LRs of Gafoor Khan and Others vs Shri Amiruddin and Others

Arun Bhansali, J.—This revision petition is directed against judgment and decree dated 13.07.2007 passed by the Civil Judge (Senior Division), Kapasan, District Chittorgarh, whereby, the suit filed by the respondent Amiruddin and his wife Smt. Hasmat (since deceased) u/s 6 of the Specific Relief Act, 1963 (''the Act'') was partly decreed and the petitioners herein were directed to hand over vacant possession of the suit property to the plaintiffs; the relief seeking mesne profit was rejected and the parties were directed to bear their own costs. The facts in brief may be noticed thus: a suit was filed by the plaintiffs on 13.10.1980, inter alia, with the averments that the suit property, a house situated at village Rashmi, Tehsil Rashmi, District Chittorgarh was owned and possessed by Nathe Khan, Mst. Roshan, Mst. Jameela and Mst. Amna, who by executing agreements dated 07.05.1980 handed over the possession of the suit property to them; the sale deeds were executed on 26.07.1980 and registered on 02.08.1980; on 28.07.1980 the defendants illegally took possession of the house by breaking open the locks; from before 07.05.1980 Nathe Khan, Mst. Roshan, Mst. Jameela and Mst. Amna were in possession and from 07.05.1980 plaintiffs were in peaceful possession; the plaintiffs were entitled to mesne profit @ Rs. 10/- per day w.e.f. 28.07.1980.

A written statement was filed by the petitioners-defendants, who are son, grand children and relatives of said Nathe Khan, inter alia, disputing the possession and ownership of Nathe Khan, Mst. Roshan, Mst. Jameela and Mst. Amna and it was claimed that they were in possession for over 40 years of the said house; Nathe Khan and his daughters said Roshan, Jameela and Amna had no right to execute sale deeds and the same were void against them; as the defendants are in possession of the suit property, the possession could not have been handed over to the plaintiffs; the allegations relating to possession of the plaintiffs and dispossession were denied and it was alleged that by executing the sale deeds, the plaintiffs and Nathe Khan wanted to dispossess them from the suit property.

The trial court framed eight issues and on behalf of the plaintiffs 14 witnesses were examined and 7 documents were exhibited and on behalf of the defendants 8 witnesses were examined and 1 document was exhibited and in rebuttal 3 witnesses were examined by the plaintiffs; it may be noticed that during pendency of the suit defendant No. 3 - Sharif Khan died and his sons were taken on record, who filed additional written statement and additional issues were framed.

After hearing the parties, the trial court came to the conclusion that in view of legal presumption contained in Section 47 of the Indian Registration Act, 1908 (''the Registration Act'') a presumption does arise that possession was handed over to the plaintiffs on 26.07.1980 and as presumption was drawn that possession was handed over to the plaintiffs on 26.07.1980 and the defendants have admitted their possession, the plaintiffs have been dispossessed from the suit property; rest of the issues, which essentially were not relevant for the purpose of decision of the suit u/s 6 of the Act, were also decided by the trial court and, consequently, the suit filed by the plaintiffs was decreed.

It was contended by learned counsel for the petitioners that despite specific case of the plaintiffs that they were put in possession of the suit property on 07.05.1980, the plaintiffs failed to prove the said issue and the trial court while wrongly drawing presumption based on Section 47 of the Registration Act recorded a finding regarding handing over of possession to the plaintiffs on 26.07.1980, for which, there is no warrant in law. It was submitted that admittedly the sale deed was executed on 02.08.1980 and there was no reference of the fact that the plaintiffs were dispossessed from the suit property and, in absence of registration, the plaintiffs cannot claim ownership w.e.f. 26.07.1980 and, consequently, the finding of the trial court on the fundamental issue about the plaintiffs'' possession and consequential dispossession being wholly perverse, the judgment and decree impugned deserve to be set aside. Several submissions were also made with reference to the evidence led by the parties regarding the ownership etc.

Reliance was placed on judgment of Hon''ble Supreme Court in Ram Saran Lall and Others Vs. Mst. Domini Kuer and Others, .

Per contra, learned counsel for the respondents submitted that the scope of enquiry in a suit u/s 6 of the Act is summary in nature and the jurisdiction of this Court is also circumscribed by the limitations u/s 115 CPC. It was submitted that the trial court after considering the evidence on record has recorded a finding of fact that plaintiffs were put in possession of the suit property and it does not make any difference as to whether they were put in possession on 07.05.1980 as claimed by them or on 26.07.1980 as presumed by the trial court, inasmuch as, the fact that the plaintiffs are not in possession stands proved by the very admission of the defendants. It was submitted that even if the issue was framed regarding possession of the plaintiffs w.e.f. 07.05.1980 and the fact that a finding has been recorded that the plaintiffs, in any case, came in possession on 26.07.1980 cannot be taken advantage of by the petitioners as while going to the trial they were well aware of the issues regarding possession of the plaintiffs and their illegal dispossession.

