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2006 DIGILAW 280 (GAU)

Mohit Ch. Saikia v. Md. Lal Mian

2006-03-23

P.G.AGARWAL

body2006
JUDGMENT P.G. Agarwal, J. 1. Heard Mr. K.K. Mahanta, learned senior counsel appearing for the appellant and Mr. B.K. Goswami, learned senior counsel appearing for the respondent. The appellant plaintiff instituted a Title Suit No. 157/93 for declaration of his right, title interest over the suit land and for recovery of possession and for removal of the constructions made by the respondent-defendant. The suit was contested by the defendant and the trial court framed as many as eight issues and thereafter dismissed the suit as not maintainable. Title Appeal No. 24/96 was preferred before the Civil a Judge, Senior Division, Nagaon and vide impugned judgment the appellant court affirmed the judgment and decree passed by the trial court and, hence, the present appeal. We find that both the courts below have dismissed the suit of the plaintiff appellant solely on the ground that there was earlier a suit between the parties where the right title was decreed and the possession was handed over to the plaintiff on execution of the decree and as such the subsequent suit on the same facts between the same parties is not maintainable and the plaintiff could have filed an application under Section 6 of the Specific Relief Act and as such the suit is not maintainable. The substantial question of law which arises is where the plaintiff chooses not to file a suit under Section 6 of the Specific Relief Act whether he is barred from filling a regular suit for recovery of possession based on title ? In the present case the broad facts, as stated, are not in dispute. We have perused the impugned judgment and find that both the courts below have held that as the plaintiff right title were decreed in the earlier suit, no fresh suit for recovery of possession was maintainable in view of the provisions of Section 6 of the Specific Relief Act. In other words, the courts below were of the view that the provision of Section 6 debars the party from filing a regular suit in the matter of illegal dispossession. A perusal of Section 6 of the Specific Relief Act shows that it provides the relief to a person to recover possession in the case of forcible and illegal dispossession. In other words, the courts below were of the view that the provision of Section 6 debars the party from filing a regular suit in the matter of illegal dispossession. A perusal of Section 6 of the Specific Relief Act shows that it provides the relief to a person to recover possession in the case of forcible and illegal dispossession. It is an additional mode of relief provided under the Specific Relief Act and it cannot be said to affect the relief available under the civil law. Mr. Goswami, learned senior counsel in his usual fairness has stated a that the legal position is that notwithstanding the provisions of Section 6 of the Specific Relief Act, a party may choose to file a regular suit for recovery of possession based on title. The matter can be viewed from another angle also. The suit under Section 6 of the Specific Relief Act is required to be brought before the expiry of six months and in cases where the period of six months has expired, can it be said that the party has become remediless and no relief is available to such party. We hold that Section 6 cannot be a bar for filing a regular suit and the finding of the courts below that the suit is not maintainable cannot be supported and it needs to be set aside which we do hereby. As the appeal was dismissed on this short point we remit the same back to the appellant court to dispose of the same on merit after hearing both sides. So far the issue of maintainability is concerned it stands answered in favour of the appellant-plaintiff. Both the parties shall appear before the Civil Judge (Senior Division) Nagaon on 28th April, 2006. Send down the records.