Punjab-Haryana High Court
Darshan Singh vs Ajit Singh & Others on 19 February, 2010
C.R. No. 2956 of 1991
1
IN THE PUNJAB AND HARYANA HIGH COURT AT
CHANDIGARH
C.R. No. 2956 of 1991
Date of Decision : 19.2.2010
Darshan Singh
.......... Petitioner
Versus
Ajit Singh & others
...... Respondents
CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA
Present : Mr. Sudeep Mahajan, Advocate
for the petitioner.
Mr. Vijay Rana, Advocate
for the respondents.
****
VINOD K. SHARMA, J.
The petitioner has invoked the revisional jurisdiction of this Court to challenge the judgment and decree dated 12.6.1991, passed by the learned Addl. Senior Sub Judge, Dasuya, vide which the suit for possession filed by the plaintiff / petitioner was dismissed.
The plaintiff / petitioner filed a suit for possession under Section 6 of the Specific Relief Act on the pleadings, that the plaintiff was in possession of the land measuring 16 Marlas comprised in Khata No. 182/338 bearing Khasra No. 188 Min, shown in red colour in the site plan, situated in village Tikhowal, Tehsil Dasuya, District Hoshiarpur. The plaintiff / petitioner claimed to be in possession of the suit property from C.R. No. 2956 of 1991 2 1970 to 8.3.1987.
That one Chanan Singh and others filed a suit for possession, which was decided on 18.10.1977. The petitioner preferred an appeal against the said decision, the appeal was accepted, and the suit of Chanan Singh was dismissed.
The case of the plaintiff was, that defendants No.1 to 4, in connivance with other defendants, took forcible possession of the suit property on 18.3.1987, and raised boundary walls and temporary room forcibly and illegally. The defendants were in illegal possession of the suit property. It was, thus, prayed that the plaintiff was entitled to recover possession on the basis of his previous possession.
The suit was contested, on the ground that the plaintiff had no locus standi, and cause of action to file the suit. The plaintiff was neither owner, nor in possession of the property in dispute. Defendant No.1 was in possession of the property in dispute. All other allegations, on merit, were denied.
Defendant No.6 filed a separate written statement and contested the suit. A plea was raised, that the suit was barred by the principle of res judicata, as also on the principle of estoppel. It was also pleaded, that the suit was bad for the purposes of Court fee and jurisdiction, therefore, defendant No.6 was entitled to special costs.
On the pleadings of the parties, the learned trial Court framed the following issues :-
"1. Whether the plaintiff was previously in C.R. No. 2956 of 1991 3 possession of the suit property and was dispossessed on 8.3.1987?OPP
2. Whether defendant No.1 is in actual physical possession of the suit property, if so, since when and in what capacity ?OPP
3. Whether the plaintiff has got no locus standi to file the present suit ?OPD 3(a). Whether defendant No.6 is the owner in possession of the suit property as alleged ?OPD 3(b). Whether the present suit is barred by the principle of res judicata?OPD 3(c). Whether the plaintiff is estopped by his act and conduct to file the present suit ?OPD 3(d). Whether the suit for the purposes of court fees and jurisdiction is properly valued ? OPD 3(e). Whether the plaintiff is entitled to the special costs of Rs. 1,000/- as claimed by defendant No.6 ?OPD
4. Relief."
On appreciation of evidence, the learned trial Court held, that the plaintiff was not clear whether he was in possession of 12 Marlas or 1 Kanal or 16 Marlas. In a suit filed by Chanan Singh father of defendant C.R. No. 2956 of 1991 4 No.6 and others against the Punjab State and others, it was held, that Punjab State and Central Government had no concern with the property in dispute bearing Khasra No. 188. Thus, the Court came to the conclusion, that it was defendant No.6, who was in possession of the property in dispute being proprietor of village Tikhowal.
Issue No.1 was decided against defendant No.6 and issue No. 3
(a) in favour of defendant No.6.