Reliance was placed on judgment of Hon''ble Supreme Court in Sanjay Kumar Pandey and Others Vs. Gulbahar Sheikh and Others, regarding the scope of the present revision petition; judgment of Hon''ble Supreme Court in the case of Kali Prasad Agarwall and Others Vs. Bharat Coking Coal Limited and Others, in support of the contention that if the parties went to trial knowing fully well what they are required to prove, the absence of pleading or issue cannot be questioned and on the same issue further reliance was placed on Kunju Kesavan Vs. M.M. Philip I.C.S. and Others, , Bhairab Chandra Nandan Vs. Ranadhir Chandra Dutta, , Bhagwati Prasad Vs. Shri Chandramaul, . I have considered the rival submissions. It is well settled that in a suit for possession u/s 6 of the Act, it is not necessary to consider the nature of the title of the parties. What is necessary to be considered is, who was in possession of the suit property and whether the plaintiff has been dispossessed, otherwise then, in due course of law within a period of six months immediately before filing of the suit and the section rules out enquiry as to title and the court acts without jurisdiction, if it goes into the title and decide the suit based on the same.

Hon''ble Supreme Court in its recent pronouncement in the case of I.T.C. Ltd. Vs. Adarsh Co-operative Housing Soc. Ltd., observed as under:--

Section 6 of the Specific Relief Act 1963 under which provision of law the suit in question was filed by the Plaintiff-Respondent is pari-materia with Section 9 of the Act of 1877. A bare reading of the provisions contained in Section of the Act of 1963 would go to show that a person has been illegally dispossessed of his immovable property may himself or through any person claiming through him recover such possession by filing a suit. IN such a suit, the entitlement of the Plaintiff to recover possession of property from which he claims to have been illegally dispossessed has to be adjudicated independently of the question of title that may be set up by the Defendant in such a suit. In fact, in a suit u/s 6, the only question that has to be determined by the Court is whether the Plaintiff was in possession of the disputed property and he had been illegally dispossessed therefrom on any date within six months prior to the filing of the suit. This is because Section 6(2) prescribes a period of six months from the date of dispossession as the outer limit for filing of suit. As the question of possession and illegal dispossession therefrom is the only issue germane to a suit u/s 6, a proceeding thereunder, naturally, would partake the character of a summary proceeding against which the remedy by way of appeal or review has been specifically excluded by Sub-Section 3 of Section 6. Sub-Section 4 also makes it clear that an unsuccessful litigant in a suit u/s 6 would have the option of filing a fresh suit for recovery of possession on the basis of title, if any. In fact, the above view has found expression in several pronouncements of this Court of which reference may be made to the decisions in Lallu Yeshwant Singh Vs. Rao Jagdish Singh and Others, , Krishna Ram Mahale (Dead), by his Lrs. Vs. Mrs. Shobha Venkat Rao, and Sanjay Kumar Pandey and Others Vs. Gulbahar Sheikh and Others, In fact, para 4 of this Court''s judgment passed in Sanjay Kumar Pandey (supra) may be a useful reiteration of the law in this regard. The same is, therefore, extracted hereinbelow:

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.

The plaintiffs in their plaint made the following averments:--

The said averments made in the plaint were denied by the defendants in following terms:--

Based on the said pleadings, the trial court, inter alia, framed the following relevant issues:--

After considering or rather only summarizing the evidence led by all the witnesses on behalf of the plaintiffs and defendants, the trial court held and observed regarding the possession of the plaintiffs as under:--

Regarding the dispossession the finding recorded is as under:--

From a bare perusal of the plaint averments and the issue framed by the trial court, it is apparent that it was specific case of the plaintiffs that on execution of the agreements by Nathe Khan and his daughters vide Exhibits 1 and 2, the possession of the suit property was handed over to them and/or they were put in possession of the suit property. Even the oral evidence led by the parties also was in relation to the alleged handing over of the possession on 07.05.1980. It was nowhere the case of the plaintiffs, even in the alternative, that in any case they were put in possession on 26.07.1980.

The date 26.07.1980 appears to have assumed significance, as it was claimed that though the sale deeds Exhibits 3 and 4 were executed on 26.07.1980, they were got registered on 02.08.1980 i.e. after the alleged dispossession on 28.07.1980. In the sale deeds Exhibit-3 and Exhibit-4 executed by Nathe Khan the following averments were made:--

Identical averments are contained in the sale deed executed by the daughters except the stamp Nos.

