Hemo Deka and Others vs Pranab Kr. Bhagawati

Ranjan Gogoi, J.—This is a Defendant''s second appeal against the judgment and decree dated 4.3.96 passed by the learned District Judge, Tinsukia in Title Appeal No. 5 of 1994.

2.The brief facts of the case may be noted as hereunder.

The Respondent in the present appeal as Plaintiff instituted suit being Title Suit No. 46 of 1996 in the Court of the learned Assistant District Judge (now Civil Judge, Senior Division ) Tihsukia praying for a deecee for recovery of possession of the suit land and for permanent injunction restraining the Defendants from entering in to the land. The case as pleaded by the Plaintiff is that he was the lawful occupier of a plot of land measuring 30 x 40 as described in the schedule to the plaint in front of the printing press owned by him at Station Road, Margherita. Such possession of the suit land was obtained by the Plaintiff on the basis of permission given by the authorities of N.F. Railways on 23.11.79. According to the Plaintiff, his father had constructed a Siva Temple on the land adjacent to the suit land in the year 1979. After the death of his father, the Plaintiff took possession of the temple for the purpose of managing it. The Plaintiff had alleged in the plaint that on 12.8.85 the Defendants encroached upon the suit land, assaulted him and dispossessed him for which after filing a criminal complaint before the police, he instituted the suit for the reliefs earlier stated. The suit in question, it may be noticed, was filed on 4.6 86.

The Defendants (Appellants in the present appeal) contested the suit by filing a joint written statement reputing, the averments made in the plaint. According to the Defendants, the Plaintiffs suit was not maintainable as the owner of the land namely, N.F. Railways was not made a party to the proceeding. According to the Defendants, the Siva Temple in question was established by the members of the public arid the entire land including the suit land has all along been in possession of the temple authorities.

On the pleadings of the parties as many as eight issues were framed by the learned Trial Court. The learned Trial Court by the judgment and decree dated 29th January, 1990 after holding all the issues in favour of the Plaintiff including the issue relating to the entitlement of the Plaintiff to evict the Defendants dismissed the suit on the ground that the same was not maintainable. A perusal of the judgment and decree of the learned Trial Court would seem to suggest that the point of maintainability was decided against the Plaintiff on the ground that the suit ought to have been filed u/s 6 of the Specific Relief Act in asmuch as the only relief prayed for was recovery of possession and as the same was not done the learned trial Court thought it fit to hold the suit to be not maintainable.

On appeal the learned lower Appellate Court by taking into account the Valuation of the suit in the light of the reliefs sought construed the suit to be a suit for declaration with consequential reliefs of possession and permanent injunction and on that basis came to the finding that the suit was maintainable. Further according to the learned lower appellate Court both the NF Railways and the Mandir Committee were necessary parties to the suit and as the aforesaid necessary parties were not before the Court, the learned lower appellate Court thought it fit to remand the matter back to the teamed Trial Court after setting aside the judgment and decree of the learned trial Court.

A perusal of the order dated 29.5.96 passed by this Court while admitting this second appear and oft consideration of the arguments advanced by Mr. H.N. SRAM, learned senior counsel for the Appellant seem to suggest that the following two substantial questions of law arise for determination in the instant second appeal:

Whether a suit for recovery of possession is maintainable only under the provisions of Section 6 of the Specific Relief Act and, whether the Plaintiffs suit filed after 6 months of the date of dispossession is maintainable in law?,

Whether the Plaintiff''s suit is maintainable on account of nonjoinder of the NF Railways and the Mandir Committee?

After hearing the learned Counsel for the parties on the aforesaid two questions the position in law does, not appear to be any longer res-integra. A somewhat similar question arose for consideration of the Apex Court in the case of Nair Service Society Ltd. Vs. Rev. Father K.C. Alexander and Others, The aforesaid question confronting the Apex Court in the said case could be formulated by extracting the following sentence from para 11 of the judgment:

The question is whether after the expiry of 6 months a regular suit based prior possession without proof of title was maintainable.

An attempt was made in the aforesaid case to answer the question in negative by relying on a Full Bench decision of the Allahabad High Court referred to in para 12 of the judgment. The answer of the Apex Court to the aforesaid question is to be found in par 13 and 14 the relevant parts of which may be usefully extracted hereinbelow.

