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2007 DIGILAW 1167 (PAT)

Damyanti Devi v. Kishori Prasad

2007-07-19

CHANDRAMAULI KR.PRASAD

body2007
Judgment 1. Plaintiffs-petitioners, aggrieved by the judgment dated 20th of June, 2006 passed by the Munsif, II, Munger in Title Suit No. 69 of 2001, have preferred this application. 2. Stamp Reporter has objected to the maintainability of this civil revision application. It is relevant here to state that the plaintiffs have confined civil revision application against the judgment only but have not assailed the decree following the judgment. 3. Short facts, giving rise to the presWnt application, are that the plaintiffs filed; suit for recovery of possession of the suit land described in Schedule-I, given in the foot of the plaint and further, for a direction to the defendant to vacate the suit land and handover the possession thereof, to the plaintiffs within reasonable time. 4. According to the plaintiffs, they were coming in possession of the suit land measuring approximately 660 sq.ft. of land. The suit land is a Khasmahal land which would be evident from paragraph no. 12 of the plaint, same reads as follows: "12. That the said outer open sahan of the plaintiffs measuring approximately 660 (six hundred sixty) square feet of land appertaining to Khas Mahal plot no. 60 is fully described in Schedule I given at the foot of the plaint and the same hereinafter for the sake of brevity is called as the suit-land." 5. Plaintiffs are not claiming any title over the suit land and according to them, it is a Khasmahal land. The Court below, on consideration of the material on record, came to the conclusion that the plaintiffs have no title nor possession over the suit land and accordingly, held the suit to be not maintainable. 6. Mr. Keshav Srivastava, Senior Advocate, appearing on behalf of the petitioners, submits that the plaintiffs have sought relief under Sec. 6 of the Specific Relief Act, hereinafter referred to as "the Act" and hence, the Court below, misdirected itself in going to the question of title, while holding the suit to be not maintainable. In support of his submission, he has placed reliance on a Full Bench judgment of Allahabad High Court in the case of Yar Muhammad and Another vs. Laxmi Das and Others, AIR 1959 Allahabad 1 and my attention has . been drawn to paragraph nos. 11 and 12 of the judgment, which read as follows: "11. In support of his submission, he has placed reliance on a Full Bench judgment of Allahabad High Court in the case of Yar Muhammad and Another vs. Laxmi Das and Others, AIR 1959 Allahabad 1 and my attention has . been drawn to paragraph nos. 11 and 12 of the judgment, which read as follows: "11. Possession is prima facie evidence of title and if a person who is in possession is dispossessed he has a right to claim back possession from the person who dispossess him. In an ordinary suit of that kind if the plaintiff succeeds in establishing his title as well as possession he is bound to succeed. Even if he is unable to prove his title he can succeed on the basis of prior possession alone. But the suit can easily defeated if the defendant succeeds in proving a good title in himself or another. In that case the presumption in favour of the plaintiff is displaced. In such a suit, therefore, the title of both the parties can be brought in issue and can be considered by the court. A suit under section 9 of the Specific Relief Act is however an entirely different kind of action. That section gives a special privilege to persons in possession who take action promptly. In case they are dispossessed it entitles them to succeed simply by proving: (1) that they were in possession, (2) that they have been dispossessed by the defendant, (3) that the dispossession is not in accordance with law, and (4) that the dispossession took place within six months of the suit. "12. No question of title either of the plaintiff or of the defendant can be raised or gone into in that case. The plaintiff will be entitled to succeed without proving any title on which he can fall back upon and the defendant cannot succeed even though he may be in a position to establish the best of all titles. The restoration of possession in such a suit is however always subject to a regular title suit and the person who has the real title or even the better title cannot therefore be prejudiced in any way by a decree in such a suit. It will always be open to him to establish his title in a regular suit and to recover back possession." (underlining mine) 7. It will always be open to him to establish his title in a regular suit and to recover back possession." (underlining mine) 7. Reliance has also been