Thus, so far as these opponents are concerned, it can be said that even according to the Court Officer's report, they were in possession of the disputed portion of land since 1977 or so. So far as the opponents are concerned, the Court Officer found in his report that the opponents Nos. 14, 15 and 16 in Company Application No. 25 of 1988 were found to be staying there for about 8 months. That means, their possession was since 1985. So far as the rest of the opponents were concerned, they were not to be found on the spot, meaning thereby, they seem to have entered the land after 1985. So far as the aforesaid opponents who were found to be in possession since 1977 are concerned they also do not claim any title to the land in their own right by any legal document but they claim only adverse possession. In my view, on the evidence on record, there is nothing to indicate that these opponents have perfected their ownership of the land by adverse possession, and that though they appear to be rank trespassers, having no right to remain in the land on account of the fact that they have no title to tne land, they have not completed their title by adverse possession. It is now well-settled that a very heavy burden lies on the person putting forward plea of adverse possession. Even in the case of a suit for pos-session of immovable property based on title, as per article 65 of the Limitation Act, such claim would be defeated after 12 years when possession of the defendant becomes adverse to the plaintiff. In such a case, the defendant has to show how he has become owner by adverse possession, before he can successfully get the plaintiff non-suited. In order to constitute adverse possession, the possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor. The principle is derived from the classical requirement that in order to give title by adverse possession, the possession must be nec vi nec clam nec precaria, that is peaceful, open and continuous (P. Lakshmi Reddy v. L. Lakshmi Reddy, AIR 1957 SC 314, 317). In the light of the aforesaid settled legal position, let us see whether the opponents have been able to show that they have become owners of the land under their huts by the doctrine of adverse possession. So far as Company Application No. 25 of 1988 is concerned, the opponents have filed their own affidavits showing that they are residing in Divya Vasundhara Financiers tenements/huts in SI. Nos. 183 and 184 of Village Kansad, Sachin. There is no dispute on this aspect. They have also produced at annexure “A” to the written statement, true copies of village Form No. 7-12. They show that originally one Nanubhai Chhimanbhai Desai was the occupant of this land SI. No. 184, Hissa No. 859 and by entry No. 889, Divya Vasundhara Financiers Pvt. Ltd. became the occupant So far as the actual cultivation column is concerned, Divya Vasundhara Financiers Pvt. Ltd. is shown to be the cultivator from 1978-79 to 1980-81. Even earlier, the occupant was shown to be in cultivation. Nowhere is the name of any of the opponents found therein. It is true that, in the extract showing assessment of land for the purpose of G.P taxation, names of various opponents are mentioned in column No. 6. Some of them are the present opponents. As it is not in dispute that the concerned opponents are in possession of the land below their huts, tax might have been recovered by the village panchayat, but that does not establish their hostile title. It is, therefore, not necessary to dilate on this aspect any more. At annexure “D” is produced one certificate issued by Balubhai L. Patel, Sales Tax Inspector, showing that in the land in question belonging to Divya Vasundhara Financiers Private limited, six persons are staying whose names are mentioned in that certificate and they are staying in huts constructed on this land and they are homeless people. This certificate is of no evidentiary value, firstly because the person who has given this certificate is not examined by the opponents and strictly speaking, the certificate remains unproved. But this apart, even assuming that it can be looked into, all that it states is that some of the opponents are staying in huts on the land of Divya Vasundhara Financiers Private Limited. There is no dispute about it between the parties. Similar is the position with respect to the affidavits filed by Balubhai Sukhabhai Patel, Ishwarlal Ramanlal Tailor/Dhirubhai Dahyabhai Desai, Husainben Majibhai Shaikh, Dahiben Chhaganbhai Dhamar, Amirbhai Kumjibhai and Bhanumatiben Dattatrai-yao. All these deponents have stated that some of the opponents axe staying in huts in the land in question for a number of years. To the extent that these deponents have stated that these deponents are staying there, their version is not disputed by the Court Committee. But so far as the averment that these opponents are staying for more than 12 years is concerned, it does not appear to be fully borne out. As I have already shown earlier, only some of the opponents whose names are mentioned in the report given by the Court Officer in 1985 are shown to be staying there since 1977. Rest of the opponents are staying only for a far shorter period. Therefore, it is not possible to agree with the submission of learned advocate for the opponents that the Court Officer's report should not be accepted and that the Court Officer should have been examined in this case. The report is part and parcel of the proceedings in the main company petition. It was given by the Court Officer in the usual course of business pursuant to the order passed by the court in exercise of its supervisory jurisdiction in the present scheme proceedings. That report has remained well established on the court record and there is no reason why it should not be relied upon. As seen above, the certificate given by Balubhai L. Patel and other copies of records of rights also cannot be of any help to the opponents. All that these documents reveal is that some of the opponents are staying in the premises for years. Reliance is also placed by Mr. Bachani on certified copies of the plaints filed by the applicant-Court Committee against the Gujarat Investment Corporation and others in the Surat courts. This was done with a view to showing that the Court Committee, in appropriate cases, has filed several suits against the concerned defendants. This is neither here nor there. The question is whether it is incumbent upon the Court Committee to file’ suits for possession against the present opponents in the peculiar facts of this case. This question cannot but be answered in the negative.

