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2002 DIGILAW 1685 (RAJ)

Asgari v. Shiv Charan Lal Through L. RS.

2002-10-03

HARBANS LAL

body2002
JUDGMENT 1. - The instant civil revision petition under Section 115 C.P.C. has been preferred against the judgment and decree dated 27.8.1998 passed by the learned Addl. District and Sessions Judge, Dholpur in civil original suit no. 2/97 whereby suit under Section 6 of the Specific Relief Act, 1963 (hereinafter referred to as 'the Act') has been decreed. 2. Briefly stated, the relevant facts are that late Shri Shiv Charan Lal filed the aforesaid suit under Section 6 of the Act against the petitioners herein Mrs. Asgari and Shahbudin in the court of learned District Judge, Dholpur with the averments that the suit shop situated in the market of Bari was of his ownership and possession. It was mortgaged with possession by his grand father Jhinguria and father Chhida lal on 21.3.28 in favour of Khinchi Ram & Heera Lal for a sum of Rs. 3000/-. Then they mortgaged it on 27.4.1947 in favour of Kalua Ram and Badri Prasad for a sum of Rs. 6500/-. A suit for redemption was filed against Kalua Ram Badri Prasad which was 3 decreed on 9.8.2001. It was averred that when the suit property was on mortgage with Kalua Ram Badri Prasad, they rented it to one Bhure Khan, who was the father of petitioner no.2 Shahbudin. During the execution proceedings. Islamuddin son of Bhure Khan filed an application under Order 21 Rule 36 C.P.C. but before its disposal he died and Shahbudin was substituted in his place. Ultimately, the possession of suit shop was handed over to the plaintiff on 24.8.1994 in execution of the decree after evicting Shahbudin therefrom, but on 16.3.1997 defendant no. 1 Asgari forcibly entered the suit shop after breaking open its lock. Mukesh, son of plaintiff, asked her not to do so but she did not heed to his request. The matter was reported to the police and even proceedings under Section 145 Cr.PC. were also initiated. 3. In their written statement, the defendants pleaded that the suit shop belonged to the plaintiff and his brothers Gopi Chand and Munna Lal and Bhure Khan was the tenant of Jhinguria Ram and Chhida Lai prior to the mortgage executed in favour of Kalua Ram and Badri Prasad. The plaintiff was given only symbolic possession and the actual possession continued to be with the defendants. They denied having taken possession of the suit shop forcibly. The plaintiff was given only symbolic possession and the actual possession continued to be with the defendants. They denied having taken possession of the suit shop forcibly. They also pleaded that the plaintiff was not in possession of the suit shop on 15.11.1994. The suit shop continued to be in possession of Bhure Khan and Gopi Chand and Munna Lal were not impleaded as parties. They prayed that the suit be dismissed. 4. On the basis of the pleadings of the parties, ten issues were framed in all. After taking evidence of the parties and after affording them an opportunity of hearing, the suit was decreed vide impugned judgment and decree. 5. I have heard the learned counsel for the parties and have also perused the impugned judgment as well as the record. 6. It has been strenuously argued by the learned counsel for the petitioners that the trial court has failed to consider and he ignored the evidence of the witnesses of defendants DW1 to DW7. The learned court below has, thus, committed jurisdictional error in coming to the conclusion that the suit shop was in possession of the plaintiff on 15.11.1994. According to him, the judgment is, therefore, vitiated by error of law. The plaintiff has not produced receipts of construction work, stones, shutter and other building materials. He has also not examined the mason and labourers, who worked for the purpose. So adverse presumption under Section 114(g) of the Indian Evidence Act should be drawn against the plaintiff that if examined these witnesses would have deposed against him. The factum of handing over of possession by the S.D.M. has been ignored. Irrelevant documents have been considered for deciding the dispossession of the plaintiff. 7. Learned counsel for the non-petitioner has, on the other hand, refuted all the arguments of the learned counsel for the petitioners and has argued that the entire evidence on record has been thoroughly considered and discussed. He has also contended that there is overwhelming documentary evidence on record to prove that the possession of the suit shop was actually and physically handed over to the plaintiff in execution of the decree and after evicting the defendants-petitioners from the suit shop. He has also contended that there is overwhelming documentary evidence on record to prove that the possession of the suit shop was actually and physically handed over to the plaintiff in execution of the decree and after evicting the defendants-petitioners from the suit shop. The signatures of Shahbudin on the list of articles Ex.8 handed over to Shahbudin after removing them from the suit shop further fortifies inference that actual possession of the suit shop was handed over to the plaintiff on 15.11.1994. 