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2006 DIGILAW 744 (GAU)

Karuna Kanta Barman v. Ramesh Baishya

2006-08-10

I.A.ANSARI

body2006
JUDGMENT I.A. Ansari, J. 1. This revision is directed against the judgment and decree, dated 20.9.2003, passed, in Title Suit No. 15/2001, by the learned Civil Judge (Jr. Division) No. 3, Guwahati, dismissing the suit of the plaintiff-petitioner. 2. The case of the plaintiff-petitioner may, in brief, be described, thus: The plaintiff has been in possession of a plot of land measuring about 2 Kathas, described in Schedule A to the plaint, since 1968. The land measuring about 7 Lechas, described in Schedule B to the plaint, forms a part of the land of Schedule A. The land of the plaintiff and that of the defendant are located contiguous to each other and, while the plaintiff's land is a plot of government land, the land owned and possessed by the defendant is a patta land. By making false accusations against the plaintiff of his having made attempts to dispossess the defendant from the land of Schedule B, the defendant instituted a proceeding under Section 145 Cr.P.C., and got, on 12.9.1997, the land of Schedule B attached under Section 146 Cr.P.C., this proceeding having given rise to Misc. Case No. 503/97. The plaintiff filed a written statement, in the said proceeding, clarifying that the land, claimed to have fallen under Dag No. 90 of Kachha Patta No. 6 by the defendant, is not a government land and that the land, which has been attached, is a separate piece of land. However, by order, dated 10.1.2001, passed in Misc. Case No. 503/97 aforementioned, possession of the said attached land was declared in favour of the defendant and, acting on the directions issued by the learned Executive Magistrate, the police handed over the possession of the land of Schedule B to the defendant, though the land of Schedule B has never been in the possession of the defendant. Having received the possession of the land of Schedule B, the defendant constructed a boundary wall around the land of Schedule B and blocked thereby entry to the said plot of land by the plaintiff, though the plaintiff had been using the said piece of land, in the past, for the purpose of his entry into, and exit from, his house to the main road. 3. On conclusion of the trial, as the impugned decree was passed dismissing the suit, the plaintiff is, now, before this Court, with the help of the present Revision. 4. 3. On conclusion of the trial, as the impugned decree was passed dismissing the suit, the plaintiff is, now, before this Court, with the help of the present Revision. 4. I have heard Mr. D.C. Mahanta, learned senior counsel, appearing on behalf of the plaintiff-petitioner, and Mr. P.K. Deka, learned Counsel for the defendant-opposite party. 5. Presenting the case on behalf of the plaintiff-petitioner, Mr. D.C. Mahanta, learned senior counsel, has submitted that in the present case, the plaintiff's suit, instituted under Section 6 of the Specific Relief Act, was for recovery of possession of the land of Schedule B by evicting the defendant therefrom. In the face of the case set up by the plaintiff, the learned trial court ought to have, points out Mr. Mahanta, held an enquiry into the question as to whether the land of Schedule B had been in possession of the plaintiff, as claimed by him, and whether the plaintiff had been dispossessed by the defendant from the said government land, (which is described in Schedule B) otherwise than in due course of law. No such enquiry, according to Mr. Mahanta, was ever made by the learned trial court and in the absence of any finding, in this regard, the suit was dismissed, which is, contends Mr. Mahanta, wholly illegal and warrants interference by this Court in exercise of its reversional jurisdiction. 6. Controverting the above submissions made on behalf of the plaintiff-petitioner, Mr. P.K. Deka, learned Counsel, appearing on behalf of the defendant-opposite party, submits that the specific finding of the learned trial court is that the land, which was a subject-matter of the proceeding under Section 145 Cr.P.C., is the land, which has been described in Schedule B to the plaint, and since the defendant has been put in possession of this plot of land in accordance with the provisions of law contained under Section 145 Cr.P.C., no suit for recovery of possession could have been legally maintained under Section 6 of the Specific Relief Act on the ground that the defendant had come into the possession of this plot of land illegally or otherwise than in due course of law. If the plaintiff wanted to have a declaration of his possessory right over this plot of land, he ought to have instituted, contends Mr. If the plaintiff wanted to have a declaration of his possessory right over this plot of land, he ought to have instituted, contends Mr. Deka, a suit for declaration of his possessory rights over this plot of land in terms of the provisions of Section 5 of the Specific Relief Act. It is further submitted by Mr. Deka that the plaintiff miserably failed to prove that the plaintiff has been dispossessed from the suit land otherwise than in due course of law. In such a case, reiterates Mr. Deka, the learned trial Court was wholly justified in dismissing the