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Judgment
J.D. Kapoor, J.—This is a suit for possession and mesne profits filed by the plaintiff mainly on the premise of possessory title as envisaged in Section 6 of the Specific Relief Act. Case of the plaintiff in brief is as follows:- That his father Shir Nathu Mal had held, owned and possessed the land comprised in Khasra No. 383 Village Tihar, New Delhi measuring 4 bighas 9 biswas since 1977 and after his demise on 5.2.89, the plaintiff owned and possessed the said land and part of it was taken in the ''abadi'' and for road widening and thus the open land that remained with him was about 2 bighas. That the land adjacent to the land of the plaintiff comprised in Khasra No. 1573 was in the possession of the defendant Municipal Corporation of Delhi (in short MCD) where MCD had constructed stores there. Shri Chet Ram filed suit for recovery of possession against MCD in regard to his land which had been allegedly encroached upon by the MCD and secured a decree for possession and when the said decree was got executed by Shri Chet Ram the M.C.D. on 4.4.1993 caused encroachment and illegally possessed the land of the plaintiff i.e. the suit land. That inspite of the legal notice dated 28.4.1993, the defendant did not remove itself and instead sought to cause unauthorized construction. The plaintiff was constrained to file the instant suit for possession and mense profits u/s 6 of the Specific Relief Act within six months from the date of dispossession.
In the Written Statement, the defendant has taken the plea that the suit is barred u/s 477 and 478 of Delhi Municipal Corporation Act as well as u/s 10 of the CPC and has further averred that the land in question is under its physical possession without any interruption and as such the plaintiff is not entitled to the relief sought by it. The defendant has also accused the plaintiff for suppressing the factum of having filed the earlier suit before the Senior Sub Judge, Delhi which is pending in the court of Civil Judge and it is further averred that he has no document and title in respect of the land in question nor has he produced or supplied any copy of the document showing his title over the suit land. As regards the suit filed by Shri Chet Ram against the MCD, it is averred that the said suit already stands disposed of and the plaintiff has not referred to the proceedings and judgment passed in that suit.
In replication, the plaintiff has reiterated his possession over the suit land since 1989 i.e. after the demise of his father. However during the pendency of the suit, the defendant MCD has filed a report to the SDM to the effect that as per revenue record of Village Tihar the land comprising Khasra No. 383 measuring 4 bighas 9 biswas is an evacuee property in the name of Yaseen etc. The SDM inspected the site and found privately built up houses.
On the basis of the claims and counter-claims, the following issues were framed on 21.3.96 for determination:-
Whether the suit of the plaintiff is barred under Sections 477-478B D.M.C. Act? OPD
Whether the suit is barred u/s 10 CPC? OPD
Whether the defendant has any right to possess the suit land? OPD
Whether the plaintiff is entitled to decree of possession as alleged OPP
To what mesne profits is the plaintiff entitled and from what date and at what rate? OPD
What directions are necessary in terms of Order 20 Rule 12 CPC?
Relief.
It may be pertinent to point out here that during the pendency of the suit, plaintiff expired and an application under Order 22 Rule 3 CPC for substitution of L.Rs. was filed was allowed by order dated 9.3.1999. Amended memo of parties was filed which was taken on record.
ISSUE No 1 & 2
By way of document Exhibits P 3, P 4 and P 5, the plaintiff has proved the service of notice upon the defendant u/s 477 and 478 of the DMC Act. The acknowledgment Ex. P 5 is sufficient proof of service. Section 477 places a bar against the entertainment of the suit or prosecution in any court against the Corporation for anything which is in good faith done or intended to be done under MCD Act or any rule, regulation or bye-law made thereunder.
Section 478 provides that no suit shall be instituted against the Corporation in respect of any act done or purporting to have been done in pursuance of this Act or any rule, regulation or bye-law made thereunder unless the expiration of two months after notice in writing has been left at municipal office and unless such notice states explicitly the cause of action, the nature of the relief sought, the amount of compensation claimed, and the name and place of residence of the intending plaintiff and unless the plaint contains a statement that such notice has been so left or delivered.
Sub Section (2) of Section 478 further provides that no suit, such as described in sub-section (1), shall unless it is a suit for the recovery of immovable property or for a declaration of title thereto, be instituted after the expiry of six months from the date on which the cause of action arises.
By despatching the notice Ex. P 3 wherein the plaintiff had specifically stated the cause of action as well the nature of the relief sought by him including the amount of compensation and serving the same, the plaintiff has fulfilled the conditions postulated in Sections 477 and 478 before the institution of the present suit. The object of these provisions is to make the MCD aware before any suit or proceedings are instituted against it as MCD is a body corporate.
Admittedly in the instant case, the notice u/s 477 and 478 was duly served upon the defendant and the instant suit was filed within six months from the date of service of notice and as such both the issued stand decided against the defendant and in favour of the plaintiff.
Issue Nos. 3 to 6
All these issued are inter-connected and are, therefore, being taken up together.
Admittedly the plaintiff is not in possession of any documents in the form of sale deed or title deed or any lease by virtue of which he might have purchased the suit land. Perhaps it is because of non-existence of these documents that the plaintiff has filed the suit u/s 6 of the Specific Relief Act. Such a suit is filed by a person dispossessed of immovable property without his consent and otherwise than in due course of law. This section also places a condition that no suit u/s 6 shall be brought after the expiry six months from the date of possession against the Government. Section 6 reads as under:-
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 though him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit.
(2) No suit under this section shall be brought:-
(a) after the expiry of six months from the date of dispossession; or
(b) against the Government.
