Kakojan Kristi Kendra and 2 Ors. Vs Prodip Dutta and Anr.

Heard Ms. N. Kakati, the learned counsel appearing on behalf of the petitioners and Mr. P. K. Gogoi, the learned counsel who appears on behalf of the respondent Nos.1 & 2.

¶20

The revisional jurisdiction of this Court has been invoked to challenge the judgment and decree dated 04.06.2024 passed in Title Suit No.20/2021 whereby the learned Court of the Civil Judge (Junior Division) No.2 at Jorhat (hereinafter referred to as ‘the learned Trial Court’) had decreed the suit under Section 6 of the Specific Relief Act, 1963 (for short, ‘SR Act’) in favour of the plaintiff.

¶21

The revisional jurisdiction under Section 115 of the Code of Civil Procedure, 1908 has been invoked on the ground that the learned Trial Court had exercised its jurisdiction illegally and with material irregularity, and as such, this is a fit case for exercise of the revisional jurisdiction.

¶22

Ms. N. Kakati, the learned counsel appearing on behalf of the

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petitioners submitted that taking into account that the proceedings under Section 6 of the SR Act is limited to ascertain as to whether the plaintiff was in possession of the suit land and whether he was dispossessed otherwise in due course of law, the learned Trial Court ought to have come to a categorical finding that the plaintiff was in possession of the suit land on the date of his alleged dispossession. The learned counsel for the petitioners submitted that in the instant case, the findings of facts so arrived at in Issue No.(v) would show that the learned Trial Court was not certain as to whether the plaintiff was actually dispossessed and on conjectures and surmises arrived at the findings that the plaintiff was dispossessed. It is therefore submitted that this is a fit case for interference.

¶25

Per contra, the learned counsel appearing on behalf of the respondent Nos.1 & 2 submitted that the plaintiff was in possession of 16 lechas of land which was the Schedule-B land and the learned Trial Court had rightly passed the said judgment. The learned counsel for the respondent Nos.1 & 2 further submitted that in the instant case, the findings of facts so arrived at are on the basis of the evidence which would clearly show that the plaintiff was in possession of the 16 lechas of land when the defendants on 20.02.2016 had dispossessed him.

¶26

Taking into account the respective submissions, this Court

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finds it relevant to take note of the brief facts which led to the filing of the instant proceedings. The respondent No.1 as plaintiff had instituted a suit under Section 6 of the SR Act stating inter-alia that the father of the plaintiff purchased a plot of land admeasuring 1 bigha 4 kathas 6 ½ lechas covered by PP No.57 (old)/02 (new) Dag No.397(old)/32, 33(new) in the year 1956 vide the registered Sale Deed No.1612 dated 03.05.1956 and was in possession of the said land by constructing a kutcha house in a part situated by the side of AT Road and used to carry out the business of books and stationery in the said house with bamboo fencing around the part. On account of the health problem, the father of the plaintiff had executed the Deed of Sale bearing Deed No.90 dated 10.01.1961 thereby the entire land was sold keeping only 1 ½ lechas as unsold land. It has been alleged that it was inadvertently mentioned as 1 ½ lechas was left unsold but it should have been 1 ½ kathas.

¶29

Be that as it may, the said 1 ½ kathas of the land, however, remained in possession of the plaintiff which has been specifically described in Schedule-A to the plaint. It has been further alleged that a part of the Schedule-A land was acquired by the Government to the extent of 14 lechas of land. Under such circumstances, the remaining 16 lechas of land which is the Schedule-B land was in possession of the plaintiff. The plaintiff on

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or about 29.10.2015, started construction over the Schedule-B land. On 03.11.2015, the plaintiff erected a pucca post in the suit land and stored business materials for construction. However, the defendant Nos.2 & 3 raised objections which led to a proceedings under Section 107/145 of the Code of Criminal Procedure, 1973 and there was a direction to maintain status-quo of the suit land on 02.03.2016.

¶32

On 28.01.2016, the defendants entered into the suit land and demolished the construction of the plaintiff and on 20.02.2016, the defendants constructed a brick wall encroaching the suit land and dispossessed the plaintiff from the suit land. It is under such circumstances that on 01.06.2016, the plaintiff filed the suit under Section 6 of the SR Act claiming recovery of possession on the ground that the plaintiff had been dispossessed from the ScheduleB land otherwise in accordance with law.

¶33

On behalf of the defendants, they filed a written statement wherein various preliminary objections were raised. It was the specific case of the defendants that the deceased father of the plaintiff was the owner of 1 bigha 4 kathas 16.5 lechas of land out of which the father of the plaintiff sold 1 bigha 4 kathas 15 lechas of land to the defendant No. 1 and the remaining land of 1.5 lechas was kept by the father of the plaintiff for his business purpose and the plaintiff was running a shop thereon. After the

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purchase, the possession of the land was also handed over to the defendant No.1 and the defendant No. 1 had been regularly paying the necessary land revenue. It was further stated that the land admeasuring 1.5 lechas which was owned by the plaintiff was acquired by the National Highway Authority, and as such, for having some wrongful gain the plaintiff had filed the suit. On the basis of the pleadings as many as 7 issues were framed which are reproduced herein under:

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(i) Whether there is any cause of action for the suit?

