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2019 DIGILAW 632 (HP)

Bishamber v. Krishan Dass

2019-05-28

TARLOK SINGH CHAUHAN

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JUDGMENT : TARLOK SINGH CHAUHAN, J. 1. Defendants are the petitioners, who aggrieved by the judgment and decree passed by learned Civil Judge (Jr. Division), Court No.2, Rohru on 24.10.2008 whereby the summary suit filed by the plaintiff/respondent (hereinafter referred to as the plaintiff) under Section 6 of the Specific Relief Act (for short the Act) came to be decreed. 2. The brief facts of the case are that one Kalmi Nand was having four sons Raghu Dass, Shiv Sukh, Jai Lal and Kagdi Ram. Kagdi Ram and Jai Lal had separated from Raghu Dass and Shiv Sukh and had taken their shares out of the joint property some times before the death of Raghu Dass and, therefore, had nothing to do with the property in the hands of Raghu Dass and Shiv Sukh. A family partition also took place between the heirs of Raghu Dass and Shiv Sukh. Raghu Dass was survived by Shishi Ram, who partitioned the property between his sons on 10.3.1992 and three storeyed house situated in land comprising Khasra No. 594/2, measuring 15 x 14 = 210 feet in Abadi of village Jakhnoti, Tehsil Chirgaon, out of Khasra No. 538 min (old) and 594 (new) was allotted to the plaintiff in such family partition. The plaintiff came into possession over the disputed house w.e.f. 10.3.1992. The defendants by showing muscle powers alongwith other persons formed an unlawful assembly and had dispossessed the plaintiff and his family members from such house by putting their locks over the same. Even though the plaintiff tried to show resistance but a quarrel took place which led to registration of a police case in this behalf. The plaintiff was dispossessed from the disputed house without any legal right and in an unlawful manner, hence the suit. 3. The defendants resisted and contested the suit by filing written statement wherein preliminary objections regarding competency, maintainability, plaintiff having not approached the Court with clean hands, improper valuation and non-joinder of necessary parties were raised. On merits, it was averred that the suit had been merely filed on the basis of surmises and conjectures and being devoid of any merit should be dismissed. The factum of family partition was also denied and it was asserted that in fact a false story had been concocted with a view to grab the property which had fallen to the share of the defendants and their ancestors. The factum of family partition was also denied and it was asserted that in fact a false story had been concocted with a view to grab the property which had fallen to the share of the defendants and their ancestors. The factum of forcible dispossession was also denied. Finally, a prayer was made for dismissal of the suit. 4. On the basis of the pleadings of the parties, the learned trial Court framed the following issues: "1. Whether the plaintiff is entitled for possession of the suit property as alleged? OPP. 2. Whether the suit is not maintainable as alleged? OPD. 3. Whether the suit is not properly valued for the purpose of Court fee and jurisdiction as alleged? OPD. 4. Whether the suit is bad for non-joinder of necessary parties as alleged? OPD 5. Relief. 5. The learned trial Court after recording evidence and evaluating the same, the suit was decreed and the plaintiff was held entitled to the possession from the defendants of disputed house. I have heard the learned counsel for the parties and also gone through the records of the case. 6. Before adverting to the relative merits of the case, it would be noticed that the suit in the instant case was instituted nearly two and half decades back on 27.7.1995. 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 dispossess to effect quick recovery of possession of the immovable property has fact as the case in the present case erupted into nearly over two and half decades old litigation. 7. 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. 8. In Sanjay Kumar Pandey and others versus Gulbahar Sheikh and others (2004) 4 SCC 664 , the Honble 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." 