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2023 DIGILAW 663 (KAR)

Satish Kumar v. Srinivas

2023-04-27

C.M.POONACHA

body2023
ORDER : C.M.Poonacha, J. The above Revision Petition is filed under Section 115 r/w Order 44, Rule 1 of Code of Civil Procedure, 1908 (for short 'CPC) challenging the Judgment and Decree dated 28.02.2017 passed in O.S. No.17/2008 by the Senior Civil Judge, Sedam wherein the suit filed by the Plaintiff under section 6 of the Specific Relief Act, 1963 has been dismissed with costs. 2. The parties are referred to as per the rank before the Trial Court for the sake of convenience. 3. It is the case of the Plaintiff that the father of the Plaintiff purchased plot No.1, Municipal No.2 - 5- 101 situated on Cinema Road at Sedam (hereinafter referred to as 'larger property') for a consideration of Rs.5,000/- in the name of his wife Smt.Gayatridevi vide registered Sale Deed dated 26.5.1971. That father of the Plaintiff was the elder brother of the Defendant No.1 and that when their father namely Shri. Kashinath Rao died in the year 1963, the Defendant No.1 was studying and the father of the Plaintiff was practicing Advocate. That after the death of the said Shri.Kashinath Rao, the father of the Plaintiff helped the Defendant No.1 in completing his Education and getting a job at the first instance. That as long as the Plaintiff's father was alive, the relationship between the Defendant No.1 and his elder brother i.e. the father of the Plaintiff was very cordial and the Plaintiff's father was having great confidence, love and affection to the Defendant No.1. 3.1. It is the further case of the Plaintiff that in the year 1976, the Plaintiff's father wanted to undertake construction over the property purchased in the name of his wife and he wanted to avail loan for the said purpose. The Defendant No.1 came to know of the said plan of the Plaintiff's father desirous of availing a loan, and he approached the Plaintiff's father stating that he being a Government Servant was eligible to obtain loan from the Government for construction of house at meager rate of interest as compared to loans given by commercial banks for the same purpose. In order to obtain the said loan, the father of the Plaintiff got transferred the plot in the name of Defendant No.1 by creating a nominal sale deed dated 02.10.1976 for a consideration of Rs.3,000/-. In order to obtain the said loan, the father of the Plaintiff got transferred the plot in the name of Defendant No.1 by creating a nominal sale deed dated 02.10.1976 for a consideration of Rs.3,000/-. However, the same was not supported by any consideration and the Defendant did not pay any consideration to the father/mother of the Plaintiff. That on the basis of the Sale Deed, the Defendant No.1 applied for loan for construction. Accordingly, a sum of Rs.25,000/- was sanctioned to the Defendant. 3.2. It is the further case of the Plaintiff that his father invested more than Rs.1 Lakh and Rs.25,000/- loan amount granted by the Government to the Defendant, for construction of house and a shop over the plot in the year 1976-77 and the Plaintiff's father was residing in the said house and his office was also in the said house. The father of the Plaintiff was also letting out the shop portion and collecting the rent of the same. He was also letting out three rooms in the said house to different persons. 3.3. It is the further case of the Plaintiff that even though the house and shop constructed over the above said plot was nominally standing in the name of the Defendant in the municipal records, the father of the Plaintiff repaid the loan amount of Rs.25,000/- availed for construction of house and shop to the Defendant. Thus, the father of the Plaintiff was actual owner in possession of the entire building construction over the above said plot. That after the death of the father of the Plaintiff i.e., on 09.02.1992, the Defendant No.1 did not claim any right over the said property and that the Plaintiff, his mother and sisters continued to live continued to live in the said house as its owners. 3.4. That after the death of his father, when the Plaintiff came to know that the house and shop was standing in the name of Defendants' family, he requested the Defendant to get his name mutated in the Municipal records. However, the Defendant No.1 although initially went on evading to do the same, ultimately, he claimed a share in the above said house. However, the Defendant No.1 although initially went on evading to do the same, ultimately, he claimed a share in the above said house. Since, there was a dispute between the parties in the month of August, 1994, in order to amicably resolve the same, an oral partition was agreed in the presence of the relatives whereunder, eastern half portion facing the main road consisting of a shop was allotted to the Plaintiff and the western portion was allotted to Defendant No.1. That as per the said settlement, the Defendant No.1 gave an application for mutating the name of the Plaintiff and accordingly, the portion allotted to the Plaintiff was given a separate municipal No.2-10-87/1, (old) 2-10-165 and the Plaintiff was in exclusive possession of the said portion and was paying the municipal tax and other taxes and the name of the Plaintiff was appearing in the khatha extract as owner and possessor of the said portion. The said portion of the property allotted to the Plaintiff is the subject matter of the suit and hereinafter referred to as 'suit property'. 