Smt. Vimla Sood and another vs Tarlok Chand and another

J.V. Gupta, J.—This petition arises out of a suit filed u/s 6 of the Specific Relief Act (hereinafter called the Act) which was decreed by the trial Court vide its decree dated August 29, 1981.

The paintiff Tarlok Chand filed the suit for vacant possession of a piece of land measuring 116 2/3 square yards alleging that he was in possession thereof since the agreement of sale dated April 2, 1976, and was forcibly dispossessed from the said plot on April 20, 1978 The suit was filed on May, 26, 19(sic)8. In the plaint, it was averred in paragraph 5(b) that the Defendants have constructed upon the land in dispute by erecting foundation, one room and one store on it as shown in red colour and marked A. B. C It has been averred in paragraph 7 of the plaint that the cause of action has arisen from April 20, 1978, when the Defendants started the construction till May 10, 1978, when the roofs were completed. Ultimately, it was prayed that the decree be passed for delivering possession of vacant land after demolition of the construction made. The suit was contested, inter alia, on the ground that there was no valid agreement of sale, as alleged. The possession was never delivered to the Plaintiff. The alleged construction was raised much earlier and the Plaintiff never objected to the same. The trial Court framed many issues which were not at all relevant for the purpose of suit u/s 6 of the Act. The relevant query in the suit was as to whether the Plaintiff was in possession of the suit land within six months prior to the filing of the suit or not. Under issue No. 5, the trial Court found that the Plaintiff was in possession of the plot in dispute by putting of wooden pegs thereon and, therefore, the possession was proved. Accordingly, the Plaintiff''s suit was decreed. Dissatisfied with the same, the Defendants filed an appeal in the Court of Additional District Judge, Lu-dhiana. During the pendency of the appeal, an application was filed on November 15, 1983, on behalf of the Plaintiff Respondent in which it was, inter alia, pleaded that the judgment and decree of the trial Court are not appealable and no appeal lies against them so as to give jurisdiction to the Court to entertain the appeal. Reply dated November 17, 1983, to the said application was filed on behalf of the Defendant Appellant in which the allegations made in the appliction of the Plaintiff were controverted. However, when the appeal came up for hearing on October 23, 1983, a preliminary objection was raised on behalf of Plaintiff Respondent that the appeal as such was not maintainable as the suit was filed u/s 6 of the Act. This objection prevailed with the lower appellate Court and it was found that the appeal was not maintainable and consequently the same was dismissed being incompetent vide order dated October 23, 1984. Dissatisfied with the same, the Defendants have filed this petition in this Court. Along with the petition, an application u/s 5 of the Limitation Act for condonation of delay (C. M- No. 5784-C-II of 1984) was also filed.

The learned connsel for the Plaintiff Respondents submitted that the revision was liable to be dismissed being barred by time as no ground has been made out for condoning the delay According to the Learned Counsel, written objection was filed before the lower Appellate Court, but in spite of that, the Defendants proceeded to continue the appeal which was ultimately dismissed being not maintainable. Thus argued the Learned Counsel, the mistake in filing the appeal before the lower Appellate Court could not be said to be bana fide in any manner. In support of this contention, be referred to Sarmukh Singh Vs. Chanan Singh and Others,

After hearing the Learned Counsel for the parties, I am of the considered view that a case is made out for condoning the delay in filing the revision petition. When the appeal was filed on September 26, 1981, the office never objected to its maintainability. It was duly received and registered. Of course, the Plaintiff Respondents did move an application, as mentioned earlier, alleging therein that the appeal was not maintainable to which reply was filed on behalf of the Defendants. In the present case, the decree u/s 6 of the Act was passed for demolition of the construction raised by the Defendants No such decree it contemplated to be passed under the said provision as held in Sona Mia and Another Vs. Prokash Chandra Bhattacharjya and Others, . Under these circumstances, since the trial Court decreed the Plaintiff''s suit for demolition of the construction, the Defendants were under a bona fide belief that since no such decree could be passed, it was an appealable one. In any case, on the facts and circumstances of the present case when it has been found that the trial Court could not pass the decree for demolition of the construction u/s 6 of the Act, a case has been made out for condoning the delay in filing the revision petition. The authority relied upon by the Learned Counsel for the Respondents has thus no applicability to the facts of the present case. On merits it has been contended on behalf of the Petitioner that possession was never delivered to the Plaintiff by the Defendants and the finding of the trial Court in this behalf has been recorded without any evidence Moreover, when the Plaintiff allowed the Defendants to raise the construction thereon and never objected to the same, no decree could be passed u/s 6 of the Act for possession by way of demolition.

After bearing the Learned Counsel for the parties. I find force in the contention of the Petitioner. It is the common case of the parties and it has been so stated in the plaint itself that the Defendants have raised construction over the plot in dispute before filing of the present suit. According to the Defendants, the construction was raised much earlier as possession was never delivered to the Plaintiff where as according to the Plaintiff the construction was raised after April 30, 1978, when he was forcibly dispossessed. Admittedly, the Plaintiff did not take any steps to restrain the Defendants from raising any constration on the plot in dispute. This itself it sufficient to show that the construction was raised much earlier and the plantiff never objected thereto. In any case, u/s 6 of the Act, the Court could not direct the Defendants to remove the construction which they have erected on the land or direct the plaitiff to pull down the structures as held in Sona Mia''s case (supra).

In the view of the matter, the petition succeeds the judgment and decree of the trial Court it set aside and the Plaintiff''s suit u/s 6 of the Act is dismissed with no order at to costs. However, the Plaintiffs will be at liberty to file a fresh suit on the basis of his title, if any. Any finding given by the trial Court will not be binding on the parties in any further proceedings.