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2018 DIGILAW 715 (JK)

Mohan Lal v. Madan Lal

2018-09-19

SANJEEV KUMAR

body2018
JUDGMENT : 1. This Revision Petition is directed against the judgment and decree dated 11.02.2009, passed by learned Additional District Judge, Jammu (hereinafter referred to as the trial Court) in Civil File No.53/Civil titled Madan Lal Vs. Mohan Lal and others. 2. The judgment and decree impugned in this Revision Petition has been passed by the learned trial Court under Section 9 of the Specific Relief Act, 1977. Besides directing the restoration of possession in favour of the plaintiff-respondent, the trial Court has further directed to pay an amount of Rs.2000/- per month to the plaintiff-respondent for the use and occupation of the suit shop with effect from 6/7th of October, 2002 till the entire amount is paid. 3. Since under Section 9 of the J&K Specific Relief Act, 1977 (hereinafter referred to as the Act) no appeal would lie from any order or decree passed in any suit instituted under the said Section, as such, the petitioners-defendants have filed the instant Revision Petition. 4. Before I consider the rival contentions in reference to the grounds of challenge taken in this Revision Petition, it would be necessary to first set down the provisions of Section 9 and scope of interference with the order or decree passed in any suit instituted under this Section. The Section 9 of the Act reads thus:- “9. Suit by person dispossessed of immovable property:–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. Nothing in this Section shall bar any person from suing to establish his title to such property and to recover possession thereof. No suit under this Section shall be brought against the Government. 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.” 5. From a bare reading of the aforesaid Section, it is clear that law accords legitimacy and legality to the possession taken in due course of law. 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.” 5. From a bare reading of the aforesaid Section, it is clear that law accords legitimacy and legality to the possession taken in due course of law. Where a person is dispossessed without his consent of the immovable property other than in due course of law, no matter how good the title of the possessor, he/she is entitled to be restored to possession provided he/she approaches the Court within six months of such dispossession. Essentially, in a suit brought under Section 9 of the Act, the Court is called upon to determine only two questions:- (i) Whether the plaintiff was formally in settled possession; and (ii) Whether the plaintiff was dis-possessed of immoveable property without his consent other than in due course of law and such dispossession has taken place within six months immediately preceding the date of the institution of the suit. 6. It may be pointed out that at one point of time; the Law Commission had even recommended the deletion of the Section on the ground that it had failed to serve its purpose. The Commission noted that the remedy envisaged in the Section was to provide speedy justice but in practice it was found that the evidence generally led to establish the possession was nearly the same as would be necessary in a title suit. It was, thus, found that instead of serving this purpose, the Section actually encouraged multiplicity of proceedings. Notwithstanding recommendation made by the Law Commission, the provision continues to be on the Statute Book. 7. As noted above, the inquiry in the Suit under Section 9 of the Act is limited to the determination of the possession of the plaintiff over the suit property and his dispossession otherwise than in due course of law within six months immediately preceding the institution of the Suit. 8. Needless to say that the possession contemplated under Section 9 of the Act is a juridical possession and where the person in possession is a servant, an appointee or depute of another, the possession is of the master or the person appointing or deputing the other person. The former, therefore, cannot sue under this Section. 8. Needless to say that the possession contemplated under Section 9 of the Act is a juridical possession and where the person in possession is a servant, an appointee or depute of another, the possession is of the master or the person appointing or deputing the other person. The former, therefore, cannot sue under this Section. There is, however, divergence of opinion whether the Section refers to exclusive possession and whether the Court in a suit under this Section has jurisdiction to pass a decree for joint possession; some Courts holding that it does not; and others holding that the person in joint possession being as such in possession of any property as a person who is in exclusive possession, if the person in joint possession is dispossessed, he should be entitled to bring a Suit under this Section. This question, however, does not arise directly in the instant case, yet I am of the view that a person in joint possession is also in as much in possession of the property as a person who is in exclusive possession. Thus, if the person in a joint possession is dispossessed, he too should be entitled to bring a Suit under this Section. These observations may assume importance when we refer to the stand of the petitioners-defendants taken in the written statement. 