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2001 DIGILAW 508 (JHR)

Gulbahar Sheikh v. Sanjay Kumar Pande

2001-07-25

GURUSHARAN SHARMA

body2001
JUDGMENT Gurusharan Sharma, J. 1. Plaintiffs opposite parties 1 to 3 filed Title Suit No. 8 of 1997 against defendants under Section 6 of the Specific Relief Act to get restoration of possession of 10-2/3 decimals land with structures standing thereon, bearing Plot No. 17 in village Jhalua, District Garhwa, detailed in Schedule A to the plaint. 2. Plaintiffs claimed to have purchased the suit property by registered sale deeds dated 24.10.1991 and 6.4.1996 from Md. Isha Sheikh and Md. Ishrayal Sheikh, both sons of Natai Sheikh, and came in possession thereof. Their vendors had acquired the same from Kamoda Bibi, daughter of recorded tenant. Panchu Sheikh and sister of Bhannu Sheikh, defendant No. 4, by registered sale deed dated 8.9.1988. Their names were mutated and rent therefor was being paid to the State against receipts. They had constructed boundary wall as well as two rooms and two more rooms were under construction. 3. On 18.9.1996, plaintiffs were dispossessed by defendants from the suit property without their consent and without any lawful authority in collusion with Garhwa District Police and Administration. False criminal cases were lodged against them and they remained in judicial custody. 4. Defendants filed written statement and contested the suit. They denied plaintiffs possession over the suit property by virtue of aforesaid sale-deeds (Exhibits 1 and I/A) and claimed to have constructed four rooms. According to them on 18.9.1996, plaintiffs entered into their house with the help of their vendors and committed rape and kidnapped their family members, for which criminal case was filed against them. 5. Panchu Sheikh was recorded tenant of the suit property, who left behind a sun. Bhannu Sheikh, defendant No. 4, a daughter. Bibi Kamoda, Bhannu Sheikh has two sons. Gulbahar Sheikh and Pahlawan Sheikh, defendants 1 and 3 and Sujauddin Ansari, defendant No. 2 is the son of Gulbahar Sheikh. 6. Bibi Kamoda sold the suit property to plaintiffs vendors in the year 1988, who got their names mutated in Register-II (Exhibit 7). After purchase, plaintiffs also got their names mutated. 7. Section 6 of the said Act. in substance, is a re-production of the provision of Roman Law, under which by an inter-dietum devi a person wrongfully dispossessed from property could recover it by proving previous possession, without being required to prove his title. After purchase, plaintiffs also got their names mutated. 7. Section 6 of the said Act. in substance, is a re-production of the provision of Roman Law, under which by an inter-dietum devi a person wrongfully dispossessed from property could recover it by proving previous possession, without being required to prove his title. It provides a summary remedy for a person, who being in possession of immovable property is ousted therefrom. So peaceful possession is to be protected from tress-passer under Section 6 of the Act, without regard to the question of origin of possession. 8. In the present case, it was incumbent on the plaintiffs to atleast prima facie establish their possession and only thereafter there was any question of dispossession without their consent 9. It is relevant to mention statements of some of the witnesses examined on behalf of the plaintiffs. PW 3 (Natai Sheikh), father of both the vendors of the plaintiffs, was the most competent witness to depose on the point of possession. He stated in last portion of his examination-in-chief as follows : "BIBADI JAMIN PAR MUDDALAH LOGO KA DAKHAL KABJA THA AVAM USME WEY LOG RAHTE THE." PW 5 (Ram Sevak Ram), who was a mason by profession stated in paragraph 2 of his cross-examination : "YAH JANKARI HAI KI BHANNU MIAN KE LADKE AVAM MANNU MIAN NE GIRVAR PANDEY KE LADKO NIRBHAI, SANJAY TO KABJA GHAR PAR HONE NAHIN DIYE." 10. I find that the trial Court has failed to consider the aforementioned important part of plaintiffs evidence. 11. In the aforesaid circumstance. I find that plaintiffs failed to establish their possession over the suit property on 18.9.1996. As such they were not entitled to any relief under Section 6 of the Specific Relief Act. However, plaintiffs are at liberty to ventilate their grievance before appropriate forum for redressal, which will be decided in accordance with law. 12. In the result, this Revision application is allowed, impugned judgment/order is set aside and Title Suit No. 8 of 1997, filed under Section 6 of the said Act stands dismissed. The findings recorded in the impugned judgment/order, however, will not operate as res judicata in properly constituted suit for declaration of title and recovery of possession between the parties. There shall be no order as to costs. Let the lower Court records be sent down to the Court below immediately. 13. Revision allowed.