JUDGMENT 1. - This revision petition under Section 115 C.P.C. is directed against the judgment dated 26.4.2012 passed by Civil Judge (Sr. Div.), Jaisalmer, whereby the suit filed by respondent- Kisan Lal under Section 6 of the Specific Relief Act, 1963 ('the Act') has been decreed and the appellant-defendant has been directed to handover physical possession of the disputed plot to the plaintiff within a period of 15 days, however, the relief of permanent and mandatory injunction has been refused as having merged in the decree relating to possession. The suit against the defendant No.2 Municipal Board, Jaisalmer and the cross-objection filed by the defendant No.1 - Brij Ratan Chhangani has been rejected. 2. The facts, in brief, may be noticed thus : the plaintiff Kisan Lal filed a suit on 16.7.2008 under Section 6 of the Act seeking possession and permanent and mandatory injunction against the defendant Brij Ratan Chhangani and the Municipal Board, Jaisalmer with the averment that the plaintiff was in possession of a plot of land ad-measuring 25' x 50' from 1993 at Gafoor Bhattha Kacchi Basti, Jaisalmer, which was regularised by the Municipal Board and on account of plaintiff's possession, a resolution was passed by the Municipal Board for regularising the said possession, however, as the land in question was reserved for dispensary, a request was made to the Municipal Board to give him another plot of land and regularise the same. It is claimed that the surveyor of the Municipal Board proposed regularisation of Plot No.E-73 and subsequent thereto, after receiving the amount of regularisation from the plaintiff, the Municipal Board executed allotment letter in favour of the plaintiff indicating the boundaries and area. It was further claimed in the plaint that the said Plot No.E-73 was in continuous possession and title of the plaintiff, however, in the last week of June, 2008, the defendant trespassed on the said land and placed stone slabs. Consequently, the plaintiff prayed for possession of the land from defendant- Brij Ratan Chhangani and injunction against the Municipal Board not to regularise the land in favour of defendant No.1. 3. A written statement was filed by the appellant-defendant contesting the averments made in the plaint. It was denied that the plaintiff was in possession of the plot of land, which he claims to have surrendered and was consequently allotted Plot No.E-73. 3. A written statement was filed by the appellant-defendant contesting the averments made in the plaint. It was denied that the plaintiff was in possession of the plot of land, which he claims to have surrendered and was consequently allotted Plot No.E-73. It was claimed that the plaintiff is a resident of Sanwala Pada at Jaisalmer where he has his residence, he has purchased a Plot No.554 from the Municipal Board at Jainarayan Vyas colony in auction and therefore, the land in question could not have been allotted to the plaintiff. It was claimed that the defendant was in possession of Plot No.E-73 and for which the proceedings for regularization were pending and amount for regularisation has been deposited. It was claimed that the allotment letter was issued against the provisions of law and suppression of material facts and therefore, the defendant by way of counter claim sought cancellation of allotment letter. 4. A written statement to the counter claim was filed by the plaintiff only and it was prayed that the counter claim be dismissed. 5. The Municipal Board also filed a written statement to the plaint filed by plaintiff-Kisan Lal admitting the regularisation of the Plot No.E-73 in his favour and claiming that on account of mistake, the proceedings for regularisation in favour of defendant No.1 Brij Ratan Chhangani were undertaken which could not be done and prayed for dismissal of the suit. 6. The trial court framed five issues. On behalf of the plaintiff, statement of Kisan Lal as PW-1 and Ramlal as PW-2 were recorded and on behalf of the defendants, statement of Brij Ratan as DW-1 and Tara Chand as DW-2 were recorded. 