Dismissed

Yusuf v. Gaulam Kadir and Another

Rajasthan HC16 Aug 2022CR/86/2010

Case brief

AI extract

What is this about?

Revision petition dismissed. High Court upheld trial court's dismissal of suit under Section 6 Specific Relief Act. Plaintiff failed to prove prior possession of shop No.56 despite sale deed relating to land. Suit summary; title irrelevant without possession proof.

What did the court decide?

Revision petition dismissed as it was found to be devoid of merits.

Yusuf Vs Gaulam Kadir and Another — Property and Title | Rajasthan HC (2022)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Civil Revision Petition No.86/2010

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Yusuf son of Hussain since deceased through his legal representatives:-

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1/1. Jainam wife of Late Yusuf,

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1/2. Ummed son of of Late Yusuf,

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1/3. Akbar Ali son of Late Yusuf,

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1/4. Yunus Ali son of Late Yusuf,

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1/5. Abdul Ajij son of Late Yusuf,

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1/6. Sajid Ali son of Late Yusuf,

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1/7 Mohammed Imran son of Late Yusuf, all resident of in Front Of V.D.K. Hospital, Station Road No.1 Jhunjhunu, District Jhunjhunu (Rajasthan)

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1/8. Bano daughter of Late Yusuf wife of Taiyab Ali, resident of Mohallan Vyapariyan, Ward No.11, Sikar, District Sikar (Rajasthan).

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1/9. Janat Bano daughter of Late Yusuf wife of Abdul Ajij, resident of Near City Hospital, Mohallan Islampur, Ward No.44, Sikar, District Sikar.

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1/10. Julekha Bano daughter of Late Yusuf wife of Mohammad Ibrahim, resident of Mohallan Pinaran, Ward No.11, Sikar, District Sikar.

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1/11. Sajida Bano daughter of Late Yusuf wife of Mohammed Yusuf, resident of Ward No.16, near V.D.K. Hospital Jhunjhunu, District Jhunjhunu (Rajasthan)

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----plaintiff-Petitioners

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Versus

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Gulam Kadir son of Ramatullah, aged about 60 years, resident of Ward No.10, Mohallan Kaziwada, resident of Ward no.10, Mohallan Kaziwada, Jhunjhunu, Tehsil and District Jhunjhunu (Rajasthan). 2. Ismile son of Hussain, aged about 54 years, resident of Ward no.10, Mohallan Kaziwada, Jhunjhunu, Tehsil and District Jhunjhunu (Rajasthan).

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----Defendant-Respondents

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For Petitioner(s) : Mr. Rahul Sharma For Respondent(s) : Mr. Amit Singh Shekhawat

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HON'BLE MR. JUSTICE SUDESH BANSAL

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Judgment

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16/08/2022

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Petitioner-plaintiff has preferred this revision petition within the scope of Section 115 of Civil Procedure Code challenging the judgment and decree dated 07.07.2010 in Civil Suit No.79/2008

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(2 of 10)

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[CR-86/2010]

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passed by Additional District judge (Fast Track) No.1, Jhunjhunu whereby and whereunder his civil suit for possession filed invoking the scope of Section 6 of the Specific Relief Act, 1963 (hereinafter referred to as, “the Act”) has been dismissed.

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Heard counsel for both parties and perused the impugned judgment and record. 3. Briefly stated facts of case are that plaintiff instituted present civil suit stating therein that a piece of land was purchased through registered sale deed dated 09.11.1971 from one Abdul Jabbar and constructed shop thereupon. It was pleaded by plaintiff that he carried out his business of scrapper in shop No.56 from 1971 to 1982 and thereafter shifted his business in another shop No.50, situated in the same market, however shop No.56 remained in continuous possession of plaintiff. Plaintiff has pleaded that on 09.04.2008, defendant Nos.1 and 2 have entered into possession of the shop No.56 and dispossessed the plaintiff unauthorizedly. Hence the present suit was instituted on 26.07.2008 by plaintiff for restoration of his possession on shop No.56 and for that purpose plaintiff has invoked the jurisdiction of Court under Section 6 of the Act.

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Defendant Nos.1 and 2 have submitted joint written statement and contested the suit filed by plaintiff, contenting that in fact through sale deed dated 09.11.1971, open piece of land was purchased by several persons to develop a kabadi market in the name of “Jai Bharat Kabadi Market, Jhunjhunu”. Defendants contended that in the sale deed dated 09.11.1971, name of plaintiff is not included among purchasers and after development of kabadi market, shop No.50 was allotted to plaintiff and shop No.56 was allotted to defendant No.2-Mohammad Ismile.

