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2016 DIGILAW 1308 (HP)

Shamsher Singh Thakur v. Baba Jagtar Dass

2016-07-08

TARLOK SINGH CHAUHAN

body2016
JUDGMENT : Tarlok Singh Chauhan, J. 1. This revision is directed against the judgment and decree passed by the learned Civil Judge (Senior Division), Shimla, on 13.08.2004 whereby the summary suit filed by the plaintiff/petitioner (hereinafter referred to as the plaintiff) under Section 6 of the Specific Relief Act (for short the ‘Act’) came to be dismissed and has now approached this Court by invoking its jurisdiction under Section 115 of the Code of Civil Procedure (for short ‘Code’) read with Section 227 of the Constitution of India. 2. The brief facts leading to the filing of the present petition are that the plaintiff filed a suit as aforesaid wherein it was averred that respondent/defendant (hereinafter referred to as the defendant) was the owner of the building known as ‘Baba Shri Chand Mandir’ standing on Khasra No. 541/2, Station Ward, Bara Shimla. The defendant had appointed Shri Niranjan Dass as his attorney vide General Power of Attorney dated 05.07.1993 duly registered in the Office of Sub-Registrar (Urban), Shimla at serial No. 187 dated 06.07.1993. The defendant through his duly constituted General Power of Attorney created a lease for 99 years in favour of the plaintiff vide lease deed dated 23.04.1996 and even the possession was handed over to the plaintiff in respect of one room/shop measuring 1.96 meters x 1.69 meters (Shop No. 4). This lease deed has been executed after the duly constituted General Power of Attorney had already received a sum of Rs. 2,60,640/- being advance rent for 38 years i.e. up to the year 2033 from the plaintiff. However, on 02.06.1996 when the plaintiff had gone to Basantpur in connection with marriage of Shri Mohan Singh son of Shri Ajit Singh, the defendant got removed the brick wall that separated the suit property from the store of the building and illegally and forcibly took possession of the premises and dispossessed the plaintiff from the same. 3. The defendant contested the suit by filing written statement as also a counter-claim wherein the defendant inter-alia raised preliminary objections regarding cause of action, valuation, misjoinder of parties on the ground that the alleged General Power of Attorney had not been arrayed as a party and estoppel etc. It was also averred that the plaintiff had got executed the sale deed by misrepresentation, fraud and coercion, besides the agreement being against the public policy and immoral. It was also averred that the plaintiff had got executed the sale deed by misrepresentation, fraud and coercion, besides the agreement being against the public policy and immoral. On merits, the averments contained in the plaint were denied and it was submitted that the suit property was a temple and had been constructed by the general public by way of donations and contributions and thus was a public property for the purpose of performing ‘pooja’ of ‘Chand God’ and the founder of the temple was one Baba Kumbh Dass, who had executed a will in favour of ‘Baba Shri Chand Mandir’ whereby the defendant was authorized to manage the property and had no right to transfer the same. After the death of Baba Kumbh Dass, the Court granted succession certificate in favour of the defendant and thereafter the defendant was stated to be managing the suit property. It was denied that Niranjan Dass was ‘Chela’ of the defendant and it was submitted that defendant in fact had signed certain papers in respect of the power of attorney for the conduct of the proceedings in the Civil Court and had not authorized anyone to do away with the property of the temple as the defendant was himself not authorized to do so. The alleged General Power of Attorney was stated to be a result of misrepresentation of facts, fraud and it was alleged that Niranjan Dass and some other interested persons had taken undue benefit of the illiteracy of the defendant and got executed alleged Power of Attorney in active connivance with the concerned agency so as to get benefit out of it illegally to the detriment of the temple property. It was further denied that the defendant had executed any lease deed of the suit property in favour of the plaintiff. It was further denied that the defendant received a sum Rs. 2,60,640/- as advance of 38 years from the plaintiff. 4. In the counter-claim the defendant assailed the lease deed executed in favour of the plaintiff by Shri Niranjan Dass and receipt of sale consideration. 5. The plaintiff filed written statement to the counter claim denying the averments contained therein and reiterated the averments already made in the plaint. 6. On 15.06.1998, the learned trial Court framed the following issues:- “1. Whether the plaintiff is entitled for the possession of the suit property? OPP. 2. 5. The plaintiff filed written statement to the counter claim denying the averments contained therein and reiterated the averments already made in the plaint. 6. On 15.06.1998, the learned trial Court framed the following issues:- “1. Whether the plaintiff is entitled for the possession of the suit property? OPP. 2. Whether the plaintiff has no cause of action? OPD. 3. Whether the suit is bad for non-joinder of parties? OPD. 4. Whether the plaintiff is estopped by his act, conduct, etc. as alleged? OPD. 5. Whether the agreement of lease in favour of plaintiff is void as alleged, if so its effect? OPD. 6. Relief.” 7. The learned trial Court after recording evidence and evaluating the same dismissed the suit filed by the plaintiff and partly allowed the counter-claim preferred by the defendant to the extent that the lease deed Ex.PW-1/B and Power of Attorney Ex.PW-1/A were both declared to be void documents. It is against the aforesaid judgment and decree that the present revision has been filed on the ground that the findings recorded by the learned Court below are absolutely perverse and contrary to the records and, therefore, deserve to be set aside. 