9. In ITC Limited versus Adarsh Cooperative Housing Society Limited (2013) 10 SCC 169 , the Honble 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 versus Adarsh Cooperative Housing Society Limited (2013) 10 SCC 169 , the Honble 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. Infact 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 therefrom 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 therefrom 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 therefrom is the only issue germane to a suit under Section 6, a proceeding thereunder, 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 664 . In fact, para 4 of this Courts judgment passed in Sanjay Kumar Pandey (supra) may be a useful reiteration of the law in this regard. The same is, therefore, extracted hereinbelow: (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" 10. Similar reiteration of law can be found in the judgment of this Court in Shamsher Singh Thakur vs. Baba Jagtar Dass (deceased) through LRS Bibi Karam Dass Chelli (2016) 4 ILR (HP) 512 and C.R. No.101 of 2014, titled Het Ram and others vs. Mohinder Singh and others, decided on 18.9.2014. 11. Thus, what can be taken to be well settled is that remedy of filing a revision is though available to the petitioner but, that too, is only by way of an exception as this Court would normally 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 of Civil Procedure. 12. 12. Bearing in mind the aforesaid exposition of law, 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 therefrom on any date within six months prior to filing of the suit. 13. As regards the partition between the four sons of Kalmi Nand, the same is admitted by DW-1 Pardeep Kumar, who also happens to be defendant No.3 in the instant case. As regards the further partition between the sons of Shishi Ram and allotment of the house to the plaintiff vide partition memo (Ex. PW-8/A) the same has been duly proved on record by PW-6 Ishwar Singh being scribe of the same and also by PW-9 Hardwari Lal. 14. In support of his plea of being in possession, the plaintiff has examined PW-3 Bhau Ram and PW-4 Nihal Chand, who very clearly stated that they seen the plaintiff and earlier to that his father Sh. Shishi Ram in possession of the disputed house and in their presence on 18.4.1995 when they were attending sowing work, the plaintiff and his family members were dispossessed by the defendants and other persons. Noticeably, a suggestion was put to PW-4 in cross-examination suggesting that the defendants forcibly had driven out the plaintiff and his family members from the disputed house. 15. PW-5 Hardwari Lal has also clearly stated that he had also seen the possession of the plaintiff and his family members since 1992 and prior to that his father Sh. Shishi Ram. In cross-examination, this witness clearly stated that prior to 1995, they had never seen the defendants in possession of the disputed house. 16. To similar effect is the statements of PW-6 Ishwar Dass and PW-7 Pyare Lal. Therefore, it stands proved on record that earlier the father of the plaintiff was in possession of the suit property and after his death it was the plaintiff who was in possession therefrom and was forcibly dispossessed by the defendants. No doubt, the defendants also led evidence, but it could not be proved by them that they were in possession of the suit land. 17. No doubt, the defendants also led evidence, but it could not be proved by them that they were in possession of the suit land. 17. DW-1 Pardeep Kumar and DW-2 Bishamber Dass tried to claim that earlier their father Amar Sain was in possession of the suit land, but then this was not the pleaded case of the defendants and therefore, this plea was rightly discarded by the learned trial Court. Moreover, DW-3 Rattan Dass, who did try to support the case of the defendants about the possession in his cross-examination, failed to give any specific reply to the suggestion that the defendants dispossessed the plaintiff in the year 1995 and only thereafter came to be in possession. 18. Similarly, DW-4 Laxmi also failed to state in cross-examination that in the year 1979, the disputed house was allotted to the father of the plaintiff. 19. Thus, what stands established and proved on record is that the plaintiff was in possession of the suit land and had been forcibly dispossessed therefrom. Therefore, the learned Court below while decreeing the suit of the plaintiff has not committed any error rather the conclusion drawn by the Court is based upon the pleadings and correct evaluation of the evidence and such findings cannot in any manner be termed to be perverse, based on misreading and mis-appreciation of evidence on record. 20. 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 from filing a regular suit though establishing his right, title or interest over the property, notwithstanding the decision in the instant petition. 21. Needless to say that the suit if and when filed, shall be considered strictly in accordance with the pleadings and evidence therein and the Court shall not be influenced by the findings rendered either by the trial Court or this Court in these proceedings. 22. The petition is accordingly disposed of alongwith all pending application(s), if any, leaving the parties to bear their own costs.