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Gauhati High Court · body

2015 DIGILAW 125 (GAU)

JYOTI PRASAD DAS v. SANKAR SEAL

2015-02-05

HRISHIKESH ROY

body2015
ORDER (ORAL) Heard Mr. S.P. Roy, the learned counsel appearing for the petitioners, who were the defendants in the Title Suit No.7/2005 filed for recovery of possession under Section 6 of the Specific Relief Act, 1963 (hereinafter referred to as the “S.R. Act”). The respondents (plaintiffs) are represented by the learned advocate Mr. Sheeladitya. 2. The plaintiffs claimed to be in occupation of a strip of land measuring 3’ x 30’, which they were using as a path connecting to the main road in the Kamakhya Hill in Kamrup district. On 28.11.2004 the defendants erected 2 RCC pillars and a bamboo fencing reducing the path’s width to only 2 feet. The defendants also constructed a bathroom on the extreme eastern end of the path. Therefore claiming unlawful dispossession from the major portion of 3’ x 30’ strip of land, restoration of the entire path was sought under the S.R. Act. 3. The defendant Nos.1, 2 and 3 in their common WS, however, pleaded that the plaintiffs were not possessing the Schedule-C path and have alternate access to the public road. The title over the suit property was claimed by the defendants jointly with one Baroda Gayan. Moreover, the essential ingredients for restoration under the S.R. Act are contended to be absent in the WS, by the defendants. 4. After exchange of pleadings, the following 7(seven) issues were framed by the Trial Court: “1) Whether the suit is maintainable? 2) Whether there is cause of action for the suit? 3) Whether the suit is barred by limitation? 4) Whether the suit properly valued? 5) Whether the plaintiffs have any right over the suit land? 6) Whether the plaintiffs have been dispossessed from the suit land by putting the fencing RCC posts etc.? 7) Whether the plaintiffs are entitled to any relief/reliefs as prayed for?” 5. To prove their case, the plaintiffs adduced 4 witnesses and from the side of the defendants, a single witness testified in the suit. The learned Civil Judge (Jr. Division) No.3, Guwahati, through the impugned judgment dated 06.09.2006 (page-42) found the case to be maintainable and held that the suit is within time. On the issue of whether the plaintiffs were unlawfully dispossessed by putting the bamboo fencing and erecting the RCC posts, the Court considered the evidence of the PWs and decided the issue in favour of the plaintiffs. On the issue of whether the plaintiffs were unlawfully dispossessed by putting the bamboo fencing and erecting the RCC posts, the Court considered the evidence of the PWs and decided the issue in favour of the plaintiffs. Accordingly a decree was issued for recovery of the Schedule-C land, by removing the bamboo fencing, RCC pillars and the bathroom constructed by the defendants. A further decree of permanent injunction to not to disturb the plaintiffs in their use of the suit path was given against the defendants. 6.1 Assailing the legality of the decree, Mr. S.P. Roy, the learned counsel submits that the plaintiffs’ case was that the path was being used not only by them, but other residents and the pilgrims in the Kamakhya Hill and therefore a representative suit under Order I Rule 8 of the CPC should have been filed and the relief of restoration of possession could not have been granted exclusively for the four plaintiffs. 6.2 Referring to the evidence of the PW-1 Jyotish Ch. Das, the counsel argues that this witness was unaware of the Dag number and the Patta number of the Schedule-C path. More particularly, he did not testify about forceful dispossession by the defendants and therefore Mr. Roy contends that conclusion was reached without corroborative evidence. 6.3 Pre-conditions for restoration of possession under Section 6 of the S.R. Act are contended to be missing in the instant case and on this count the impugned verdict is challenged. 6.4 According to the petitioners, the Court failed to give its specific finding on each issues and thereby it is argued that the judgment is not in consonance with Order XX Rule 5 of the CPC. 7.1 On the other hand, Mr. Sheeladitya, the learned counsel for the respondents (plaintiffs) argues that the defendants were claiming ownership of the Schedule-C path and projecting that the title is immaterial in a case under Section 6 of the S.R. Act, the respondents submit that the restoration decree was rightly issued to protect the path being used by the plaintiffs since last many decades. Sheeladitya, the learned counsel for the respondents (plaintiffs) argues that the defendants were claiming ownership of the Schedule-C path and projecting that the title is immaterial in a case under Section 6 of the S.R. Act, the respondents submit that the restoration decree was rightly issued to protect the path being used by the plaintiffs since last many decades. 