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1999 DIGILAW 1458 (RAJ)

Tara Singh v. Chiman Lal

1999-12-07

MOHD.YAMIN

body1999
JUDGMENT 1. - This is a revision against the order of learned Additional District Judge, Srikaranpur dated 19.5.1999 by which he decreed the suit filed by Chimanlal against Tara Singh and Kapoor Singh under Section 6 of the Specific Relief Act. 2. Briefly stated, Chimanlal's case is that shop No. 47 was situated in Dhan Mandi, Srikaranpur. Commission Agents' business was being carried under the name and style of Pohumal Madanlal since 1984 in this shop. The business was being carried by partners Madanlal and Balkishan. Its management was being done by Madanlal partner and he was in possession of the shop. This business was closed in the year 1991 and possession of the shop was handed over by Madanlal to Smt. Premlata who was the wife as well as power of attorney holder of Balkishan. Possession of the shop was in turn given to plaintiff Chimanlal on 26.1.991 by Smt. Premlata under an agreement made between the two. It was further averred in the plaint that 90 bags of gwar gum, a refrigerator, sofa set and other articles were lying in the shop which belong to firm Pohumal Madanlal. It was alleged that on 3.3.1991 defendants Tara Singh, Kapoor Singh along with 15-20 persons armed with lethal weapons came there, unlocked the shop and took possession thereof. First information report No. 45 was lodged at concerned policed station on 4.3.1991. Possession of the defendants on the shop was continued as trespasser and it as prayed that the same be delivered to the plaintiff. 3. Defendants-Tara Singh and Kapoor Singh, who are the petitioners before me, pleaded before the trial court that they did not know as to who carried the business under the name and style of Pohumal Madanlal. It was pleaded that Premlata and Balkishan were riot the owners of the shop nor did they have any title. It was pleaded that the plaintiff, by profession a petition writer, was a clever person and has prepared forged documents on the basis of which suit was filed. It was pleaded that the plaintiff was never in possession of the shop and that he did not obtain possession on 26.1.1991. There was specific pleading that the shop No. 47 came in possession of Ralaram by title deed dated 4.4.1944 and he by a will bequeathed the shop to Smt. Kailashwati and Kaushalya Devi on 26.2.1960. It was pleaded that the plaintiff was never in possession of the shop and that he did not obtain possession on 26.1.1991. There was specific pleading that the shop No. 47 came in possession of Ralaram by title deed dated 4.4.1944 and he by a will bequeathed the shop to Smt. Kailashwati and Kaushalya Devi on 26.2.1960. Smt. Kaushalya Devi died on 3.2.1972. She had left a will dated 31.12.1971 by which she had bequeathed the shop to her daughter Achala Devi, Achala Devi and Kailashwati thereafter entered into an agreement on 8.2.1991 to sell this shop for a sum of Rs. 7,21,000/- to the defendants and they had paid a sum of Rs. 3,60,000/- under this agreement and thereafter had come in possession of the shop. It was pleaded that a false FIR was lodged. It was further replied in the written statement that the record of the Municipal Board mentions the names of Smt. Kailashwati and Smt. Achala from whom the defendants have purchased the shop and were bona fide purchasers for value after paying a sum of Rs. 3,60,000/- The defendants were carrying on their broker ship business in the shop. Various other objections were raised in the written statement. A counter-claim was also filed in which it has been pleaded that plaintiffs have filed a suit on the basis of a void agreement which was not even stamped sufficiently and which does not confer any title to the plaintiffs. Rejoinder was filed by the plaintiff in which it was pleaded that the case of the defendants that after the closure of firm Pohumal Madanlal the shop went to Kailashwati and Achala Devi, was false. In view of numerous allegations, counter allegations, the learned Judge framed as many as 13 issues and after recording evidence of both the parties, decreed the suit in favour of the plaintiff and also ordered that possession of the shop be delivered to the plaintiff within a period of two months. 4. Originality an appeal was preferred but by order dated 12.7.1999 it was converted into a revision. I have heard the learned counsel for both the parties in extenso. 5. Learned counsel for the petitioners tried to canvass that the judgment of the lower court suffers from infirmities as the evidence has not been properly appreciated. 4. Originality an appeal was preferred but by order dated 12.7.1999 it was converted into a revision. I have heard the learned counsel for both the parties in extenso. 5. Learned counsel for the petitioners tried to canvass that the judgment of the lower court suffers from infirmities as the evidence has not been properly appreciated. He also submitted that certain issues were left undecided and, therefore, the decree passed by the trial court is not valid and should be set aside. 6. On the other hand learned counsel for the respondent controverted these arguments. Both the parties carried me through the evidence. 7. So far as suits under Section 6 of the Specific Relief Act are concerned, they are special types of suits. Section 6 of the Specific Relief Act itself is a special section and provides that if any person is dispossessed without his consent of immovable property otherwise than in clued 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 such suit and such a suit can be instituted only within a period of six months from the date of dispossession; and no appeal lies from any order or decree passed in any such suit. What is required in such a suit to obtain decree is that the plaintiff need not prove any title to the land. It he proves his prior possession he will be given a decree for possession if defendant is a trespasser pure and simple. Thus a decree can be passed on the basis of possessory title in a suit for possession when the plaintiff proves that he was in peaceful possession when he was dispossessed by the defendant. In such suits sole question before the Court is one of possession and question of title is not important. There is plethora of citations to this effect that in such cases title is immaterial. So if the matter is seen from this angle, it is immaterial if the