Kamal Singh vs Pushpa Devi Gupta & Ors

Hiranmay Bhattacharyya, J

The instant application under Article 227 of the constitution of India is directed against a judgment and decree dated August 30, 2011 passed by the learned Judge XIth Bench, City Civil Court at Calcutta in Title Suit No. 705 of 2006.

The petitioner filed a suit under Section 6 of the Specific Relief Act for recovery of possession of a room. The case made out by the petitioner in the plaint of the said suit in a nutshell runs thus:

The proforma defendant was a tenant in respect of the suit room on the ground floor. The defendant No. 1 claims to be the landlord of the premises in question. On 18.3.2006, the proforma defendant handed over possession of the suit room in favour of the plaintiff. Suddenly on May 20, 2006, the husband of the defendant No. 1 wrongfully and illegally put padlock on the entrance door of the suit room and as such the plaintiff was unable to enter into the suit room. Thus, the plaintiff has been dispossessed from the suit premises. On May 23, 2006, the plaintiff lodged a complaint against the husband of the defendant No. 1 with the Officer-in-Charge of Muchipara Police Station. Hence, on the grounds as aforesaid the plaintiff/petitioner herein filed the instant suit.

The original defendant namely Biswanath Gupta was contesting the suit by filing a written statement denying the allegations contained in the plaint. It was specifically denied in the said written statement that the proforma defendant was/is a tenant in respect of the suit room. It was specifically contended therein that the proforma defendant was a driver and was working for a limited period under the defendant. He was given accommodation of the suit room for discharging his duties as a driver purely on leave and license basis and the said license was revoked by the defendant. It was further contended therein that the plaintiff was residing with his uncle who happens to be a tenant under the defendant. The plaintiff in collusion with the proforma defendant tried to occupy the room forcibly but due to resistances of the defendant the plaintiff failed to occupy the same.

During the pendency of the said suit the original tenant Biswanath Gupta died and upon his death his legal heirs were substituted as defendant Nos. 1 to 4 in the instant suit. The substituted defendants adopted the written statement filed by the original defendant.

Mr. Karmakar, learned Advocate appearing on behalf of the petitioner submits that the learned Court below acted illegally and with material irregularity by dismissing the suit in spite of the fact that the plaintiff/petitioner herein has proved that they were put into possession of the suit premises on March 18, 2006 by the proforma defendant herein in terms of an agreement dated March 18, 2006. He further submits that the owner of the suit premises namely Samar Mallik also adduced evidence as PW2 in favour of the plaintiff admitting the fact that the plaintiff was put in possession by Sri Subhas Chandra Thakur i.e. the proforma defendant herein, and was in possession of the suit room till he was dispossessed on May 20, 2006. Mr. Karmakar laid much stress on the statement made by the PW2 in the Affidavit in-Chief wherein it has been stated as follows:

"That on 18.3.2006, the said Subhas Chandra Thakur handed over possession in respect of one room on the ground floor at Premises no. 16, Sashi Bhusan Dey Street, Kolkata-12 , to Kamal Singh and since then the said Kamal Singh was using the said room."

He submitted that the said evidence was not challenged in cross-examination.

He further refers to the evidence of the DW1 in cross-examination wherein the said witness has admitted that proforma defendant used to reside in the suit premises. Mr. Karmakar thus submits that if the evidence of the witnesses are read as a whole, it will be evident that the defendants were put into possession of the suit room by the proforma defendant and was all along in possession of the same till he was dispossessed on May 20, 2006 .

Another ground of attack to the impugned judgment is that the learned Trial Judge while deciding the instant suit under Section 6 of the Specific Relief Act took into consideration the question of title which cannot be said to be germane in a suit under Section 6 of the Specific Relief Act. In support of his submission that the question of titile does not arise for adjudication in a suit under Section 6 of the said Act, Mr. Karmakar, relied on the decisions rendered by the Hon'ble Supreme Court of India in the case of (1) Sanjay Kumar Pandey and Others vs. Gulbahar Sheikh and Others reported at (2004) 4SCC 664 and (2) Mohd. Mehtab Khan and others vs. Khushnuma Ibrahim Khan and Others reported at (2013) 9 SCC 221.