7.2 Referring to the evidence of the 4 witnesses from the plaintiffs’ side, the learned counsel submits that the 3 pre-conditions for restoration of possession under Section 6 of the S.R. Act, are fully satisfied and accordingly it is argued that the Court had rightly decreed the suit to protect the usage of the path by the plaintiffs. 8. In East India Hotels Ltd. Vs. Syndicate Bank reported in 1992 Supp (2) SCC 29, the Supreme Court held that relief under Section 6 of the S.R. Act is to be granted by exercising judicial discretion and in such proceedings the Court should not examine the issue of title. Proceeding under Section 6 is summary in nature and what is required to be decided by the Court is whether the plaintiff was in possession of the property and whether he has been dispossessed therefrom without his consent and due process, within 6(six) months of institution of suit. 9. Before proceeding further with the case, let me examine whether the plaintiffs could be non-suited for not approaching the Court in representative capacity under Order I Rule 8, as is argued by the petitioners. On careful reading of the Section 6 provision, it is clear that any person who is dispossessed without his consent can apply for recovery of possession of immovable property. The expression “he” or “any person claiming through him” in Section 6(1) permits any aggrieved party to apply for restoration of possession and therefore in my view, the plaintiffs cannot be non-suited only because, they applied for relief for the plaintiffs and didn’t file the case in a representative capacity for the other users of the path. 10. In his evidence on affidavit, the plaintiff No.1 Jyotish Das claimed the plaintiffs are brothers and together they have applied for recovery of possession of the path and the witness is authorized by the co-plaintiffs to adduce evidence on behalf of all of them. 10. In his evidence on affidavit, the plaintiff No.1 Jyotish Das claimed the plaintiffs are brothers and together they have applied for recovery of possession of the path and the witness is authorized by the co-plaintiffs to adduce evidence on behalf of all of them. The PW further testified that by raising the bamboo fencing and by construction of the RCC pillars and the bathroom, the defendants have obstructed 3 feet of the 5 feet path since 28.11.2004. Although the witness testified that the defendants did not forcefully dispossess the plaintiffs, he speaks of the obstructive construction by the defendants which has considerably narrowed the path width. Moreover the PW-2 Gouranga Seal, PW-3 Hari Nath Sarma and PW-4 Ram Chandra Das, who are neighbouring witnesses, have together testified that the defendants and others were using the path since last many years and the usability of the path was narrowed to about 2 feet breadth, through the construction made by the defendants. On the other hand, the DW-1 Jyoti Prasad Das in his evidence on affidavit denied that the plaintiffs were using the Schedule-C path and claimed that the said land was the part and parcel of the land owned by the defendants. 11. The evidence of both sides was considered and although the Court could have specifically discussed the evidence of all the witnesses, application of mind to relevant evidence is noticed in the decision making process. The learned Judge noted the evidence of PW-1 and stated that his testimony is corroborated by the evidence of the other 3 witnesses. The Court also considered the evidence of DW and thereafter give specific finding on each issue framed by the Court. In summary proceeding under the S.R. Act, the plaintiffs need not prove their title or a superior right of possession as compared to the defendants and therefore the determination of the Court on the limited aspect is found to be consistent with Kailash Kalita Vs. Sanjit Sharma reported in 2006 (Suppl.) GLT 750. 12. Upon scrutiny of the judgment, I find that the Court’s decision was reasonable and was based on cogent evidence on the possession of the plaintiffs and their illegal dispossession. Therefore I don’t see any jurisdictional error committed by the Court. Sanjit Sharma reported in 2006 (Suppl.) GLT 750. 12. Upon scrutiny of the judgment, I find that the Court’s decision was reasonable and was based on cogent evidence on the possession of the plaintiffs and their illegal dispossession. Therefore I don’t see any jurisdictional error committed by the Court. The restoration proceeding under the S.R. Act is summary in nature and I hold that the Court acted within jurisdiction and it is not a fit case for intervention by a Revisional Court. With this conclusion, the case is dismissed without any order on cost. 13. The Registry should return the LCR to the concerned Court with a copy of this order.