9. The other important facets of the Section 9 of the Act is that in a Suit brought under this Section, no question of title can be raised or determined in the Suit or in working out of the judgment. The moment the Court finds that the suit falls under Section 9 of the Act, the scope of Suit becomes a very limited. The plaintiff in the Suit under this Section need only plead her previous possession and dispossession by the petitioners-defendants without consent or otherwise in due course of law within six months of the suit being brought. Equally important is the other important facet of this provision that any decree passed under this Section does not operate as res judicata on a question of title though it would constitute res judicata on the question of possession. Equally important is the other important facet of this provision that any decree passed under this Section does not operate as res judicata on a question of title though it would constitute res judicata on the question of possession. Going by the bare provision of Section 9 of the Act, it is clear that this Section does not preclude the unsuccessful defendant to bring a Suit for declaration of his title and consequently ask for recovery of the possession of the property, notwithstanding the adverse decree passed by the Court under this Section. Section 6 by providing “nothing in this Section shall bar any person from suing to establish his title to such property and to recover possession thereof,” essentially saves the right of a person unsuccessful in a Suit under Section 9 of the Act to establish his title to such property and to seek possession notwithstanding the decree in the Suit. In other words, the decision/decree in the Suit under Section 9 of the Act even if it has attained finality is only final vis-à-vis possession which is always subject to determination of title of the parties to such property and right to recover the possession. 10. In the backdrop of aforesaid legal position obtaining from a careful reading of Section 9 of the Act and keeping in view its object, and further that no appeal against the order or decree passed in any suit instituted under this Section lies, the scope of interference in a Revision Petition in terms of Section 115 of the Code of Civil Procedure needs to be examined. It may be stated that though a person aggrieved by the decree passed under this Section may seek revision by the High Court under Section 115 of the Code of Civil Procedure, yet the High Court, ordinarily, will not interfere in Revision, in that, there is remedy by way of suit, i.e., suit for title or right to possession as also for recovery of possession. The High Court, however, may interfere in exceptional cases where the decree passed under Section 9 of the Act is contrary to the provisions of Section 9 of the Act or where it has resulted in grave injustice or error of law apparent on the face of record. The High Court will not, however, re-appreciate the evidence as if it is hearing an appeal. The High Court will not, however, re-appreciate the evidence as if it is hearing an appeal. In case, the challenge in the Revision Petition is to an ex parte decree, in absence of denial of averments in the plaint by the defendant and in absence of proof by bringing on record evidence in rebuttal, the burden of proof on the plaintiff-respondent is not very heavy. But that does not mean that if the suit proceeds ex-parte, the necessity of proof by the plaintiff of his case to the satisfaction of the Court can be dispensed with. The observations of the Hon’ble Supreme Court in paragraph No.33 of the judgment rendered in the case of Ramesh Chand Ardawatiya v. Anil Panjwani reported in AIR 2003 SC 2508/ 2003(7) SCC 350 deserve to be noticed, which for facility of reference are reproduced as under :- “33. So far as the plea of bar as to maintainability of suit for failure to seek further relief is concerned, we cannot find fault with the plaint as framed. The defendant was alleged to be a rank trespasser who was in the process of committing a trespass and was allegedly raising unauthorized construction over the property neither owned nor legally possessed by him. The relief of specific performance is not a further relief to which the plaintiff is entitled or which he could have sought for against this defendant. Thus, from the point of view of the present defendant, we cannot find any such defect or infirmity in the relief sought for by the plaintiff as would render the suit not maintainable and liable to be thrown out at the threshold. But there is substance in the other limb of this submission made by the learned senior counsel for the defendant-appellant. Even if the suit proceeds ex-parte and in the absence of a written statement, unless the applicability of Order VIII Rule 10 of the CPC is attracted and the Court acts there under, the necessity of proof by the plaintiff of his case to the satisfaction of the Court cannot be dispensed with. In the absence of denial of plaint averments the burden of proof on the plaintiff is not very heavy. In the absence of denial of plaint