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(ii) Whether the suit is bad for mis-joinder and non-joinder of necessary parties?

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(iii) Whether the suit is barred by limitation?

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(iv) Whether the no objection allegedly issued by defendant No.1 Dilip Barua is fake and manufactured document?

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(v) Whether the plaintiff has been in possession for six months, prior to the institution of the suit?

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(vi) Whether the plaintiff is entitled to the relief as prayed for?

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(vii) To what other reliefs the parties are entitled to?

¶43

On behalf of the plaintiff, six witnesses were examined and seven documents were exhibited. On behalf of the defendants side, two witnesses were examined and three documents were exhibited.

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The Issue No.(v) so framed is of vital importance taking into account the scope of the proceedings. Issue No.(v) relates to as to whether the plaintiff had been in possession for six months prior to the institution of the suit. The learned Trial Court after going through the evidence on record arrived at its findings which is at paragraph No.35 which being relevant is reproduced herein under:-

¶46

“35. Further, the plaintiff stated that the defendant also constructed a brick wall and encroached the suit land. From the cross examination of the defendant 1, it is revealed that the there is a boundary wall on the entrance of their Kendra and on the other sides there was no wall. Later it is also stated that on the three sides there was tin barricades. Further, the defendant stated that after the demolition of the shop of the plaintiff due to acquisition, they constructed a brick wall on the direction of shop. Therefore, one thing has come to light that there was no clear boundary of the Kendra on the direction of the shop prior to the dispossession of the plaintiff. The plaintiff has asserted that he started construction on the suit land which was in his possession but the defendant demolished those and erected a brick wall. The defendant has also stated that after the construction of the brick wall the materials of construction of the plaintiff remained on their side of the wall. As there was no clear

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boundary between the plaintiff’s land and the defendant's land, it cannot be ascertained that the defendant was in possession of the suit land. Hence from the evidence it can be gathered that the plaintiff was in possession of the suit land and was in the process of construction when the defendants dispossessed him from the suit land.”

¶49

On the basis of the said observations so made at paragraph No.35, the learned Trial Court had decreed the suit in favour of the plaintiff vide the judgment and decree dated 04.06.2024 and it is under such circumstances, the present proceedings have been filed.

¶50

In the previous segments of the instant judgment, this Court has duly mentioned the submissions so made by the learned counsels appearing on behalf of the parties. This Court has also perused the evidence adduced as is available in the Trial Court records of Title Suit No.20/2021.

¶51

It is very pertinent to take note of that a proceedings under Section 6 of the SR Act is a summary proceedings with an object to afford an immediate relief to an aggrieved party to reclaim possession of which he may have been unjustly denied by an illegal act of dispossession. The question of title or better rights of possession does not arise for adjudication in a suit under Section 6 of the SR Act where the only issue required to be decided is as to

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whether the plaintiff was in possession at any time six months prior to the date of filing of the suit. The legislative intent underlying Section 6 of the SR Act is to provide a quick remedy in a case of illegal dispossession so as to discourage litigants from seeking remedies outside the arena of law and this very aspect of the matter can be seen from a reading of Section 6(3) of the SR Act. Under such circumstances, taking into account the facts involved, the question which was required to be addressed by the learned Trial Court was as to whether the plaintiff was in possession of the Schedule-B land on 28.01.2016 when he was dispossessed.

¶54

This Court in the previous segments of the instant judgment had quoted paragraph No.35 of the judgment passed by the learned Trial Court which pertains to Issue No.(v). It is seen that the learned Trial Court while taking into account the evidence on record and coming to the conclusion could not come to a specific finding to the effect that the plaintiff was in possession of the suit land on 28.01.2016 on the date on which it was alleged that the defendants entered into the suit land. Taking into account that the proceedings are summary in nature and the entire proceedings depends on the findings as to whether the plaintiff was in possession of the Schedule-B land on 28.01.2016 and he was dispossessed, the said finding has to be arrived at with clarity and not on mere conjecture and surmises. However, the findings of the

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learned Trial Court are not clear on this aspect and under such circumstances it is the opinion of this Court that the learned Trial Court had exercised its jurisdiction illegally and with material irregularity.

¶57

Considering the above, this Court therefore interferes with the judgment and decree dated 04.06.2024 passed in Title Suit No.20/2021 and the said judgment and decree dated 04.06.2024 is set aside and quashed.

¶58

The setting aside the judgment and decree and the consequential dismissal of the suit by this Court vide the present judgment and order shall not preclude the plaintiff to file the suit based on title, if so advised.

¶59

The records be returned back to the Court below.

¶60

JUDGE

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Comparing Assistant

Kakojan Kristi Kendra and 2 Ors. v. Prodip Dutta and Anr.

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Kakojan Kristi Kendra and 2 Ors. v. Prodip Dutta and Anr.

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