The above contents of the sale deed executed on 26.07.1980 indicate delivery of possession while in the agreements dated 07.05.1980 (Exhibits 1 and 2) there is no reference and/or mention of delivery of possession.

The trial court faced with the voluminous conflicting evidence of the parties in para 87 (supra) observed that with regard to date 07.05.1980 there is oral evidence of plaintiffs regarding delivery of possession and defendants regarding non-delivery of possession and, therefore, relying on Section 47 of the Registration Act, the trial court presumed delivery of possession, in any case, on 26.07.1980 based on the fact that the sale deeds were executed on 26.07.1980 and the same contain averments regarding delivery of possession.

It was not the case of the plaintiffs that the possession of the suit property was delivered to them on 26.07.1980 and, therefore, it was not open for the trial court to make out a new case and hold in favour of the plaintiffs, which case was never pleaded and/or put forward.

Even reliance on provisions of Section 47 of the Registration Act for the purpose of presuming delivery of possession is wholly inappropriate. Section 47 of the Registration Act reads as under:--

Time from which registered document operates.--A registered document shall operate from the time which it would have commenced to operate if no registration thereof had been required or made, and not from the time of its registration.

The Section deals with time, from which, a registered document operates and provides that a registered document operates from the time, from which, it would have commenced to operate, if no registration thereof had been required and not from the time of registration. The provision takes care of the time gap between execution of a document and its registration only. The said Section does not attach any presumption regarding the contents of the document.

Hon''ble Supreme Court in the case of Ram Saran Lall (supra) per majority observed that Section 47 only permits a document when registered, to operate from a certain date, which may be earlier than the date when it was registered. The object of the Section is to decide which of the two or more registered instruments, in respect of the same property, is to have a effect and it has nothing to do with completion of the registration and a sale. Therefore, the finding recorded by the trial court on issue No. 1 based on Section 47 of the Registration Act by presuming delivery of possession on 26.07.1980 is apparently perverse and erroneous; the same cannot be sustained and, therefore, set aside.

Even de hors the provision of Section 47 of the Registration Act, there is no material available on record regarding the plaintiffs'' coming in possession of the suit property on 26.07.1980, as held by the trial court. Once the finding regarding the plaintiffs'' coming in possession on 26.07.1980 stands set aside and there is no finding regarding their coming in possession on 07.05.1980, the finding on issue No. 1 recorded by the trial court is reversed.

So far as the contention of learned counsel for the respondents based on the law laid down by Hon''ble Supreme Court in the case of Kali Prasad Agarwall (supra) and other judgments is concerned, the Hon''ble Supreme Court observed as under:--

It was, however, urged for the appellants that there is no proper pleading or issue for determination of the aforesaid question and the evidence let in should not be looked into. It is too late to raise this contention. The parties went to trial knowing fully well what they were required to prove. They have adduced evidence of their choice in support of the respective claims. That evidence has been considered by both courts below. They cannot now turn round and say that the evidence should not be looked into. This is a well accepted principle.

In the said case, based on the evidence, which came on record, the trial court recorded a finding de hors the pleadings and issues. However, in the present case, it is neither the case of the plaintiffs nor any evidence has been led to prove that the possession of the suit property was handed over on 26.07.1980 and, therefore, the principle laid down in the case of Kali Prasad Agarwall (supra) and other judgments cited has no application.

The finding regarding dispossession recorded by the trial court under issue No. 2 is also essentially based on the so called presumption and no finding based on the material available on record has been recorded. In para 94 of the impugned judgment (supra), based on the fact that the Court had reached a conclusion that the possession was delivered on 26.07.1980 and the defendants admitted their possession, the trial court has drawn presumption of dispossession as well, the said approach also is wholly incorrect and the same also cannot be sustained and is, therefore, set aside.

The submissions made by learned counsel for the respondents that the trial court has found possession of the plaintiffs from before 26.07.1980 and has supported the finding based on Section 47 and has observed that, in any case, they came in possession on 26.07.1980, is also not correct, which is apparent from its findings in para 111 and 113 of the impugned judgment, wherein, categorical finding has been recorded by the trial court regarding delivery of possession on 26.07.1980, which as observed, is wholly de hors the pleadings and evidence of the parties and on wrong application of provisions of Section 47 of the Registration Act. Para 111 and 113 of the impugned judgment read as under:--

In view of the above discussion, the findings recorded by the trial court on issue Nos. 1 and 2 cannot be sustained and, therefore, the judgment and decree passed by the trial court deserve to be set aside. Accordingly, the revision petition is allowed. The judgment and decree dated 13.07.2007 passed by the trial court is set aside. The suit filed by the plaintiffs u/s 6 of the Act is dismissed. No costs.