3.5. It is the further case of the Plaintiff that consequent to the said family arrangement, the Plaintiff gave possession of the portion allotted to the Defendant No.1 in the month of August, 1994 and prior to the same, the Defendant No.1 was not possession of any portion of the property. That after the Defendant No.1, was put in possession of his portion, his daughter and son-in-law i.e. Defendant Nos.2 and 3 were residing in the said portion along with Defendant No.1. It is the further case of the Plaintiff that the residential portion of the Plaintiff's property was given on lease by the Plaintiff to Shri.S.K.Deshpande, Advocate and he was in possession as a tenant till August, 2006 and he was paying rent to the Plaintiff. Thereafter, in the month of September, 2006, the Plaintiff let out the suit property to one Shri. Vishwanath s/o. Shankerappa Kodii for a monthly rent of Rs.1,800/- and he was paying the rent of the same to the Plaintiff till 16.02.2008. 3.6. That on 15.02.2008, the said Shri. Vishwanath and his family members locked the said house and went to their newly constructed house at Halkatti for a function. 3.6. That on 15.02.2008, the said Shri. Vishwanath and his family members locked the said house and went to their newly constructed house at Halkatti for a function. Taking undue advantage of their absence, the Defendants together with their agents entered the house and threw away all the house and other valuable articles of the said Shri. Vishwanath. Immediately after coming to know of the same, the said Shri. Vishwanath gave a police complaint on 15.02.2008 in Crl. case No.43/2008. The Plaintiff, immediately after coming to know of the said incident, requested his brother-in-law and maternal uncle to go to Sedam and enquire about the said illegal act committed by the Defendants. The said Shri. Vishwanath vacated the house on 16.02.2008 and handed over the vacant possession of the same to the Plaintiff through his brother-in-law and maternal uncle and hence, the Plaintiff was in possession of the suit house. 3.7. It is the further case of the Plaintiff that one Shri. Abdul Rasheed, a tailor is in possession of the shop adjoining to the suit house as a tenant. That on 18.02.2008, the Defendants in the in the absence of said Shri. Abdul Rasheed broke open the lock and entered in the suit house forcibly. After coming to know of the same, the Plaintiff asked his brother-in-law, to give complaint to the jurisdictional Sedam Police and accordingly, complaint in Crime No.44/2008 was lodged. Since the Defendant refused to give back possession of the suit house, the Plaintiff filed a suit for possession under section 6 of the Specific Relief Act, 1963 (for short 'the Act'). 4. The Defendants entered appearance and contested the case of the Plaintiff by filing common written statement. It is contended that a suit under Section 6 of the Act is not maintainable. It is their further case that Defendant No.1 is the absolute owner of the entire property consisting of three residential portions, open space and shops and that all the shops are in the occupation of the tenants of Defendant No.1. Out of the three residential portions two are in the occupation of tenants of Defendant No.1 and one portion with open space is in the occupation of Defendant Nos.2 and 3. That the description of the suit property is not as shown in the plaint i.e., premises No.2-10-87/1. Out of the three residential portions two are in the occupation of tenants of Defendant No.1 and one portion with open space is in the occupation of Defendant Nos.2 and 3. That the description of the suit property is not as shown in the plaint i.e., premises No.2-10-87/1. It is not in dispute that the subject matter of the suit is residential portion of the building which was in the occupation of the tenant by name Shri.Vishwanath. 4.1. It is the specific contention of the Defendant No.1 that Shri. Vishwanath delivered vacant possession to the Defendant No.1 on 15.02.2018 but subsequently, at the instigation of the mother of the Plaintiff and other relatives tried to take back the possession forcibly from Defendant No.1 and under this circumstance, Defendant No.1 sought for police protection by giving representation on 15.02.2008 at about 4.00 p.m. to the jurisdictional police. That Defendant No.1 after taking possession from the tenant Shri.Vishwanath has let out the same to another tenant Shri.Somashekhar. 