Dismissed

Smt. Siery Kanwar v. Liyakat Khan and Anr.

Rajasthan HC25 Jan 2021CR/84/2018

Case brief

AI extract

What is this about?

Rajasthan High Court rejected S.B. Civil Revision Petitions challenging the dismissal of suits for possession under Sections 5 and 6 of the Specific Relief Act, holding that plaintiffs failed to prove possession.

What did the court decide?

Revision petitions were dismissed with no substantial interference in the judgment and decree, as the petitioners failed to establish possession.

Smt. Siery Kanwar Vs Liyakat Khan and Anr. — Specific Performance | Rajasthan HC (2021)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT

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JODHPUR

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S.B. Civil Revision Petition No. 84/2018

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Smt. Siery Kanwar W/o Shri Ram Singh, aged 68 years, resident of Meghsar, at present Sainik Basti, Churu.

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----Petitioner

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Versus

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Liyakat Khan S/o Sadule Khan, resident of Churu.

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Aziz Khan S/o Liyakat Khan, resident of Churu.

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----Respondents

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Connected With

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S.B. Civil Revision Petition No. 24/2018

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Virendra Singh S/o Late Pratap Singh @ Jitendra Singh, resident of Khudaliya, District Jhunjhunu.

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---- Petitioner.

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Versus

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Liyakat Khan S/o Sadule Khan, resident of Churu.

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---- Respondent.

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For Petitioner(s) : Mr. Om Rajpurohit. For Respondent(s) : Mr. S.G. Ojha.

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HON'BLE MR. JUSTICE ARUN BHANSALI

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Order

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25/01/2021

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These revision petitions are directed against the judgment & decree dated 25.03.2010 passed by the Civil Judge (Jr.Div.), Churu, whereby the suits filed by the petitioners under Sections 5 & 6 of the Specific Relief Act, 1963 ('the Act') have been rejected.

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The suits were filed on 15.02.1999 / 26.02.1999 respectively by the plaintiffs in relation to the plots near police line with the submissions that the same were purchased by father of Virendra Singh and plaintiff Smt. Sire Kanwar from Jaskaran and ever since the agreement, plaintiff's father / plaintiff were in possession as

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[CR-84/2018]

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(2 of 4)

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owner. The plaintiff - Virendra Singh's father died in the year 1993, since then he was in possession. It was alleged that the respondent Liyakat Khan started construction over the plaintiff's plot and trespassed over the same on 20.10.1998 when he was told to handover back the possession, which was denied on 06.02.1999 and therefore, the suits were filed seeking possession.

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The suit was resisted by the respondent-defendant indicating that the agreement dated 04.01.1988 being unregistered was not admissible in evidence and does not confer any right on the plaintiffs. The defendant was in possession of the property since it was purchased by him and therefore, the suit was liable to be dismissed.

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The trial court framed seven issues and after evidence was led by the parties, came to the conclusion that as the agreements relied on by both the parties, were unregistered and were not bearing sufficient stamp, the same could not be used even for collateral purposes and therefore, for the purpose of possession and ownership, the document cannot be read.

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The trial court also came to the conclusion that there was no evidence available on record to indicate that the disputed land was in possession of the plaintiffs at any point. However, based on the documents produced, the trial court came to the conclusion that the land in question belonged to temple Mansa Devi and the claim made that the agreement was executed by Jaskaran in favour of the plaintiffs and defendant, it was apparent that the same was unauthorized and consequently, decided the issue pertaining to

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[CR-84/2018]

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(3 of 4)

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the possession against the plaintiffs and consequently, dismissed the suit.

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It is submitted by learned counsel for the petitioners that the trial court committed grave error in deciding the suit against the plaintiffs, it was submitted with reference to the document Ex.-5, which was a reply to the application under Order XXXIX, Rule 1 & 2 CPC that it was conceded by the defendant that the plaintiffs were in possession of the suit property and once it is found that the plaintiffs were in possession of the suit property and they have been dispossessed without due process of law, the ownership of the land in question is inconsequential and therefore, the judgment impugned deserves to be quashed and set-aside.

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Submissions have been made that the trial court has dealt with the matter in a cursory manner and has not appreciated the evidence in its true form, which has resulted in grave injustice to the petitioners. On that count also, the judgment impugned deserves to be quashed and set-aside.

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Learned counsel appearing for the respondents supported the judgment impugned. It was submitted that the petitionersplaintiffs have failed to prove their possession over the plot in question and once the possession has not been established, the suits filed under Section 6 of the Act were rightly dismissed by the trial court and as such, the same do not call for any interference.

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I have considered the submissions made by learned counsel for the parties and have perused the material available on record.

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[CR-84/2018]

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(4 of 4)

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The plaintiffs filed suits under Section 6 of the Act relying on the agreement to sale executed in their favour and alleging wrongful dispossession by the defendant from the plot in question, however, the entire evidence led by the plaintiffs, except for the indication made in the agreement to sale regarding handing-over possession, could not prove the fact of their being in possession of

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the plot in question at any point of time.

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Once, the plaintiffs have been found to have failed to prove their possession over the plot in question, the provision of Section 6 of the Act would have no application and consequently, the suits under the said provision would not succeed.

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Reliance placed on certain averments in reply to the temporary injunction application Ex.-5, besides the facts that they are too vague, it cannot be said that the said averments related to the suit property and as such, it cannot be said that the trial court committed any error in dismissing the suits so as to require interference in revisional jurisdiction under Section 115 CPC.

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Consequently, there is no substance in the revision petitions, the same are, therefore, dismissed.

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Rmathur/-

Smt. Siery Kanwar v. Liyakat Khan and Anr.

Case brief

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Smt. Siery Kanwar v. Liyakat Khan and Anr.

Case brief

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What did the court decide?

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