trial court has not decided the issue No. 11 which related to fabrication of a document which is alleged to he in favour of the plaintiff and about which the so defendant has raised plea that the document was forged one and prepared by the plaintiff and Smt. Premlata. Under issue No. 13 the trial court has mentioned that issues Nos. 2, 4, 8, 9, 10, 11 and 12 were left in view of the findings relating to issues Nos. 1, 3, 5, 6 and 7 and I concur with the trial court in view of the fact that it was not necessary to decide them independently as the suit was a special suit under Section 6 of the Specific Relief Act. 8. Learned counsel for the petitioners submitted that there were infirmities in the judgment as there was deviation from procedure as the trial court has not decided these issues. He relied on RLW 1951 page 119, Gulabchand v. Kishanlal . But I am of the view that this citation does not apply in the facts and circumstances of this case as it is distinguishable on facts and law for deciding the suits under Section 6 of the Specific Relief Act. Learned counsel for the petitioners submitted that the trial court did not consider important material on record and, therefore, revision should be allowed. Relying on AIR 1970 Allahabad page 525, Shambhu Dayal and others v. Pt. Basdeo Sahai , it has been tried to canvass that since the issues were material and have not been decided, therefore, the revision should be is allowed. I do not agree with this contention as I have already stated that the issues were not material for decision of the suit which was passed purely on previous possession of the plaintiff and his dispossession on the fateful night by the defendants. Secondly, the citation of Allahabad High Court is distinguishable on facts. 9. Learned trial court has discussed the whole evidence under issues Nos. 1 and 3. It has been proved that Madanlal was a partner of M/s. Pohumal Madanlal Commission Agents and a business was being carried in the shop since 1984. The shop was in possession of Madanlal. The business was closed in January, 1991 and possession of the shop was handed over to Premlata who in turn handed over possession of the shop to plaintiff on 26.1.1991. It was during the night of 3.3.1991 that the defendants along with 15-20 persons armed with guns and other lethal weapons came, broke open the locks and dispossessed the plaintiff. The business was closed in January, 1991 and possession of the shop was handed over to Premlata who in turn handed over possession of the shop to plaintiff on 26.1.1991. It was during the night of 3.3.1991 that the defendants along with 15-20 persons armed with guns and other lethal weapons came, broke open the locks and dispossessed the plaintiff. As soon as the plaintiff came to know he lodged first information report No. 45/91 which was investigated and the accused persons defendants were challaned before the competent court. Chimanlal has stated on oath that when Premlata handed over possession to him, document was executed which is Ex. 1 on record. This document, whatever in its character and whatever infirmities in a might be possible, is a document which proves that the possession was handed over to the plaintiff which is material in this case. Thus plaintiff had come in physical possession of the shop. On the other hand, the case of the defendants was, as stated by DW 3 Tara Singh, that he did not obtain physical possession of the shop rather he had obtained possession on papers on 8.2.1991. According to him the physical possession was handed over to him on 18.2.1991. But this appears to be a pretext in order to prove the illegal possession of the defendants. 10. Even Premlata PW 2 has stated that the possession of the shop was given to her on 26.1.1991 and she handed over possession of the shop to Chimanlal on the very day. She has also stated that material belonging to her in the shop was also left there and was handed over to Chimanlal. The other important witness of plaintiff, Madanlal PW 4, states that the key of the shop was handed over to Premlata on 26.1.1991. Some boxes, fan, gaddi, almirahs etc. were lying in the shop. According to him Premlata was the power of attorney holder of Balkishan. Bishanchand PW 3 stated that on so 26.1.1991 there was a `muhurt' of a house which he attended and it was Madanlal who handed over the key of the shop No. 47 to Premlata and also handed over possession of the shop which contain gaddi, boxes etc. Bishanchand also corroborated this statement and further stated that the possession was handed over to Chimanlal. Bishanchand also corroborated this statement and further stated that the possession was handed over to Chimanlal. Statements of other witnesses have also been discussed by learned trial Judge under these issues and by preponderance of evidence it has been proved that the possession of the shop was with the plaintiff and that it were the defendants petitioners who dispossessed the plaintiff by breaking open the lock of the shop and entering into it during the fateful night. The finding of the learned trial Judge is based on evidence and sound reasoning. There does not appear to be any infirmity in the conclusion arrived at by the learned trial Judge. I do not find any to reason to interfere in this finding of fact in this revision. The scope of revision, as learned counsel for the petitioners also agrees, is limited and I will not like to interfere in the finding in this revision. 11. It was contended by the learned counsel for the petitioners that the interference in the finding of fact can be made in revision ai jurisdiction when the finding suffers from inherent defects. Reliance has been placed on AIR 1987 SC page 2179, Vinod Kumar Arora v. Smt. Surjit Kaur . In this citation the finding of fact as confirmed by the appellate Judge was based on conjectures and surmises and both the courts below had lost sight of relevant pieces of evidence which were not controverted, hence it was held that interference was justified as the findings suffer from inherent weaknesses. In the case in hand I do not find such defects. The learned trial Judge has elaborately discussed the evidence and has come to the correct conclusion in this special type of suit in which only possession and dispossession are to be seen. 12. In view of above, there is no force in this revision petition and it is, hereby dismissed. No orders as to costs.Revision dismissed. *******