4.2. The Defendants deny the claim of the Plaintiff regarding ownership of the suit property and it is contended that Defendant No.1 is the absolute owner having purchased the same out of his income and also having put up construction out of his own funds. It is their further case that when the father of Defendant No.1 - Shri.Kashinath Rao died, the Plaintiff's father had no income and hence, Defendant No.1 who was studying his first year engineering, sacrificed his own studies and secured job as a primary school teacher, took all the responsibilities of the family and helped his brother to continue his juniorship under Shri.V.B.Deshpande at Gulbarga. The Defendants have categorically denied the arrangement of dividing the property and the fact that an application was given along with sketch to change the revenue records in favour of the Plaintiff. It is further contended by the Defendants that the entire property has one number i.e., 2-10-1987 which is standing in the name of Defendant No.1 and he is paying tax to the Government. The Plaintiff got entries in the mutation records fraudulently without the consent and knowledge of the Defendant No.1 by giving house No.2-10-87/1, in collusion with officials of revenue authorities. The Plaintiff got entries in the mutation records fraudulently without the consent and knowledge of the Defendant No.1 by giving house No.2-10-87/1, in collusion with officials of revenue authorities. The Defendant No.1 after came to know about the illegal entry in TMC records in the name of Plaintiff, he has filed Revision before the Deputy Commissioner, Gulbarga and order of TMC Sedam dated 16.11.1994 has been stayed on 19.07.2008. 4.3. The Defendants have further denied lease by the Plaintiff of a portion of the house to Shri. S.K.Deshpande and that he was in possession till 2006 and that subsequently, the property was let out to Shri.Vishwanath. The Defendants allege that Shri.S.K.Deshpande and Shri. Vishwanath have joined hands with the Plaintiff to make wrongful gain and that both were tenants of Defendant No.1 and on vacating, they gave possession to Defendant No.1. The Defendants have denied in detail the case put forward by the Plaintiff. The Defendants further alleged that they will have not given any title to the property in favour of the Plaintiff. Hence, Defendants seek for dismissal of the suit of the Plaintiff. 5. Based on the pleadings of the parties, the Trial Court framed the following five issues. "1. Whether plaintiff proves that he was in possession of suit property as on 18.02.2008? 2. Whether plaintiff further proves that defendants dispossessed him from the suit property, without due process of law as contended in the plaint? 3. Whether suit is maintainable, without seeking the relief of declaration of title? 4. Whether plaintiff is entitled for the relief sought for? 5. What decree or order?" 6. The Plaintiff was examined as PW.1, the Tailor - Shri. Abdul Rasheed was examined as PW.2, Shri.Vishwanath was examined as PW.3, Shri.Raghavendra Rao was examined as PW.4, Shri. Surendra was examined as PW.5, Shri. J.N.Digambar Rao, was examined as PW.6. Exhibits P1 to P71 have been marked in evidence. Defendant No.1 - Shri. Srinivas has been examined as DW.1 and Shri. Gurulingayya Swamy has been examined as DW.2. Ex.D1 to D37 have been marked in evidence. The Trial Court by its Judgment and Decree dated 28.02.2017 has dismissed the suit filed by the Plaintiff. Being aggrieved, the present Petition is filed. 7. Defendant No.1 - Shri. Srinivas has been examined as DW.1 and Shri. Gurulingayya Swamy has been examined as DW.2. Ex.D1 to D37 have been marked in evidence. The Trial Court by its Judgment and Decree dated 28.02.2017 has dismissed the suit filed by the Plaintiff. Being aggrieved, the present Petition is filed. 7. Smt. Sona Vakkund, learned counsel on behalf of Smt. Hema L. Kulkarni for the Plaintiff assailing the Judgment passed by the Trial Court has contended; a) That the Trial Court went beyond the scope of Section 6 of the Act and proceeded to adjudicate the question of title of suit property. b) That the various material on record demonstrate that the tenants were in possession of the suit property and the same was handed over to the representative of the Plaintiff. c) The Trial Court ought to have appreciated only the relevant material on record to demonstrate plaintiff was in possession of the suit property. 8. Hence, learned Counsel seeks for allowing of the above petition and decreeing of the suit filed by the Plaintiff. In support of her submission, she relied on following judgments: 1) Sadashiv Shyama Sawant (Dead) Through LRs and others v. Anita Anant Sawant (2010) 3 SCC 385 2) Mohd. Mehtab Khan and others v. Khushunma Ibrahim and others AIR 2013 SC 1099 3) ITC Limited v. Adarsh Cooperative Housing Society Limited (2013) 10 SCC 169 9. Shri. V.K. Nayak, learned counsel appearing for the respondents, justifying the finding recorded by the Trial Court contended: i) that the suit is filed by the Plaintiff claiming possession based on title and hence, the enquiry made by the Trial Court was justified. ii) that the Plaintiff did not prove the landlord and tenant relationship and Defendant was dispossessed by the Plaintiff. 