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2023 DIGILAW 350 (TS)

M. Gautam Singh v. B. Kiran Lata

2023-04-28

A.SANTHOSH REDDY

body2023
JUDGMENT 1. This civil revision petition is filed under Sec. 115 of the Code of Civil Procedure, 1908 (for short "the CPC") against the judgment and decree passed in O.S.No.451 of 2009, dtd. 31/3/2017, by the learned XIV Additional Chief Judge, (F.T.C.). 2. Heard Sri Suresh Shiv Sagar, learned counsel for the petitionersdefendants and Sri Mohd.Osman Shaheed, learned counsel for the respondents-plaintiffs. Perused the record. 3. During the pendency of revision, petitioner No.1/defendant No.1 died, his legal representatives were brought on record as petitioner Nos.4 to 7. 4. The parties hereinafter referred to as the plaintiffs and defendants as arrayed in the suit before the trial Court. 5. The respondents-plaintiffs filed the main suit for recovery of possession under Sec. 6 of the Specific Relief Act, 1963 (for short "the Act") against the petitioners-defendants in respect of the suit schedule property bearing M.C.No.14/8/385/2/1, admeasuring 260 square yards situated at Jummerat Bazaar, Hyderabad (hereinafter referred to as the "suit property"). It is averred in the plaint that husband of plaintiff No.1 and his brother by name Kunwar Singh jointly purchased the suit property comprising of one room and a compound wall from one Smt.Devi Rani, D/o.Laxmi Bai, under registered sale deed dtd. 13/12/1976 for a valid consideration and possession was also delivered to them. The husband of plaintiff No1 was looking after the suit property and leased out the same to one Ranbir Singh on monthly rent of Rs.500.00 on 22/12/1979 in order to keep Auto Rickshaw and cycle rickshaws. Thereafter, a dispute arose between the husband of plaintiff No.1 and his brother and settled at the intervention of elders. Pursuant to the said compromise, the elder brother of husband of plaintiff No.1 executed a gift settlement deed in favour of husband of plaintiff No.1 on 19/3/2009. The husband of plaintiff No.1 noticed that defendant Nos.1 to 3 who are no way concerned with the suit property started illegal construction from 1/2/2009 on a portion of the suit property and he immediately lodged complaint with the Assistant City Planner, Town Planning Sec., Circle VI, Hyderabad requesting him to stop the unauthorized construction marking copies to the Deputy Municipal Commissioner, GHMC Sardar Mahal etc., Even then, no action has been initiated by the authorities concerned. Plaintiff No.1 filed WP.No.8061 of 2009 before this Court and the same was allowed vide order dtd. Plaintiff No.1 filed WP.No.8061 of 2009 before this Court and the same was allowed vide order dtd. 20/4/2009 directing the Assistant City Planner to act in accordance with law on the complaints filed by the husband of plaintiff No.1 as noted. 6. It is also averred that the authorities concerned have not taken action on the said orders. The defendants dispossessed the plaintiffs on 1/2/2009 illegally under protest. Hence, the plaintiffs filed the present suit. 7. Defendants filed written statement denying the allegations made in the plaint and further submit that their mother Smt.Devi Rani D/o.Smt.Lakshmi Bai had acquired house plot admeasuring 540 square yards bearing Municipal No.14/8/385/2 under registered a sale deed vide document No.1353/1975, dtd. 7/4/1975 from one Sri Sunder Singh S/o.Hannu Singh and since then their mother has been in possession and enjoyment of the property without interruption from anybody. After demise of their mother, they have partitioned the said property and under the said partition, the southern part of the building bearing No.14/8/385/2 admeasuring 176.40 square yards allotted to defendant No.1, northern part of the property admeasuring 176.40 square yards allotted to defendant No.2 and middle part of the property admeasuring 176.40 square yards allotted to defendant No.3. Since then, the defendants have been possession and enjoyment of their respective portions allotted as per registered partition deed bearing No.472/2009, dtd. 20/2/2009. 8. It is further submitted that the suit property was purchased by the mother of the defendants and she never sold any part of the property to any third party including the husband of the plaintiff and his brother on 13/12/1976. In the absence of execution of any document by the mother of the defendants, the husband of plaintiff No.1 and his brother Kunwar Singh would not get any right or title in respect of the suit property. The plaintiff nor her husband or his brother Kunwar Singh have no right or title in respect of the part of the property of an extent of 260 square yards in suit property situated at Jummerath Bazar, Hyderabad and they have created the registered gift settlement deed on 17/3/2009 only to grab the said property from the defendants and they have filed false complaints before the municipal and police authorities. 9. 9. It is further stated that the rental agreement from T.Kishan Singh and rent receipt was created by the plaintiffs only to grab the property of the defendants. According to the allegations made in the plaint, the defendants dispossessed her on 1/2/2009, but in the document executed by the brother of plaintiff No.1's husband Kunwar Singh in favour of her husband on 17/3/2009 bearing Doc.No.610/2009, it was mentioned that the settler had delivered the vacant peaceful possession of the schedule property in favour of the settlee. In the same way, the husband of plaintiff No.1 also executed a registered gift settlement deed bearing Doc.638/2009, dtd. 19/3/2009, it was mentioned that the settler has delivered the vacant and peaceful possession of the schedule property in favour of plaintiff No.1. The defendants submit that they are in possession and enjoyment of entire property as lawful owners. The plaintiff has not made out any case for seeking recovery of possession and mesne profits. 