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2000 DIGILAW 344 (HP)

GURCHARAN SINGH v. RAJENDER VERMA

2000-12-29

KAMLESH SHARMA

body2000
JUDGMENT Kamlesh Sharma, J-: The petitioners are the defendants, whereas, the respondent is the plaintiff and they will be referred as such in this judgment. The defendants are aggrieved by the decree and judgment dated 8.1.1998 passed by Sub Judge 1st class (I), Sirrnaur District at Paonta Sahib whereby the suit of the plaintiff is decreed for recovery of possession of the shop in dispute i.e. shop owned by defendants near Bangran Chowk in House No. 80, Ward No.7 as shown in site plan Mark D. As provided under sub-section (3) of Section 6 of the Specific Relief Act, 1963 (hereinafter called the Act) no appeal lies against the impugned decree and judgment passed under sub-section (1) of Section 6 of the Act, the defendants have filed the present revision petition under Section 115C.P.C. 2. The plaintiff had filed civil suit under Section 6 of the Act against the defendants on the allegations that he was induced as tenant in the shop in dispute in the month of March, 1992 on a rent of Rs.500/- per month which was increased to Rs.600/- per month in July, 1994. According to the plaintiff, when he was forcibly dispossessed from the shop in dispute on 29.3.1997 by the defendants, he reported that matter to the police and FIR No. 135 of 1997 was registered against them under Sections 147,452,448,323 and 506 I.P.C. The police instead of putting the plaintiff in possession of the shop in dispute, attached the same under Section 146 Cr. P.C. and directed to get the claim of possession decided from the competent Court. In this background the plaintiff has filed the suit against the defendants for recovery of possession of the shop in dispute under Section 6 of the Act. 3. The defendants contested the suit and asserted that the plaintiff was never inducted as tenant in the shop in dispute. .According to them, defendant No. 1 was in need of money and he mortgaged the shop in dispute for a sum of Rs. 15,000/- in March, 1992 and handed over the possession to the plaintiff. 3. The defendants contested the suit and asserted that the plaintiff was never inducted as tenant in the shop in dispute. .According to them, defendant No. 1 was in need of money and he mortgaged the shop in dispute for a sum of Rs. 15,000/- in March, 1992 and handed over the possession to the plaintiff. Their further case was that defendant No. 1 had paid the mortgage money to the plaintiff, who had voluntarily vacated the shop in dispute in the morning hours of 29.3.1997 but changed his mind later and tried to re-enter the shop forcibly, which was registered by defendant No. 1 and the plaintiff lodged false complaint with the police. They have admitted that the shop in dispute was ordered to be sealed by the S.D.M. Paunta Sahib under Section 146 CrP.C. and the proceedings under Section 145CrP.C. were pending. The defendants have specifically denied that they had dispossessed the plaintiff and tried to take forcible possession of the shop in dispute. They have also taken the preliminary objection in respect of the maintainability of the suit, mis-joinder of parties and causes of action, not valuing it properly for the purpose of court fee and jurisdiction and also rejection of the plaint under Order 7 Rule 11 C.P.C. 4. On the pleadings of the parties the following issues were framed: 1. Whether the plaintiff is entitled to the recovery of possession of the shop in question, as alleged? OPP. 2. Whether the suit is not maintainable as alleged? OPD. 3. Whether the suit is bad for mis-joinder of parties and causes of action as alleged? OPD. 4. Whether the suit is liable to be dismissed under Order 7 Rule 11CPC? OPD. 5. Whether the suit is not properly valued for the purpose of court fee and jurisdiction? OPD. 6. Relief. 5. The trial court has answered Issue NO. 1 in favour of the plaintiff and against the defendants. On the basis of the statement of the plaintiff which has been duly corroborated by Sanjeev Kumar PW-3 and the documentary evidence FIR Ex.PW-1/A, photographs Exts. OPD. 6. Relief. 5. The trial court has answered Issue NO. 1 in favour of the plaintiff and against the defendants. On the basis of the statement of the plaintiff which has been duly corroborated by Sanjeev Kumar PW-3 and the documentary evidence FIR Ex.PW-1/A, photographs Exts. PW-5/A to PW-5/C, recovery memo of the articles found lying in the shop and outside on the day of occurrence Ex.PW-2/A the trial Court has come to the conclusion that the plaintiff has been able to prove on record that he was dispossessed by the defendants from the shop in dispute on 29.3.1997 forcibly and without his consent. It has also relied upon the document Ext. PW-4/A, which is written apology tendered by defendant No. 1 and his son Amrit Pal Singh defendant No. 3 under the police pressure, which defence has rightly not been accepted by the trial court, as the attesting witness Jugal Kishore PW-4 has denied this version and Amrit Pal Singh defendant No. 3 has not come forward to support it. Even defendant No. 1 did not complain of it to the higher authorities and did not speak about it to anyone till he appeared in the witness box. The trial court has rejected the case put up by the defendants finding their evidence not worthy of credence. Their defence that the shop was mortgaged with the plaintiff was rightly not believed in the absence of any document produced by the defendants in support thereof. 