10. Hence, he seeks for dismissal of the Petition filed by the Petitioner. In support of his submission, he relied on the following judgments: 1) Shri Durgappa, since dead by LRs v. Nagamma since dead by LRs. and others ILR 2017 KAR 4254 2) Shri Durgappa, since dead by LRs v. Nagamma since dead by LRs. and others SLP NO.39068/2017( SC DD 23.02.2018) 11. I have considered the submissions made by both learned counsels and perused the material available on record. and others ILR 2017 KAR 4254 2) Shri Durgappa, since dead by LRs v. Nagamma since dead by LRs. and others SLP NO.39068/2017( SC DD 23.02.2018) 11. I have considered the submissions made by both learned counsels and perused the material available on record. The question that arises for consideration is 'Whether the Plaintiff proves that he was dispossessed from the suit property without due process of law by the Defendants as contended in the plaint?' 12. Keeping in mind that the present suit has been filed under Section 6 of the Act for possession although the Plaintiff has elaborately pleaded in detail as to the manner and circumstances under which he was in possession of the suit property and as to how he was illegally dispossessed by Defendant No.1 and Defendant No.1 has also in detail contested the case of the Plaintiff by setting out various factual aspects pertaining to the assertion of title by the respective parties, it is not necessary to re-appreciate in detail the aspects vis-à-vis the rival claims of Plaintiff and Defendant No.1 as to the title to the property. The relevant assertions made by the parties will be considered in the course of this judgment to the extent that it is necessary for adjudicating the questions as contemplated under Section 6 of the Act. 13. The essential case of the Plaintiff in brief is that his father was the owner of the larger property having purchased the same in the name of his mother and that the property was transferred by his mother to Defendant No.1 under a Sale Deed dated 26.5.1971 only for the purpose of availing the loan for putting up construction. It is the further case that after construction, the father of the Plaintiff together with his family were in possession of the entire constructed area and had given certain portions of the same on rent. That even after the death of the father of the Plaintiff, his mother as well as the Plaintiff and other family members continued in possession. That when they noticed that the property had continued in the name of Defendant No.1, the family arrangement was arrived at between Plaintiff and Defendant No.1, consequent to which, the property was amicably divided and the revenue records were also changed as per the said family arrangement. 14. That when they noticed that the property had continued in the name of Defendant No.1, the family arrangement was arrived at between Plaintiff and Defendant No.1, consequent to which, the property was amicably divided and the revenue records were also changed as per the said family arrangement. 14. The suit property being a residential portion which was allotted to the Plaintiff in the family arrangement was in the occupation of a tenant viz., Sri Vishwanath and that on 15.02.2018, when the said tenant and his family members were away, the Defendant Nos.1 to 3 unlawfully entered into the suit property and threw away the household articles of the said tenant. Hence, the tenant filed a police complaint and thereafter vacated the suit property and handed over the possession of the same as per the Plaintiffs instructions to his representatives. Thereafter, the Defendants once again forcibly occupied the suit property. 15. As against the case of the Plaintiff, the Defendants contended that Defendant No.1 is the absolute owner of the suit property and also denied any family arrangement with the Plaintiff. It is also the contention of the Defendants that the tenant of the suit property viz., Shri.Vishwanath is the tenant of Defendant No.1. 16. The Plaintiff in order to prove his case, examined himself as PW.1, his other tenant viz., one Sri Abdul Rasheed as PW.2, the tenant of the suit property viz., Shri.Vishwanath as PW.3, brother-in-law of the Plaintiff as PW.4, a relative of the Plaintiff who has lodged police complaint upon instructions of the Plaintiff has been examined as PW.6. PW.5 is one Shri. Surendra who was in occupation of the suit property as a tenant from 1998 till August 2006 and who also having knowledge about certain factual aspects of the transaction between the Plaintiff and Defendant No.1 vis-à-vis the entire property. The said witnesses have been cross-examined but there is no material to dis-believe their testimony. 