averments the burden of proof on the plaintiff is not very heavy. A prima facie proof of the relevant facts constituting the cause of action would suffice and the Court would grant the plaintiff such relief as to which he may in law be found entitled. In a case which has proceeded ex-parte the Court is not bound to frame issues under Order XIV and deliver the judgment on every issue as required by Order XX Rule 5. Yet the Trial Court would scrutinize the available pleadings and documents, consider the evidence adduced, and would do well to frame the 'point for determination’ and proceed to construct the ex-parte judgment dealing with the points at issue one by one. Merely because the defendant is absent the Court shall not admit evidence the admissibility whereof is excluded by law nor permit its decision being influenced by irrelevant or inadmissible evidence.” (Underline by me) 11. This is the sum and substance of the ambit of jurisdiction of the Court under Section 9 of the Act and the scope of interference by this Court under Section 115 of the Code of Civil Procedure in the judgment/decree passed by the Court in a suit instituted under Section 9 of the Act. Keeping in view this legal position in mind, the merits of the controversy involved in this Revision Petition needs to be examined. 12. The respondent who was a plaintiff before the trial Court filed a suit purportedly under Section 9 of the Act for seeking possession of the suit shop and also for recovery of mesne profits @ Rs.2000/- per month from the date of illegal occupation of the shop by the petitioners-defendants. The case pleaded by the plaintiff-respondent in his suit, in a nutshell, was that the suit shop was purchased by the plaintiff-respondent from a family member of S. Joginder Singh in the year 1996-97 and since its purchase was in his possession and under his lock and key. It was in the intervening night of 6/7th October, 2002, the petitioners-defendants broke open the locks of the house of the plaintiff-respondent and stole all the documents including title deed and also broke open the locks of the suit shop of the plaintiff-respondent and forcibly occupied the same in his absence with the connivance of the Police. It was in the intervening night of 6/7th October, 2002, the petitioners-defendants broke open the locks of the house of the plaintiff-respondent and stole all the documents including title deed and also broke open the locks of the suit shop of the plaintiff-respondent and forcibly occupied the same in his absence with the connivance of the Police. It is further pleaded that in this regard the plaintiff-respondent lodged a report with the Police Station, Pacca Danga, Jammu but no action was taken, in that, the Police was already hand in globe with the petitioners-defendants. The Police instead of acting on the report of the plaintiff-respondent pressurized the plaintiff-respondent to enter into settlement with the petitioners-defendants. For wrongful use and occupation of the suit shop, the plaintiff-respondent in the suit also claimed mesne profits @ 2000/- per month from the date of the illegal occupation till its possession was restored to the plaintiff-respondent. 13. The suit was resisted by the petitioners-defendants who filed their written statement and took the stand that plaintiff-respondent was not an absolute owner of the suit shop but the same was joint property of the plaintiff-respondent and the defendant No.1 having been purchased from the joint funds of the parties. It was also pleaded that the documents of the suit shop, however, were in the name of the plaintiff-respondent. The petitioners-defendants, in their written statement also disputed the possession of the plaintiff-respondent over the suit shop and claimed that the plaintiff-respondent and the defendant No.1 being joint owners of the property had put the defendant No.4 in possession of the suit shop. The other averments that the locks of the suit shop were broken open on the intervening night of 6-7th October, 2002, were also refuted. 14. As is apparent from the record, the petitioners-defendants after filing of the written statement remained absent and did not participate in the further proceedings. The issues were struck by the trial Court on 22.11.2008 in the following manners:- (1) Whether the suit has not been properly valued for the purpose of court fee and jurisdiction. If so what is its effect on the suit? OPD (2) Whether the suit is bad for misjoinder of parties and is liable to be dismissed? OPD. (3) Whether the suit property was purchased jointly by the plaintiff and defendants from joint funds of the family in the name of the plaintiff? If so what is its effect on the suit? OPD (2) Whether the suit is bad for misjoinder of parties and is liable to be dismissed? OPD. (3) Whether the suit property was purchased jointly by the plaintiff and defendants from joint funds of the family in the name of the plaintiff? OPD (4) In case issue No.3 is not proved whether the defendants have forcibly dispossessed the plaintiff from the suit shop ?OPP 15. Since the petitioners-defendants had absented after filing of the written statement, the issues No.1 to 3, onus whereof was on the petitioners-defendants, could not be proved and