Himachal Pradesh High Court
Bihari Lal vs Dina Nath on 26 May, 2016
Author: Dharam Chand Chaudhary
Bench: Dharam Chand Chaudhary
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Civil Revision No.17 of 2006.
Date of decision: 26th May, 2016.
.
Bihari Lal ...... Petitioner.
Versus
Dina Nath .... Respondent.
Coram:
of
The Hon'ble Mr. Justice Dharam Chand Chaudhary, Judge.
Whether approved for reporting?1 Yes.
For the petitioner:
rt Mr. G.R. Palsra, Advocate.
For the respondent: Mr. Mohan Singh, Advocate.
Dharam Chand Chaudhary, J (Oral).
Challenge herein is to the judgment and decree dated 29.9.2005, passed by learned Civil Judge (Junior Division), Court No.II, Mandi, in Civil Suit No.252 of 1999, whereby the suit for vacant possession of the land entered in Khewat No.342 min, Khatauni No.504, Khasra No.873, measuring 0-0-18 bighas and Khewat No.152, Khatauni No.219, Khasra No.872/1, measuring 0-1-0 bigha, situate in village Nagchala, Illaqua Balh, Tehsil Sadar, District Mandi, HP, with consequential relief of permanent prohibitory injunction has been dismissed.
1Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 15/04/2017 20:27:28 :::HCHP -2-2. Admittedly, the petitioner herein (plaintiff in the trial Court) has no title in the suit land. He filed the suit .
for possession of the suit land under Section 6 of the Specific Relief Act, 1963, hereinafter referred to as 'the Act', on the grounds that he was in possession of the suit land and it is on 8.11.1998 he was forcibly dispossessed by of the respondent (defendant in the trial Court). The cowshed in existence was demolished, grass destroyed rt and the trees standing over the suit land were cut and the timber removed.
3. In the written statement it has been pleaded that neither the plaintiff is in possession of the suit land nor having his cowshed over Khasra No.873 as alleged. There is no question of his using land bearing Khasra No.872/1 as kitchen garden or place for storage of grass, cow-dung, timber etc. He never remained in possession of the suit land nor have any right, title or interest over the same. It is rather the defendant, who is owner-in-possession of the suit land. It is denied that the plaintiff was in exclusive possession of the suit land since 1960. The plaintiff has concealed these facts from the Court as according to ::: Downloaded on - 15/04/2017 20:27:28 :::HCHP -3- the defendant, the suit land bearing Khasra No.873 in the revenue record has been shown in the possession of one .
Lachhu, who has abandoned the same long ago and settled at some other place. Now Khasra No.873 is in exclusive possession of one Hem Chand son of Harnam Dass of village Nagchala. The suit, therefore, has been of stated to be bad for non-joinder of necessary parties also.
Replication was also filed.
4. rt Learned trial Court has framed the following issues:
1) Whether the plaintiff is entitled to recover the vacant possession of the suit land alongwith relief of permanent prohibitory injunction as alleged?
OPP.
2) Whether the suit of the plaintiff is not maintainable in the present form? OPD.
3) Whether the suit is bad for non-joinder of necessary parties? OPD.
4) Whether the suit is not properly valued for the purpose of court fee and jurisdiction? OPD.
5) Whether the plaintiff has no enforceable cause of action to file the present suit? OPD.
6) Relief.
::: Downloaded on - 15/04/2017 20:27:28 :::HCHP -4-5. On appreciation of the evidence, learned trial Court has concluded that on 8.11.1998 the plaintiff .
was not in possession of the suit land and has dismissed the suit.
6. The judgment and decree passed by learned trial Court has been assailed in this Court in the present of petition on several grounds, however, mainly that the evidence available on record has not been appreciated rt in its right perspective and to the contrary the suit dismissed on surmises and conjectures.
7. Mr. Palsra, learned Counsel representing the petitioner-plaintiff while admitting that the petitioner has no title in the suit land, has strenuously contended that he was in possession of the suit land and his possession should have been protected by learned trial Court by decreeing the suit.
8. Mr. Mohan Singh, learned Counsel representing the respondent-defendant has raised the question of maintainability of the petition, as according to him, the present is not a suit strictly in terms of Section 6 of the Act and as decree for permanent prohibitory ::: Downloaded on - 15/04/2017 20:27:28 :::HCHP -5- injunction under Section 38 of the Act has also been sought, therefore, the petition is not maintainable.