17. The Plaintiff has produced Exs.P21 to P31 which are the rent receipts in respect of the tenant Shri.Abdul Rasheed for the period January 2002 to February 2008. Exhibits P21, P22, P23, P24 and P25 have been issued by PW.4 - the brother-in-law of the Plaintiff. Exhibits P26, P27, P28, P29, P39 and P39(a) have been issued by the mother of the Plaintiff Smt. Gayathri and Ex.P31 has been executed by the Plaintiff. Exhibits P21, P22, P23, P24 and P25 have been issued by PW.4 - the brother-in-law of the Plaintiff. Exhibits P26, P27, P28, P29, P39 and P39(a) have been issued by the mother of the Plaintiff Smt. Gayathri and Ex.P31 has been executed by the Plaintiff. The Plaintiff has also produced the Plaint and Written Statement in O.S. No.58/2008 which suit has been filed by the said tenant Shri. Abdul Rasheed against the Defendant for injunction. Exs.49 to 52 are the rental deeds executed by Sri Abdul Rasheed in respect of property bearing No.2-10-165 in his occupation under the Plaintiff. Exs.53 and 54 are the Lease Agreements executed by the tenant Sri Vishwanath (PW.3) in favour of the Plaintiff. It is forthcoming from Ex.P53 that the same is for the period from 01.08.2007 to 01.07.20008 and the rents stipulated was Rs.1,800/- per month. Ex.P54 is for a period of eleven months commencing from 01.09.2006 and the rent stipulated was Rs.1,800/- per month. Ex.P55 is the General Power of Attorney executed by the Plaintiff in favour of Sri Raghavendra (PW.4) - brother - in-law of the Plaintiff, authorising him to attend the Court proceedings inter alia the suit property. 18. It is forthcoming from the aforementioned that the case of the Plaintiff vis-à-vis the fact that a portion of the larger property has been given on rent to a tenant Abdul Rasheed, who was in occupation of the same and carrying on the business of tailoring in the said premises as is forthcoming from the rent receipts Exs.P21 and P31 as well as the rental deeds Exs.P49 to P52 as also Exs.P19 -Certified copy of plaint in O.S. No.58/2008. To prove the aspect regarding his possession of the suit property and the occupation of the suit property by tenant inducted by the Plaintiff, the evidence of the and other tenant - PW.2 as well as the tenant who was in occupation of the property Shri.Vishwanath - PW.3 is categorical and relevant. 19. The Defendants have specifically contended that they are in occupation of the suit property as well as other portions of the larger property of which, in some portions, the tenants inducted by Defendant No.1 are in possession. However, there is no material on record to demonstrate that PWs.2 and 3 were the tenants under Defendant No.1. 19. The Defendants have specifically contended that they are in occupation of the suit property as well as other portions of the larger property of which, in some portions, the tenants inducted by Defendant No.1 are in possession. However, there is no material on record to demonstrate that PWs.2 and 3 were the tenants under Defendant No.1. On the contrary there is sufficient material as noticed above to demonstrate that the said tenants PWs.2 and 3 were the tenants of the Plaintiff. 20. Further, the circumstances under which the larger property standing in the name of Defendant No.1 was divided consequent to the family arrangement is forthcoming from the evidence of relatives of Plaintiff- PWs.Nos.4 and 6 as well as the earlier tenant i.e., PW.5 . The family arrangement is also forthcoming from Exs.P14 which is a certified copy of the letter addressed by Defendant No.1 to the President -TMC, Sedam seeking for change of name to be incorporated in the revenue records pursuant to the said family arrangement arrived at between the Plaintiff and Defendant No.1. The details of the said family arrangements have been elaborately stated in Ex.P14. 21. It is also forthcoming from the orders dated 04.04.2013 passed in W.P. No. 83815/2010 and W.P.Nos.84279-4280/2010 (Ex.P57) that the Defendant had filed the said Writ Petitions challenging the order passed by the Deputy Commissioner, Kalaburagi regarding mutation in the records of the municipality wherein the name of Defendant No.1 (Petitioner in the Writ Petition) and the name of Plaintiff (respondent No.4 in the Writ Petition) was challenged and a Co-ordinate Bench of this Court by order dated 04.04.2013 dismissed the Writ Petitions filed by Defendant No.1. The said order was challenged in Writ Appeal No.50259/2013 and Nos.50363- 364/2014 and a Division Bench of this Court vide order dated 05.11.2013 (Ex.P58) did not interfere with the order passed by the learned Single Judge. It is relevant to note that in Ex.P58, the proceedings in O.S. No.17/2008 i.e., the suit in respect of which the present proceedings arise has also been taken note of. 22. It is relevant to note that in Ex.P58, the proceedings in O.S. No.17/2008 i.e., the suit in respect of which the present proceedings arise has also been taken note of. 22. It is clear and forthcoming from the aforementioned that the Plaintiff has produced sufficient material to demonstrate that he was in possession of the suit property as well as other portions of the larger property and tenants inducted by him who were in occupation of the certain portions have also been examined as noticed above and documents regarding said tenancy have also been produced as noticed above. On the contrary, Defendants have not produced any material to demonstrate that the tenant Shri. Abdul Rasheed (PW.2) and Shri. Vishwanath (PW.3) were the tenants under Defendant No.1. 