Karnataka High Court
Smt. Sudha Sharma vs Sri. Ratan Chandra Sharma on 24 June, 2019
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF JUNE 2019
BEFORE
THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR
CIVIL REVISION PETITION No. 450 OF 2017
BETWEEN
1. Smt. Sudha Sharma,
Major in age
W/o Late Surendranath Sharma,
2. Kum. Sheetal Sharma,
Major in age,
D/o. Late Surendranath Sharma,
Both at No.16,
Osborne Road, 1st Cross,
Bengaluru-560042.
...Petitioners
(By Sri. L.P.E. Rego , Advocate)
AND
1. Sri. Ratan Chandra Sharma,
Aged about 48 years,
S/o. Late Sri. Ram Chandra Sharma,
2. Sri. Prithvinath Sharma,
Aged about 44 years,
S/o. Late Sri. Ram Chandra Sharma,
Both R/at No.23, Ground Floor,
ATN Gulshan, 20th "C" Cross,
Aradhana Layout,
2
Ejipura New Extension,
Bengaluru-560047.
...Respondents
(By Sri. Vasanth V. Fernandes, Advocate) This CRP is filed under Section 115 of CPC, against the judgment and decree dated 30.10.2017 passed in O.S.No.2541/2011 on the file of the XII Additional City Civil and Sessions Judge, Bengaluru decreeing the suit for possession.
This CRP coming on for admission this day, the court made the following:
ORDERS ON MAINTANABILITY OF THE REVISION PETITION The counsel for the respondents has raised objection with regard to maintainability of the revision petition, according to him regular appeal is maintainable. Given a brief background of this controversy, it is as below : -
2. The respondents brought a suit for recovery of possession of a residential property bearing No. 16 situate on Osborne Road, I Cross, Bengaluru-42, described in the plaint schedule. The property earlier belonged to Smt. Dhanwati Devi Sharma, the respondent's paternal 3 grandmother who had made a will in their favour in respect of the plaint schedule property. Surendranath Sharma is one of the sons of Dhanwati Devi Sharma. He had filed a suit for partition O.S.10357/1981 against his mother and brothers. When the said suit was pending, Dhanwati Devi Sharma died and the respondents came on record on the basis of the will. Though the trial court, in the suit for partition, held that the will was effective to the extent of Dhanwati Devi Sharma's share in the property, this court in the appeal, RFA 33/1995, reversed the finding and held that the will was effective in respect of the entire property as it belonged absolutely to Dhanwati Devi Sharma. This judgment of the High Court became final after dismissal of SLP (C) 19224/1995. The respondents had also filed a suit O.S.10350/1992 against Surendranath Sharma for declaration of their title over, and possession of the main house of the plaint schedule property, as the outhouse portion was already in their occupation. The said suit was decreed. Surendranath Sharma questioned the correctness of the decree in the said suit and the appeal in 4 that regard was dismissed. When the respondents put the decree in O.S.10350/1992 to execution, the second petitioner, i.e., daughter of Surendranath Sharma made an obstruction application which was also dismissed.
Thereafter, respondents took physical possession of the main house of the schedule property and they had kept it under lock for the purpose of effecting renovation and alteration.
3. The respondents also initiated contempt proceedings, Crl.CCC 11/2000 in this court against Surendranath Sharma and the petitioners alleging violation of order passed in O.S.7206/1998, a suit for partition filed by the second petitioner. It is stated that the said suit was also dismissed. The respondents pleaded further that during the pendency of the contempt proceedings, somewhere in the year 2001, Surendranath Sharma and others trespassed into the upstair portion of the outhouse taking advantage of the respondents' absence. Then in June 2004, they also broke open the lock of the main 5 house and occupied it illegally. For these reasons, the respondents initiated the suit.
4. The petitioners filed written statement and contested the suit. The details of the written statement are not necessary to be mentioned. One of the issues raised by the trial court is with respect to limitation. The trial court answered this issue in affirmative and held that the suit was filed within time. Answering other issues, the trial court came to conclusion that the respondents were entitled to decree of possession and accordingly the suit came to be decreed.
5. The petitioners have preferred this revision petition as according to them, the suit filed by the respondents was under section 6 of the Specific Relief Act; appeal is not permitted and therefore revision challenging the decree is filed.