6. The story of the defendants that the plaintiff had voluntarily vacated the shop in dispute in the morning of 29.3.1997 by placing his articles outside the shop but thereafter changed his mind and refused to hand over the possession and made false complaint against them, has rightly been rejected as unbelievable as it is proved on record that the plaintiff had already made complaint to the police and it had reached on the spot and prepared the recovery memo Ex.PW-2/A in the fore-noon. Otherwise also, without arranging for another shop, which has not been proved on record, the plaintiff in the normal course was not likely to vacate the shop in dispute as alleged by the defendants. Otherwise also, without arranging for another shop, which has not been proved on record, the plaintiff in the normal course was not likely to vacate the shop in dispute as alleged by the defendants. Therefore, the trial court has rightly held that the pre-requisites of Section 6 of the Act that the plaintiff was dispossessed without his consent and in a manner other than in due course of law have been duly proved on record to entitle him to decree of possession, as he has approached the Court within a period of six months from the date of his dispossession. In view of its findings on Issue No. 1, Issues No. 2 to 5 have also been decided against the defendants by the trial Court. The suit has been held maintainable in the present form and defendants 2 to 5 have been held necessary party being sons of defendant No. 1 and joining him in taking forcible possession of the shop in dispute. The defendants have also failed to prove that as to how the suit is bad under Order 7 Rule 11 C.P.C. or it is not properly valued. 7. This Court has heard learned counsel for the parties and gone through the record. Relying upon the judgments in Mt. Atra Devi and others v. Mamswarooop Prasad Singh and others, AIR 1972 Patna 186 and Shrimati Amar Kaur v. Hardev Singh and others, AIR 1992 Punjab and Haryana 205 the learned senior counsel for the defendants had vehemently urged that in the facts and circumstances on record the suit of the plaintiff could not be considered as suit for recovery of possession under Section 6 of the Act having been based on the title of the tenancy, it was a regular suit irrespective of its nomenclature. 8. On the other hand, the learned senior counsel for the plaintiff has referred to number of judgments of the Supreme court to urge that the scope of revision under Section 115 C.P.C. is very limited and the findings of fact arrived at by the trial Court that the plaintiff was dispossessed without his consent and in a manner other than in due course of law entitling him to decree of possession under Section 6 of the Act cannot be interfered with. 9. 9. After giving its best consideration to the submission of the learned senior counsel for the parties, in the opinion of this Court it is not a fit case to exercise jurisdiction under Section 115 Cr. P. C. to interfere with the impugned decree and judgment. By now it is well settled that this Court may exercise its powers in revision only if it is satisfied that the subordinate Court has exercised its jurisdiction not vested in it under law or failed to exercise its jurisdiction so vested or has acted in exercise of its jurisdiction illegally or with material irregularity, and if this court is satisfied on these three matters, it has no power to interfere because it differs with the conclusion of the subordinate court on the question of facts and law. 10. Relying upon Mahindra Land and Building Corporation Ltd. v. Bhutnath Benerjee, AIR 1964 SC 1336, the learned Judges of the Supreme Court have held in Pandurang Dhondi v. Maruti Hari Jadhav, AIR 1966 SC 153, as under, which is reiterated in Shri M.L. Sethi v. Shri R.P. Kapur, AIR 1972 SC 2379:- "The provisions of S.I 15 of the Code have been examined by judicial decisions on several occasions. While exercising its jurisdiction under S. 115, it is not competent to the High Court to correct errors of fact however gross they may be, or even errors of law, unless the said errors have relations to the jurisdiction of the Court to try the dispute itself. As clauses (a), (b) and (c) of S.I 15 indicate, it is only in cases where the subordinate court has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity that the revisional jurisdiction of the High Court can be properly invoked. It is conceivable that points of law may arise in proceedings instituted before subordinate courts which are related to questions of jurisdiction. It is well settled that a plea of limitation or a plea of resjudicate is a plea of law which concerns the jurisdiction of the court which tries the proceedings. It is conceivable that points of law may arise in proceedings instituted before subordinate courts which are related to questions of jurisdiction. It is well settled that a plea of limitation or a plea of resjudicate is a plea of law which concerns the jurisdiction of the court which tries the proceedings. A finding on these pleas in favour of the party raising them would oust the jurisdiction of the court and so an erroneous decision on these pleas can be said to be concerned with questions of jurisdiction which fall within the purview of S.I 15 of the Code. But an erroneous decision on a question of law reached by the subordinate court which has no relation to questions of jurisdictions of that court, cannot be corrected by the High Court under S. 115." So far revision against interlocutory order is concerned, further two conditions have been put by way of provisions to sub-section (1) of Section 115 C.P.C. (Also see: Sher Singh (dead) through LRs. v. Joint Director of Consolidation and others, AIR 1978 SC 1341, and M/s. Bhojraj Kunwarji Oil Mill and ginning Factory and another v. Yograjsinha Shankarsinha Parihar and