On issue No. 3 the learned trial Court was pleased to hold, that revenue record showed, that Darshan Singh was in possession of the property in dispute. The issue was accordingly decided against the defendants. Thus, a contradictory finding was recorded i.e. on issues No.1 &
6. On issue No. 3(b), the learned trial Court held, that the suit was not barred by the principle of res judicata, whereas issue No. 3(c) was not pressed.
On issue No. 3(d) the learned trial Court held, that the suit was properly valued for the purposes of court fee and jurisdiction. Issue No. 3(e) was also decided against the defendants, as not pressed. However, the suit was ordered to be dismissed.
The reading of the judgment of the learned trial Court shows, that a contradictory finding was recorded as on issue No.3(a) it was held, that defendant No. 6 was owner in possession of the suit property, whereas on issue No.1, it was held that plaintiff was in possession of the property in dispute. In order to adjudicate a suit under Section 6 of the Specific Relief C.R. No. 2956 of 1991 5 Act, the Court was only required to see whether a party in possession was wrongly dispossessed, and in case it was so proved the Court was required to pass an order. Furthermore, it was not open to the Court to adjudicate the question of title, nor the Court could direct the removal of superstructure on the suit land, in view of the law laid down by the Hon'ble Gauhati High Court in the case of Madan Singh, Petitioner v. Taiyab Hussain, Respondent AIR 1990 Gauhati 85, wherein it was held as under :-
" 7. This section was incorporated in the Act with a view to providing a summary, cheap and useful remedy to person dispossessed of immovable property otherwise than in due course of law. Its object is to discourage people from taking the law into their own hands, however, good their title may be. In a suit under S. 6, the plaintiff can aver only previous possession and dispossession by the defendant otherwise than in due course of law within six months from the suit being brought and claim recovery of possession. Any other averment or claim made by the plaintiff will not be relevant for decision of the suit under S. 6 and the Court in such a case, should ignore such irrelevant averments and claims and confine itself to the averment of possession and dispossession and the claim for recovery of possession only. The jurisdiction of the Court under the section is very limited. It can neither adjudicate on question of title nor can it direct the defendants to remove the structures,if any, erected on the land or permit the plaintiffs to pull down the same. Such a direction will be C.R. No. 2956 of 1991 6 beyond the scope of powers of the Court under S. 6 of the Act.
8. In the instant case, the learned Munsif arrived at a finding of fact that the plaintiff was in actual possession of the land and that the defendant No.1 forcibly dispossessed him from the same, within a period of six months, by constructing pucca wall therein. The plaintiff, therefore, was entitled to get relief under S. 6 of the Act and the learned Munsif rightly held so, and directed delivery of khas possession of the suit land to the plaintiff. That part of the order has not been objected to. The objection is against the latter part of the order by which the Court directed demolition of any structure constructed by the defendant No.1 on the suit land and also restrained the defendant No.1 by permanent injunction from raising any construction over the suit land. It is contended that this part of the order goes beyond the scope and ambit of S. 6. I have considered the objection. I am satisfied that the objection is justified and legally tenable. The learned Munsif did not have the power to direct demolition of the structures constructed by the defendant No.1 on the suit land and to grant permanent injunction. This part of the order is liable to be set aside, which I hereby do. The first part dealing with delivery of possession shall remain unaffected."
The judgment of the learned trial Court, therefore, being contradictory on the face of it, and not being in consonance with Section 6 C.R. No. 2956 of 1991 7 of the Specific Relief Act, cannot be sustained and is accordingly set aside by accepting the revision petition filed by the plaintiff / petitioner. The case is remanded back to the learned trial Court to adjudicate the suit strictly in terms of Section 6 of the Specific Relief Act.
The parties through their counsel are directed to appear before the learned lower trial Court on 29.3.2010.
19.2.2010 ( VINOD K. SHARMA ) 'sp' JUDGE