suit. 7. While considering the present revision, it is pertinent to bear in mind that in a suit under Section 6of the Specific Relief Act, the limited enquiry, which is required to be made by the civil court, is confined to the question as to whether the plaintiff had been in possession of the immovable property, which is the subject-matter of the suit, and if he had been in possession thereof, whether he had been dispossessed therefrom, without his consent, otherwise than in due course of law and, further, whether such dispossession had taken place not later than six months before institution of the suit. If any of the conditions, indicated hereinbefore, is found absent, the plaintiffs suit must fail. 8. Logically, therefore, when a person is put, following a proceeding under Section 145 Cr.P.C., in possession of a plot of land, such dispossession of the plaintiff not being otherwise than in due course of law, no suit under Section 6 of the Specific Relief Act, in such a case, can be maintained. In fact, even if it is found, in a such a suit under Section 6 of the Specific Relief Act, that the plaintiff had been in possession of the suit land and yet the defendant has been put in possession of the land in due course of law by way of an order passed under Sub-section (4) of Section 145 Cr.P.C., the plaintiff cannot be put into possession of such a land by the civil court by evicting the defendant therefrom, for, in a suit under Section 6 of the Specific Relief Act, the civil court cannot decide or hold that the proceeding under Section 145 Cr.P.C. was illegally drawn and/or the declaration of possession thereof in favour of the defendant was illegal or incorrectly given. If, in a given case, the defendant has been put into possession of the suit land following the proceeding under Section 145 Cr.P.C., the remedy lies in instituting a suit either for the plaintiff's declaration of rights, title and interest over such a property under Section 34 of the Specific Relief Act or in instituting a suit, under Section 5 of the Specific Relief Act, seeking declaration of his possession over such a plot of land and recovery of possession thereof. To put it differently, in a suit under Section 6 of the Specific Relief Act, until the time a civil court finds that a person has been dispossessed otherwise than in due course of law, he cannot be put into possession of the plot of land, which such a person claims to have been in possession of. 9. Bearing in mind the position of law as indicated above, when I turn to the suit at hand, what attracts the eyes, most prominently, is that the specific finding of the learned trial court is that the land in respect of which the proceeding under Section 145 Cr.P.C. was drawn and the land, which was attached, in exercise of powers under Section 146 Cr.P.C., is the same land and that this piece of land has been described in Schedule B to the plaint. In other words, according to the specific finding of the learned trial court; the land of Schedule B to the plaint is the land, which was the subject-matter of dispute in a proceeding under Section 145 Cr.P.C. That both these plots of land are one and the same is clear from the fact that even the plaintiff has admitted, in his cross examination, that the land, which was attached, and the land, possession whereof has been handed over to the defendant in the said proceeding under Section 145 Cr.P.C., are one and the same. 10. In view of the fact that the defendant has been put into the possession of this plot of land following a proceeding under Section 145 Cr.P.C., the defendant cannot be dispossessed therefrom, for, in a case of present nature, it cannot be held that the defendant has been put into possession of the land, in question, by dispossessing the plaintiff otherwise than in due course of law. Viewed from this angle, it is abundantly clear that when the defendant has been put into possession of the land, in question, following a proceeding under Section 145 Cr.P.C., and the order, passed on 10.1.2001, in this regard, has not been set aside or superseded by any court of competent jurisdiction, the defendant's possession of the land cannot be disturbed by taking recourse to Section 6 of the Specific Relief Act. 11. The remedy of the petitioner lies, if I may reiterate, in instituting an appropriate suit either under Section 5 of the Specific Relief Act or by instituting a suit, under Section 34 of the Specific Relief Act, seeking declaration of his rights, title and interest over such a plot of land. Yet another course open to the plaintiff is to move the revisional court seeking interference with the order, dated 10.1.2001, passed in the said proceeding under Section 145 Cr.P.C., for, if the revisional court sets aside the order, dated 10.1.2001, aforementioned, the plaintiff may, in the absence of any further proceeding, be put into possession of the land. 12. Because of what have been pointed out above, I do not find that the dismissal of the suit by the impugned decree suffers from any infirmity, which warrants exercise of this Court's revisional jurisdiction. 13. In the result and for the reasons discussed above, this revision fails and the same shall accordingly stand dismissed. 14. No order as to cost. Petition dismissed.