6. The learned counsel for the petitioners argues that in the plaint, it is clearly stated that the defendants 6 dispossessed the plaintiffs illegally. If the plaintiffs have pleaded like this, the suit brought by them was under
section 6 of the Specific Relief Act. Since section 6 (2) makes it very clear that no suit can be brought six months after illegal dispossession, the suit by the plaintiffs was barred by time as it was filed after six months from the date of alleged dispossession. Referring to section 5 of the Specific Relief Act, the learned counsel argues that the respondents/plaintiffs cannot take shelter under section 5 as they were not entitled to take possession. Section 5 is very clear that only those who are entitled to take possession can bring a suit in the manner provided under Code of Civil Procedure. Here entitlement means a person having right to take possession just like a landlord has a right to evict his tenant. The suit does not come under the purview of section 5 of the Specific Relief Act. The plaintiffs suit was under section 6 only and it was a time barred suit. Therefore, revision petition is maintainable. 7
7. The learned counsel for the respondents/plaintiffs argues that just because the plaintiffs have stated in the plaint that the defendants dispossessed them illegally, it cannot be understood that the suit was filed under section 6 of the Specific Relief Act. The plaint averments make it very clear that the title of the plaintiffs was declared in the suits filed earlier. They are entitled to take possession based on their title. He also argues that even otherwise it cannot be said that person dispossessed illegally cannot file suit after lapse of six months. If the suit is filed within six months, the plaintiff is required to prove illegal dispossession within a period of six months before filing of the suit. If possession under section 6 is not sought, it cannot be said that suit under section 5 is not maintainable. The plaintiffs suit is under section 5 of the Specific Relief Act and therefore revision petition is not maintainable and only appeal remedy is available.
8. To resolve the issue of maintainability of this revision petition, what is required is analysation of scope of 8 sections 5 and 6 of Specific Relief Act. To understand the scope of these two sections, they must be read along with Articles 64 and 65 of the Limitation Act.
8.1. Section 6 of the Specific Relief Act is a special remedy available to a person who is dispossessed of immovable property without his consent or otherwise than in due course of law. The person dispossessed or any person claiming through him may bring a suit to recover possession. If such a suit is filed, the plaintiff has to only prove that he was in possession of the immovable property before illegal dispossession. He need not prove his title. Sub Section (2) is a rider to sub Section (1) in the sense that the suit must be filed within six months from the date of dispossession. Therefore it is clear that irrespective of the fact whether person has title over an immovable property or not, he can recover possession if he proves his illegal dispossession within six months just before the date of institution of the suit.
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8.2. Section 5 also provides for recovery of possession in the manner provided by the Code of Civil Procedure. Now who can file a suit under Section 5 is the question. To answer this question reference must be made to Articles 64 and 65 of the Limitation Act. Article 64 enables a person to claim possession based on his previous possession. Here title does not assume importance, the plaintiff has to prove his previous possession. He succeeds in the suit if he establishes his previous possession against the defendant, but decree in his favour cannot be passed if the defendant is able to prove better title over the property than the plaintiff. Article 65 enables a person to take possession from the defendant based on his title only. Unless the plaintiff establishes his title, he will not be entitled to decree for possession. The limitation for filing the suit falling within the ambit of Articles 64 and 65 is 12 years. These are the types of suit that can be brought under Section 5 of the Specific Relief Act. Again if Section 6 is seen, its Sub Section (4) clearly states that a suit can be brought to 10 recover possession based on the title. That means limitation for filing a suit under Section 6(4) of the Specific Relief Act is 12 years as envisaged under Article 65 of the Limitation Act. The starting point of limitation is when the possession of the defendant becomes adverse to the plaintiff. In a suit of this nature, if question of limitation is raised by the defendant, he must have taken a plea with regard to his possession being adverse to the title of the plaintiff. If the defendant does not base his defence on adverse possession, limitation question does not arise. Or in other words, if the defendant does not contend about adverse possession and if the suit of the plaintiff is based on his title, suit has to be decreed if the plaintiff establishes his title although suit may have been filed beyond 12 years from date of loosing possession by the plaintiff. This is the picture that emerges on conjoint reading of sections 5 and 6 of the Specific Relief Act and Articles 64 and 65 of the Limitation Act.
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9. Now in the instant case, the plaintiff did not file the suit within 6 months from the date of his dispossession. In the plaint it is stated that the cause of action arose in the year 2001 when Surendranath Sharma illegally occupied the first floor of the house and again in the month of June 2004 when Surendranath Sharma and defendants illegally occupied the main house portion and the ground floor of the house. Suit was filed on 05.04.2011. The other averments made in the plaint show that the plaintiffs claim title over the property. Therefore this is a suit under Section 5 of the Specific Relief Act read with Article 65 of the Limitation Act. The judgment and decree in a suit of this type can be challenged in an appeal, and not by filing a revision petition. Therefore, this revision petition is not maintainable.
Sd/-
JUDGE Ckl/kmv