Rajasthan High Court - Jodhpur
Shivdaan Mal & Ors vs Girdhar Singh & Ors on 24 January, 2018
Author: Arun Bhansali
Bench: Arun Bhansali
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Revision No. 52 / 2001
1. Shivdaan Mal s/o Shri Banki Dass, by caste Oswal, R/o
Barmer.
2. L.Rs of Hamir Mal s/o Shri Banki Das.
2/1 Jogendra S/o Late Hamir Mal
2/2 Pitambar S/o Late Hamir Mal
2/3 Smt. Lila Devi W/o Sampatraj ji D/o Late Hamir Mal
All by caste Oswal, R/o Juna Kiradu Marg, Barmer (Raj.)
3. L.Rs Nemi Chand s/o Shri Banki Dass.
3/1 Rajendra s/o Late Shri Hami Mal.
3/2 Smt. Shanti w/o Late Hamir Mal
3/3 Smt. Pappu Devi w/o Manohar ji D/o Late Hamir Mal
3/4 Smt Pawani w/o Raju ji D/o Late Hamir Mal
3/5 Smt. Rekha W/o Kailash ji D/o Late Hamir Mal
3/6 Smt Manju w/o Pawan ji D/o Late Hamir Mal
3/7 Miss Guddi D/o Late Hamir Mal
All by caste Oswal, R/o Dhani Bazar, Barmer (Raj.)
4. Devi Chand s/o Shri Banki Dass, by caste Oswal R/o Barmer.
----Petitioners
Versus
1. Girdhar Singh S/o Derawar Singh.
2. Leel Singh S/o Derawar Singh.
3. Durg Singh S/o Hukm Singh.
4. Narayan Singh S/o Durg Singh.
All B/c Rajput, R/o Barmer Aagore (Dhingra).
5. Ishak Khan S/o Aarab Khan.
6. Rahemttla S/o Aarab Khan
7. Dhodho Khan S/o Khamisha
B/c Muslim, R/o Village Balagu, Tehsil barmer, at present
residing in Kareli Madi Marg, Barmer.
----Respondents
_____________________________________________________
For Petitioner(s) :
Mr. Jitendra Chopra.
For Respondent(s) :
Mr. O.P. Mehta.
Mr. Pradeep Gehlot.
_____________________________________________________
(2 of 9)
[CR-52/2001]
HON'BLE DR. JUSTICE ARUN BHANSALI
Order 24/01/2018 This revision petition is directed against the judgment dated 24/10/2000 passed by the Addl. Civil Judge (Sr. Div.), Barmer, whereby, the suit filed by the petitioners under Section 6 of the Specific Relief Act, 1963 ('the Act') has been rejected.
The petitioners filed a suit on 3/10/1994 with the averments that a plot of land situated at Mohalla Dhani Surjan Saheb, Barmer was purchased by them on 8/8/1959 by registered sale deed from Kesrimal and others; permission for construction was obtained from the Municipal Board on 24/4/1966 and 28/3/1983 for which construction material was collected, however, the construction could not take place. On 17/6/1986 when the plaintiffs no. 1 and 2 went to the plot, defendant nos. 1 to 4 were in the process of trespassing on the plot. When they were prevented, they started quarreling and, therefore, FIR was lodged on 21/6/1986 in which challan was filed by the police; on 4/1/1994 the accused were convicted and sentenced to imprisonment and fine was imposed. During the pendency of the criminal proceedings, defendants no. 1 to 4 came in possession of the plot and on 3/5/1990 the same was transferred to defendants no. 5 to 7, which fact came to the notice of the plaintiffs when Civil Original Suit No. 47/91 was filed in the court of Addl. District Judge, Barmer, wherein, in written statement reference to the sale deed was made. During the pendency of the criminal proceedings, the defendants no.5 to 7 illegally raised construction on the plot in question. After the (3 of 9) [CR-52/2001] decision of criminal proceedings, an application dated 14/1/1994 was filed in the court of Chief Judicial Magistrate for removing the trespassers and for possession of the plot under Section 456 Cr.P.C., on which order dated 20/1/1994 was passed for handing over of the possession, pursuant thereto on 28/1/1994 the possession of the plot was handed over to the plaintiff Nemi Chand.
