Research › Search › Judgment

Rajasthan High Court · body

2024 DIGILAW 449 (RAJ)

Dev Kishan v. Kamla Devi

2024-03-14

REKHA BORANA

body2024
ORDER : 1. The present revision petitions have been preferred against the judgment and decree dated 15.01.2004 passed by the Civil Judge (Senior Division) Phalodi, District Jodhpur in Civil Regular Suit No.95/1999 and Civil Regular Suit No.94/1999 respectively whereby the suits as preferred by the plaintiff under Section 6 of the Specific Relief Act, 1963 (hereinafter referred to as 'the Act of 1963') for recovery of possession and permanent injunction have been dismissed. The facts of both the revisions being identical, both are decided by this common order. 2. Brief facts of the case are that on 24.09.1999, plaintiff Dev Kishan preferred suit under Section 6 of the Act of 1963 with the submission that the property in question was purchased by Heeralal, father of the plaintiff from Vijayraj vide registered sale deed dated 18.09.1972 who inter alia purchased the same from Shri Gopal vide sale deed dated 14.11.1943. Since the date of the said purchase, Heeralal and subsequently, the legal representatives of Heeralal including the plaintiff were in possession of the property in question. 3. The dispute subsequently arose between Shri Gopal and Heeralal and a suit was preferred in the year 1972 by Heeralal for injunction against Shri Gopal which was decreed in favour of legal representatives of Heeralal on 02.08.1983. However, an appeal was preferred by Shri Gopal against the said decree and in the said appeal, a new issue being issue No.12 was framed by the first Appellate Court and the matter was remanded to the Trial Court for decision on the said issue. While remanding the matter, the first Appellate Court directed the Trial Court to decide the said issue within a period of nine months and then forward the record along with the decision on the said issue to the first Appellate Court. 4. During the pendency of the said proceedings, Shri Gopal sold out the land in question to the present defendants Kamla Devi and Rekha Devi vide sale deeds dated 21.08.1996 and 18.09.1996 respectively. When these purchasers namely, Kamla Devi and Rekha Devi allegedly encroached upon the land in question in the year 1999, the present suits for recovery of possession and permanent injunction was preferred against them. 5. When these purchasers namely, Kamla Devi and Rekha Devi allegedly encroached upon the land in question in the year 1999, the present suits for recovery of possession and permanent injunction was preferred against them. 5. Although, prayer for declaration of the sale deeds dated 21.08.1996 and 18.09.1996 in favour of Kamla Devi and Rekha Devi respectively, to be null and void was also made in the suit and issue No.1 qua the same was also framed, however, while deciding issue No.1, the learned Trial Court held the same to be beyond the scope of Section 6 of the Act of 1963 and hence, struck off the same. 6. While deciding issue Nos.2 and 7 jointly, the learned Trial Court reached to a finding that the present suit was not filed by the plaintiff within a period of six months of his alleged dispossession and hence, decided them against him. The Trial Court reached to a specific finding that the defendants were in possession of the property ever since the date of sale deeds executed in their favour that is since year 1996, and hence, it is not proved that the plaintiff was dispossessed just six months before the filing of the suit. As issue Nos.2 and 7 were decided against the plaintiff, issue No.3 being a consequential one, was also decided against him. So far as the other issues are concerned, they were decided against defendant No.1 but this Court is not required to delve into the same as no appeal/revision has been preferred by defendant no.1 against the same. Further, no challenge in the present revision petitions has been laid against the decision on Issue No.1 whereby it was struck off. Hence, this Court is not required to delve into the same too. 7. Heard learned counsel for the parties and perused the record. 8. The issue before this Court is – Whether the finding of the learned Trial Court that defendant no.1 was in possession of the suit property since the date of purchase and the plaintiff was not dispossessed prior to a period of six months of the filing of the suit, is correct ? 9. 8. The issue before this Court is – Whether the finding of the learned Trial Court that defendant no.1 was in possession of the suit property since the date of purchase and the plaintiff was not dispossessed prior to a period of six months of the filing of the suit, is correct ? 