7. After hearing the parties, learned trial court came to the conclusion that the suit was filed by the plaintiff based on possession and title documents and possession can be actual, physical or symbolic and it is not necessary that a person filing the suit should prove his actual possession on the suit property. The trial court was also of the opinion that there is a registered document in favour of the plaintiff and comparatively the case of a party in possession of registered document stands on a better footing and consequently held the plaintiff could be in possession of the suit property from before six months of the date of filing of the suit. The trial court was also of the opinion that the defendant was in illegal possession of the suit property and therefore, the plaintiff was entitled to possession of the suit property. On the issue seeking cancellation of the allotment in favour of the plaintiff based on the counter claim filed by the defendant, the trial court came to the conclusion that the defendant has not complied with provisions of Section 271 of the Rajasthan Municipalities Act, 1959 / Section 304 of the Rajasthan Municipalities Act, 2009 regarding prior notice and therefore, the counter claim was not maintainable, further an alternative remedy of filing revision before Divisional Commissioner had been availed by him and as such dismissed the same. 8. It is submitted by learned counsel for the petitioner that a bare reading of the plaint would reveal that the basic requirement of alleged possession / dispossession for a suit under Section 6 of the Act has not been complied with by the plaintiff and therefore, the suit itself was not maintainable. It was submitted that a bare look at the statement of the plaintiff would reveal that the plaintiff does not even know the place where the plot was situated and therefore, the suit under Section 6 of the Act was not maintainable. 9. It was also submitted that the trial court committed error in dismissing the counter claim for lack of prior notice at the instance of objection raised by the defendant No.1 when no reply to the counter claim was filed by the Municipal Board. It was prayed that the decree passed in favour of the plaintiff be set-aside and matter be remanded back to the trial court for adjudication on the counter claim. 10. Learned counsel for the plaintiff vehemently supported the judgment passed by the trial court on the basis of the regularisation letter (patta) issued by the Municipal Board. It was submitted that the defendant has no right on the said plot of land and the trial court was justified in passing the decree in favour of the plaintiff. 11. Learned counsel placed reliance on the judgment of this Court in Raj Kumar Nalwaya v. Atam Singh Kalara, S.B. Civil Revision Petition No. 105/2009, decided on 14.3.2012 , in support of the finding under Section 271 of the Rajasthan Municipalities Act, 1959 recorded by the trial court. 12. I have considered the rival submissions. 13. 11. Learned counsel placed reliance on the judgment of this Court in Raj Kumar Nalwaya v. Atam Singh Kalara, S.B. Civil Revision Petition No. 105/2009, decided on 14.3.2012 , in support of the finding under Section 271 of the Rajasthan Municipalities Act, 1959 recorded by the trial court. 12. I have considered the rival submissions. 