23. It is the specific contention of the Plaintiff that PW.3 was dispossessed and Defendant No.1 and agents have illegally taken possession of the suit property. There is specific pleading that on 15.02.2008, PW.3 was dispossessed and a police complaint in that regard was filed as is forthcoming from Ex.P17. Further specific averments have been made in the plaint that on the next date i.e., on 16.02.2008, the Plaintiff was handed over the suit property through his representatives PWs.4 and 6 and the defendants and their agents having forcibly taken the possession and there is material to demonstrate that PW.4 complained regarding the same to the Sedam Police authorities. Having regard to the aforementioned, there is sufficient material on record to demonstrate that suit property was in possession of the Plaintiff and that he has been illegally dispossessed. 24. The Trial Court, while considering the aspect regarding the illegal dispossession as was alleged by the Plaintiff, notwithstanding the fact that the Trial Court has in detail discussed with regard to the manner of right vis- à-vis the title of the property as asserted by Plaintiff and Defendant No.1, the Trial Court has rightly noticed the scope of proceedings as contemplated under Section 6 of the Act and has considered the material on record from the said perspective. However, the Trial Court has disbelieved the documents produced by the Plaintiff. The Trial Court has disbelieved Ex.P-53 and 54 i.e., the Lease Agreement produced by PW.3 on the ground that the rent receipts have not been produced. However, the Trial Court has disbelieved the documents produced by the Plaintiff. The Trial Court has disbelieved Ex.P-53 and 54 i.e., the Lease Agreement produced by PW.3 on the ground that the rent receipts have not been produced. The said finding is liable to be interfered with in view of the fact that tenant under Exs.P53 and P54 having been examined as PW.3 and having categorically deposed regarding him being the tenant under the Plaintiff. Merely because the rent receipts were not produced, disbelieving Ex.P53 and P54 does not arise. 25. Further, with regard to the categorical case of the Plaintiff that the other portion of the large property was in the occupation of another tenant Abdul Rasheed, there is substantial material produced in that regard i.e., the rental deeds - Exs.P49 to P52, rent receipts-Exs.P21 to P31 as well as copies of pleadings in O.S. No.58/2008 initiated by the said tenant against the Defendant - Ex.P19. 26. Although the Trial Court has considered Exs.P21 to P30 and Exs.P49 to P.52, the same has been disbelieved by noticing that Exs.P21 to P30 were not been executed by the Plaintiff and that signature of the Plaintiff is not forthcoming in Exs.P49 to P52. It is necessary to note that there is no dispute regarding the fact that Exs.P21 to P30 have been signed by the brother-in-law and mother of the Plaintiff and there is no interse dispute amongst the Plaintiffs and his relatives as to the tenancy vis-à-vis the tenant. Further, the name of the Plaintiff is forthcoming in Exs.P49 to P52. The fact that PW.2 is a tenant is also forthcoming from Exs.P19 which has not been considered by the Trial Court. Hence, the findings of the Trial Court disbelieving the said material produced by the Plaintiff is erroneous and liable to be set aside. 27. The Judgments produced by the learned counsel for the Petitioner is considered as follows: 27.1 In the case of Sadashiv Shyama Sawan, the Hon'ble Supreme Court was considering a case where a suit was filed by the landlord consequent to the forcible dispossession of the tenant under Section 6 of the Act and considering the same by the Hon'ble Supreme Court has held as follows: "22. As a matter of fact, on plain reading of Section 6(1), it is clear that besides the person who has been dispossessed, any person claiming through him can also file a suit seeking recovery of possession. Obviously, a landlord who holds the possession through his tenant is competent to maintain suit under Section 6 and recover possession from a trespasser who has forcibly dispossessed his tenant. A landlord when he lets out his property to the tenant is not deprived of his possession in the property in law. What is altered is mode in which the landlord held his possession in the property inasmuch as the tenant comes into physical possession while the landlord retains possession through his tenant. 