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2003 DIGILAW 1405 (RAJ)

Narain Lal v. Kishan Nath

2003-10-15

N.P.GUPTA

body2003
JUDGMENT 1. - This revision has been filed by the defendant against the judgment & decree of the learned Additional civil judge (Sr. Div.) No. 1, Udaipur dated 11.3.1999, passed in Civil Suit No. 39/97, decreeing the plaintiffs' suit, having been filed under section 6 of the Specific Relief Act. During pendency of the trial, the 5 suit was permitted to be amended, on the application of the plaintiff filed under Order 1, Rule 10 C.P.C., vide order dated 28.9.1987, and three more defendants were added, in view of the subsequent events. 2. Brief facts of the case are that on 10.7.1980 the plaintiffs-non,petitioners filed a suit in the Court of District Judge, Udaipur alleging inter ilia that one property, of their father Amar Nath, was under usufructuary mortgage with Shri Hira, father of defendant No. 2 Dharamlal. The suit for its redemption was filed, which was decreed on 9.10.1979, in execution thereof the mortgage/decree holders were delivered possession on 12.1.1980. It was also alleged that during pendency of the suit for redemption, the mortgagee closed the western door, and instead opened a door in the South, and at the same time the 'Chabutra', which existed on the Western side, was converted into a shop, despite protest, and decree for redemption included this apartment as well, with the result that in execution, the tenant, being the present petitioner, was also dispossessed, and possession was received by 20 the plaintiff. It was then alleged that thereafter, the present petitioner, on 18.1.1980, again forcibly took possession of the property (shop), and therefore, the suit was filed under section 6 of the Specific Relief Act, within a period of six months. By amendment of the plaint it was further pleaded that, after the present petitioner's forcibly taking possession, on the basis of the rent note, executed by the present petitioner, in favour of Dharamlal and Ramlal, the other two defendants, a suit for eviction was filed, and in execution thereof, Ramlal and Dharamlal obtained possession from Narainlal, thereafter these three persons colluded, and Narainlal again entered into possession, and thereafter he appears to have obtained a licence from the Municipality, the 30 defendant No.4, and thus these persons were also impleaded as defendants. 3. 3. The defendant No. 1, the petitioner, filed his written statement, and contended, that he is not aware about the Sale Amin having delivered possession to the plaintiff, other pleadings were also denied, and it was contended that there was no 'Chabutra' towards the West of the house, and the plaintiff had nothing to do with the land existing at that place. He denied to have been dispossessed in execution of the redemption decree, and took the stand that he is not the tenant of Dharamlal, as the land never belonged to Dharamlal, obviously, the pleadings about forcibly entering back into s possession on 18.1.1980 was also denied. It was pleaded that in the redemption suit he was not impleaded as party. Thus it was pleaded that the plaintiff had nothing to do with the land in question. In additional pleas it was contended that, the shop on which the defendant is carrying on the business, never belonged to Dharamlal, rather he has himself constructed it on the Municipal land, for which he obtained licence from the Municipal Council, and is regularly paying licence fee. It was also pleaded that the other defendants filed application for purchase of the land, which was rejected by the Municipal Council, he also pleaded that Dharamlal has also filed a suit for eviction against him, and therefore, pending disposal of that suit, the proceedings of the present suit be stayed. The other private defendants did not file any written statement. However, after being added as party, the Municipal Council did file a written statement, taking a stand that Dharamlal had encroached upon the Municipal land, and had raised construction, which was removed by the Municipality on 8.1.1986, and therefore, the petitioner is not in possession of the land, the land was claimed to be Municipal land. In additional pleas it was pleaded that, on 29.1.1980 the petitioner's father had filed an application before Municipal Council for being given temporary licence, then on 3.2.1980 the petitioner filed an application for giving licence, whereupon licence was granted, but on account of licence fee not being 25 paid, it was cancelled and possession was resumed by the Municipality. It was then pleaded that Dharamlal had filed an application on 15.2.72, for being allotted the land. but on account of the objection being raised on the side of the present plaintiff, the application was dismissed. It was then pleaded that Dharamlal had filed an application on 15.2.72, for being allotted the land. but on account of the objection being raised on the side of the present plaintiff, the application was dismissed. Then on 8.1.1986 the possession of Dharamlal was removed, thereafter the present petitioner 30 has encroached upon that land, and a notice was given to him to remove that possession. With these pleadings it was pleaded that the suit be dismissed. A rejoinder was filed on behalf of the plaintiff. The learned trial Court, on the pleadings framed some six issues. The issue No.1 was about as to whether the possession was obtained by the plaintiff on 12 1.1980, in execution of the decree for redemption. Then issue No. 2 comprehended the question as to whether the present petitioner has forcibly dispossessed the plaintiff from the suit shop on 18.1.1980, then issue No. 3 was as to whether the land is a Municipal land, on which the present petitioner is a licensee, and that the present petitioner has raised construction of the shop. Issue No. 4 was as to whether Municipality was a necessary party, while issue No. 5 related to, under valuation of the suit, and issue No. 6 related to the relief. In view of the fact that the Municipality had been impleaded as party, issue No. 4 did not require to be decided, and the learned trial Court by deciding other issues in favour as of the plaintiffs, decreed the suit. 4. The learned counsel for the petitioner has assailed the impugned order, mainly on the ground, that from the plaintiff's evidence it is riot established that the plaintiff was delivered possession of the suit property on 12, 1980 in execution of the decree for redemption. It was then contended that the land in question is a Municipal land, on which construction has been raised by the present petitioner, and that the present petitioner is a licensee from the 'Municipal Council. in that view of the matter, since the petitioner has right over the land, the impugned decree could not be passed. 