13. It is trite law that in a suit for possession under Section 6 of the Act, it is not necessary to consider the nature of the title by the parties. What is necessary to be considered is who was in possession of the suit property and whether the plaintiff has been dispossessed without due course of law within a period of six months immediately before filing of the suit and the section rules out enquiry as to title and the court acts without jurisdiction, if it goes into the title and decide the suit based on the same. 14. 14. Examining the present suit on the above parameters, it would be relevant to notice and quote para 3 of the plaint, which reads as under:- " 3- ;g gS fd mDr losZa la0 952&1 LFky fMlisUljh dh vkjf{kr txg esa vkus ls oknh }kjk izfroknh la0 nks ds le{k vkosnu&i= is'k fd;k fd fMLisaljh esa mldk dCtklqn LFky vkus ls mls vU;= txg nh tkrh gS rks vkifr ugha gSa vkSj dCtk mDr LFky ls vU;= LFky cnydj fnyk;s tkus dh izkFkZuk dh] ftl ij uxjikfydk losZ;j us Hkw[k.M la[;k bZ&73 fu;eu djuk izLrkfor fd;k] ftl ij uxjikfydk izfroknh la0 nks }kjk mDr Hkw[k.M vkoaVu djus o fu;eu djus gsrq v/;{k dks fjiksVZ is'k dh] ftl ij uxjikfydk v/;{k us fu;eu djuk vknsf'kr fd;k vkSj mDr vkns'k ij oknh ls uxjikfydk us fu;eu jkf'k o yht jkf'k lfgr :0 909@& ( v{kjs ukS lkS ukS :i;s ) tek dj fu;eu vf/kdkj i=] dCtk ys vkmV tkjh fd;kA mDr fu;eu] vkoaVu@vf/kdkj i= dh udy voyksdukFkZ is'k gSA bl izdkj oknh dk oS/k dCtk] vkoaVu IykWV la[;k bZ&73 lkbZt 20x45 QqV dk gSA ftldh gnwn fuEu gSa%] mRrj %& IykWV la0 bZ&72 nf{k.k %& vke jksM+ iwoZ %& jksM if'pe %& IykWV ua0 bZ&44 vk;k gqvk gSA mijksDr gnwn o uki dh txg ij oknh dk izfroknh la0 nks }kjk HkkSfrd :i ls dCtk nsdj iV~Vk tkjh fd;k x;kA rc ls mDr txg dk oS| ekfyd] dkfct] LokfeRo/kkjh oknh gSa] ftl ij fdlh vU; dk vFkok izfroknh la0 ,d dk dksbZ oS| dCtk] LokfeRo] feyfd;r ugha gSa] cfYd izfroknh la0 ,d us oknh dh xSjekStwnxh esa mlds oS|] feyfd;r] dCtk] LokfeRo ds IykWV ua0 bZ&73 ij tcju dCtk dj jkrksa&jkr Nha.ks [kM+h dj nh] ftl ij oknh us mls le>k;k o ekStht yksxksa us le>k;k] ysfdu izfroknh la0 ,d ugha ekukA mDr Nh.ks izfroknh la0 ,d us twu ekg ds vfUre lIrkg ds vklikl oknh ds mDr IykWV ij voS/k :i ls vfrdze.k dj dCtk djus dh uh;r ls Nh.ksa [kM+h dh gS] ftls le>kbZ'k djus esa dkQh le; yxk] ugha ekuk vkSj mYVk oknh ds lkFk /kDdk eqDdh vkSj tku ls ekjus dh /kedh nh] ftl ij oknh us fnukad 7-7-2008 dks iqfyl v/kh{kd] tSlyesj dks Mkd ls fjiksVZ Hkh is'k dhA " 15. In para No.3 of the plaint quoted herein before, it is claimed that the plaintiff was given physical possession and thereafter patta was issued and around last week of June, the defendant No.1 with an intention to trespass on the land in question placed stone slabs and therefore, the plaintiff sent a report to the Superintendent of Police, Jaisalmer on 7.7.2008 by post. 16. The said averments were denied by the defendant in the following terms:- " 3- ;g gSa fd okn&i= dk in la[;k&rhu tSlk dFku fd;k gS] xyr gksus ls ukeatwj gSA pqWafd oknh dks dgha dCtk ugha Fkk] rc uxjikfydk o losZa okyksa ls feykoV dj viuk losZ uEcj ,sls LFkku ij crk;k] tgkWa txg vkjf{kr gks rks dkxtksa esa ogkWa ls gVuk crkdj vU;= IykWV fy;k tk ldsa] tks ek= feykoVh dk;Zokgh djus ds fy, d'R; fd;k gSaA IykWV uEcj bZ&73 ij oknh dk izLrkfor djuk] iw.kZr;k xyr gSa] D;ksafd mDr txg ij eq>s izfroknh dk dCtk gSa o FkkA tgkWa dkxtksa esa fu;eu djk;k gks] blds fy, izfroknh ftEesokj ugha gSA fo'ks"k vfrfjDr vkifRr esa ntZ gSaA tc eq> izfroknh dk dCtk gSa] rc HkkSfrd :i ls dCtk nsus dk iz'u gh iSnk ugha gksrkA oS| dCtk gksuk] iw.kZr;k xyr gSA oknh dk dCtk gh ugh FkkA IykWV uEcj bZ&73 ij izfroknh dk dCtk gSa] ftl ij Nh.ksa izfroknh la0 ,d dh yxh gqbZ gSaA jkrks&jkr Nh.ksa yxkus ij le>kbZ'k dk Hkh iz'u iSnk gksrk gSaA oknh ds /kDdk&eqDdh dk Hkh iz'u iSnk ugha gksrkA Mkd ls dksbZ fjiksVZ nh gks rks og ek= lcwr nsus dh xjt ls dh gksxh] bldh tkudkjh vkt rd izfroknh dks ugha gSA " 17. In the written statement, the defendant claimed that as he was in possession of Plot No.E-73, there is no question of handing over possession of the plot to the plaintiff at the time of allotment and consequently, there was no question of his trespassing over the land in question. 