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(3 of 10)

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[CR-86/2010]

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Later on defendant No.2-Mohammad Ismile sold shop No.56 to Abdul Kayum and Abdul Raoof sons of Gulam Kadir against sale consideration of Rs.7,31,000/- and defendant No.1 has purchased the suit shop i.e. shop No.56 from Abdul Kayum and Abdul Raoof through agreement (Exhibit-A8). Defendants contended that neither shop No.56 was ever allotted to plaintiff nor this shop ever remained in possession of plaintiff and earlier since shop was allotted to Mohammad Ismile, he was in possession. Mohammad Ismile transferred the possession of shop in question to Abdul Kayum and Abdul Raoof and from whom, defendant No.1 obtained the possession. Defendants contended that plaintiff has wrongly make out a case of alleging his dispossession on 09.04.2008 and has instituted the present civil suit under Section 6 of the Act narrating incorrect facts. Thus, the civil suit be dismissed with costs.

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It appears that since plaintiff in his plaint itself pleaded his title and possession over the shop No.56 on the basis of sale deed dated 09.11.1971, therefore, in order to examine the possession of plaintiff, issue Nos.1 and 2 were framed. Issue No.8 was also framed on contention of defendants that plaintiff never remained in possession of suit shop and thus not entitled for restoration of possession within the scope of Section 6 of the Act.

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Both parties adduced their oral and documentary evidence. Plaintiff produced himself as PW-1 and produced Mohammad Ishaq as PW-2 who happens to be the brother of defendant No.2Mohammad Ismile. Apart from producing the registered sale deed dated 09.11.1971 of lands, documents Exhibit 4 to 23 were exhibited by plaintiff to show his previous possession over the shop No.56, prior to his dispossession on 09.04.2008.

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(4 of 10)

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[CR-86/2010]

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In counter, defendants produced DW-1 and DW-2 as also submitted documents to prove the allotment of shop No.56 to defendant No.2- Mohammad Ismile and other documents through which the possession was transferred to defendant No.1.

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The trial court, after appreciation of evidence produced by both parties, has recorded a finding of fact that plaintiff has miserably failed to prove his title and possession over the shop in question i.e. shop No.56. The trial court has categorically recorded a finding that from documents, it stands clear that shop No.56 was allotted to defendant No.2 and in turn, its possession was transferred to defendant No.1. The trial court has concluded that when the shop in question never remained in possession of plaintiff, the case make out by plaintiff of his dispossession on 09.04.2008 is unfounded and no cause of action accrued to plaintiff on 09.04.2008 to institute the present suit. Finally, the suit has been dismissed on merits vide judgment dated 07.07.2010 and whereagainst the instant revision petition has been preferred.

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Heard. Considered.

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At the outset, before considering the case of petitioner for making any indulgence by this Court in the impugned judgment dated 07.07.2010 while exercising its jurisdiction under Section 115 of CPC, it is necessary to examine the scope of Section 6 of the Act.

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Section 6 of the Specific Relief Act, 1963 reads as under:-

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“6. Suit by person dispossessed of immovable

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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

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(5 of 10)

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[CR-86/2010]

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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.

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(2) No suit under this section shall be brought—

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(a) after the expiry of six months from the date of dispossession; or

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(b) against the Government.

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(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.

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(4) Nothing in this section shall bar any person from suing to establish his title to such property and to recover possession thereof.”

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By perusal of bare provisions of Section 6 of the Act, it can safely be held that if any person is dispossessed without his consent from immovable property otherwise than in due course of law, he can ask for restoration of his/her possession notwithstanding any other title over the property in question is set up by any of the party in such suit. Thus, the inquiry under Section 6 of the Act is summary in nature and confined to the scope as to whether plaintiff was in possession and he was dispossessed without his consent and without resorting to the process of law prior to six months from the date of institution of the suit.

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The ratio decidendi as expounded by Hon’ble Supreme Court in catena of judgments is clear that the scope of proceedings under Section 6 of the Act is summary in nature and limited to find out the question of dispossession of the plaintiff within a period of six months prior to institution of the suit, ignoring the question of title. This principle was followed by Hon’ble Supreme Court in case of Sanjay Kumar Pandey and others vs.

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(6 of 10)

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[CR-86/2010]

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Gulbahar Sheikh and others reported in [(2004) 4 SCC 664], Nagar Palika, Jind vs. Jagat Singh, Advocate reported in [(1995) 3 SCC 426].