9. Before delving into the above issue, it is relevant to note that plaintiff Dev Kishan preferred two applications under Order XXII Rule 10 of the Code of Civil Procedure in Civil Appeal Decree Nos.5/93 & 41/93 arising out of the earlier suit proceedings for impleadment of subsequent purchasers Rekha Devi and Kamla Devi. Therein, it was the specific version of plaintiff Dev Kishan himself that during the pendency of the appeal, a part of the disputed land has been transferred by Shri Gopal and even the possession has been handed over to the subsequent purchasers (present defendant no.1). The relevant para of the Order dated 09.04.1997 (Exhibit-A/6) passed by the first Appellate Court on the aforesaid applications taking note of the said averment of the plaintiff reads as under: ^^izR;FkhZx.k dk rdZ gS fd ;g ckr fufoZokn gS fd vihy ds yfEcr jgus ds nkSjku fooknxzLr Hkwfe dk fgLlk varfjr dj fn;k x;k gS rFkk mldk dCtk Hkh lkSi fn;k x;k gS vr% vkns'k 22 fu;e 10 tkIrk nhokuh esa izko/kkuks ds rgr i{kdkj leuqns'kh i{kdkj cuk;s tkus ;ksX; gSA^^ Admittedly, the said order was passed on 09.04.1997 and even though, the applications for impleadment were rejected vide the said order but a bare perusal of the same reflects that plaintiff, at that point of time, had himself admitted the fact of possession been transferred to the subsequent purchasers (present defendant no.1). However, the present suit under Section 6 of the Act of 1963 has been filed on 23.09.1999 alleging dispossession, which is in clear contravention to the mandate of the said provision whereby the suit is required to be filed within six months of dispossession. 10. Section 6 of the Act of 1963 reads as under: “6. Suit by person dispossessed of immovable property. 10. Section 6 of the Act of 1963 reads as under: “6. Suit by person dispossessed of immovable property. — (1) If any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person [through whom he has been in possession or any person] claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit. (2) No suit under this section shall be brought— (a) after the expiry of six months from the date of dispossession; or (b) against the Government. (3) 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. (4) Nothing in this section shall bar any person from suing to establish his title to such property and to recover possession thereof.” Meaning thereby, Section 6(2)(a) of the Act of 1963 specifically provides that the suit for recovery of possession under Section 6 of the Act of 1963 must be filed within six months of the date of dispossession and the same is clearly not the case in the present matter as the suit was filed after a much longer period than six months from the date of dispossession. 11. It is a settled proposition of law that in a suit for recovery of possession under Section 6 of the Act of 1963, the title of the parties is immaterial and what is relevant to be considered is, who was in possession of the suit property and whether the plaintiff has been dispossessed, otherwise than in due course of law, within a period of six months immediately before filing of the suit. Section rules out enquiry as to title and the Court will act without jurisdiction if it goes into the issue of title and decides the suit based on the same. 12. The Hon'ble Supreme Court in the case of I.T.C. Ltd. vs. Adarsh Co-operative Housing Soc. Ltd., (2013) 10 SCC 169 observed as under: “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. Ltd., (2013) 10 SCC 169 observed as under: “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 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. 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 (dead) by his L.Rs. v Rao Jagdish Singh and Ors. AIR 1968 SC 620 , Krishna Ram Mahale (D) by L.Rs. v. Mrs. Shobha Venkat Rao, AIR 1989 SC 2097 and Sanjay Kumar Pandey and Ors. v. Gulabahar Sheikh and Ors. SCC 2004 (4) 664 In fact, para 4 of this Court's judgment passed in Sanjay Kumar Pandey (supra) may be a useful reiteration of the law in this regard. The same is, therefore, extracted hereinbelow: 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. Subsection (3) of Section 6 provides that no appeal shall lie this section. 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. 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.” 13. Further, in the case of Mohd. Mehtab Khan and Ors. vs. Khushnuma Ibrahim and Ors., (2013) 9 SCC 221 , the Hon’ble Apex Court held as under: “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.” 14. In the present case, on basis of the oral and documentary evidence available on record, a categorical finding has been recorded by the learned Trial Court that defendant No.1 had been handed over the possession of the property since the date of purchase itself. In the present case, on basis of the oral and documentary evidence available on record, a categorical finding has been recorded by the learned Trial Court that defendant No.1 had been handed over the possession of the property since the date of purchase itself. Further, it has been the specific admission of the plaintiff himself, as recorded in order dated 09.04.1997 (Exhibit-A/ 6), that property was sold out by Shri Gopal to defendant no.1 and thereby, possession was also transferred. On basis of the said admission, the learned Trial Court had reached to a conclusion that the present suit was not filed within six months from the date of dispossession and hence, the suit for recovery of possession under Section 6 of the Act of 1963 was not maintainable. 15. In view of the analysis in the preceding paras and the settled position of law, this Court does not find any ground to interfere with the findings on Issue Nos.2, 3 & 7 as recorded by the learned Trial Court. The judgment and decree dated 15.01.2004 passed by the Civil Judge (Senior Division) Phalodi, District Jodhpur in Civil Regular Suit No.95/1999 and Civil Regular Suit No.94/1999 respectively, being totally in consonance with law, do not deserve any interference and are hereby, affirmed. The present revision petitions hence, stand dismissed. 16. All pending applications, if any, stand disposed of.