Het Ram vs Mohinder Singh

Tarlok Singh Chauhan, J.—This revision petition has been filed by the defendants/petitioners against the judgment dated 12.8.2013 passed by learned Civil Judge (Junior Division), Court No. II, Una, District Una, H.P. in Civil Suit No. 64 of 2002 whereby the suit of the respondents/plaintiffs has been decreed for possession u/s 6 of the Specific Relief Act.

The facts, in brief, are that the plaintiff filed a suit u/s 6 of the Specific Relief Act for recovery of possession of the shop marked with letters ABCD shown red in colour in the site plan located in Khasra No. 1069 and 1066 situated in Upmahal Kasbati Mahal, Village Mehatpur, Tehsil and District Una, (hereinafter referred to as the suit land). It is averred that the plaintiffs are owner in possession of the shop in question. It is averred that the defendant No. 1 was the tenant of the shop situated in Khasra No. 1052 at the rate of Rs. 500/- per month, but unfortunately the said shop has fallen on 29.7.2000 due to heavy rain and after that the defendant No. 1 had taken the shop on rent across the road just opposite to the shop in Khasra No. 1052 and started his business there. The defendant No. 1 also did not pay the rent from January, 1996 to 29.7.2000. It is averred that the defendant alongwith his supporters took the possession of the disputed shop forcibly on 27.10.2001, about which an FIR No. 570 dated 28.10.2001 under Sections 448/147 IPC has been registered against the defendants. The defendants have no right, title or interest in it and they have been asked to deliver the possession of the suit shop many times, but they flatly refused to accede to the request of the plaintiffs. The plaintiffs have been dispossessed from the suit shop without their consent and the rental value of this shop is Rs. 3000/- per month. The cause of action arose to the plaintiffs on 27.10.2001 when the defendants took the possession of the suit premises forcibly. On these grounds, the plaintiffs prayed that decree for recovery of possession of the shop may be passed in their favour.

The written statement has been filed by the defendants/petitioners wherein preliminary objections regarding estoppel, no cause of action, suit is not properly valued for the purpose of court fee and jurisdiction, the possession of defendant No. 1 being permissive possession have been taken. On merits, it has been admitted that the plaintiffs are owner of the suit property and the site marked ABCD is a part of Khasra No. 1066 and 1069. It has been submitted that Rattan Chand son of Rikhi Ram is landlord and he was dealing the affairs of shop. It has been stated that the plaintiff is not in possession whereas defendant No. 1 is in possession of the suit property. It has been stated that defendant No. 1 is a tenant of the shop on payment of rent of Rs. 100/- per month from last 40 years. It has been denied that the tenanted shop had fallen on 29.7.2000. However, it has been submitted that Rattan Chand landlord approached the defendant with the proposal to put a cemented slab over two shops including tenanted shop and to handover the possession back after putting cemented slab within two months on the monthly rent of Rs. 400/- per month. It has been stated that the plaintiff had proposed that till the date of handing over possession after reconstruction, the defendant No. 1 may run his business in the another shop abutting to English wine or Beer shop. The defendant No. 1 accepted the proposal of Rattan Chand in presence of Ramesh Chand, Pradhan, Trade Union, NAC Mehatpur, Harish Chander, Secretary, Trade Union, NAC, Mehatpur, Prem Chand Secretary, Nagar Panchayat and Bal Kishan, Ex-member of NAC, Mehatpur on 26.8.2001. It has been stated that on 27.8.2001 in pursuance to the proposal, Rattan Chand handed over the vacant possession of the shop abutting to English Wine and Beer Shop on the basis of licensee till the handing over of possession of the shop marked ABCD as shown in the site plan and since August 27, 2001 the defendant No. 1 is in possession of the shop and running general merchants business. It has been stated that defendant No. 1 is in possession as licensee since August 27, 2001. On 20th October, 2001, the defendant No. 1 requested Rattan Chand that festival season is very near and the construction of the shop is yet to be started and Rattan Chand replied that he will reconstruct the shop as and when finance will allow and the same will be let out to the person who will pay highest rent. It has been denied that FIR was lodged against the defendants and other witness who were present at the time of agreement. It has been denied that defendant NO. 1 has no right and interest and he is in permissive possession of the shop as licensee with the consent of Rattan Chand. On these grounds, the defendants prayed for dismissal of the suit.

The replication has been filed wherein the contents of the plaint were reiterated and reaffirmed and the averments made in the written statement were denied. On 17.1.2003 the following issues were framed:

Whether the plaintiff is entitled to recover the possession of the suit property, as alleged? OPP

Whether the plaintiff is estopped to file the suit by her own acts and conduct, as alleged? OPD

Whether the plaintiff has no cause of action? OPD

Whether the suit is not properly valued for the purpose of court fee and jurisdiction? OPD

Whether the defendant No. 1 is in permissive possession as licensee, if so, its effect? OPD

Relief.

