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2002 DIGILAW 162 (HP)

Smt. Prem Sharma. v. Nishi Sharma

2002-06-07

KULDIP CHAND SOOD

body2002
Judgement ORDER :- Dissatisfied with the judgment and decree of the learned Senior Sub-Judge, Lahaul and Spiti District at Kullu dated April 25, 1998, passed under S. 6 of the Specific Relief Act, the defendants are in revision under S. 115 of the Code of Civil Procedure. 2. Facts necessary for the disposal of this petition may be put in narrow compass: Nishi Sharma, respondent herein, filed a suit for possession of the house subject- matter of dispute which is located in Raghunathpur in the town of Kullu on the basis of her prior possession under S. 6 of the Specific Relief Act, hereinafter referred to as "the Act". The case of the plaintiff was that she was in exclusive possession of this house till April 22, 1995 on which date, the defendants, after forming an unlawful assembly, with an object to oust her from the house, tres-passed into the house at about 2.30 a.m., gave beatings to her and her children and ousted them from this house. A report was lodged with Police Station at Kullu but without any fruitful result. According to the plaintiff, she purchased this house from one Godawari by a registered sale deed on July 20, 1988 though even prior to this, she and her family were residing in this house with Godawari. 3. The defendants resisted the suit. Several preliminary objections were taken. It was pleaded that the house was neither owned nor possessed by Godawari exclusively. According to the defendants, this house was constructed by late Smt. Shankargiri. Shankar Giri was mother of defendants Prem Sharma, Raj Sharma and Godawari. After the death of Shankar Giri, the house was inherited, along with other properties, by sons and daughters of Shankar Giri. Therefore, claimed defendants, house in question was in joint ownership and possession of defendant Nos.1 and 2 and Smt. Godawari and their brothers and sisters. It was denied that the house was sold to Plaintiff Nishi Sharma by Godawari. It was the further case of the defendants that plaintiff had nothing to do with Godawari or the house and she, in connivance with the scribe and marginal witnesses, forged a fictitious sale deed with a view to grab the house in question. It was pleaded that F.I.R. lodged against the defendants was fake. It was the further case of the defendants that plaintiff had nothing to do with Godawari or the house and she, in connivance with the scribe and marginal witnesses, forged a fictitious sale deed with a view to grab the house in question. It was pleaded that F.I.R. lodged against the defendants was fake. The defendants pleaded that the plaintiff was never in possession of the house in question or any other property of Godawari. Therefore, there was no question of the plaintiff having been dispossessed by the defendants from the house. 4. Learned trial Judge settled several issues and returned the findings that plaintiff Nishi Sharma was in possession of the house in question till April 22, 1995 on which date, she was forcibly dispossessed by the defendants. The plea of the defendants that the house was possessed jointly by Godawari and defendants as owners was negatived. So far the title of the plaintiff over the suit property is concerned, it was not decided, as plaintiff did not want any finding on her title. 5. I have heard Mr. G. D. Verma, learned Senior Counsel instructed by Mr. Romesh Verma, Advocate and Mr. Bhupender Gupta, learned Senior Counsel instructed by Mr. Praneet Gupta, Advocate. 6. At the outset, Mr. Bhupendra Gupta, learned Senior Counsel for the respondent/plaintiff maintained that the present revision petition was not maintainable and in any case, this Court will not reappreciate the evidence, in its revisional jurisdiction, to interfere with the findings arrived at by the learned trial Court even if another view was possible on the reappreciation of the evidence. 7. Section 6 of the Act may be reproduced : "6. Suit by person dispossessed of immovable property- (1) If any person is dispossessed without his consent of immovable property otherwise than in due 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. (2) No suit under this section shall be brought- (a) after the expiry of six months from the date of dispossession; or (b) against the Government. (3) No appeal shall lie from any order or decree passed in any suit instituted under this section, nor shall any review of any such order or decree be allowed. (2) No suit under this section shall be brought- (a) after the expiry of six months from the date of dispossession; or (b) against the Government. (3) No appeal shall lie from any order or decree passed in any suit instituted under this section, nor shall any review of any such order or decree be allowed. (4) Nothing in this section shall bar any person from suit to establish his title to such property and to recover possession thereof." 8. Section 6 of the Specific Relief Act is a provision designed and based on a public to discourage persons taking the law into their own hands. It provides for summary remedy available to a person in possession of immovable property when he is dispossessed without having recourse to law. A suit under S. 6 of the Act is not maintainable after the expiry of six months from the date of dispossession. It also does not operate as bar to institution of a suit for recovery of possession on the basis of the title if the defendant had a better title. 9. It may be noticed that for the application of S. 6 of the Act, the following conditions should exist : (a) The person aggrieved must be in exclusive possession of the property; (b) Such possession should be of immovable property; (c) There should be a dispossession otherwise than in due course of law, without the consent of the plaintiff within six months of the filing of the suit; (d) The dispossession is by one other than the Government; (e) The suit should be for the recovery of possession alone; 10. Proceedings under S. 6 of the Act are summary in nature and different from a regular procedure. The object being speedy disposal of cases so that the illegally ousted person is put back to possession giving liberty to other party to sue for possession on the basis of better title to possess. The jurisdiction of the Court under S. 6 is limited. It can neither adjudicate nor determine question of title of the parties involved. 11. In the present case, as noticed by the learned trial Judge, there is overwhelming evidence to show that plaintiff Nishi Sharma was in possession of the house in dispute and she was dispossessed by the defendants unlawfully. It can neither adjudicate nor determine question of title of the parties involved. 