On 2/2/1994, defendants no. 5 to 7 filed an application before the court indicating that the S.H.O., Barmer has forcibly taken possession of the plot from them and, therefore, the possession be handed over back to them. An application was also filed by the plaintiffs on 4/2/1994 for demolishing the construction raised by the defendants no. 5 to 7. Both the applications were decided on 9/2/1994, whereby, the direction to handover the possession to the plaintiffs was confirmed and it was held that the transfer in favour of defendants no. 5 to 7 was meaningless and they have no right on the plot in question and they were directed to remove the construction within seven days. It was indicated that against the order dated 20/1/1994 revision petition was filed, wherein, the execution of the order was stayed on 9/2/1994.
It was then claimed in the plaint that since 28/1/1994 when the possession was handed over to the plaintiffs, they were in peaceful possession of the land in question, but the defendants without waiting for the outcome of the appeal and revision, on 2/4/1994 in absence of the plaintiffs forcibly took possession of the plot in question, which information was received by the plaintiffs on 3/4/1994, when again FIR was lodged under Section (4 of 9) [CR-52/2001] 448 and 379 IPC and challan was filed against the defendants. Based on the said averments, the possession of plot in question was sought.
Defendants no. 5 to 7 filed written statement on 4/5/1995 which was amended on 17/10/1996. It was inter alia claimed that the plot in question was purchased by them on 3/5/1990 and they were in possession of the plot since 3/5/1990. On 28/1/1994 with the help of police plaintiff forcibly took possession of the plot and in the order of the criminal court there was no direction to take possession from them; the plaintiffs on 2/4/1995 after the order was passed by the revisional court staying the operation of the earlier order left the possession of the plot in question and the defendants came back in possession and that the FIR was filed for creating pressure.
Based on the averments made by the parties, the trial court framed 10 issues. On behalf of the plaintiffs six witnesses were examined, on behalf of the defendants two witnesses were examined.
After hearing the parties, the trial court came to the conclusion that on 28/1/1994 police had handed over the possession of the plot in question to the plaintiffs after dispossessing the defendants no. 5 to 7, though in the order Ex.5 the names of defendants no. 5 to 7 were not indicated. The trial court, thereafter, came to the conclusion that the possession was taken by the defendants no. 5 to 7 without use of any force on 2/4/1994, which possession was continuing and that as the possession was obtained without any use of force and the order (5 of 9) [CR-52/2001] dated 20/1/1994 had been reversed by the Addl. District Judge, Barmer, the plaintiffs were not entitled to any relief and consequently dismissed the suit.
It is submitted by learned counsel for the petitioners that the trial court committed grave error in dismissing the suit filed by the plaintiffs. It was submitted that though the trial court came to the conclusion that pursuant to the order passed by the Chief Judicial Magistrate, the plaintiffs were put in possession and that subsequently thereto the defendants no. 5 to 7 came in possession of the suit property, merely on coming to the conclusion that the plaintiffs were not dispossessed with use of force, it has been held that the plaintiffs were not entitled to any relief, which determination is ex facie contrary to the plain language of provisions of Section 6 of the Act and, therefore, the judgment impugned deserves to be quashed and set aside.
Further submissions were made that merely because directions given by the criminal court pursuant to which the plaintiffs came in possession has been reversed by the appellate court, cannot have any implication insofar as the present suit is concerned and, therefore, the impugned judgment deserves to be quashed and set aside.
Learned counsel for the respondent nos. 5 to 7 supported the judgment impugned. It was submitted that once the foundational order by which the defendants no. 5 to 7 were illegally dispossessed had been reversed, there is no reason to put the plaintiffs back in possession based on the findings recorded by the trial court regarding the fact that the plaintiffs were put in (6 of 9) [CR-52/2001] possession.
Further submissions were made that the revision petition filed by the petitioners against the judgment of the appellate court in the criminal case has also been dismissed by this Court and on that count also no interference is required in the judgment impugned.
I have considered the submissions made by the learned counsel for the parties and have perused the material available on record.
The trial court though specifically came to the conclusion that on 28/1/1994 the police handed over the possession of the plot in question to the plaintiffs and defendants no. 5 to 7 were forcibly removed, it also came to the conclusion that whereafter on 2/4/1994 as the plaintiffs were not in actual possession of the plot at that particular time, the defendants no. 5 to 7 without use of force repossessed the plot in question and that as the repossession was without any use of force, the provisions of Section 6 of the Act were not attracted.