18. When the plaintiff entered the witness-box in examination in- chief, the possession of the land was claimed based on regularization -allotment/authority letter dated 7.3.2003 (Ex.-4) issued by the Municipal Board and dispossession was alleged in the last week of June. 18. When the plaintiff entered the witness-box in examination in- chief, the possession of the land was claimed based on regularization -allotment/authority letter dated 7.3.2003 (Ex.-4) issued by the Municipal Board and dispossession was alleged in the last week of June. In the cross-examination, the plaintiff admitted having purchased a plot in auction and issuance of possession letter while handing-over of that plot of land, however, he admitted that while handing-over the suit plot, no possession report was given. The plaintiff also clearly expressed ignorance about the disputed plot and what / who was situated on its four sides. The plaintiff also admitted that he was not aware whether he has filed any document relating to handing over of the possession on record of the suit. The relevant portions from the cross-examination reads thus:- " oknxzLr IyksV ds laca/k esa eq>s uxjikfydk }kjk izn'kZ ,016 dh rjg dksbZ dCtksa fjiksVZ ugha nh gSaA ;g ckr lgh gS fd oknxzLr tehu ls uxjikfydk us esjs lkeus izfroknh dk dCtk ugha gVk;k Fkk vt [kqn dgk fd esjs dks rks [kkyh tehu nh FkhA fookfnr IyksV ds iwoZ esa D;k gS eq>s irk ughaA fookfnr IyksV ds if'pe esa D;k vk;k gS eq>s /;ku ugha gSa] mRrj nf{k.k esa fdu&fdu ds D;k gS eq>s /;ku ugha gSA tks dCtk eSa ysuk crk jgk gWw og bl QkbZy esa eSaus is'k fd;k ugha eq>s ekywe ughaA eq>s bl ckr dh tkudkjh ugha fd ekSds dh dCtk fjiksVZ cukbZ Fkh ;k ughaA bl izn'kZ ,&22 fjiksVZ ds fdrus eghuksa ckn dCtk fn;k] eSa ugha crk ldrk gwWaA blds fdrus lky ckn fn;k] eSa og Hkh ugha crk ldrk vt [kqn fd eq>s rks iV~Vk fn;kA " 19. It would also be relevant to quote the contents of the regularisation-allotment/authority letter (Ex.4) claimed as patta dated 7.3.2003, which reads as under:- dk;kZy; uxjikfydk e.My tSlyesj 1704@fu;eu@vkoaVu@2002@losZ ua0 952@651 fnukad %& 7-3-2003 vgLrkUrj.kh; fu;eu&vkoaVu@vf/kdkj&i= Jh@Jherh@lqJh fd'kuyky S/o pkanuey lkaoy vkaoVh dh fLFkfr esa iRuh dk uke %& Jherh pUnzdyk jkT; ljdkj ds ifji= dzekad i0 u@ ( 1 ) ufofo@3@95 fnukad 18-5-1999 ds vUrxZr ( dPph cLrh dk uke ) xQqj d0 cLrh tSlyesj okMZ la[;k 25 P.No. E-73 esas 20x45=900 o0 ( QqV {ks=Qy ) ftldk lkbZV Iyku ihNs iq"Vkafdr gS] jktLFkku uxjikfydk vf/kfu;e 1959 ,oa Hkwfe fu"iknu fu;e 1974 rFkk vUrxZr le; & le; ij cuk;s x;s fu;eksa ds v/khu fu;eu ds tfj;s fuEu 'krksZa ij vkidks vkoafVr fd;k tkrk gSA 1- ;g fu;eu ds tfg;s vkoaVu 99 o"khZ; iV~Vsnkjh ds vk/kkj ij bl 'krZ ij fd;k tkrk gS fd vkoaVh vFkok buds vkfJr ifjokj ds fdlh lnL; ds uke jktLFkku esa dksbZ Hkw[kaM vFkok edku ugha gSaA 2- Hkw[kaM ds utjkus ( izhfe;e ) dh lEiw.kZ jkf'k :0 909&00 v{kjs ukS lkS ukS :i ek= jlhn la[;k 235@61 fnukad 18-12-2002 ls tek gks pqdh gSA vr% fu;eu ds tfj, vkoaVu@vf/kdkj i= tkjh fd;k tkrk gSaA 3- ;g vkaofVr Hkw&[kaM o ml ij fufeZr Hkou fdlh vU; dk fodz;@nku@gLrkUrj.k lnZo izfrcU.k jgsxkA vkoaVh dh e'R;q mijkar mldk oS/kkfud mRrjkf/kdkjh Lor&vkoaVh ekuk tkosxkA bl vkoaVu ij Hkh fdlh vU; dks fodz;@nku gLrkarj.k dHkh ugha djus dh 'krZ ykxw jgsxhA 4- lkbV Iyku esa vafdr bl Hkw[kaM ij dksbZ fuekZ.k dk;Z djus ls iwoZ uxjikfydk tSlyesj ls fu;ekuqlkj ekufp= Lohd'r djokuk gksxkA mijksDr 'krZ 3 ds mYya?ku djus ij vFkok feF;k rF;ksa ds vk/kkj ij xyr fu;eu@vkoaVu djkus dh fLFkfr ik, tkus ij ;g Hkw[kaM vkSj bl ij fufeZr Hkou Lor% uxjikfydk] tSlyesj esa fufgr gks tk,xkA tu fgr esa jkT; ljdkj vius vkns'k ls bl vkoaVu i= dks fujLr dj ldrh gS vkSj LFkku