The plaintiff adduced evidence as PW1. In the Affidavit-in Chief he has specifically stated that on March 18, 2006, the proforma defendant handed over possession in respect of one room on the ground floor of Premises no. 16, Sashi Bhusan Dey Street, Kolkata-12, in his favour. He further stated that the factum of handing over the possession has been recorded in the agreement dated March 18, 2006 made between the proforma defendant and himself. In his Examination-in-Chief he has stated as follows:

"This is the original agreement dated 18.3.2006 between myself and Subhas Chandra Thakur, the proforma defendant. We the executants signed the agreement. Subhas Chandra Thakur signed in my presence. These are my signatures (The agreement is marked Ext.1)."

In his cross-examination, the PW1 admitted that there are 16 tenants in the suit premises. He further stated in cross-examination that before he took possession of the suit property he contacted with Samar Mallik. The said Samar Mallik did not give him any permission in writing to take possession of the suit room after the proforma defendant left. He further admitted in the cross-examination as follows:

"My father died in 1991. Since after my father's death I have been residing in the portion which my father used to occupy as a tenant. Prior to my father's death he used to pay rent to the defendant No. 1 Biswanath Gupta. Since after my father's death I began to pay rent to the defendant No. 1 in respect of the portion of my father.

My father R.V. Singh was a tenant in respect of a separate room in the suit premises previously. Prior to my father's death in 1991 he used to pay rent to Biswanath Gupta, the defendant No. 1 (since deceased)."

Thus from the aforesaid statements made in cross- examination it is evident that the plaintiff used to possess different portion of the suit premises. The PW2 also admitted in his Affidavit-in-Chief that Biswanath Gupta has let out rooms of the premises in question to various persons. The aforesaid statement of PW1 made in cross-examination together with the admission  of  the  PW2  also  proves  the  defence  case  that Biswanath Gupta was realizing rent from the tenants. The PW1 further admitted in cross-examination that he took delivery of possession of the room in the presence of Subhas Chandra Thakur and his lawyer namely Sri Debasish Das. The said witness further admitted in evidence as follows:

"On 20.5.2006 Manish Gupta, the son of the defendant No. 1 Biswanath Gupta put a padlock on the suit room, but I did not lodge any diary with the locale Police station on that very date. However, I lodged a diary after three days on 23.5.2006. I filed the copy of the said diary. After lodging the said general diary and before institution of this suit I did not file any criminal case in connection with the putting of padlock."

There is no explanation in the letter dated 23.5.2006 as to the reasons for the delay in making a complaint to the local Police Station. It is quite unnatural that a person being dispossessed illegally will wait for three days to lodge a complaint before the local police Station. It is also unlikely that such a person will not file any criminal case after lodging a Diary.

One Samar Mallik adduced evidence as PW2. He claims to have purchased the property in question but admits that he resides at 21/3 Debendra Mullick Street, Kolkata-73.  The said witness further states in his Affidavit-in-Chief that on 18.3.2006, the said Subhas Chandra Thakur handed over possession in respect of one room on the ground floor at Premises no. 16, Sashi Bhusan Dey Street, to Kamal Singh and since then the said Kamal Singh was using the said room. The said PW2, in his cross-examination, admitted that he do not have any possession in the suit premises. He further admitted that he was not present at the time of giving delivery of possession. A person who is not in possession of the premises and was also not present at the time of giving delivery of possession cannot be said to be a competent witness for proving either continuous possession or the factum of delivery of possession by Subhas Chandra Thakur in favour of the plaintiff/petitioner herein. Thus neither the factum of delivery of possession nor the possession of the suit room by the plaintiff can be said to have been proved by the evidence of the PW2. If the cross-examination of PW2 is read as a whole it appears that the evidence of the said witness in chief with regard to delivery of possession and continuous possession has been challenged in cross-examination. From cross-examination it has come out that he is not competent to depose with regard to said facts.

The PW1 in his evidence has deposed that he has signed the agreement dated March 18, 2006 but it appears from the said document that it is not an agreement between the plaintiff and the proforma defendant but a letter issued by Subhas Chandra Thakur. Though the plaintiff stated in his evidence to have executed the said agreement dated March 18, 2006, but no signature of the plaintiff herein, is appearing in the said document. After perusal of the document dated 18.3.2006 together with the other evidences on record it cannot be said that the learned Trial judge was not justified in holding that Exhibit-1 is an illegal/collusive document. Thus, the said document cannot also be relied upon for deciding the issue regarding delivery of possession by Subhas Chandra Thakur in favour of the plaintiff.