10. Plaintiff No.1 filed rejoinder to the written statement and stated that the so-called partition deed is also a sham and fabricated document created for the purpose of this case. The defendants have no right, title over the suit property and they are in illegal possession of the same. 11. The trial Court decreed the suit and directed the defendants to deliver the possession of the suit property to the plaintiffs within three months from the date of this judgment, failing which the plaintiffs can approach the Court for execution of the same by Court and also awarded mesne profts at the rate of Rs.500.00 per month from the date of the suit till the delivery of possession. Aggrieved by the same, the defendants filed the present revision. 12. Learned Counsel appearing for the petitioners-defendants vehemently contended that the trial Court committed error in deciding the title to the schedule property. He also submits that the trial Court has failed to consider the contradictory pleas of all the respondentsplaintiffs about their alleged possession as well as alleged dispossession. He also submits that as the suit is filed under Sec. 6 of the Act and the same is decreed by the trial Court, as there is no appeal provision, the present revision is filed. He also submits that as the suit is filed under Sec. 6 of the Act and the same is decreed by the trial Court, as there is no appeal provision, the present revision is filed. He also submits that the trial Court has erroneously framed ten issues and gave findings contradictory to each other, which are not permissible under Sec. 6 of the Act. 13. Learned counsel also submits that in a suit filed under Sec. 6 of the Act, the trial Court ought to have concentrated on the questions such as whether the dispossession took place within six months from the date of filing of the suit, otherwise than through course of law, and in the instant case, no such exercise was undertaken. He also submits that the trial Court gave finding on Ex.A.1, which is unregistered document and it would not be relied upon by the Court. The alleged document was kept pending, which is not observed by the trial Court. Therefore, learned counsel prayed to set aside the impugned judgment. Learned counsel has placed reliance on the decision of Mohd.Mehtab Khan v. Khushnuma Ibrahim, 2013 (3 ) ALD 64 (SC). wherein the Apex Court at para No.12 held as under: " A proceeding under Sec. 6 of the Specific Relief Act, 1963 is intended to be a summary proceeding the object of which is to afford an immediate remedy to an aggrieved party to reclaim possession of which he may have been unjustly denied by an illegal act of dispossession. Questions of title or better rights of possession does not arise for adjudication in a suit under Sec. 6 where the only issue required to be decided is as to whether the plaintiff was in possession at any time six months prior to the date of filing of the suit. The legislative concern underlying Sec. 6 of the SR Act is to provide a quick remedy in cases of illegal dispossession so as to discourage litigants from seeking remedies outside the arena of law. The same is evident from the provisions of Sec. 6(3) which bars the remedy of an appeal or even a review against a decree passed in such a suit." 14. On the other hand, learned counsel for the respondentsplaintiffs, while supporting the impugned judgment, submits that the trial Court has rightly decreed the suit. The same is evident from the provisions of Sec. 6(3) which bars the remedy of an appeal or even a review against a decree passed in such a suit." 14. On the other hand, learned counsel for the respondentsplaintiffs, while supporting the impugned judgment, submits that the trial Court has rightly decreed the suit. The plaintiffs have not only established their possession, but also established the title to the suit property. The impugned judgment of the trial Court is based on proper appreciation of evidence, oral and documentary and the trial Court has rightly decreed the suit. Hence, he prayed to dismiss the revision. Learned counsel has placed reliance on the following decisions: 1. Manindra Land and Building Corporation Ltd., v. Bhutnath Banerjee, AIR 1964 Supreme Court 1336. 2. ITC Limited v. Adarsh Cooperative Housing Society Limited, (2013) 10 Supreme Court Cases 169. 3. Renikuntla Rajamma (Dead) by legal reprsentatives v. K.Sarwanamma, (2014) 9 Supreme Court Cases 445. 15. In ITC Limited's case (3 supra), the Supreme Court at para Nos.9, 10 and 11 held as under: " 9. Sec. 6 of the Specific Relief Act, 1963 under which provision of law the suit in question was filed by the respondentplaintiff is in pari materia with Sec. 9 of the 1877 Act. A bare reading of the provisions contained in Sec. 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 fact, in a suit under Sec. 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 Sec. 6(2) prescribes a period of six months from the date of dispossession as the outer limit for filing of a suit. This is because Sec. 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 Sec. 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-sec. (3) of Sec. 6. Sub-sec. (4) also makes it clear that an unsuccessful litigant in a suit under Sec. 