8. Before adverting to the relative merits of the case, it would be noticed that the suit in the instant case was instituted more than two decades back on 11.06.1996. It is indeed sad if not unfortunate that what was intended by the Legislature to be a summary proceeding to enable a person to illegally dispossessed to effect quick recovery of possession of the immovable property has in the present case erupted into an over two decades old litigation. 9. The first and foremost question which requires determination is the nature and scope of remedy of a person unsuccessful in a suit under Section 6 of the Act. 10. In Sanjay Kumar Pandey and others vs. Gulbahar Sheikh and others (2004) 4 SCC 664 , the Hon’ble Supreme court held that the remedy of a person unsuccessful 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 the possession of the property notwithstanding the adverse decision under Section 6 of the Act. It was further clarified that 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 Section 6 of the Act except in a case for interference being made out within the well settled parameters of the exercise of revisional jurisdiction under Section 115 of the Code. It is apt to reproduce para-4 of the judgment which reads thus:- “4. A suit under Section 6 of the Act is often called a summary suit inasmuch as the enquiry in the suit under Section 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 Section 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 Section 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 Section 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 Section 115 of the Code.” 11. In ITC Limited vs. Adarsh Cooperative Housing Society Limited, (2013) 10 SCC 169 , the Hon’ble Supreme Court reiterated that the suit under Section 6 of the Act was summary in nature for recovery of possession of property from which one claims to have been illegally dispossessed. In ITC Limited vs. Adarsh Cooperative Housing Society Limited, (2013) 10 SCC 169 , the Hon’ble Supreme Court reiterated that the suit under Section 6 of the Act was summary in nature for recovery of possession of property from which one claims to have been illegally dispossessed. It was held that in a suit under Section 6 of the Act the entitlement of the plaintiff to recover possession of property from which he claims to have been illegally dispossessed has to be adjudicated independently of the question of title that may be set up by the defendant in such a suit. In fact in a suit under Section 6 of the Act, the only question that has to be determined by the Court is: whether the plaintiff was in possession of the disputed property and he had been illegally dispossessed there from on any date within six months prior to the filing of the suit? It was further held that the decision of the Court under Section 6 is not open for appeal or review but a small window by way of revision has been kept open by the Legislature possibly to enable the High Court to have a second look in the matter in an exceptional situation, though the High Court would not interfere with a decree or order under Section 6 of the Act except on a case for interference having been made out within the well settled parameters of the exercise of revisional jurisdiction under Section 115 of the Code. It is apt to reproduce the following observations:- “9. Section 6 of the Specific Relief Act 1963 under which provision of law the suit in question was filed by the respondent-plaintiff is in pari materia with Section 9 of the 1877 Act. A bare reading of the provisions contained in Section 6 of the 1963 Act would go to show that a person who has been illegally dispossessed of his immovable property may himself or through any person claiming through him recover such possession by filing a suit. In such a suit, the entitlement of the plaintiff to recover possession of property from which he claims to have been illegally dispossessed has to be adjudicated independently of the question of title that may be set up by the defendant in such a suit. In such a suit, the entitlement of the plaintiff to recover possession of property from which he claims to have been illegally dispossessed has to be adjudicated independently of the question of title that may be set up by the defendant in such a suit. In fact, in a suit under Section 6, the only question that has to be determined by the Court is: whether the plaintiff was in possession of the disputed property and he had been illegally dispossessed there from on any date within six months prior to the filing of the suit? This is because Section 6 (2) prescribes a period of six months from the date of dispossession as the outer limit for filing of a suit. As the question of possession and illegal dispossession there from is the only issue germane to a suit under Section 6, a proceeding there under, naturally, would partake the character of a summary proceeding against which the remedy by way of appeal or review has been specifically excluded by sub-section (3) of Section 6. Sub-Section (4) also makes it clear that an unsuccessful litigant in a suit under Section 6 would have the option of filing a fresh suit for recovery of possession on the basis of title, if any. 10. In fact, the above view has found expression in several pronouncements of this Court of which reference may be made to the decisions in Lallu Yashwant Singh v. Rao Jagdish Singh, AIR 1968 SC 620 , Krishna Ram Mahale v. Shobha Venkat Rao, (1989) 4 SCC 131 and Sanjay Kumar Pandey v. Gulabahar Sheikh, (2004) 4 SCC 464. In fact, para 4 of this Court’s judgment passed in Sanjay Kumar Pandey (supra) may be a useful reiteration