The plaintiff also deposed that his Lawyer Debasish Das was present at the time of delivery of possession of the suit room by Subhas Chandra Thakur in his favour. But, for reasons best known to the plaintiff, the said Lawyer was not produced by the plaintiff as a witness to adduce evidence to prove such fact of delivery of possession. The plaintiff also admitted that there are 16 tenants in the suit premises but the plaintiff did not call any of such tenants to adduce evidence to prove the fact that he was in possession of the suit room since March 18, 2006 till he was dispossessed on May 20, 2006. The plaintiff has thus withheld the best witnesses who could have proved his possession in respect of the suit room for the period from 18.3.2006 till 20.5.2006.No document has been produced by the plaintiff to show that he accepted the possession from Subhas Chandra Thakur. There is also no acknowledgment of acceptance of possession recorded in the letter dated 18.3.2006.

In a suit for possession filed under Section 6 of the Specific Relief Act, it is not necessary to consider the nature of the title of the parties. The court while dealing with such a suit is to consider as to who was in possession of the suit property and whether he has been dispossessed without due course of law within a period of six months immediately before the suit. The object of Section 6 of the Specific Relief Act is not to settle disputes of title but to safeguard against any illegal or unlawful dispossession.

The learned Trial Judge after considering the evidences of the parties held that the plaintiff was never in possession of the suit room and as such the question of his dispossession therefrom too does not arise. The learned Court below was also justified in drawing an adverse inference against the plaintiff/petitioner herein for not producing any of the tenants who are residing in the said building as witnesses as they are the best persons to depose about the alleged possession and dispossession of the plaintiff in respect of the suit room. The learned Court below rightly drew an adverse inference against the plaintiff for non-production of Mr. Debasish Das, the learned Advocate as a witness to prove the factum of delivery of possession of the suit room in his favour by the proforma defendant on 18.3.2006 since it was admitted by the PW1 that the said learned Advocate was present at the time of delivery of possession. The learned Court below rightly held that mere filing of a complaint before the concerned Police Station cannot prove the factum of possession and dispossession of the plaintiff from the suit room. The plaintiff/ petitioner herein has miserably failed to prove the fact that he was in possession of the suit room or that he was dispossessed by the defendant No. 1 herein there- from without due course of law.

There is no quarrel to the proposition of law that the question of title or better rights of possession does not arise for adjudication in a suit under Section 6. In paragraph 16 of the said reported case the Supreme Court has held thus:

"16. A proceeding under Section 6 of the Specific Relief Act, 1963 is intended to be a summary proceeding the object of which is to afford an immediate remedy to an aggrieved party to reclaim possession of which he may have been unjustly denied by an illegal act of dispossession. Questions of title or better rights of possession does not arise for adjudication in a suit under Section 6 where the only issue required to be decided is as to whether the plaintiff was in possession at any time six months' prior to the date of filing of the suit. The legislative concern underlying Section 6 of the SR Act is to provide a quick remedy in cases of illegal dispossession so as to discourage litigants from seeking remedies outside the arena of law. The same is evident from the provisions of Section 6(3) which bars the remedy of an appeal or even a review against a decree passed in such a suit."

In Sanjay Kr. Pandey (supra) it has been held that a suit under Section 6 of the Act is often called a summary suit in as much as the enquiry in the suit under Section 6 is confined to find 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. It was further held in the said reported judgment that against a decision under Section 6 of the Act, the remedy of an unsuccessful litigant is to file a suit based on title and the remedy of filing a revision is only by way of an exception. Paragraph 4 of the said judgment runs thus:

"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 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 under Section 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 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 would not interfere with a decree or order under Section 6 of the Act except on a case for interference being made out within the well-settled parameters of the exercise of revisional jurisdiction under Section 115 of the Code."

In the instant case the learned Trial Judge upon consideration of the pleadings of the respective parties as well as the evidences on record arrived at a positive finding that the plaintiff was never in possession of the suit room and the question of his dispossession there from too does not arise. The learned Court below also applied the correct legal tests while deciding the instant suit. Thus, it cannot be said that the learned Trial judge decided the suit on the basis of title and not on possession.

There is no ground warranting interference under Article 227 of the Constitution of India.

The judgment and decree impugned herein does not suffer from any illegality and/or material irregularity. The same also does not suffer from perversity. As such the judgment and decree impugned herein is not interfered with.

C.O. No. 3214 of 2011 is accordingly dismissed. There shall be however no order as to costs.

Urgent Photostat certified copy of this order if applied for, be given to the parties on priority basis upon compliance of all formalities.