5. On the other hand. learned counsel for the non- petitioners, have supported the impugned order. 6. I have considered the submissions, and have also perused the record, so also the pleadings of the parties. 7. Since the present is a suit filed Ws. 5. On the other hand. learned counsel for the non- petitioners, have supported the impugned order. 6. I have considered the submissions, and have also perused the record, so also the pleadings of the parties. 7. Since the present is a suit filed Ws. 6 of the Specific Relief Act, wherein the question of entitlement of any of the parties to the possession of the property, or to the title of the property, is not at all even permissible to be gone into, and the only facts required to be proved are. that the plaintiff has been dispossessed rather forcibly dispossessed, or dispossessed otherwise than the due process of law. then a suit can be filed under section 6 for restoration of possession, irrespective of any title. In that view of the manner, the only question required to be seen is, as to whether the plaintiff was in possession of the suit property, as contended by him, as on 12.1.1980, and that the defendant has forcibly dispossessed the plaintiff on 18.1.1989, or on any other date within a period of six months before filing of the suit. Even at the cost of repetition it may be noticed that, in a suit under section 6 of the Specific Relief Act, the title of the defendant is not at all required to be gone into, so much 20 so that even if it is admitted that defendant has title, and the plaintiff has no title, still the plaintiff is to establish, that he has been dispossessed, otherwise than by due process of law, within a period of six months, next before the date of filing of suit, then he is entitled to be restored the possession, leaving the defendant to obtain possession by due process of law. In that view of the 25 matter, the question of the defendant's title, or right, to remain in possession, either on the basis of land not belonging to the plaintiff, or on the basis of land being belonging to the Municipality, and the defendant being licensee from the Municipality, are all not required to be gone into at all, and the only question requiring to be seen is, as to whether the present plaintiff came into 30 possession of the property on 12.1.1980, in execution of the decree for redemption. and as to whether the present petitioner has again forcibly dispossessed the plaintiff on 18.1.1980. and as to whether the present petitioner has again forcibly dispossessed the plaintiff on 18.1.1980. 8. In view of this established legal position, the documentary and oral evidence, produced by the petitioner, having any bearing on the present petitioner's right to property, or about the present plaintiff having no title on the property, is not at all required to be gone into. 9. Then coming to the core question, suffice it to say, that from a combined reading of Ex.2 and Ex.11, it is more than clearly established that on 12.1.1980 the present petitioner was dispossessed from the suit property in execution of the decree for redemption passed by the learned trial Court in favour of the plaintiff. Then admittedly the petitioner is continuing in possession of the property, and claims to be the licensee of the Municipality. It is significant to note, that from the material on record, it is clear, that the story of the defendant No. 1 the petitioner being in possession as a licensee as originated from the date after the execution of the decree. as appearing from Ex.2 and Ex.11, inasmuch as the first application, filed for being granted license, was filed by the petitioner's father on 29.1.1980 only. There is nothing whatever on record, to even prima facie show, that the petitioner, or his father, at all had any licence over the suit property, from the Municipality prior to 12.1.1980. Therefore, this issue cannot be said to have been wrongly decided by the learned trial Court. Though the learned trial Court has noticed, that for the act of the defendant's having forcibly trespassed over the property in question. a criminal prosecution was launched against him for criminal trespass, wherein the present petitioner has been convicted, and that prosecution related to the allegation, about the present petitioner having trespassed on 18.1.1980. Suffice it to say that, the findings recorded by the Criminal Court are not admissible in civil suit, but then even the learned trial Court was conscious of this fact. and has simply noticed this fact, only for the limited purpose of considering the fact of the alleged incident being related to 18.1.1980. Suffice it to say that, the findings recorded by the Criminal Court are not admissible in civil suit, but then even the learned trial Court was conscious of this fact. and has simply noticed this fact, only for the limited purpose of considering the fact of the alleged incident being related to 18.1.1980. I do not even propose to consider that judgment at all, but then, what is significant to note is, as noticed above, that the present petitioner has not placed anything on record to show that he was a licensee to at any point of time prior to 18.1.1980. 10. In that view of the matter, I do not find any jurisdictional error on the part of the learned trial Court, in deciding this relevant question also in favour of the plaintiff. 11. No other point was pressed. 12. The revision petition thus has no force, and is hereby dismissed.Second Appeal Dismissed. *******