the matter was adjourned to enable the plaintiff-respondent to adduce his evidence. The plaintiff-respondent in support of his averments in the plaint examined himself and his son Atul Puri. The plaintiff-respondent Madan Lal in his statement deposed that he purchased the suit shop from one Jatinder Pal Singh son of S.Joginder Singh on 30.05.1998. He further deposed that immediately on purchase of the suit shop he was put in possession by the Vendor. He also stated that the suit shop was purchased by him to settle his son Atul Puri. He also stated that in the year 2002, he and his family had gone to attend the mundan ceremony of the son of his brother-in-law, the defendants stole away all the documents including the sale deed of the shop in question. He also deposed that the suit shop was taken in possession by the petitioners after breaking open the locks and despite his report, Police did not act in the matter. Similarly, the plaintiff-respondent’s witness, namely, Atul Puri also made his statement before the trial Court on 07.02.2009 and stated that the suit shop was purchased by his father from Jatinder Pal Singh vide Sale Deed dated 30.05.1998. He, however, specifically stated that it was on 07.10.2002, the petitioners-defendants forcibly occupied the suit shop when he and his family had gone to attend the mundan ceremony of his maternal uncle’s son. He also stated that the Police was approached in the matter but no action was taken by the Police. It is stated that the Police insisted that they should amicably settle the issue with the petitioners-defendants. He also claimed in his deposition that he was himself working in the shop and had not let it out to anybody. He also stated that the Police was approached in the matter but no action was taken by the Police. It is stated that the Police insisted that they should amicably settle the issue with the petitioners-defendants. He also claimed in his deposition that he was himself working in the shop and had not let it out to anybody. The petitioners-defendants who had no right, title or interest with the shop are illegally using the shops for which they were liable to pay compensation for depriving the plaintiff-respondent from its use and occupation. 16. It may be noted that there is no rebuttal to the aforesaid evidence, which was led by the petitioners-defendants in ex parte. From the perusal of the plaint, and statement of the plaintiff-respondent and his son Atul Puri, it comes to fore that the suit shop was purchased by the plaintiff-respondent from one Jatinder Singh son of Joginder Pal Singh vide Sale Deed dated 30.05.1998. This was purchased by the plaintiff-respondent to settle his son in the business. This fact that the suit shop was purchased in the name of the plaintiff-respondent is not disputed by the petitioners. In their written statement, the petitioners-defendants have admitted that the Sale Deed of the suit shop stands in the name of the plaintiff-respondent but it is pleaded that same was joint property having been purchased out of the joint funds of the parties. As already taken note of, the possession of the title to the suit property is not a determining factor in a suit instituted under Section 9 of the Act. However, the same can only be looked into for a collateral purpose of appreciating the other evidence of possession that has come on record. The assertion of the respondent that immediately on purchase of the suit shop in the year 1998, he was put in possession and the statement of his son, who claims to have been in actual possession on the date of possession makes it abundantly clear that on the intervening night of 6/7th October, 2002, the plaintiff-respondent was in settled possession of the suit shop. The plea of the petitioners-defendants that both the parties were in joint possession of the suit shop even if it is accepted to be true, yet the petitioners-defendants have no right, title or interest to throw the plaintiff-respondent from the joint possession. The plea of the petitioners-defendants that both the parties were in joint possession of the suit shop even if it is accepted to be true, yet the petitioners-defendants have no right, title or interest to throw the plaintiff-respondent from the joint possession. In such a situation also, in my humble opinion, the suit under Section 9 of the Act was maintainable. 17. Learned trial Court after appreciating the evidence on record returned a finding of fact that the plaintiff-respondent was in the possession of the suit shop and was illegally dispossessed on the intervening night of 6-7th October, 2002 and thus decreed the suit in favour of the plaintiff-respondent. The trial Court also granted the decree for mesne profits @ 2000/- per month for wrongful use and occupation of the suit property. 