23. The view of the Calcutta High Court that where the tenant was forcibly ejected from the land by the third party, it may reasonably be held that landlord has also been dispossessed is the correct view. We find ourselves in agreement with the view of the Bombay, Patna, Pepsu and Rajasthan High Courts and hold, as it must be, that there is nothing in Section 6 of the Act to bar a landlord from suing a trespasser in possession even when, at the date of dispossession, the property is in actual occupation of a tenant entitled to possession. The views expressed by the Madras High Court in Veeraswami Mudali [AIR 1926 Madras 18] and Ramamanemma [AIR 1934 Madras 558] and by the Nagpur Judicial Commissioner in Ramchandra [ AIR 1928 Nagpur 313 ] do not lay down the correct law. 24. Now we advert to the incidental question whether in such a suit, tenant is a necessary party. Section 6 of the Act provides that suit to recover possession under the said provision could be filed by the person who is dispossessed or any person claiming through him. The tenant having lost the possession though without his consent to a third party, may not be interested in recovery of possession. He may not be available. He may not like to involve himself in litigation. In such circumstances, if a landlord brings the suit to recover possession against trespasser under Section 6, it cannot be laid down as an absolute proposition that tenant must necessarily be impleaded as party to such suit." 27.2. In the case of Mohd. He may not be available. He may not like to involve himself in litigation. In such circumstances, if a landlord brings the suit to recover possession against trespasser under Section 6, it cannot be laid down as an absolute proposition that tenant must necessarily be impleaded as party to such suit." 27.2. In the case of Mohd. Mehtab Khan, the Hon'ble Supreme Court considering a case was considering a case where the proceedings arising under Section 6 of the Act and has held as follows: "12. A proceeding under section 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 Section 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 Section 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 Section 6(3) which bars the remedy of an appeal or even a review against a decree passed in such a suit." 27.3. In the case of ITC Limited, the Hon'ble Supreme Court considering the proceedings arising out of the suit under Section 6 of the Act as held as follows: "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. 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 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." (emphasis supplied) 28. The judgments relied on by the Respondents are considered as follows: 28.1. In the case of Durgappa, a co-ordinate Bench of this Court has held as follows: "29. The above said provision if distinguishingly also under sub-Clause 4 gives a remedy to the person even to claim relief of possession of the property by establishing his title to such property. Therefore, Section 4 almost runs like an exception to Section 6(1) and (2) of the Act. If a person not only bases his dispossession on the basis of his earlier possession for recovery of possession, but he also relies upon his title for the purpose of suing the defendant and to recover possession thereof, then under Section 6 sub-Clause 4, he can recover possession even if he fails under Section 6(1) and (2) of the Act." 29. Having regard to the material available on record and the Plaintiff having specifically filed the suit under Section 6 of the Act and having categorically demonstrated that he has been dispossessed from the suit property without due process of law, the relief sought for in the suit filed by the Plaintiff is liable to be granted. The finding recorded by the Trial Court holding that the Plaintiff has not proved the landlord and tenant relationship with Shri. Vishwanath is erroneous contrary to the material on record as noticed above and liable to be set aside. There is no material placed on record by the Defendants to prove the case putforth by them that the tenants in occupation of the suit property are the tenants of Defendant No.1. Having regard to the aforementioned, the questions framed for consideration is answered in the affirmative in favour of the Petitioner/Plaintiff. 30. In view of the aforementioned, I pass the following: ORDER i. Petition is allowed with cost. ii. Order dated 28.02.2017 passed by the Senior Civil Judge at Sedam in O.S. No.17/2008 is set aside. iii. Suit in O.S. No.17/2008 filed by the Plaintiff on the file of Senior Civil Judge, Sedam is decreed with costs as prayed for. iv. The Defendants or anybody claiming through or them are directed to handover the possession of the suit property to the Petitioner/Plaintiff within three months. v. Decree be drawn accordingly.