Tarsem Lal vs Balbir Singh

Paramjeet Singh, J.—Instant civil revision has been filed u/s 115 of the CPC (in short "the Code") read With Article 227 of the Constitution of India for setting aside the judgment and decree dated 12.10.2012 (Annexures P-18 and P-19) whereby trial Court has decreed the suit filed by respondent no. 1-plaintiff u/s 6 of the Specific Relief Act (in short "the Act") and has ordered for delivery of possession of the suit property to respondent no. 1. Parties hereinafter will be referred as per their status in civil suit.

Shorn of unnecessary details, the facts relevant for disposal of the present petition are to the effect that plaintiff filed suit u/s 6 of the Act for possession and permanent injunction in respect of the house/plot shown in red and marked with letters ''ABCD'' in the site plan attached with the plaint. The suit property is bounded as under:

East: Street West: Rasta

North: House of Tarsem Lal

South: Property of Ajaib Singh

It is averred in the plaint that vide registered sale deed dated 05.07.1998 the plaintiff had purchased the suit property for total consideration of Rs. 60,000/- from defendant no. 1 through his attorney Jagiri Ram son of Chanan Ram. The possession of suit property was delivered to the plaintiff and the plaintiff started enjoying the possession of the suit property along with his family members. The sale deed was executed by Jagiri Ram with consent of defendant no. 1. Defendant no. 1 through his another power of attorney i.e. defendant no. 2-Satnam Lal filed a civil suit No. 297/04, titled "Tarsem Lal v. Jagiri Ram & others" on 16.01.1999 against the plaintiff for declaration to the effect that the plaintiff is joint owner in possession of suit property and also for permanent injunction wherein Tarsem Lal sought cancellation of mutation as well as sale deed dated 05.07.1998, being illegal, null and void, but the said suit was dismissed vide judgment and decree dated 05.08.2004 passed by learned Civil Judge (Jr. Divn.), Phillaur. Feeling aggrieved against the said judgment and decree, the petitioner preferred an appeal which was also dismissed on 14.09.2005.

It is also averred in the plaint that when plaintiff and his family had gone to village Kothran, Tehsil Banga, District Nawanshahr to meet his relatives, the defendants along with others broken the Wall of the house of the plaintiff and forcibly took possession of the house on 25.05.2006. When near friend of the plaintiff informed him about breaking of wall by the defendants, he came to his house at village Thalia and saw the defendants have closed the main door of his house. The plaintiff requested the defendants to hand over the possession of the suit property, but they did not pay any heed to the same. On 25.05.2006, an application was moved to S.H.O., P.S. Phillaur as well as to the Senior Superintendent of Police, Jalandhar, but no action was taken.

Upon notice, the defendants put in appearance and filed written statement by taking preliminary objections as to the maintainability, locus standi, mis-joinder and nonjoinder of necessary party, estoppel and limitation. On merits, it is averred that neither the plaintiff is owner, nor in possession of the suit property. In fact, the plaintiff has no concern with the suit property. Even Jagir Ram never came in possession of the suit property as attorney of defendants. Jagir Ram has no right to alienate the suit property. The alleged power of attorney is illegal, null and void and even the mutation on the basis of alleged sale deed is illegal. Defendant no. 1 has constructed six rooms, two verandahs, two kitchens, two bathrooms in the disputed property and the plaintiff has no concern with the property in dispute.

Replication to the written statement was filed by the plaintiff denying the averments as made in written statement and reiterating the averments made in the plaint. On pleadings of parties, the trial Court framed the following issues:

Whether the plaintiff is in possession of suit property? OPP

Whether plaintiff is entitled for permanent injunction as prayed for? OPP

3 Whether plaintiff has got no locus standi to file this suit? OPD

Whether the present suit is not maintainable? OPD

Whether suit is bad for mis-joinder and nonjoinder of necessary parties? OPD

Whether plaintiff is estopped by his own act and conduct from filing the present suit? OPD

Whether suit is within time? OPD

Relief.

Thereafter, the parties led their respective evidence. The plaintiff examined himself as PW 1 besides examining Kirpal Singh as PW 2. On the other hand, the defendants examined Yaman Lal as DW 1, Joginder Ram as DW 2, Piara Ram as DW 3, Bhajan Singh as DW 4, Tarsem Lal as PW 5, Vasdev Singh as PW 6 and Prem Chand, Reader as DW 7.

The trial Court took up issues no. 1, 2 and 7 together and after considering the oral and documentary evidence came to the conclusion that on the relevant date, the plaintiff was in possession of the suit property and he was dispossessed by the defendants without his consent. On the basis of said finding, the trial Court decreed the suit.