ifjorZu dh vko';drk dh fLFkfr esa LFky cnyus dk vf/kdkj jkT; ljdkj esa fufgr jgsxkA Lohdkj djrk@djrh gwaA --------------------------------------------------------------- lgh@& v/;{k uxjikfydk e.My] tSlyesj " 20. The burden in a suit under Section 6 regarding possession of the suit property and dispossession without due course of law lies solely and wholly on the plaintiff. The burden in a suit under Section 6 regarding possession of the suit property and dispossession without due course of law lies solely and wholly on the plaintiff. A bare perusal of the relevant portion of the plaint, written statement, examination-in-chief and cross-examination of the plaintiff would reveal that the entire case of the plaintiff regarding possession of Plot No.E-73 is based on the allotment letter (Ex.-4). The plaintiff has failed to indicate any specific date and/or document by which the possession of the land was handed-over to him by the Municipal Authorities. It is an admitted case between the parties that the plaintiff was in possession of a different piece of land, which was sought to be regularized in his favour, but as the same was required for dispensary, the suit plot was allotted to him, which clearly pre-supposes that till the date of allotment / regularisation he was not in possession of the said plot. It is also admitted by the plaintiff that neither any document was executed nor it was given to him while handing-over possession of the suit plot to him and the entire emphasis is on the regularisation-allotment/authority letter (Ex.-4). A bare look at the said document Ex.-4 would reveal that even the said Ex.-4 does not mention anything about handing-over of possession. 21. Coupled with the fact that the plaintiff is just unaware of the boundaries and the surroundings of the disputed plot of land which he claims to be in possession from the year 2003 to 2008, clearly proves that the plaintiff was never in possession of the land in question. 22. The trial court wholly misdirected itself while considering the issue relating to possession and examined the issue from the stand point of title which was claimed by the plaintiff based on Ex.-4 and without even referring to the relevant and crucial part of plaintiff's testimony and by merely quoting a part of defendant Brij Ratan Chhangani's testimony, which also does not indicate plaintiff's possession of the plot in question, has recorded the finding in favour of the plaintiff. As such, the finding recorded by the trial court on the said issue being wholly perverse and against the record deserves to be set-aside. 23. As such, the finding recorded by the trial court on the said issue being wholly perverse and against the record deserves to be set-aside. 23. Consequently, in view of the finding that the plaintiff Kisan Lal was not in possession of the suit property within six months before filing of the suit, no question arises of his dispossession and the suit filed by him deserves to be dismissed. 24. The next issue relates to the dismissal of appellant defendant No.1's counter claim for alleged non-compliance of provisions of Section 271 of the Rajasthan Municipalities Act, 1959. 25. Admittedly, no written statement to the counter claim was filed by the Municipal Board, who was a co-defendant and was under normal circumstances not expected to file written statement to a counter claim filed by a co-defendant. 26. The Hon'ble Supreme Court in Rohit Singh & Ors. v. State of Bihar, AIR 2007 SC 10 observed thus : "Normally, a counter-claim, though based on a different cause of action than the one put in suit by the plaintiff could be made. But, it appears to us that a counter-claim has necessarily to be directed against the plaintiff in the suit, though incidentally or along with it, it may also claim relief against codefendants in the suit. But a counter-claim directed solely against the co-defendants cannot be maintained. By filing a counter-claim the litigation cannot be converted into some sort of an interpleader suit." 27. In the present case, the defendant has sought declaration of the patta Ex.