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2018 DIGILAW 1810 (JHR)

Dinesh Dubey v. Ambika Prasad Dubey

2018-08-09

AMITAV K.GUPTA

body2018
JUDGMENT Amitav K. Gupta, J. - The present revision is directed against the judgment and decree dated 25.07.2013 and 06.08.2013 respectively, passed in Title Suit No.08 of 2011 by the court of Civil Judge (Junior Division) - 1 Jamshedpur, whereby the petitioner was directed to hand over the vacant possession of the suit premises to the opposite party/ plaintiff within three months. 2. Learned counsel, for the petitioner/ defendant, has submitted that the court below has committed manifest error by not appreciating the fact that the plaintiff/ opposite party, after receiving money in lieu of his share in the ancestral property, was residing separately in the house, constructed by him, at Railway Co-operative Housing Colony, Bagbera and not in the suit property nor was he dispossessed from the occupation of the rooms rather he had vacated the suit property by relinquishing his share on receipt of the money for the share in the suit premises. It is argued that it is evinced from the testimony of D.W. - 2, i.e., the mother, wherein she has deposed that the suit property was purchased by her and after the death of her husband, the opposite party/ plaintiff had been paid money in lieu of his share in the property. That the suit property belongs to her exclusively and the petitioner/ defendant is residing with her. That she had constructed the house. It is argued that in view of the evidence of D.W. - 2, it is amply clear that opposite party/ plaintiff did not have any surviving or existing share, right or title to the property neither was he residing in the suit property, therefore, the court below has committed gross error in deciding issue no.4, regarding dispossession of the plaintiff/ opposite party from the suit property. It is canvassed that in view of the evidence on record the finding of the court below smacks of perversity in findings of facts, consequently the impugned order is fit to be set aside. 3. Mr. Bibhash Sinha, learned counsel for the opposite party/ plaintiff, has submitted that no error has been committed by the court below. That, in fact, the contention of the learned counsel for the petitioner that the opposite party had received money in lieu of his share of the ancestral property is not supported by any document. 3. Mr. Bibhash Sinha, learned counsel for the opposite party/ plaintiff, has submitted that no error has been committed by the court below. That, in fact, the contention of the learned counsel for the petitioner that the opposite party had received money in lieu of his share of the ancestral property is not supported by any document. It is submitted that though the mother has stated that the opposite party has been paid money in lieu of his share in the ancestral property and left the suit premises and is residing in the house constructed by him, but in cross-examination, she has admitted that till date the suit property has not been partitioned. The court below has examined and discussed the evidence and on cogent reasons has recorded its satisfaction, while arriving at the finding that no documentary evidence has been produced by the petitioner/ defendant to substantiate the case that the opposite party/ plaintiff had received money in lieu of the share and was not residing in the suit premises. It is contended that Section 6 of the Specific Relief Act, envisages that title has not be looked into rather what has to be established is that the dispossession had taken place within six months from filing of the suit. 4. Heard. On perusal of the impugned order, it is evident that the court below has meticulously examined the oral and documentary evidence adduced by the parties. There is no controversy regarding the fact, that the suit premises was purchased by the mother of the petitioner/ defendant and opposite party/ plaintiff. The mother has examined herself as D.W. - 2 and in her cross-examination, she has admitted that earlier the plaintiff/ opposite party used to reside in the suit premises with her. Though she has stated that he had taken his share in the ancestral property, however she has admitted that the suit property was not partitioned. It is noticed that the petitioner/ defendant and his mother have nowhere stated as to what amount was paid to the opposite party/ plaintiff neither any document has been adduced by the petitioner/ defendant. The opposite party has stated that he was residing with his family in two rooms of the suit property. It is noticed that the petitioner/ defendant and his mother have nowhere stated as to what amount was paid to the opposite party/ plaintiff neither any document has been adduced by the petitioner/ defendant. The opposite party has stated that he was residing with his family in two rooms of the suit property. That he had gone on vacation during the X-mas vacation and when he returned he found the locks of the rooms were broken and the petitioner/ defendant had forcibly occupied the rooms and ousted the opposite party. The petitioner/ defendant did not allow the opposite party/ plaintiff to enter the house. Therefore, he had written letters to the S.S.P., Jamshedpur, Exbt. - 2 and 2/a. Since the police did not take any legal action he had to take the shelter of the court, by instituting the suit. In the backdrop of the events, at this juncture, it is pertinent to state that on plain reading of Section 6, of the Specific Relief Act, it is explicit that it contemplates and envisages that in a suit for recovery of possession, the title of the parties has not to be looked into. It provides that a person should be in possession of the property in a lawful manner and he cannot be dispossessed except in due course of law. If the dispossession is not effected by following the due process of law, then the suit is to be instituted within six months from the date of such dispossession. For the foregoing reasons and discussions made hereinabove, the impugned order does not suffer from any illegality or impropriety. The factual and legal aspects has been elaborately dealt with and discussed by the trial court. The evidence has been analyzed in threadbare details, and findings have been recorded by the trial court, assigning cogent reasons that the opposite party/ plaintiff was illegally dispossessed from the suit property. In the considered opinion of this Court, as per materials available on record, it is evident that the opposite party/ plaintiff has been able to establish that he was dispossessed from the suit property by the petitioner/ defendant without following the due process of law and the suit has been instituted within six months from the date of such dispossession consequently, the impugned order does not warrant any interference by this Court. The plea raised by the petitioner regarding the question of adjudication of title and recovery of possession is a subject matter alien to the provisions of Section 6 of Specific Relief Act, however the petitioner is not precluded from filing a suit in the competent civil court for adjudication of question of title or for recovery of possession. 5. In the result, this revision application is, hereby, dismissed being sans merit. 6. I.A. Nos.5774 of 2015 and 5398 of 2017 stand disposed off.