8. I have considered the submissions made at the bar. A perusal of the judgment makes it abundantly clear that the learned Court below has considered the entire oral and documentary evidence in sufficient detail and it has giver cogent reasons for deciding the various issues. From the oral and documentary evidence that has come on record, it is satisfactorily proved that the suit shop belonged to ancestors of original plaintiff, late Shiv Charan Lal. They had mortgaged the same in favour of Khinchi Ram Heera Lai for a sum of Rs. 3000/- on 21.3.28. Then they mortgaged with possession of the suit shop on 27.4.47 in favour of Kalua Ram Badri Prasad, who paid the mortgage money of the earlier mortgagee to Khichi Ram Heera Lal. It is also plain from the evidence that the possession of the suit shop was handed over to the plaintiff, late Shiv Charan Lal on 15.11.1994. The documentary evidence of the execution proceedings Ex.6 dated 15.11.1994, receipt Ex.7 of taking over possession executed by late Shiv Charan Lal, receip Ex.9 of paymei it of amount to Aatiko, who broke open the lock and the list of articles Ex.8 found in the suit shop and handed over to Shahbudin which is signed by Shahbudin himself alongwith oral evidence of the witnesses amply proves that the actual, physical possession of the suit shop was handed over to the plaintiff. 9. There is absolutely no pith and substance in the contention of the learned counsel that the learned Court below has not considered and has ignored the evidence of the witnesses. As a matter of fact, the learned Court below has considered the entire oral and documentary evidence on record and I do not find any illegality, impropriety or material irregularity in the approach of the learned Court below. 10. As a matter of fact, the learned Court below has considered the entire oral and documentary evidence on record and I do not find any illegality, impropriety or material irregularity in the approach of the learned Court below. 10. It may not be out of place to state that the scope of Section 115 C.P.C. is limited to jurisdictional error as has been held in the case of M/s. D.L.F. Housing Construction Company (P) Ltd. v. Sarup Singh, AIR 1971 S.C. 2324 wherein their lordships have observed as under: "The position thus seems to be firmly established that while exercising the jurisdiction under section 115, it is not competent to the High Court to correct errors of fact however gross or even errors of law unless the said errors have relation to the jurisdiction of the Court to try the dispute itself. Clauses (a) and (b) of this section on their plain reading quite clearly do not cover the present case. It was not contended, as indeed it was not possible to contend, that the learned Addl. District Judge had either exercised a jurisdiction not vested in him by law or had failed to exercise a jurisdiction so vested in him, in recording the order that the proceedings under reference be stayed till the decision of the appeal by the High Court in the proceedings for specific performance of the agreement in question. Clauses (C) also does not seem to apply to the case in hand. The word "illegally" and "with material irregularity" as used in this clause do not cover either errors of fact or of law, they do not refer to the decision arrived at but merely to the manner in which it is reached. The errors contemplated by this clause may, in our view, relate either to breach of some provision of law or to material defects of procedure affecting the ultimate decision, and not to errors either of fact or of law, after the prescribed formalities have been complied with. The High Court does not seem to have adverted to the limitation imposed on its power cinder section 115 of the Code. The High Court does not seem to have adverted to the limitation imposed on its power cinder section 115 of the Code. Merely because the High Court would have felt inclined, had it dealt with the matter initially, to come to a different conclusion on the question of continuing stay of the reference proceedings pending decision of the appeal, could hardly justify interference on revision under Section 115 of the Code when there was no illegality or material irregularity committed by the learned Additional District Judge in his manner of dealing with this question." 12. The same view has been reiterated in the case of Bhutaleppa Morteppa and others v. Morteppa Bhimappa and others (supra) and it has been observed as under: "For exercise of jurisdiction under Section 115, the applicant has to establish that the jurisdictional error in the order impugned, may be that the Court below has acted illegally or with material irregularity in exercise of jurisdiction or that Court has failed to exercise the jurisdiction vested in it and failed to perform the legal duty cast on it under the provisions of law. When a law requires things to be done and confers power on it, then the Court or the authority refuses to do it either on the basis of wrong decision, it may be said to be a case of illegal refusal to exercise jurisdiction." 13. In this view of the matter, therefore, I do not find any jurisdictional error in the impugned judgment and decree so as to warrant and justify interference in the exercise of the revisional powers vested in this Court under Section 115 CPC and this revision petition, therefore, deserves to be dismissed.14. In the result, this revision petition is hereby dismissed.Revision Dismissed. *******