Learned counsel for the petitioner has vehemently contended that the petitioner has assailed the impugned judgment and decree being illegal and wholly without jurisdiction. The learned counsel has submitted that the impugned judgment and decree are perverse in law as the trial Court has not correctly appreciated the evidence adduced by the parties. The learned counsel has further submitted that both the witnesses of the plaintiff have not clearly made out the case in favour of the plaintiff, however, evidence of the defendants has been ignored by the Court. The plaintiff has miserably failed to prove his possession over the suit property. The trial Court has recorded a perverse finding of the possession in favour of the plaintiff. The trial Court has failed to frame a proper issue which is most vital in the present case i.e. Whether the plaintiff was ever dispossessed from the suit property within six months from the date of filing suit.

None has appeared On behalf of respondent no. 1-plaintiff.

Learned counsel for respondent no. 2 has submitted that respondent no. 2 is only a proforma respondent.

I have considered the contentions raised by learned counsel for the parties.

It would be appropriate to mention that Section 6 of the Act provides a special summary and speedy remedy for a person in possession of immovable property whatever his title may be thereto'' to recover such possession from another who had illegally and without his consent ousted him therefrom. The word "possession" has not been defined under the Act. The term "possession" expresses the physical relation or control exercised by a person over a thing. In other words, the continuing exercise of a claim to the exclusive use of thing constitutes the possession of it. According to Salmond''s definition of possession, in order to constitute possession two elements are essential to be present, namely ''corpus possession'' and ''animus possident''. It is, therefore, clear that a person who has been illegally dispossessed can recover possession u/s 6 of the Act even against rightful owner of the property and question of title of the property is irrelevant in such a suit. To prove his possession, the petitioner has to show that he was exercising acts of dominion over the property or over a part of it and such acts of dominion were calculated to exclude alien interference with the property. Section 6 of the Act cannot be invoked unless the petitioner has been deprived of actual physical possession otherwise than in due course of law. In a suit filed u/s 6 of the Act, the onus of proof lies on the plaintiff to establish that he was in possession and has been illegally dispossessed but where both parties have led evidence the question of burden of proof becomes immaterial. In such a case, the Court must be satisfied before passing a judgment in favour of the plaintiff that he has established his possession over the suit property and further proved that he has been illegally dispossessed by the defendant. The only question in a suit u/s 6 of the Act is, therefore, whether dispossession had taken place within six months prior to the institution of suit and the title is irrelevant in such a suit.

It is settled principle of law that finding recorded by the trial Court cannot be lightly set aside as the same is based on the evidence adduced by both the parties. It is specifically mentioned in pleadings as well as evidence that the plaintiff was dispossessed on 25.05.2006, when he had gone to village Khothran, Tehsil Banga, District Nawanshahr to meet his relatives and immediately, he lodged the complaint to SHO, P.S. Phillaur and SSP, Jalandhar with regard to illegal dispossession.

In a suit filed u/s 6 of the Act, onus of proof lies on the plaintiff to establish that he was in possession and has been illegally dispossessed. In the present case, by leading cogent evidence, the plaintiff has been able to show that he was dispossessed on 25.05.2006. The suit was instituted on 23.11.2006 i.e. within six months from the date of illegal dispossession of the plaintiff by the, defendants. Otherwise also, the title is not relevant in a suit u/s 6 of the Act. It may, however, be mentioned that in the present case, the claim of plaintiff is based on the sale deed dated 05.07.1998, genuineness of which has been upheld in another civil suit in which the petitioner was a party.

Admittedly, no appeal lies from the decision arising in a suit u/s 6 of the Act. The Court can only interfere in revisional jurisdiction u/s 115 of the Code. When the suit u/s 6 of the Act fails, the normal remedy for a party is to file a suit for declaration of title and possession. The Court can interfere with the judgment and order in revision if finding of possession arrived at by the trial Court is not based on facts.

In the light of this settled principle of law, the only question remains for consideration in this case is whether the finding of possession arrived at by the court blow is perverse in law. The trial Court has firstly considered the factum of possession. In view of statement of PW 1 Balbir Singh (plaintiff) and documentary evidence tendered on record i.e. certified copy of sale deed dated 05.07.1998 Ex. P-1, site plan Ex. P/A, jamabandi for the year 1999-2000 Ex. P-2 certified copy of order dated 05.08.2004 Ex. P-3, certified copy of judgment dated 14.09.2005 Ex. P-4, application moved to SHO Ex. P-5 and application moved to SSP, Jalandhar Ex. P-6, the trial Court has recorded the finding that prior to the date of dispossession, the plaintiff was in possession of the property in dispute, however, the defendants have not adduced any documentary evidence to rebut the evidence led by the plaintiff. The trial Court has elaborately discussed the oral as well as documentary evidence adduced by the plaintiff and came to the categoric finding that he was in possession on the relevant date of his dispossession by the defendants.

In view of above, I do not find any grave error of law or any illegality or material irregularity in the impugned judgment and decree passed by the trial Court which may warrant interference by this Court in exercise of revisional jurisdiction u/s 115 of the Code. For the reasons recorded herein above, I do not find any merit in this revision petition which is, accordingly, dismissed. However, it is clarified that the finding of possession arrived at by the trial Court will not operate as res judicata.