AI Structured Summary
Not yet generated for this judgment
Judgment
A.P. lavande, J
By this revision application, the applicants who are defendants in Regular Civil Suit No. 17/2007/D filed by the respondents before Civil Judge, Junior Division, at Vasco Da-Gama, take exception to the Judgment and Order dated 31.1.2011 decreeing the suit filed by the plaintiffs u/s 6 of the Specific Relief Act, 1963( "the Act" for short). By impugned judgment and order the applicants have been directed to restore the possession of the house No. 67 under chalta No. 75 of P.T. Sheet No. 91 of Mundvel village, City Survey Vasco (For short "the suit premises") to the respondents. Parties shall hereinafter be referred to as per their status before trial Court. The plaintiffs filed above suit u/s 6 of the Act seeking restoration of the possession of the suit premises on the ground that they were dispossessed by the defendants on 24.4.2007. The plaintiffs claimed that plaintiff No. 1 is the only universal heir of late Joao Vincente Fernandes and late Amalia Catarina Fernandes and plaintiff No. 2 is his wife and that they have inherited a residential barrack consisting of three divisions namely House No. 67, 67(1) and 67(2) bearing Chalta Nos. 75, 76 and 77 respectively of P. T. Sheet No. 91, Mundvel(Morod), Vasco-da-Gama, Goa. Plaintiffs further claimed that house No. 67(1) under chalta No. 76 admeasures 18 square metres which was occupied by defendants as tenants thereof while the third division bearing house No. 67(2) under chalta No. 77 was held by one Shri Venkatesh Mahendrakar as tenant thereof.
In the above suit, the plaintiffs examined three witnesses and the defendants examined two witnesses and both parties produced several documents. The trial Court upon appreciation of the evidence held that plaintiffs had proved that they were in possession of the suit premises prior to 24.4.2007 and they were dispossessed by the defendants from the suit premises on 24.4.2007 otherwise than in due course of law.
Mr. Rodrigues, learned Counsel appearing for the defendants at the outset submitted that since suit was filed u/s 6 of the Act only possession of the suit premises is relevant. Mr. Rodrigues further submitted that the plaintiffs have not proved that they were in possession for a period of six months prior to the date of alleged dispossession on 24.4.2007 and therefore the suit filed by the plaintiffs u/s 6 of the Act was not maintainable. Learned Counsel further submitted that the conduct of the plaintiffs in taking photographs just prior to alleged dispossession clearly proves that plaintiffs have hatched a plan to make out a case for dispossession when factually they were not in possession of the suit premises. According to learned Counsel, the evidence led by the plaintiffs does not establish that they were in possession of the suit premises for a period of six months prior to alleged dispossession on 24.4.2007 by the defendants. According to learned Counsel, the defendants have been in possession of the suit premises from July, 2004 after execution of sale deed dated 22.6.2004 in respect of land over which suit premises are situated. He further submitted that finding recorded by the trial Court that plaintiffs were in possession of the suit premises and they were dispossessed on 24.4.2007 is perverse and as such is patently unsustainable in law. Learned Counsel further submitted that the finding recorded by the lower Court are contrary to the evidence on record and as such impugned judgment and order is liable to be set aside. In support of his submission learned Counsel placed reliance upon the judgment of the Apex Court in the case of Rame Gowda Vs. M. Varadappa, AIR 2004 SC 4609.
Per contra, Mrs. Agni, learned Counsel appearing for plaintiffs submitted that the trial Court has correctly appreciated the evidence, oral and documentary led by the parties and has correctly arrived at the finding that the plaintiffs were in possession of the suit premises and they were dispossessed by the defendants on 24.4.2007. Learned Counsel further submitted that in a suit u/s 6 of the Act, the remedy by way of restoration is available only by way of exception on a case being made out for interference within the well settled parametres u/s 115 of C.P.C. Learned Counsel further submitted that the plaintiffs had led cogent evidence to prove that they were in possession of the suit premises for a quite long time and there is abundant documentary evidence which clearly shows that defendants themselves have admitted that plaintiffs were in possession of the suit premises at least till 2005. Learned Counsel therefore submitted that the case set up by the defendants that they were in possession of the suit premises from July, 2004 is patently unsustainable being contrary to the oral and documentary evidence produced on record. In support of her submissions, Mrs. Agni placed reliance upon following judgments:
(1) Sanjay Kumar Pandey and Others Vs. Gulbahar Sheikh and Others, ,
(2) Sadashiv Shyama Sawant [D] through L.Rs. and Others Vs. Anita Anant Sawant, and
(3)Shah Mohammad Noor Khan Vs. Jan Mohammad Vali Mohammad and ors., 2006(2) AIR Bom R 27.
I have carefully considered the rival submissions, perused the record and the judgments relied upon.