.
9. On analyzing the rival submissions and also the evidence available on record, the suit cannot be treated to be one under Section 6 of the Act for the reason that a decree for permanent prohibitory injunction of has also been sought under Section 38 of the Act.
Learned trial Court has also not treated the suit to be the rt one under Section 6 of the Act, as it is for this reason it has not been decided either within six months from the date of its institution or summarily as contemplated under Section 6 of the Act. On the other hand, on the basis of the pleadings of the parties, the issues were framed and the decree passed after holding full trial. Had it been a suit filed strictly under Section 6 of the Act, the trial Court should have been apprised accordingly and the same sought to be tried summarily. The record reveals that such procedure was never sought to be resorted to. The law on the point is no more res-integra, as the Apex Court in Sanjay Kumar Pandey and others v. Gulbahar Sheikh and others, (204) 4 SCC 664, has held that a suit under Section ::: Downloaded on - 15/04/2017 20:27:28 :::HCHP -6- 6 of the Act is required to be tried summarily and the findings confined only to the possession and dispossession .
of the plaintiff within a period of six months from the date of institution of the suit ignoring the question of title. It has further been held in this judgment that no appeal is maintainable against the decree passed in a suit under of Section 6 of the Act. No review of the order or decree is also permissible. The only remedy available to rt unsuccessful person is to file a regular suit establishing his title to the suit property and recovery of possession thereof. The remedy of filing a revision though is available, however, that too only by way of an exception. This judgment reads as follows:
"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 finding 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 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 ::: Downloaded on - 15/04/2017 20:27:28 :::HCHP -7- 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 of would not interfere with a decree or order under Section of the Act except on a case for interference being made out within the well rt settled parameters of the exercise of revisional jurisdiction under Section 115 of the Code."
10. The High Court of Andhra Pradesh while placing reliance on the judgment of the Apex Court referred to hereinabove has went one step further in Adapa Tatarao v. Chamantula Mahalakshmi, AIR 2007 AP 44, while holding that in a suit under Section 6 of the Act the relief of perpetual injunction under Section 6 cannot be included. This judgment also reads as follows:
"11. In a suit filed under Section 6 of the Act, the occasion for the trial Court to address itself to the question of title or other entitlement of the plaintiff does not arise. The only question assumes significance in such a suit is, as to whether the ::: Downloaded on - 15/04/2017 20:27:28 :::HCHP -8- plaintiff was dispossessed from the suit schedule property, otherwise than through the procedure prescribed by law, and whether the suit was filed .
within six months from the date of such dispossession.
12. The proceedings in such suits are, almost summary in nature. However, the trial Court did not address itself to this basic requirement. Both of the issues, framed by it, are totally unrelated to an adjudication, to be undertaken in a suit, filed under Section 6 of the Act.
rt
13. Another serious infirmity in the proceedings is, that the respondent incorporated the relief of perpetual injunction in respect of another item, filed under Section 6 of the Act. This is totally impermissible. The parameters for adjudication of claim under Section 6, on the one hand, and the one, for perpetual injunction, under Section 38, on the other hand, of the Act, are totally different. In the case of the former, the trial is summary in nature. The decree passed in such proceedings is not appealable. In contrast, a detailed trial has to be conducted in a suit for perpetual injunctions. An appeal under Section 96 and second appeal under Section 100 is provided against the decree passed in such suits. It is impossible and impermissible to mix up such divergent types of adjudication. Therefore, the judgment and decree passed by the trial Court need to be set ::: Downloaded on - 15/04/2017 20:27:28 :::HCHP -9- aside, and the matter needs to be adjudicated on proper lines, afresh."
.
11. In view of the legal as well as the factual position discussed hereinabove, the judgment and decree could have not been agitated by invoking revisional jurisdiction of this Court. On dismissal of the suit of the remedy, if any, available to the plaintiff, in accordance with law, should have been resorted to. This petition, therefore, is not maintainable and the same is rt accordingly dismissed. The petitioner, if so advise, may resort to the remedy available to him in accordance with law.
May 26, 2016 (Dharam Chand Chaudhary)
(rc) Judge.
::: Downloaded on - 15/04/2017 20:27:28 :::HCHP