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1988 DIGILAW 392 (KAR)

RAMAKRISHNA SUVARNA v. SHESHI HENGSU

1988-08-23

M.P.CHANDRAKANTARAJ

body1988
M. P. CHANDRAKANTHARAJ, J. ( 1 ) THIS is a defendant's revision under Section 115 of the Code of Civil Procedure. ( 2 ) THE defendant in O. S: 295 of 1986 was also the defendant in O. S. 48 of 1973. Plaintiff in both the suits is his mother. She filed the first suit of 1973 for possession and succeeded after nearly 12 years of litigation between herself and her son, and the revision petitioner was directed by this Court to deliver possession of the suit property on the expiry of the 31st day of December, 1985. Soon thereafter, the plaintiff in O. S. 48 of 1973 filed execution petition and the suit house was delivered to her. Thereafter, she filed the latter suit of 1986 alleging that her son had broken open the lock put by her on doors of the suit house and took possession illegally of her property and therefore possession of the same may be restored to her. The second suit was, therefore, filed under section 6 of the Specific Relief Act. ( 3 ) THE defendant resisted inter-alia contending that he, at the request of his mother and grand-father, went back to the house and therefore it was not a case falling under Section 6 of the Specific Relief Act as he had implied consent by the mother - plaintiff and therefore the suit was not maintainable. He, however,' also contended that he occupied the suit schedule premises within about eight or ten days after it was delivered to his mother and therefore, the suit filed on 5-8- 1986 was clearly barred by time having been filed after six months. He also questioned the valuation of the suit schedule property and the Court fee paid by the plaintiff. ( 4 ) THE parties on such pleadings went to trial. Plaintiff - P. W. 1 got, examined as many as three witnesses and the, defendant got examined himself and one other witness. The three issues, which fell for consideration by the trial Court, were1. Whether the plaintiff proves that she was dispossessed of plaint 'a' schedule property wrongfully by the defendant on 26-7-1986? 2. Whether the defendant proves that the suit is barred by limitation? 3. The three issues, which fell for consideration by the trial Court, were1. Whether the plaintiff proves that she was dispossessed of plaint 'a' schedule property wrongfully by the defendant on 26-7-1986? 2. Whether the defendant proves that the suit is barred by limitation? 3. Whether the plaintiff proves that the suit is properly valued for the purpose of court fee and jurisdiction?on all the three issues, the trial Court found in favour of the plaintiff and against the defendant. ( 5 ) IN this Court, the only point urged is that there is no proper discussion of the evidence and no proper direction by the trial court in appreciating the evidence on record with reference to Section 6 of the Specific relief Act. The thrust of the argument is that in the light of the admitted fact that the suit was filed in the month of August 1986, delivery of possession was in the early part of january 1986 and according to the evidence led by the revision petitioner - defendant occupied the premises at the invitation of his mother and grand-father within about 8 days after the earlier decree was executed; the court ought to have directed itself not only to the question of limitation but whether there was implied consent by the mother. ( 6 ) IT is seen from the evidence on record that the defendant never pleaded in detail the panchayat which he alleged took place not at his instance but at the instance of his mother. He also did not disclose who the panchayatdars were even when he gave evidence. It was only when D. W. 2 was examined that the names of panchayatdars came to be known. It was in that circumstance the Court disbelieved the version put forward by the plaintiff, apparently having regard to the past litigation between the mother and the son. Therefore, the trial court, which recorded the evidence had occasion to observe the witnesses and their demeanour and the manner in which they deposed and made up its mind as to who was telling the truth. With that process of the trial Court appreciating the evidence, this court, under Section 115 of the Code of Civil procedure, exercising revisional jurisdiction, cannot and ought not to re-appreciate that evidence particularly having regard to the back ground of the case. With that process of the trial Court appreciating the evidence, this court, under Section 115 of the Code of Civil procedure, exercising revisional jurisdiction, cannot and ought not to re-appreciate that evidence particularly having regard to the back ground of the case. ( 7 ) IT is not in dispute as disclosed by the defendant himself that he has filed a suit for partition claiming partition of the alleged joint family properties in 1986, which includes a share in the suit schedule property. If according to his version, in January itself he had been invited by his mother to live in the house, the question of his going to Court with a suit for partition of the family properties looks somewhat strange and not the normal conduct or behaviour of a human being. Therefore, on his own admitted conduct, it is unlikely that his mother would have invited him back and he having been invited back would go to Court to establish his rights to the alleged family properties in which he claims a share. The trial Court, taking the totality of circumstances, has recorded a finding of fact with which this Court declines to interfere under Section 115 of the Code of civil Procedure. ( 8 ) HENCE, this revision petition is dismissed. --- *** --- .