-4 issued in favour of the plaintiff as void on the grounds enumerated in the counter claim and incidentally claimed the said relief qua defendant No.2 Municipal Board as well. Therefore, the said counter claim was maintainable and it was expected from the Municipal Board, if it was aggrieved of non-issuance of notice to it under Section 271 of the Rajasthan Municipalities Act, 1959, to raise the plea by filing written statement / objection in this regard, however, no such plea / objection was raised. 28. A Division Bench of this Court in Suresh Chandra & Anr. 28. A Division Bench of this Court in Suresh Chandra & Anr. v. Hanuman Prasad & Ors., S.B. Civil Second Appeal No.173 of 1986 on a reference on 9.9.2005 has held that the plea in this regard can only be taken by the Municipal Board as the provision is for benefit of the Municipality and the same can be waived and a private party is not entitled to rely on such non-issuance of notice. The judgment in the case of Raj Kumar Nalwaya (supra) specifically noticed that in the said case besides the private defendant, the Municipal Board had also raised plea regarding non-issuance of notice under Section 271. The relevant portion of the said judgment reads thus : "So far as the present case is concerned, these are not the facts available in the present case, where the Municipal Council, Udaipur has not only put in appearance in the suit but has also raised specific objection with regard to maintainability of the suit itself in the absence of prior and mandatory notice to the Municipal Council as required under Section 271 of the Act of 1959. The similar objection raised by the private respondent is not an independent or contradictory objection, which could be raised by the Municipal Council but it is in consonance with the same. Therefore, in these circumstances, the locus of the private defendant to raise such an objection in consonance with the objection, which has been raised by the Municipal Council also, cannot be questioned by the plaintiff-respondent. The contention of the learned counsel for the respondent-plaintiff, therefore, is liable to be rejected and same is accordingly rejected." 29. Therefore, in view of the law laid down by this Court, the plea regarding non-issuance of the notice at the instance of the plaintiff only could not be taken cognizance of by the learned trial court as by not filing written statement / objection the Municipal Board had waived the objection and dismissal of the counter claim based on such objection and on account of availability of alternative remedy of pending revision before the Divisional Commissioner could not be made basis for dismissal of the said counter claim and consequently, the finding on issue No.4 also deserves to be quashed and set aside. 30. 30. In view of the above discussion and findings, it is apparent that the trial court acted without jurisdiction in decreeing the suit filed by the plaintiff under Section 6 of the Act and dismissing the counter claim filed by the defendant. 31. Consequently, the revision petition is allowed. The judgment and decree passed by the trial court is set aside and the suit is remanded back to the trial court for re-deciding issue No.4 relating to the counter claim filed by the defendant No.1 Brij Ratan Chhangani on merits based on evidence available on record. The parties are directed to remain present before the trial court on 7.11.2013. The record be sent back to the trial court.No costs.Revision allowed. *******