16. So far as Company Application No. 43 of 1988 is concerned, similar type of affidavits are filed and documents are produced to show that some of the opponents were staying on the premises of Divya Vasundhara Financiers Private limited, for years. The document at annexure “B” is a copy of the bill; ued by Sheth Dalichand Virchand Shroff Ashaktashram Hospital, Surat, to one Kurshedbanu Amidmiya Shaikh. This bill shows that Kurshedbanu had got herself admitted as an indoor patient in the said hospital and delivered at that hospital and the bill shows that she had given address as Divya Vasundhara Financiers Private Limited., Sachin. As the possession, on the spot, of the concerned opponents is not disputed, all these documents produced in Company Application No. 43 of 1988 will also fall in the same lime as the documents produced by the opponents in the companion matter, viz., Company Application No. 25 of 1988. Therefore, I need not dilate on them any more. The entire bunch of documentary evidence-as aforesaid only indicates that the opponents are staying in the premises in question for some years and some of them, as per the report of Mr. D.H Desai, the Court Officer, are there since 1977. But the most important question is under what right are they staying there? It is not in dispute that none of them claims any independent title to the land under the concerned hut. All of them admit that the land belongs to Divya Vasundhara Financiers Private Ltd. but their contention is that they have become owners by adverse possession. So far as this plea is concerned, as a heavy burden lies on the opponents, they should have entered the witness box to show how they claim a hostile title to this land and what was the extent of their hostile acts which they had exercised openly and for how many years? So far as this aspect is concerned, there is a total blank so far as the evidence led by the opponents is concerned. As stated earlier, none of the opponents has come to the witness box. They have examined only one witness Dhirubhai Dahyabhai Desai at exhibit 2 in Company Application No. 25 of 1988 to prove the plea of adverse possession. All that this witness stated was that he was a neighbour and that he had seen hutments belonging to persons on Divya Vasundhara Financiers Private Ltd. land. That he knew some of the opponents. According to this witness, these persons were staying in the land sold by Nanubhai Ginwala to Divya Vasundhara Financiers Private Ltd. and they were staying there for 13 to 14 years. They had constructed kutchahuts there. According to him since 14 to 15 years, this land was sold by Nambhai to Divya Vasundhara Financiers P. Ltd. The hutments in which these persons were staying were visible from the place where he stays. In cross-examination, he stated that he had no evidence to show that some of the plots were sold by Nanubhai Ginwala to some of the persons staying on the spot and that, according to him, roughly about 13 to 14 years ago, these properties were sold by Nanubhai Ginwala to Divya Vasundhara Financiers Private Ltd. When pointedly asked a question whether there are only six huts on the land in 1984, the witness answered as under “you know it better.” The oral evidence of this witness is not at all helpful to the opponents. It is obvious that it is for the opponents to plead and prove how they had become owners, by adverse possession, of the concerned plots of land over which they had put up their huts. When the opponents have not come to the witness box, the witness who is neither a power of attorney holder or any of them nor one who deposed to any hostile acts of the opponents cannot improve the case of the opponents so far as the plea of adverse possession is concerned. So far as their possession is concerned, it is not in dispute. It is interesting to note that the witness has nowhere stated that the concerned opponents were staying in the huts as owners or in their own right or that they had exercised in the past, acts of hostile title or ownership or ever acted as owners of this land over which they were staying as occupiers of hutments. Consequently, the oral evidence of this witness cannot advance the case of the opponents. As a result of the aforesaid discussion, it becomes obvious that the opponents have failed to establish the plea of adverse possession of the land in question. They, therefore, remain rank trespassers who have no right, title or interest in this land and who are shown not to have completed their ownership by adverse possession. Once this plea is rejected, the result is obvious. The opponents have no right, title or interest to remain in possession of the property in question and to put any impediment in the smooth working of the scheme. Their obstruction has to be removed as they are found to have no legal interest whatsoever in the land.

(Rest of the judgment is not material for the reports)