The findings/determination of the trial court regarding non- applicability of the provisions of Section 6 of the Act to the above fact situation is absolutely incorrect. The provisions of Section 6 of the Act insofar as relevant read 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 claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit.
(2) .....
(3) .....
(7 of 9)
[CR-52/2001]
(4) Nothing in this section shall bar any person from suing to establish his title to such property and to recover possession thereof."
A bare look at the above provisions would reveal that the dispossession of the plaintiffs must be without their consent and otherwise than in due course of law. The provisions do not require use of force for dispossession. Admittedly, once the plaintiffs came in possession of the land in question with the aid and assistance of police pursuant to the order passed by the Chief Judicial Magistrate, it cannot be said that the defendants no.5 to 7 entered the plot with consent of the plaintiffs or in due course of law and, therefore, the provisions of Section 6 of the Act were clearly attracted and the findings recorded by the trial court are totally baseless and as such cannot be sustained.
The other ground which has been indicated by the trial court and emphasized by the learned counsel for the respondents that the order based on which the plaintiffs came in possession of the plot in question, having been reversed by the appellate court, the possession of the defendants cannot be disturbed, requires consideration.
It would be noticed that the petitioners lodged FIR against the defendants no. 1 to 4 regarding trespass on the land in question, who were prosecuted for the said offence and were convicted by judgment dated 4/1/1994 by the Chief Judicial Magistrate, Barmer. Whereafter, an application under Section 456 Cr.P.C. was filed by the plaintiffs seeking possession of the plot in question on which the order dated 20/1/1994 was passed (8 of 9) [CR-52/2001] directing handing over of possession to the plaintiffs after removal of the persons convicted. Based on which, on 28/1/1994 the possession of the plot in question was handed over to the plaintiffs, however, during the pendency of the criminal proceedings the plot in question had been transferred by the registered sale deed dated 3/5/1990 and in fact on 28/1/1994 while possession was handed over to the plaintiffs, it was defendants no. 5 to 7 who were in possession of the land in question. The defendant nos. 5 to 7 approached the court of Chief Judicial Magistrate after being dispossessed indicating that they were wrongly dispossessed, which application was rejected on 9/2/1994 by Chief Judicial Magistrate, Barmer.
Feeling aggrieved, the defendants no. 5 to 7 filed appeal before the court of Addl. District Judge, Barmer and the Addl. District Judge by his judgment dated 27/7/1995 (Ex.A-5) set aside both the order dated 20/1/1994 whereunder the defendants no. 5 to 7 were dispossessed and order dated 9/2/1994, whereby, the application filed by the defendants no. 5 to 7 was rejected. Against the said order, the plaintiff Nemi Chand filed S.B.Criminal Revision Petition No. 261/95 before this Court, which remained pending for all these years, however, the said revision petition has been dismissed by this Court on 11/7/2017 in default as none appeared for the petitioner.
The over all fact situation which emerges from the above sequence of events is that the plaintiffs came in possession of the plot in question on the strength of order dated 20/1/1994, the said order stands set aside by the court of competent jurisdiction (9 of 9) [CR-52/2001] and the said order has become final.
Though the defendants no. 5 to 7, as per the findings recorded by the trial court entered the plot in question on 2/4/1994 without use of force, which action of the defendants was sufficient for attracting the provisions of Section 6 of the Act, the fact that the foundational order which led to the petitioners getting into the possession of the plot after dispossessing the defendants no. 5 to 7, who were not parties to the initial criminal proceedings initiated by the petitioners, direction to handover possession now to the plaintiffs when the foundational order dated 20/1/1994 has itself been set aside by competent court, would not be justified while exercising powers under Section 115 C.P.C.
In view of the above discussion, though the determination made by the trial court is apparently faulty, in the circumstances of the case, no interference is called for in the order impugned.
Consequently, the revision petition filed by the petitioners is dismissed.
It goes without saying that the petitioners would be free to act as per the provisions of Section 6 (4) of the Act in accordance with law.
(ARUN BHANSALI)J. Baweja/-