18. At the outset, it may be held that given the scope of jurisdiction of the Civil Court in a Suit instituted under Section 9 of the Act, the relief for mense profits or for compensation was not maintainable. The trial Court, therefore, committed a grave illegality by directing the defendants to pay the mesne profits @ 2000/- per month for wrongful use and occupation of the suit shop. Such relief, as held above, is not competent in a Suit instituted under Section 9 of the Act. The decree to the aforesaid extent, is therefore, liable to be set-aside. So far as the decree for possession is concerned; I am in agreement with the view taken by the trial Court. Otherwise also, this Court in exercise of powers of revision vested under Section 115 of the Code of Civil Procedure cannot interfere with the findings of fact by entering into re-appreciation of the evidence. The decree was in ex parte and obviously there was no contest from the petitioners-defendants nor was there any evidence led in rebuttal. As is well settled even in ex parte decree where there is no contest from the defendants, the plaintiff is not absolved of proving his case to the satisfaction of the Court. It is only if the trial Court on the basis of evidence led, is satisfied that the plaintiff-respondent has proved his case, a decree can be passed. As is well settled even in ex parte decree where there is no contest from the defendants, the plaintiff is not absolved of proving his case to the satisfaction of the Court. It is only if the trial Court on the basis of evidence led, is satisfied that the plaintiff-respondent has proved his case, a decree can be passed. On perusal of the averments made in the plaint, written statement filed by the petitioners-defendants and the evidence that has come on record, I am of the opinion that the plaintiff-respondent has adequately discharged the burden and proved to the satisfaction of the Court that he was in settled possession of the suit property when he was dis-possessed, without his consent and otherwise than in due course of law. However, I am in agreement with arguments of the learned counsel for the petitioners-defendants that in a suit instituted under Section 9 of the Act, the trial Court could not have gone into the question of title. However, from the careful perusal of the judgment and decree impugned, it is apparent that issue of the title to the suit property has been discussed by the trial Court only in the context of determining the question of settled possession of the plaintiff-respondent over the suit property. The Court has not granted any declaration of the title and therefore, any discussion made in the judgment with regard to the title of the property shall be only deemed to be limited to the appreciation of the evidence on record with regard to the possession of the plaintiff-respondent and forcible dispossession by the petitioners-defendants. 19. It is trite law that in a Suit instituted under Section 9 of the Act, the Court cannot refuse any relief merely because the plaintiff-respondent has mentioned his title for he may have done so apparently to explain his possession. The evidence of title may also be incidentally looked into as evidence corroborating possession or to ascertain the nature of the possession but nothing can turn to evidence of the title, if there is no evidence of possession. The Courts have even gone to the extent of holding that where possession is doubtful, it follows the title. The evidence of title may also be incidentally looked into as evidence corroborating possession or to ascertain the nature of the possession but nothing can turn to evidence of the title, if there is no evidence of possession. The Courts have even gone to the extent of holding that where possession is doubtful, it follows the title. In a case where the defendant was evicted in terms of decree in execution proceedings and did not prove his claim that he was the purchaser of the property, the Court believed the version of the plaintiff that the defendant had broken the locks and taken forcible possession (See. Habeebunnisa Begum v. Mohammad Abdul Khadeer ( AIR 2010 AP 220 ). 20. When the judgment of the trial Court is viewed in this backdrop, it is abundantly clear that the trial Court dealt with the question of title to the property only to take it as an evidence corroborating the possession and its nature. The observations of the trial Court which would make the aforesaid position clear may be noticed here as under:- “On the contrary, the plaintiff has proved that suit shop was purchased by him from one S. Jatinder Paul Singh son of S. Joginder Singh for a consideration of Rs.45,000/- in the year 1998 for which a Sale Deed was registered by Sub-Registrar, Jammu on 03.07.1998 and that he had been in uninterrupted possession thereof till he was unlawfully and forcibly ousted by the defendants on the night intervening of 6 & 7th October, 2002. The plaintiff has also established that the defendants have been in unlawful occupation of the suit shop since 07.10.2002.” 21. Viewed thus, I do not find any legal infirmity in the judgment and decree impugned which would call for exercise of revisional jurisdiction vested in this Court under Section 115 of the Code of Civil Procedure. The decree in so far as it pertains to the restoration of the possession of the suit shop in favour of the respondent, is upheld. However, the decree with regard to the direction to the petitioners-defendants to pay an amount of Rs.2000/- per month by them to the respondent for use and occupation etcetera being beyond the scope of a suit instituted under Section 9 of the Act, is set aside. 22. Accordingly, this Revision Petition is disposed of.