(3) No appeal shall lie from any order or decree passed in any suit instituted under this section, nor shall any review of any such order or decree be allowed.
(4) Nothing in this section shall bar any person from suing to establish his title to such property and to recover possession thereof.
As is apparent from the aforesaid provisions of law, the question of title is irrelevant. This view was taken by the Supreme Court in Yeshwant Vs. Jagdish AIR 1968 SC 620 and Mahmoed Sharif Kasamji Rangawala Vs. Amibai Allabux Rangawala and Another, In Baikuntha Nath Das and another Vs. Chief District Medical Officer, Baripada and another, it was held that purpose behind Section 6 of the Act is to restrain a person from using force and to dispossess a person without his consent otherwise than in due course of law. It was further held that "Due course of law" implies that right of the person affected thereby to be present before the Court which pronounces judgment upon the question of life, liberty or property in its most comprehensive sence; to be heard by testimony or otherwise and to have the right determination of the controversy by providing other material which bears on the question of fact or liability to be a conclusive proof or presumed against him.
Learned Counsel for the plaintiff has placed reliance upon Nair Service Society Ltd. Vs. Rev. Father K.C. Alexander and Others, wherein scope of provisions of Sections 8 and 9 along with Section 6 of the Specific Relief Act was dealt with. It was held that in the event of disturbance of possession by a third party and not the owner, the plaintiff can maintain a possessory suit under the provisions of Specific Relief Act in which title would be immaterial or a suit for possession within 12 years in which the question of title could be raised.
As in apparent from the aforesaid authority of the Supreme Court, a person can filed a suit under the provisions of Section 6 of the Specific Relief Act only against those who do not claim themselves to be the owner. Once the defendant claims the ownership of the suit property, the plaintiff has to establish a better title or fail. There is no controversy or dispute that a right of maintaining a possessory suit is not only heritable but transferable also. This view was subscribed by this Court in Phiraya Lal alias Piara lal and Another Vs. Jia Rani and Another, wherein it was held that once the nature of possession as a right in itself apart from ownership is recognized it follows that such a right is capable of being inherited and transferred. The concept of possessory title was also dealt with by this Court in the aforesaid judgment which reads like this:-
As distinguished from the title of an owner, the title of a person which is based purely on prior possession may be called a possessory title. But possession itself is a fluid concept. Its nature varies with the nature of the remedies with which it is associated and the manner in which they are developed. Originally possession was regarded as a relation of fact between a person and the thing possessed by him. When, however, a person who had prior possession was able to sue another person who was in present possession but whose possession was subsequent to that of the plaintiff, the purely physical element of possession became less important and the right of possession was recognized to exist even apart from ownership. The concept of possession thus became more a question of right and less a matter of infra-judicial fact.
To sum up following principles can be culled out that govern the suit of a possessory title as contemplated u/s 6 of the Specific Relief Act:-
That the plaintiff should be in prior possession of the suit property as prior possession is prima facie a proof of title.
To maintain a possessory suit, title is immaterial and irrelevant.
Such a suit is maintainable against a third party and not the person who claims himself to be the owner of the suit property.
If it is filed against a person who claims itself as owner, the plaintiff has to establish a better title.
Suit of possessory title has to be filed before the expiry of six months from dispossession.
If a suit is filed after the expiry of six months it is obligatory upon the plaintiff to establish a better title.
Plaintiff has claimed his prior possession over the suit land mainly on the ground that father of the deceased plaintiff was in possession of suit land for the last 50 years and in support of this, khasra girdwari. Exhibits P-6, P-7, P-8 and P-9 have been filed showing possession in the name of Mr. Nathu father of the deceased-plaintiff from 5.10.1977 to 1989 and thereafter in the name of deceased plaintiff from 1991 to October, 1998.
However, the instant suit was filed in 1993. It is contended that entries in khasra girdwari continue unless these are sought to be changed by the person concerned.
In support of Defendant''s claim Mr. R.D. Jolly, learned Counsel for the defendant has filed site plan as well as certificate of SDM. The certificate of the SDM states that suit land is an evacuee property and stands in the name of Yaseen etc and the site plain also shows that private houses have been built on the suit property. However, this report was filed by the SDM at belated stage and after several directions. However, the ''khasra girdwari'' filed by the plaintiff shows Yaseen and others as the owner of the suit property and the plaintiff as cultivator with rent.
It is contended by learned Counsel for the plaintiff that suit land is vacant over which no property has been built except some construction by defendant MCD. It comprises 17 biswas which is equivalent to 850 sq. yds. This claim of the plaintiff particularly in view of kahsra girdwari produced by him as well as report of the SDM is not sustainable as it is difficult to imagine that land measuring 850 yds will remain in vacant possession of the plaintiff for 50 long years without raising any construction. Report of the SDM appears to be correct.
The Assistant Engineer and other officers of MCD are present and state that MCD is in possession of 500 sq. yds. over which they have raised some construction. This fact itself shows that plaintiff has been in possession of remaining land measuring 350 sq. yds. right from the days of his father. Had the MCD been in possession of entire chunk of land for the last 20 years it would have used the entire land without leaving the possession of the plaintiff over 350 sq. yds. vacant land. In the result, suit is decreed in respect of 350 sq. yds. as the remaining land can be held to be in possession of MCD. A since defendant has not been in possession of entire 850 sq. yds. and the plaintiff has not been able to prove his possessory title in respect of remaining 500 sq. yds. the question of granting mesne profits does not arise. Decree Sheet be drawn accordingly.