of the law in this regard. The same is, therefore, extracted herein below: (SCC p. 665) “4. A suit under Section 6 of the Act is often called a summary suit inasmuch as the enquiry in the suit under Section 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 Section 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. Sub-section (3) of Section 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 Section 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 Section 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 Section 115 of the Code.” 11………………… 12. Though Section 6 (3) of the 1963 Act bars the remedy of appeal and review, a small window, by way of a revision, was kept open by the legislature possibly to enable the High Court to have a second look in the matter in an exceptional situation……” I have heard the learned counsel for the parties and also gone through the records of the case. 12. The only question that has to be determined by this Court is whether the plaintiff was in possession of the disputed property and has been illegally dispossessed there from on any date within six months prior to filing of the suit. 13. It is vehemently argued by Shri. R.K. Bawa, Senior Advocate, assisted by Shri. Jeevesh Sharma, Advocate, that the findings recorded by the learned Court below are perverse inasmuch as it has failed to take into consideration the pleadings as also oral and documentary evidence led before it. It is argued that once the plaintiff has placed and proved on record Power of Attorney Ex.PW-1/A, lease deed dated 23.04.1996 Ex.PW-1/B, then there was no option available with the learned Court below but to have decreed the suit, as prayed for. It is argued that once the plaintiff has placed and proved on record Power of Attorney Ex.PW-1/A, lease deed dated 23.04.1996 Ex.PW-1/B, then there was no option available with the learned Court below but to have decreed the suit, as prayed for. On the other hand, Shri Kulbhushan Khajuria, Advocate, has argued that the findings recorded by the learned Court below are in tune with the facts and law and, therefore, should be upheld as it is. 14. The plaintiff in support of his claim had examined five witnesses, but none of these witnesses, has really been able to prove the possession of the plaintiff. Though, the plaintiff would heavily rely upon the Power of Attorney and the lease deed executed in his favour but those at best can only establish some sort of title which he may have or may have been conferred with. Even, the plaintiff while examining himself as PW-2 has not specifically named the person who had given possession of the suit property and has further led no evidence as to when and in whose presence the possession had in fact been delivered. Even, the lease deed Ex.PW-2/A which has been heavily relied upon by the plaintiff does not reflect the exact date of delivery of possession. 15. Moreover, it is the specific case of the plaintiff that he had paid a sum of Rs. 2,60,640/- to the Attorney of the defendant, who in turn, had issued the receipt qua the same, but wherefrom such huge amount of money has come is a mystery as the plaintiff has led no evidence whatsoever to prove this fact. 16. Though, the plaintiff would rely upon the testimony of PW-3 Ram Krishan but even his statement does not in any manner improve the case of the plaintiff for the simple reason that this witness had only carried out some repair and renovation of the premises at the time when the possession of the same was admittedly that of the defendant. This witness nowhere states about the plaintiff ever being in possession or having been put in possession of the suit property. 17. Another factor which makes me wonder is that in case the plaintiff was actually in possession of the suit property and had in fact been dispossessed there from, then what prevented him from lodging a complaint to this effect with the local police. 18. 17. Another factor which makes me wonder is that in case the plaintiff was actually in possession of the suit property and had in fact been dispossessed there from, then what prevented him from lodging a complaint to this effect with the local police. 18. Even otherwise, the neighbours, more particularly, the shopkeepers of the adjoining premises who could have been the best witnesses qua the possession of the plaintiff have also not been examined constraining this Court to draw an adverse inference as the best evidence has been deliberately withheld from the Court. 19. Moreover, even the documents upon which heavy reliance is being placed by the plaintiff like Power of Attorney, lease deed etc. do not in any way prove or establish the possession of the plaintiff. 20. This Court has already observed that it is only concerned with the question of possession in which the title, at this stage, is not of much relevance. The learned Court below while dismissing the suit has not only discussed the pleadings, but has also correctly evaluated the evidence led by the respective parties which findings cannot in any manner be termed to be perverse, based on misreading and mis-appreciation of evidence on record. 21. In view of the aforesaid discussion, I find no merit in this petition and the same is accordingly dismissed. However, this will not prevent the aggrieved party i.e. plaintiff from filing a regular suit establishing his title to the suit property, notwithstanding the decision in the instant petition. 22. Needless to say that the suit if and when filed by the plaintiff shall be considered strictly in accordance with the pleadings and evidence therein and the trial Court shall not be influenced by the findings rendered either by the trial Court or this Court in these proceedings. 23. The petition is accordingly disposed of along with all pending applications, if any, leaving the parties to bear their own costs.