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1992 DIGILAW 141 (CAL)

MATTER OF BALARAM DEY v. CHAYA DEY

1992-04-02

AMAL KANTI BHATTACHARJI, S.K.MUKHERJEE

body1992
( 1 ) THE present Revisional application is directed against a judgment and decree in a proceeding under section 6 of the Specific Relief Act. The defendant is the petitioner before this Court. At the very outset we keep it on record that the prayers for relief on behalf of the petitioner have been made by invoking the provisions only of Article 227 of the Constitution of India. ( 2 ) WE have heard Mr. Kundu in support of the Revisional application and Mr. Roy on behalf of the contesting plaintiffs/opposite parties. ( 3 ) SECTION 6 of the Specific Relief Act creates a jurisdiction of a summary nature. The two basic elements on consideration of which the Court is required to exercise this jurisdiction are actual possession and the nature of the manner of dispossession. These are elements findings of which are bound to be findings of fact and as such, are not ordinarily liable to interference in exercise of revisional jurisdiction unless such interference is called for on satisfaction of well recognised ratios propounded by authoritative pronouncements. In the present case the learned counsel, representing the contesting parties, have cited different judicial pronouncements inviting and/or resisting the exercise of power for interference by this Revisional Court. From the citations made it is clear that the necessity for an interference in the present case admittedly can be decided upon findings as to whether the factual conclusions are perverse or not, but not by upsetting such factual conclusion by substitution of a second probable view on the evidence or on the ground of insufficiency of evidence. It is needless to add that to enable the Revisional Court to discharge its function, appraisal in the strict sense is permitted but such appraisal must not be for interference in contravention of the above jurisdictional norms. Relevant facts, in the present case, are as follows :-"the plaintiffs initiated the proceeding with an allegation that on 7th of April, 1989 the defendant dispossessed them from the ground Boor of the premises in question. Whereas the defence is on the said date the defendant was, with the consent of the plaintiffs, in possession of the said ground floor. The trial Court factually concluded relying upon the evidence of plaintiffs' witnesses that plaintiffs were in possession of the ground floor on the said date and were dispossessed by the defendant. Whereas the defence is on the said date the defendant was, with the consent of the plaintiffs, in possession of the said ground floor. The trial Court factually concluded relying upon the evidence of plaintiffs' witnesses that plaintiffs were in possession of the ground floor on the said date and were dispossessed by the defendant. " ( 4 ) THE above findings are strictly findings of fact and as such, as indicated by us hereinabove, on the settled legal position not liable to interference ordinarily under Article 227 of the Constitution of India. We have also indicated that entitlement or disentitlement to relief under section 6 of the Specific Relief Act will depend fully on the correctness or otherwise of findings about possession and dispossession from the disputed portion. In the instant case we find that even the findings of fact arrived at by the trial Court cannot be said to have been correctly arrived at and the untenability of such findings go to an extent as to result in manifest injustice being done to the party against whom the impugned decree has been passed. We say so for the reasons, which appear hereinafter. ( 5 ) IN the first place, the trial Court failed to bestow proper consideration on the contents of Ext. D, which embodied a statement to the effect that on the date of the said document, that is, 4. 12. 1989 the defendant was continuing in possession, notwithstanding protest by the plaintiffs to vacate such possession. The document, therefore, was a very vital and relevant evidence for the purpose of arriving at a finding as to the question of possession and dispossession. The learned trial Judge took that document into consideration only for the purpose of finding a title in the plaintiffs and overlooked that even assuming that the defendant was continuing in possession of the second floor of the disputed premises, such a case became inconsistent with the case of the plaintiffs that the defendant had vacated the premises in entirety and came back to forcibly occupy the ground floor of the premises. The learned trial Judge overlooked that it was never the case of the plaintiffs that the defendant was possessing the second floor and occupied the ground floor simultaneously forcibly or illegally by dispossessing the plaintiffs. The learned trial Judge overlooked that it was never the case of the plaintiffs that the defendant was possessing the second floor and occupied the ground floor simultaneously forcibly or illegally by dispossessing the plaintiffs. The defence taken was that the defendant occupied the ground floor on the basis of an amicable settlement and if such document and contents thereof were taken into consideration, the defence case might have been found to be more acceptable upon a preponderance of probability. Secondly, the learned trial Judge, no doubt, repeatedly expressed, and, rightly so, that title was not an important consideration in a proceeding under section 6 of the Specific Relief Act. But from the reading of the judgment it appears that the trial Court based its finding about possession on existence of ownership and title in the plaintiffs. Thirdly, the conclusions reached upon reading of the deposition of the plaintiffs' witnesses are prima facie, contrary to other parts of such deposition so much so that it needs a re-consideration as to whether a reasonable man would reach such a conclusion upon a reading of the said depositions in entirety. These are infirmities in the impugned judgment and decree of the trial Court, which vitiate exercise of jurisdiction as instances of procedural errors. The findings, which have been made in the above manner and with the above infirmities, if allowed to stand, are bound to result in manifest injustice, particularly, in the instant case, where there is no remedy by way of appeal and the scope of consideration for a Court of law is very much restricted. The above view finds support from the ratio pronounced by the Hon'ble Supreme Court in the cases of Trimbak v. Ram Chandra reported in AIR 1977 SC 1223 and Chandavarkar Sita Ratna Roo v. Ashalata reported in AIR 1987 SC 117 (Paragraph 21 ). ( 6 ) ACCORDINGLY, we feel that the judgment and decree of the trial Court are liable to be set aside. The Revisional application is, therefore, allowed and the judgment and decree are set aside. The matter is remanded back to the trial Court for a reconsideration on merit and according to law in the light of the observations made above. There will be no order as to costs. Petition allowed.