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2014 DIGILAW 35 (GAU)

NITYANANDA DUTTA v. DIMBESWAR PEGU

2014-01-10

A.M.SAPRE

body2014
JUDGMENT 1. Heard Mr. G. N. Sahewalla, learned Senior Counsel, assisted by Ms. B. Sarma, learned counsel appearing for the petitioners and Mr. B. K. Bhatacharjee, learned counsel for the respondents. 2. This is a civil revision filed by the defendant under Section 115 of Civil Procedure Code against the judgment and decree dated 3.1.2007 passed by Munsiff No.1, Dhemaji in Title Suit No.4 of 2005. 3. By impugned judgment /decree, the trial court decreed the suit filed by the plaintiff under Section 6 of the Specific Relief Act against the defendant and passed the decree for possession of the suit land. 4. So the short question, which arises for consideration in this revision petition is, whether trial court was justified in decreeing plaintiff’s suit for possession against the defendant in relation to the suit land? 5. Having heard the learned counsel for the parties and on perusal of the record of the case, I am inclined to allow the revision and while setting aside of the impugned judgment/decree remand the case to the trial court for deciding the suit afresh on merits. 6. Since I have formed an opinion to remand the case to the trial court for its fresh decision, and hence, it is not necessary for me to record any finding on the merits in relation to the issue arising in the case and instead, now it will be for the trial court to record the findings on merits after hearing the parties to the suit keeping in view the observations made herein below. 7. It is apposite to mention only those facts, which are necessary to justify as to why the remand of the case to the trial court is called for. 8. As mentioned above, the plaintiff filed a suit against the defendant under Section 6 of the Specific Relief Act complaining of his dispossession from the suit land and seeking its restoration from the defendant. Parties adduced evidence (oral as well as documentary). On contest, the trial court decreed the suit and accordingly granted decree in plaintiff’s favour and against the defendant in relation to the suit land and directed the defendant to restore back the possession of the suit land to the plaintiff. 9. Section 6 of the Act, which is relevant for the disposal of this revision reads as under:- “6. On contest, the trial court decreed the suit and accordingly granted decree in plaintiff’s favour and against the defendant in relation to the suit land and directed the defendant to restore back the possession of the suit land to the plaintiff. 9. Section 6 of the Act, which is relevant for the disposal of this revision reads as under:- “6. Suit by person dispossessed of immovable property.- (1) If any person is dispossessed 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 brought - (a) after the expiry of six months from the date of dispossession; or (b) against the Government. (3) No appeal shall lie from any order or decree passed in any suit instituted under this section, nor shall any review of any such order or decree be allowed. (4) Nothing in this section shall bar any person from suing to establish his title to such property and to recover possession thereof.” 10. As would be clear, Section 6 ( 2) (a) provides that no suit can be filed by the plaintiff under Section 6 of the Act after the expiry of the six months from the date of his alleged dispossession from the suit land. In other words, in order to enable the plaintiff to take recourse to the provisions of Section 6 to claim possession/ restoration of the suit land from the defendant, it is legally obligatory on his part to file such suit within 6 months from the date of his alleged dispossession from the suit land. It is only when he files a suit within 6 months from the date of his alleged dispossession, such suit can be decided on merits provided he is able to plead and prove that he was dispossessed by the defendant from the suit land six months prior to filing of the suit, without following the due process of law. 11. There has to be, therefore, first, an averment in the plaint alleging the date of plaintiff’s dispossession from the suit land by defendant or by a person through him, and secondly, how and in what manner he was dispossessed from the suit land. 11. There has to be, therefore, first, an averment in the plaint alleging the date of plaintiff’s dispossession from the suit land by defendant or by a person through him, and secondly, how and in what manner he was dispossessed from the suit land. In other words, the dispossession must be done by the defendant without following any due process of law and lastly, these factual ingredients must be proved by the plaintiff with the aid of evidence in accordance with law. 12. So what is significant is not the dispossession alone but, such dispossession must be proved to have been done by the defendant within six months prior to the date of filing of suit and, secondly, it must be proved to have done without following the due process of law. It is only then the suit under Section 6 can be decreed. 13. Coming now to the facts of the case, I find that trial court while decreeing the suit did not record any finding much less categorical findings on these two material issues and yet decreed the suit. It is really unfortunate that the trial court neither read and nor took into consideration the basic requirements of Section 6 ibid while deciding the suit and proceeded to decree it. It is for this reason; the impugned judgment/decree is not legally and factually sustainable and hence deserves to be set aside. 14. In view of foregoing discussion, the revision deserves to be allowed and is accordingly allowed. Impugned judgment /decree is set aside. The case is remanded to the trial court for deciding the suit afresh on merits in accordance with law keeping in view the aforesaid observations. 15. Parties would be at liberty to amend the pleadings if they wish to do so and also to adduce any additional evidence, if they want because the remand to the trial court is de novo. 16. The trial court shall decide the suit within six months from the date of parties appearance. Parties to appear before the trial court on 24th February. 17. Original record of the case be sent back to the court concern to enable him to decide the suit as directed. No cost.