At the outset, I shall deal with the authorities relied upon by both sides. In case of Rame Gowda ( supra) relied upon by Mr. Rodrigues, the Apex Court has held that a person in settled possession is entitled to file a suit for injunction restraining the defendants from interfering with his possession and in such a relief even a rightful owner can be prevented from using force and taking law in his own hands. In the case of Sanjay Kumar Pandey ( supra), the Apex Court has held that proceedings u/s 6 of the Act are summary in nature and are limited to finding out question of possession within period of six months of institution of suit and in such a suit the question of title is irrelevant. The remedy of a person unsuccessful in such a suit is to file a regular suit. The Apex Court further held that remedy of revision though available, is only by way of exception on a case for interference being made out within well settled parametres u/s 115 of C.P.C. In the case of Anita Anant Sawant (Supra) the Apex Court held that the suit by a landlord against a trespasser who has dispossessed the tenant is maintainable and it is not necessary that the tenant must be impleaded in such a suit. The Apex Court held that the landlord continues to be in legal possession although the tenant happens to be factual possession of the tenanted premises and therefore in case of dispossession of the tenant, suit by the landlord is maintainable.
In case of Shah Mohammad Noor Khan, learned Single Judge of this Court held that if a person is illegally dispossessed, he is entitled to file suit u/s 6 of the Act within six months of the dispossession and only remedy available to the defendant is to file regular suit to establish his right.
In terms of Section 115 of C.P.Code, the scope of interference by this Court in exercise of revisional jurisdiction is very limited and interference is warranted only, if the trial Court:
(i) has exercised jurisdiction not vested in it.
(ii) has failed to exercise the jurisdiction so vested.
(iii) has acted in exercise of its jurisdiction illegally or with material irregularity.
It is well settled that in exercise of revisional jurisdiction this Court cannot re-appreciate the evidence and cannot interfere on the ground that the evidence in support of successful party is inadequate.
Having tested the impugned judgment and order on the touch stone of the above principles, I find that the trial Court cannot be said to have exercised jurisdiction illegally or with material irregularity. Admittedly the trial Court had jurisdiction to decide the suit u/s 6 of the Act. The trial Court in the impugned Judgment has critically analysed the oral and documentary evidence led by the parties. Not only the oral evidence but documentary evidence clearly proves that the plaintiffs were in possession of the suit property till the date of dispossession i.e. 24.4.2007.
Mr. Augustin D''Costa, respondent No. 1 in his deposition before Additional Rent Controller in case No. 24/1987 had claimed that only one room was given to him and other room was given on rent and the third room was locked. His evidence was recorded on 22.8.1991 thus defendant No. 1 admits that at least in the year 1991 he was not in possession of the suit premises. Notice dated 25.3.2002 addressed by Adv. Francis Mergulhao on behalf of defendant No. 1 to the plaintiff No. 1 states that one room was in possession of plaintiff No. 1, middle room was in possession of defendant No. 1 and third room was in possession of Shri Venkatesh Mahendrakar. This document clearly proves that as on 25.3.2002 plaintiff No. 1 was in possession of suit premises. Form B dated 22.12.1975 issued by Inquiry Officer City Survey Murmagoa establishes that Joao Vincent Fernandes, the predecessor in title of plaintiffs was the lessee of the premises under chalta number of the suit premises. Yet another document namely the memo of appeal dated 2.5.2005 filed by the defendants before the Municipal Appellate Tribunal. It has been stated that appellants/defendants are residing with their family in the structure bearing No. 76 of P.T. Sheet No. 91 and assessed as house No. 67/1 of the municipality; one Shri Venkatesh Mahendrakar is residing in the structure bearing No. 77 and property bearing chalta No. 75 is kept closed and abandoned. The statement made in memo of appeal clearly belies the case of the defendants that they were in possession of the suit premises from July, 2004. Moreover the photographs produced by the plaintiffs clearly corroborate the case set up by them that they were in possession of suit premises. Thus there is abundant evidence on record to establish that till the date of dispossession i.e 24.4.2007 the plaintiffs were in possession of the suit premises.
In view of the cogent evidence on record, I find it difficult to accept the submission of Mr. Rodrigues that plaintiffs have suppressed the fact and have come with a cooked up case that they were in possession of the suit premises till they were dispossessed on 24.4.2007. Having regard to the well settled principles that revisional Court should not re-appreciate the evidence and can interfere only if jurisdictional error is committed by the trial Court, I am of the considered opinion that no case has been made out for interference with the impugned judgment and order. The Apex Court in the case of Sanjay Kumar Pandey(supra) has held that remedy of revision is available only by way of exception and in the absence of any jurisdictional error having been committed by the trial Court, in my considered opinion, no fault can be found with the findings given by the trial Court. In my view, the trial Court has correctly appreciated the evidence led by the parties and arrived at the finding that plaintiffs were in possession of the suit premises and they were dispossessed on 24.4.2007 otherwise than by due course of law by the defendants. In the result, therefore, I do not find any ground to interfere with the impugned Judgment and order and hence revision application is dismissed.