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 Yeshwant 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. Gulbahar Sheikh [ (2004) 4 SCC 664 ] . In fact, para 4 of this Court's judgment passed in Sanjay Kumar Pandey [ (2004) 4 SCC 664 ] may be a useful reiteration of the law in this regard. The same is, therefore, extracted hereinbelow: (SCC p. 665) "4. A suit under Sec. 6 of the Act is often called a summary suit inasmuch as the enquiry in the suit under Sec. 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-sec. (3) of Sec. 6 provides that no appeal shall lie from any order or decree passed in any suit instituted under this sec. . No review of any such order or decree is permitted. The remedy of a person unsuccessful in a suit under Sec. 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 Sec. 6 of the Act. Thus, as against a decision under Sec. 6 of the Act, the remedy of unsuccessful party is to file a suit based on title. Thus, as against a decision under Sec. 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 Sec. 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 Sec. 115 of the Code." 11. It is indeed sad, if not unfortunate, that what was intended by the legislature to be a summary proceeding to enable a person 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. The sheer number of pending lis permitted the learned trial court to return its findings, after almost a decade, that it is, indeed, the plaintiff who was in possession of the disputed property on the relevant date and was dispossessed therefrom in an illegal manner by the defendant." 16. Sec. 6 of the Specific Relief Act provides for a summary remedy for restoration of possession. The questions of title or better rights of possession does not arise for adjudication a suit under Sec. 6 of the Act. The only question to be gone into by the trial Court and required to be decide as to whether the plaintiffs are in possession of the disputed property and they had been illegally dispossessed therefrom on any date within six months prior to the filing of the suit. The legislative intention under Sec. 6 of the Act is to provide a summary remedy to enable a person illegally dispossessed to effect quick recovery of possession of the immovable property. Therefore, the same is evident from the provisions of sub-Sec. 6 (3) of the Act which bars the remedy of appeal and review against the decree passed in such a suit as held by the Supreme Court in Mohd.Mehtab Khan's case (1 supra). 17. In a suit filed under Sec. 6 of the Act, the occasion for the trial Court to address itself to the question of title or other entitlement of the plaintiff does not arise. 17. In a suit filed under Sec. 6 of the Act, the occasion for the trial Court to address itself to the question of title or other entitlement of the plaintiff does not arise. The only question assumes significance in such a suit is, as to whether the plaintiff was dispossessed from the suit property, otherwise than through the procedure prescribed by law and whether the suit was filed within six months from the date of such dispossession. The proceedings in such suits are, almost summary in nature. In the present case, the trial Court did not address itself this basic requirement. All the issues framed by it are totally unrelated to an adjudication, to be undertaken in a suit, filed under Sec. 6 of the Act and decided the suit as if it is filed for declaration of title and recovery of possession. 18. This revision is directed against the judgment and decree passed by the trial Court. It has to be recognized that the revision cannot be treated as an appeal, and the evidence on record cannot be re-appreciated. However, if it becomes evident that if there is any legal infirmity in the decree and judgment, necessary relief is to be granted. In the light of the principles enunciated in the above judgments, a perusal of the impugned judgment and decree would indicate that the procedure to be followed in a suit under Sec. 6 of the Act is not followed and thereby, contravened the procedure by deciding the title of the parties in the said suit. 19. For the foregoing reasons, I am of the view that the trial Court has committed error in deciding title to the property and also several issues have been framed, which are not relevant for consideration in a suit filed under Sec. 6 of the Act. Therefore, the judgment and decree passed by the trial Court need to be set aside and the matter needs to be adjudicated on proper lines, afresh. 20. In the result, the civil revision petition is allowed. The matter is remanded to the trial Court for fresh disposal. Therefore, the judgment and decree passed by the trial Court need to be set aside and the matter needs to be adjudicated on proper lines, afresh. 20. In the result, the civil revision petition is allowed. The matter is remanded to the trial Court for fresh disposal. The trial Court shall proceed to decide the matter on the basis of following issue: "Whether the plaintiffs were in possession of the suit schedule property and they had been illegally dispossessed therefrom on any date within six months preceding the date of filing of the suit." The trial Court shall decide the suit on merits within a period of six months from the date of receipt of a copy of this order. It shall be open the parties to adduce evidence on the above point, if necessary. There shall be no order as to costs. Pending miscellaneous petitions, if any, stand closed.