The learned trial Court after recording the evidence decreed the suit of the plaintiffs. The defendants/petitioners thereafter filed an appeal before the learned District Judge, Una, though the same was not maintainable and was rightly withdrawn by the defendants/petitioners on 30.5.2014.

The present revision petition has been filed by the defendants/petitioners wherein it is contended that bare perusal of the plaint would show that not even a whisper had been made by the plaintiffs/respondents that the shop in reference was in possession of Tarsem Lal whose articles were thrown out by the petitioners and others and thereafter they had taken forcible possession of the same. It is further contended that at no stage had Tarsem Lal made a complaint to the police or any other authority that his articles had been thrown out by the petitioners in order to take forcible possession. While, on the other hand, it has been established and proved on the record that the respondents had got the possession of the shop only on the pretext of renovating/re-constructing the same and on the failure to do so, the landlord themselves had given possession of the shop in reference to the petitioners till the time the shop so got vacated is re-constructed/renovated, the petitioners were allowed to retain the possession of the shop in reference.

I have given my deep and thoughtful consideration to the arguments raised by learned counsel for the petitioners.

In order to prove the possession over the disputed shop, the petitioners examined Harish Chand and Prem Bhatra in whose presence it is alleged that the shop in question had been handed over to the petitioners by the respondents. Admittedly, the said proposal was not reduced into writing nor any reason forthcoming as to why this was not reduced into writing. The learned trial Court has rightly concluded that taking into consideration the allegation of the shop which was adjoining the main road, it would be unbelievable that the respondents would allow the petitioners to run their business in the disputed shop without paying any money/rent.

The suit in this case had been filed under the provisions of Section 6 of the Specific Relief Act (for short ''Act'') where the plaintiffs were only required to prove only the possession over the suit property and regarding forcible dispossession which fact has been duly proved by the respondents by examining Rattan Chand and Tarsem Lal.

After discussing the evidence in detail, the status of the petitioners was found to be that of trespasser. The Court cannot legitimize such kind of possession taken in violation of law and in fact the law frowns upon such conduct as held by the Hon''ble Supreme Court in S.R. Ejaz Vs. The Tamil Nadu Handloom Weavers Co-operative Society Ltd., wherein it has been held as under:

"8. In our view, if such actions by the mighty or powerful are condoned in a democratic country, nobody would be safe nor the citizens can protect their properties. Law frowns upon such conduct. The court accords legitimacy and legality only to possession taken in due course of law. If such actions are condoned, the fundamental rights guaranteed under the Constitution of India or the legal rights would be given go by either by the authority or by rich and influential persons or by musclemen. Law of jungle will prevail and ''might would be right'' instead of ''right being might''. This Court in State of Uttar Pradesh and Others Vs. Maharaja Dharmander Prasad Singh and Others, dealt with the provisions of Transfer of Property Act and observed that a lessor, with the best of title, has no right to resume possession extra-judicially by use of force, from a lessee, even after the expiry or earlier termination of the lease by forfeiture or otherwise. Under law, the possession of a lessee, even after the expiry or its earlier termination is juridical possession and forcible dispossession is prohibited. The Court also held that there is no question of Government withdrawing or appropriating to it an extra judicial right of re-entry and the possession of the property can be resumed by the Government only in a manner known to or recognized by law."

Admittedly as per the pleadings of the petitioners themselves, they are not the tenant of the shop in question and were allegedly tenants of some other shop which is under renovation or repair.

It is shocking to note that even a summary suit u/s 6 of the Specific Relief Act took more than 11 years to be decided which was instituted on 17.4.2002 and came to be decided on 12.8.2013 defeating the very purpose of summary suit u/s 6 of the Act thereby frustrating the very object of Section 6 of the Act.

The remedy of filing a revision is though available to the petitioners, but that too, is only by way of an exception as this Court would normally not interfere with a decree or order u/s 6 of the Act, except on a case for interference being made out within the well settled parameters of the exercise of revisional jurisdiction u/s 115 of the Code.

In Sanjay Kumar Pandey and Others Vs. Gulbahar Sheikh and Others, , the Hon''ble Supreme Court was dealing with a suit u/s 6 of the Specific Relief Act wherein a decree was passed. In a revision filed u/s 115 of the Code, the High Court set-aside the decree passed by the trial Court and dismiss the suit; against which the matter was carried before the Hon''ble Supreme Court. In light of these facts, the Hon''ble Supreme Court held as under:

"4. A suit u/s 6 of the Act is often called a summary suit inasmuch as the enquiry in the suit u/s 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 6 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 u/s 6 of the Act is 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 u/s 6 of the Act. Thus, as against a decision u/s 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 would not interfere with a decree or order u/s 6 of the Act except on a case for interference being made out within the well settled parameters of the exercise of revisional jurisdiction u/s 115 of the Code."

There is no material illegality or irregularity in the orders passed by the learned Courts below and accordingly, there is no merit in this revision petition and the same is dismissed, leaving the parties to bear their own costs.