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If facts and evidence of the present case is tested on the anvil of proposition of law as discussed hereinabove, this Court finds that plaintiff could not prove his possession over the shop in question i.e. shop No.56 situated in Jai Bharat Kabadi Market, Jhunjhunu at any point of time, what to say of his dispossession from this shop prior to institution of the suit. Plaintiff produced the document of sale deed dated 09.11.1971 which obviously does not talk about the shop No.56 as this is a sale deed through which an open piece of land was purchased by several persons to develop a kabadi market in the name of “Jai Bharat Kabadi Market”. Plaintiff himself admits that shop No.50 was allotted to him in this market and he is carrying out his business of scrapper in that shop. The documents (Exhibit 4 to 23) produced by plaintiff nowhere discloses the shop No.56 and as such on the basis of these documents, plaintiff could not prove his possession over the shop No.56. In relation to his dispossession from shop No.56, plaintiff alleges to lodge one FIR No.134/2008 but after investigation, the final report has been submitted in this FIR with observation that the allegation of breaking out the lock of plaintiff and his illegal dispossession is not make out. It appears from the record that PW-1 in his cross-examination before the trial court has candidly admitted that he has no document or other prove to show his possession and title over the shop No.56. His witness PW-2 also admits that in the record of Jai Bharat Kabadi Market, the shop No.50 is recorded to be allotted in the name of plaintiff-Yusuf

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(7 of 10)

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[CR-86/2010]

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Hussain and shop No.56 is recorded to be allotted in the name of Mohammad Ismile (defendant no.2).

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Per contra, from evidence of defendants, it stands clear that shop No.56 was allotted to Mohammad Ismile (defendant No.2). Even the plaintiff (PW-1) and his witness (PW-2) Mohammad Ishaq have admitted the factum of allotment of shop No.56 to Mohammad Ismile. It is worthy to note that plaintiff’s witness PW2, namely Mohammad Ishaq is the brother of defendant No.2Mohammed Ismile. From the document Exhibit-A8, it appears that defendant No.1 obtained the possession of shop No.56 from Abdul Kayum and Abdul Raoof to whom possession was delivered by defendant No.2-Mohammad Ismile after allotment of shop No.56 in his favour. Thus, on appreciation of evidence, it stands clear that plaintiff has miserably failed to prove his previous possession over the shop in question.

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Learned counsel for petitioner has made an argument that learned trial court committed illegality and jurisdictional error in making an inquiry of the title of plaintiff in the present suit. In counter to such argument, learned counsel for respondent has placed reliance upon a judgment delivered by Bombay High Court in case of Sadashiv Shyama Sawant and others vs. Anita Anant Sawant and others reported in [2008 (5) Mh.L.J. 279] . In that case, it was observed that it is true that in the suit under Section 6 of the Act, it was not necessary to frame any issue of title but the issue of title was possibly framed by the trial court to find out the possession of plaintiff over the suit property. This judgment has been affirmed by Hon’ble Apex Court vide judgment dated 22.02.2010 reported in [(2010) 3 SCC 385] titled, Sadashiv Shyama Sawant (dead) through Lrs. and

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(8 of 10)

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[CR-86/2010]

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others vs. Anita Anant Sawant . In the present case, plaintiff himself in order to show his possession over the shop in question has pleaded the issue of his title and it appears that trial court framed issue Nos.1 and 2 accordingly. While determining the issue Nos.1 and 2, the trial court has observed that plaintiff neither could establish his title nor possession over the shop in question. Obviously, when the claim of possession of plaintiff is based on title, the trial court has not travelled beyond the scope of Section 6 of the Act in framing issue Nos.1 and 2 and making an inquiry about title of plaintiff, in order to determine the issue of possession/dispossession of plaintiff as alleged in the plaint. In that view of the matter, the argument raised by counsel for petitioner has no force.

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It is also settled that the scope of interference by the High Court while exercising its jurisdiction under Section 115 CPC against the order/judgment passed by the trial court under Section 6 of the Act is very limited and only in exceptional circumstances, the High Court may interfere. The reason is obvious that while exercising jurisdiction of revision, parties cannot travel beyond scope of Section 6 of the Act which itself talks about for holding a summary inquiry about dispossession of the plaintiff without his consent and without following due course of law.

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Hon'ble Supreme Court in its recent pronouncement in the case of I.T.C. Ltd. v. Adarsh Co-operative Housing Soc. Ltd. : 2012(2) WLC (SC) Civil 628 : (2013) 10 SCC 169 observed as under:-

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"6. Section 6 of the Specific Relief Act 1963 under which provision of law the suit in question was filed by the

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(9 of 10)

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Plaintiff-Respondent is pari-materia with Section 9 of the Act of 1877. A bare reading of the provisions contained in Section of the Act of 1963 would go to show that a person 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 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. SubSection 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

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(10 of 10)

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be a useful reiteration of the law in this regard. The same is, therefore, extracted hereinbelow:

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"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 fidning 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-section (3) of Section 6 provides that no appeal shall lie from any order or decree passed in any suit instituted under this section. No review of any such order 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."

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