11. In the present case, as noticed by the learned trial Judge, there is overwhelming evidence to show that plaintiff Nishi Sharma was in possession of the house in dispute and she was dispossessed by the defendants unlawfully. It is the evidence of Nishi Sharma that she was living in the house with Godawari along with her family and had purchased the house. Godawari expired on January 30, 1995 and after her death on April 22, 1995, defendants, numbering about 13/14 persons came to her house at about 2.30 in the morning, took away her house hold articles and turned her out of the house. A report was lodged by her husband with the Police Station, Kullu but defendants being influential persons scuttled the investigation. There is nothing in the cross-examination of this witness, which may show that she was not in possession of the house at the time when she was turned out. The defence of the defendants was that after the death of Godawari and after the death of Giri Raj, Godawari along with her sisters and defendant Nos.1 and 2 inherited the property. Ishwar Dass husband of the plaintiff appearing as DW2 stated that he lodged the FIR Exhibit PA with the Police. He is not cross-examined except that allegations made in the FIR were false. FIR, copy of which is Ext. PA, shows that report was lodged with Police Station at Kullu on April 22, 1995 at 11.00 p.m. In the First Information Report, it was recorded that Ishwar Dass at the relevant time was working at Mandi as Head Draftsman. His family and wife Nishi used to live in the house in dispute at Kullu. When he returned back to Kullu and was going to his house, he was informed that his wife has been turned out of the house by the defendants. The Police recorded the FIR for offences punishable under Ss. 448, 323, 506 read with S. 34 of the Indian Penal Code. Relevant entry in the Assessment Register, copy of which is Exhibit PD proved by Ram Thakur Registration Clerk from the office of the Sub-Registrar Kullu, shows that Nishi Devi is recorded as owner in possession of the house in dispute. 448, 323, 506 read with S. 34 of the Indian Penal Code. Relevant entry in the Assessment Register, copy of which is Exhibit PD proved by Ram Thakur Registration Clerk from the office of the Sub-Registrar Kullu, shows that Nishi Devi is recorded as owner in possession of the house in dispute. Ram Singh PW5 also spoke about the dispossession of the plaintiff from the house in dispute in the hands of defendants. He states that he had seen Nishi Sharma and her family living in that house. 12. The defendants have examined Raj Kumari Sharma (DW1) and Giri Raj (DW2) to rebut the evidence led by the plaintiff. Raj Kumari stated that the house in question is two storeyed building with ten rooms and all the brothers and sisters of Shankar Giri were owners in possession of the house in equal shares. She stated that this house was never sold by Godawari to the plaintiff nor she had any such right. It is her evidence that plaintiff never stayed in that house. According to this witness, her younger brother Ram Krishan lived in that house. Giri Raj (DW2) merely stated that Nishi plaintiff never lived in that house. In cross-examination, he admitted that they came to know about the execution of the sale deed of the house in favour of Nishi Sharma by Godawari but took no action. 13. Appreciating the evidence on record, learned trial Judge concluded that the plaintiff was in possession of the house in dispute immediately before her dispossession by the defendants. The conclusion recorded by the learned trial Court cannot be said to be perverse or de hors the evidence on record particularly in the face of the record of the Municipal Committee in the register of assessment and the FIR lodged by the husband of the plaintiff about the dispossession of the plaintiff. 14. Mr. Verma strenuously urged that the findings of learned trial Judge that plaintiff was in possession of the house in dispute immediately before her dispossession are not correct as the weight of the evidence is against the plaintiff. I am afraid; the contention is misplaced and cannot be accepted. Mr. 14. Mr. Verma strenuously urged that the findings of learned trial Judge that plaintiff was in possession of the house in dispute immediately before her dispossession are not correct as the weight of the evidence is against the plaintiff. I am afraid; the contention is misplaced and cannot be accepted. Mr. Verma refers to Neelkantan v. Mallika Begum, (2002)2 SCC 440 : (AIR 2002 SC 827) and urged that the High Court while considering the matter, in exercise of its revisional jurisdiction, should not hesitate to interfere if the finding was recorded without legal evidence on record or such findings are result of misreading of evidence. The contention has no foundation. The perusal of the evidence, as discussed above, does not show that the findings of possession arrived at by the learned trial Judge was result of misreading of evidence. Even assuming, the defendants were joint owners of the house in dispute, they could not have dispossessed the plaintiff, who was in possession of the house in dispute irrespective of the validity of her title except under due process of law. Once a plaintiff proves that she was in possession of the house in question and that she was dispossessed within six months from the filing of the suit, she would be entitled to relief under S. 6 of the Act. 15. This apart, it may be seen that the Legislature in its wisdom, has deprived an aggrieved party of a right to appeal against the order passed under S. 6 of the Specific Relief Act. However, a right is reserved to the aggrieved party to sue for possession on the basis of title. Therefore, also, in my view, the High Court will refrain from reappreciating the evidence even if on such reappreciation it may be possible to take a different view. Reference may be made to Padartha Amat v. Siba Sahu, AIR 1993 Orissa 92. This Court in Smt. Sudarshana Devi v. Tulsi Ram, (1996)2 Sim. L. C. 171, held that normally the High Court, in its revisional jurisdiction will not interfere in judgments passed under S. 6 of the Act, which is discretionary in nature, as aggrieved party has an alternative remedy by way of filing a separate suit on the basis of title. 16. The conclusion arrived at by the learned Judge cannot be said to be either perverse or against the evidence on record. 16. The conclusion arrived at by the learned Judge cannot be said to be either perverse or against the evidence on record. No jurisdictional error is pointed out by the learned counsel for the petitioners. In result, the petition fails and is dismissed. There will be no order as to costs. Petition dismissed.