placed by Mr. Srivastava on a judgment of Karnataka High Court in the case of Mahboob Pasha vs. Vishwanath Chetty and Others, AIR 1994 Karnataka 350, relevant portion whereof reads as follows: "14. Where a suit is filed for possession under S. 6 of the Act, what is required to be decided by the Court is the factum of possession of the plaintiffs of the suit property and their dispossession therefrom without his consent otherwise than in due course of law, and the institution of suit forpossession within 6 months thereof, S. 6 does not require the Court to decide any question either as to the title of the parties to the suit property or as to any other right of any party with respect to the suit property." 8. Yet another decision of the Supreme Court relied on by Mr. Srivastava is the case of Sanjay Kumar Pandey and Others vs. Gulbahar Sheikh and Others, (2004)4 Supreme Court Cases 664 and my attention has been drawn to its paragraph no. 4, which reads as follows: "4. A suit under Sec. 6 of the Act is often called a summary suit inasmuch as the enquiry in the suit under Sec. 6 is confined to finding out the possession and dispossession within a period of six months from the date of the institution of the suit ignoring the question of title. Sub-section (3) of Sec. 6 provides that no appeal shall lie from any order or decree passed in any suit instituted under this section. No review of any such order or decree is permitted. The remedy of a person unsuccessful in a suit under Section 6 of the Act is to file a regular suit establishing his title to the suit property and in the event of his succeeding he will be entitled to recover possession of the property notwithstanding the adverse decision under Section 6 of the Act. Thus, as against a decision under Sec. 6 of the Act, the remedy of unsuccessful party is to file a suit based on title. Thus, as against a decision under Sec. 6 of the Act, the remedy of unsuccessful party is to file a suit based on title. The remedy of filing a revision is available but that is only by way of an exception; for the High Court would not interfere with a decree or order under Sec. 6 of the Act except on a case for interference being made out within the well-settled parameters of the exercise of revisional jurisdiction under Sec. 115 of the Code." 9. Mr. Shukla, however, appearing on behalf of the opposite party, submits that the whole premises on which the plaintiffs have proceeded, is untenable in law. He points out that the suit in question is not a suit under Sec. 6 of the Act. He points out that suit property admittedly is a Khasmahal land, and therefore, a Government land and hence, no suit under this provision can be brought. He submits that the plaintiffs have cleverly not impleaded the State Government, as the defendant in the suit. 10. Having appreciated the rival submission, I do not find any substance in the submission of Mr. Srivastava and the decisions relied on, in no way, supports his contention. Sec. 6 of the Act, which is relevant for the purpose, reads as follows: "6. Suit by person dispossessed of immovable property. (1) If any person is disposed 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: (a) after the expiry of six months from the date of dispossession; or (b) against the Government," 11. From a plain reading of Sec. 6 of the Act, it is evident that in a suit to recover possession, the court may not go into the title of the plaintiffs, but subsection (2) of Sec. 6 of the Act clearly contemplates that no suit under Sec. 6 of the Act, can be brought against the Government. Suit land is a Government land and hence, in view of the bar put by Section 6(2) of the Act, suit filed by the plaintiffs cannot be said to be under Sec. 6 of the Act. 12. Objecting to the stamp report, Mr. Suit land is a Government land and hence, in view of the bar put by Section 6(2) of the Act, suit filed by the plaintiffs cannot be said to be under Sec. 6 of the Act. 12. Objecting to the stamp report, Mr. Srivastava, all the times, emphasised that the remedy of revision is available as the suit was under Sec. 6 of the Act. True it is that in a suit under Sec. 6 of the Act, the remedy of appeal is not available and unsuccessful party may take recourse to remedy of revision but in face of my finding that the suit in question is not a suit under Sec. 6 of the Act, the Stamp Reporter is right in taking the view that remedy of revision is not available to the petitioners. 13. In the result, I do not find any merit in this application and it is dismissed accordingly but without any order as to cost. 14. However, this order will not preclude the petitioners from taking recourse to any other remedy available to them in law.