others, AIR 1984-SC 1894) 11. So far the case in hand is concerned, it is not in dispute that the trial Court had the jurisdiction but the submission of the learned counsel for the defendants is that it has acted illegally and with material irregularity in treating the suit under Section 6 of the Act, as on the averments in the plaint it was based on the title of tenancy. This court does not find any substance in this submission. Section 6 (old Section 9) of the Act provides a summary remedy to a person for recovery of possession without establishing title, who has, without his consent, been dispossessed of immovable property otherwise than in due course of law. A distinction has to be drawn between a suit based upon possessory title and suit under Section 6 of the Act. In the suit based upon possessory title the plaintiff would be entitled to decree only when his possession was sufficient proof of his title while in the suit under Section 6 of the Act he has merely to prove that he was in possession within six months prior to the date of institution of the suit. In the suit based upon possessory title the plaintiff would be entitled to decree only when his possession was sufficient proof of his title while in the suit under Section 6 of the Act he has merely to prove that he was in possession within six months prior to the date of institution of the suit. Further, the case based on possessory title may be filed within a period of twelve years from the date of dispossession, whereas, the suit under Section6 of the Act may be filed within a period of six months from the date of dispossession. For holding this, this Court has relied upon the judgment in Shri M.L Sethi v. Shri R.P. Kapur (supra). In Shrimati Amar Kaur v. Hardev Singh and others (supra) in the peculiar facts and circumstances of that case the learned Judge has come to the conclusion that the suit before him was not under Section 6 of the Act and it was on the basis of possessory title. It is held in para 8:- "....It is a summary remedy available to the person in possession of the immovable property when he is dispossessed otherwise than in due process of law. A suit, under Section 6 of the Specific Relief Act is not maintainable against a person after the expiry of six months from the date of dispossession. When a person is dispossessed, then under Section ,6 of Specific Relief Act, the Court is only required to consider whether a person has been wrongly dispossessed and has come to the Court within six months of the dispossession." And in para 9 :-"In the present case, the plaintiff has specifically averred in the suit that she is owner and was in exclusive possession of the property till 27.1.1975 when she was forcibly dispossessed from the land in suit by the respondents. Her suit is not under Section 6 of the Specific Relief Act but the plaintiff has come to the Court on the basis of possessory title as she wanted to get back possession from the respondents as she was dispossessed otherwise than in due course of law." 12. Her suit is not under Section 6 of the Specific Relief Act but the plaintiff has come to the Court on the basis of possessory title as she wanted to get back possession from the respondents as she was dispossessed otherwise than in due course of law." 12. In Nair Service Society Ltd. v. K.C. Alexander and others, AIR 1968 SC 1165, it is held in paragraph 14 by the learned Judges of the Supreme Court that in the suit under Section 6 (old Section 9) of the Act "the plaintiff need not prove title and the title of the defendant does not avail him. When, however, the period of 6 months has passed questions of title can be raised by the defendant and if he does so the plaintiff must establish a better title or fail. In other words, the right is only restricted to possession only in a suit under Section 9 of the Specific Relief Act but that does not bar a suit on prior possession within 12 years and title need not be proved unless the defendant can prove one." 13. Applying these principles to the case in hand, this Court has no hesitation to hold that on the allegations made in the plaint the suit of the plaintiff was maintainable under Section 6 of the Act and it has rightly been entertained under this provision. If the plaintiff has given the facts relating to his tenancy in the shop in dispute, it does not mean that the basis of his suit is possessory title and not dispossession within a period of six months, as envisaged under Section 6 of the Act. In both the suits i.e. suit on possessory title and suit under Section 6 of the Act full facts relating to the possession including the status of the plaintiff may be enumerated but in the suit on the basis of possessory title the plaintiff must plead and prove better title to the defendant, whereas, in the suit under Section 6 of the Act the plaintiff is to j prove and plead his possession, may be in any capacity or he may not be having I any title over the property in dispute, within a period of six months prior to the date of institution of the suit. If it is found that the suit has been filed beyond | the period of limitation of six months as required under Section 6 of the Act but within a period of twelve years as required under Article 64 of the Limitation Act and the plaintiff has come on the basis of possessory title, the suit will be treated as regular suit even if it is filed under Section 6 of the Act. In the present case, admittedly, the suit was filed within a period of six months from the date of dispossession and it has rightly been considered a suit under Section 6 of the Act.14. In the result, there is not merit in this revision petition and it is dismissed. No costs.