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2018 DIGILAW 1005 (RAJ)

Raju Singh v. Mangelal

2018-04-13

ARUN BHANSALI

body2018
JUDGMENT & ORDER : Arun Bhansali, J. This revision petition is directed against the order dated 14.08.2015 passed by the Addl. District Judge No.1, Sriganganagar ('the trial court'), whereby the suit filed by the respondent-plaintiff under Section 6 of the Specific Relief Act, 1963 ('the Act'), has been decreed and the petitioner has been directed to hand over possession of the disputed property to the respondent-plaintiff within a period of two months and from 01.08.2012 till handing over of actual possession, mesne profit @ Rs.2, 000/- per month along with interest @ 6% per annum has been decreed. 2. The respondent-plaintiff filed a suit, inter alia, with the averments that he had purchased the suit property i.e. House No.1-A-22, Shyamnagar, Purani Abadi, Sriganganagar admeasuring 15 feet X 64 feet from one Kanhaiyalal vide registered sale-deed dated 02.03.2012. It is claimed that the plaintiff was handed over possession of the suit property at the time of registration of the sale-deed. The petitioner by breaking the wall of the suit property, trespassed over the said property in April, 2012. the petitioner came to know about the same on 01.08.2012 and, consequently, filed the suit on 17.08.2012 seeking possession of the suit property. 3. The suit was resisted by the petitioner by filing written statement. It was, inter alia, claimed that he was in possession of the suit property for last over 30-35 years and the plea raised by the plaintiff regarding possession of the suit property were denied. The trial court framed six issued and after evidence was led by the parties, by the impugned judgment, came to the conclusion that the plaintiff was in possession of the suit property, which was handed over to him at the time of execution of the sale-deed and that the defendant had failed to prove that he was in possession of the suit property for over 35 years and, consequently decreed the suit as noticed hereinbefore. 4. It is submitted by learned counsel for the petitioner that the trial court committed error in decreed the suit of the plaintiff, inasmuch as the fact that the plaintiff came in possession of the suit property at the time of execution of the sale-deed on 02.03.2012 was not proved. 4. It is submitted by learned counsel for the petitioner that the trial court committed error in decreed the suit of the plaintiff, inasmuch as the fact that the plaintiff came in possession of the suit property at the time of execution of the sale-deed on 02.03.2012 was not proved. It was submitted that large number of documents were produced by the petitioner to prove his possession of the suit property for a long time and as there was no dispossess on of plaintiff from the suit property, the proceedings under Section 6 of the Act were not maintainable and, consequently, the decree passed by the trial court deserves to be quashed and set aside. 5. Further submissions were made that the trial court has also awarded mesne profit, which relief as claimed by the plaintiff is alien to the proceedings under Section 6 of the Act and, therefore, the decree passed in this regard also deserves to be quashed and set aside. 6. Learned counsel appearing for the respondent supported the impugned decree. It was submitted that the petitioner though claimed that he was in possession of the suit property for over 30-35 years, no documents were exhibited before the trial court to prove his possession and, therefore, the trial court was justified in rejecting the plea sought to be raised by the defendant. Further submissions were made that as the plaintiff has been deprived of the possession since 01.08.2012, the trial court was justified in granting the decree of mesne profit. 7. I have considered the submissions made by learned counsel for the parties and have perused the material available on record. 8. Admittedly, the plot in land was allotted by the Urban Improvement Trust to Kanhaiyalal, who transferred the suit property to the petitioner by sale-deed dated 02.03.2012 and it is indicated in the sale-deed that possession of the property has been handed over to the plaintiff. The petitioner, while leading evidence failed to prove the said aspect as to at any point of time prior to the transfer of the property in question, he was in possession of the suit property. The documents, which were filed by the petitioner, has not been exhibited and, therefore, the same are of no use. The petitioner, while leading evidence failed to prove the said aspect as to at any point of time prior to the transfer of the property in question, he was in possession of the suit property. The documents, which were filed by the petitioner, has not been exhibited and, therefore, the same are of no use. In absence of any admissible evidence on part of the petitioner indicating his alleged possession from before 02.03.2012, and the indication in the sale-deed regarding handing over of the possession to the plaintiff, it cannot be said that the trial court has committed any error in coming to the conclusion that after transfer of the property in question to the respondent, the petitioner has trespassed on the property in question and, therefore, the finding in this regard does not call for any interference. 9. Once it is established on record that the petitioner dispossessed the respondent-plaintiff without due process of law, the natural consequence was that the suit was liable to be decreed. 10. Coming to the issue of award of mesne profit in a suit of present nature, the issue is no more res integra as this Court in Amar Singh v. Ghanshyam & Ors, (1998) AIR(Rajasthan) 333, after surveying the entire law on the subject, came to the following conclusion:- "14. Thus, the consistent view of different High Courts is that a claim for mesne profits cannot be made in a suit under Section 6 of the Specific Relief Act for recovery of possession. It is also clear that if such claim is included in the decree by the trial Court the entire decree cannot be thrown out but the mesne profits part of the decree can be set aside confirming the possession part of the decree. The view is based on sound principles. After all, remedy under Section 6 of the Specific Relief Act, 1963 is a special remedy providing speedy relief to a person who is thrown out of possession except by following due process of law; It is an exception to general law which requires the plaintiff to prove his right to the property before decreeing possession in his favour, such a provision has to be construed strictly and not liberally. When the provision does not speak of any other relief than recovery of possession, other relief’s cannot be read into the language. When the provision does not speak of any other relief than recovery of possession, other relief’s cannot be read into the language. Moreover, mesne profits cannot be said to be claimable as a consequential relief in every case brought under Section 6 of the Specific Relief Act. As pointed out in some of the rulings cited above, since the claim is based on dispossession otherwise than in due course of law, title of the plaintiff to continue in possession is not to be looked into and without looking into it mesne profits cannot be decreed, it is only natural that mesne profits cannot be granted in such an action." 11. Dehli High Court in Vinod Trivedi v. Atul Jain & Ors.: CM (M) 1039/2016, decided on 10.11.2016, has also taken a similar view, wherein it has been observed as under:- "10. Hence, the legal position as stated in the above judgments including the judgment of the Supreme court and this court is that the right to possession of immovable property and the right to enjoy property are distinct cause of action. The person who is dispossessed of the immovable property is entitled to sue for possession under Section 6 of the Specific Relief Act. In such an eventuality, the question of mesne profits and damages would depend upon the title and that question cannot be gone into in a suit filed under Section 6 of the Specific Relief Act. The petitioner would be free to take separate steps seeking such relief." 12. In view of the above settled legal position, the trial court was not justified in awarding the amount of mesne profit to the plaintiff and to the said extent, the decree passed by the trial court to the said extent cannot be sustained. 13. Consequently, the revision petition filed by the petitioner is partly allowed, the decree dated 14.08.2015 only to the extent of award of mesne profit, is quashed and set aside. Rest of the decree is upheld. 14. The petitioner is directed to hand over vacant and peaceful possession of the suit property within a period of two months from today to the respondent-plaintiff. No order as to costs.