(13) We agree as to apart of the reasoning but with respect we cannot subscribe to the view that after the period of 6 months is over a suit based on prior possession alone, is not possible. Section 8 of the Specific Relief Act does not limit the kinds of suit but only lays down that the procedure laid down by the CPC must be followed. This is very different from saying that a suit based on possession alone is incompetent after the expiry of 6 months. u/s 9 of the CPC itself all suits of a civil nature are triable excepting suits of which (heir cognizance is either expressly or impliedly barred. No prohibition expressly barring a suit based on possession alone has been brought to our notice.

(14) The Limitation Act, before its recent amendment provided a period of twelve years as limitation to recover possession of immovable property when the Plaintiff, while in possession of the property was dispossessed or had discontinued possession and the period was calculated from the date of dispossession or discontinuance. Mr. Nambiar argues that there cannot be two periods of limitation, namely 6 months and 12 years for suits based on possession alone and that the longer period of limitation requires proof of title by the Plaintiff We do not agree. No doubt mere an a few old cases in which this view was expressed but they have since been either overruled or dissented from. The uniform view of the Courts is that if Section 9 of the Specific Relief Act is utilised the Plaintiff need not prove title and the title of the Defendant does not avail him. When, however, the period of 6 months has passed questions of title can be raised by the Defendant and if he does so the Plaintiff must establish a better title or fail. In other words the right is only restricted to possession only in a suit u/s 9 of the Specific Relief Act but that does not bar a suit on prior possession within 12 years and title need not be proved unless the Defendant can prove one. The present amendment Articles 64 and 65 bring out this difference. Article 64 enables a suit within 12 years from dispossession, for possession of immovable property based on possession and not on title, when the Plaintiff while in possession of the property has been dispossessed. Article 65 is for possession of immovable property or any interest therein based on title. The amendment is not remedial but declaratory of the law. In our judgment the suit was competent.

The Apex Court after laying down the law that there was no prohibition barring a suit based on possession alone and further that Section 8 and 9 of the old Specific Relief Act of 1877 corresponding to Section 5 and 6 of the present Act are not mutually exclusive was of the view that if Section 9 of the old Act corresponding to Section 6 of the present Act is utilised, the Plaintiff need not prove title and title of the Defendant is not relevant. The Apex Court was further laid down the law to the effect that after a period of six months a suit for recovery of possession without declaration of title would still be maintainable but if in such a suit the Defendant raises a question of title the Plaintiff will have to establish a better title. In view of the aforesaid pronouncement of law by the Apex Court in the case of Nair Service Society Ltd. (supra), this Court without undertaking a scrutiny of the correctness of the very laborious process of reasoning adopted by the learned Courts below is inclined to hold that the Plaintiff suit was maintainable in so far the first question is concerned.

Regarding non-joinder of the necessary parties, this Court finds that though the NF Railways was admittedly the owner of the land and the Mandir Committee was claimed by the Defendants to be in possession thereof, no effective relief having been prayed against the said parties, they are not necessary parties to the suit and, therefore, the adjudication in the absence of the said parties cannot be faulted with.

The next question that has to be answered is, in view of the conclusions reached by this Court, what relief/reliefs ought to be granted in the facts of the present case. The learned Trial Court found all the issues framed in the suit, except issue No. 1 in favour of the Plaintiff-Respondent. Issue No. 6, i.e., whether the Defendant-Appellant was liable to be evicted was also found to be in favour of the Plaintiff. However, as the suit was held to be not maintainable on the basis of the finding under Issue No. 1, the suit was dismissed. The learned lower Appellate Court reversed the finding of the learned trial Court on the issue relating to maintainability of the suit but on the finding that necessary parties were not impleaded as Defendants in the suit, the same was remanded to the learned trial Court The learned lower appellate Court also dismissed the cross-objections filed by the Appellants-Defendants against the findings of the learned trial Court on the other issues framed in the suit.

In the above facts, on the findings reached by this Court on the issue of maintainability of the suit as well as the question of necessary parties, this second appeal has to be dismissed. The Plaintiffs suit shall stand decreed. The Plaintiff is entitled to khas possession of the suit land by removing all structures, if any, thereon. The Defendants are also restrained from disturbing the possession of the suit land by the Plaintiff and from erecting any structure thereon until their title to the suit land is proved in accordance with law.