Vijay Pal vs Shiv Dayal

R.S. Chauhan, J.—Although this case comes up on stay application but with the consent of the parties, this case is being decided finally. The brief facts of the case are that the respondent plaintiff, Shri Dayal, filed a suit before the learned trial Court; stating inter alia that he is having an ancestral land measuring 25 bighas 5 biswas, in Khasra No. 786, at Village Chak Garbi, Tehsil and District Bikaner, The above said land is situated in Rampura Basti, in front of Sector No. 3 of the Mukta Prasad Colony, Bikaner. It was further averred that the land has come in his share. He had submitted an application before the UIT for regularization of the land and had also submitted a report of the halka patwari and deposited the regularization fees. It was further averred that the appellant-defendant, Vijay Pal, had constructed a pucca house in the western side of the said plot. He had broken the wall constructed by him on 13.01.2008 and had forcefully taken the possession of the land. Therefore, the respondent-plaintiff had filed a FIR before the concerned police station. It was further claimed that he also requested the defendant for vacating the premises of the plot in question but he declined to do so on 05.08.2008. Moreover, the appellant-defendant has encroached over the plot in question, has constructed a house, and has sublet the same on rent.

The appellant-defendant submitted his written statement. He claimed that the land in question was vested in the State Government as the same was acquired by the UIT. The UIT proceeded for regularising the land to the persons who were in possession over the land in question. It was further pleaded that the plaintiff has got a forged report from the concerned patwari and he lodged a false complaint against him. The plaintiff did not pay proper Court fees as per the valuation of the land. Lastly, the appellant-defendant submitted that the land in question is in his possession for more than 12 years.

The learned trial Court framed ten issues including the one of relief. The plaintiff examined himself as a witness and exhibited eight documents. After hearing both the parties, the learned trial Court decreed the suit by its judgment and decree dt. 20.10.2011 and issued the permanent injunction against the appellant and held that the plaintiff is entitled to take the possession of the plot in question. Hence, this appeal before this Court.

A preliminary objection has been raised by Mr. S.S. Ladrecha, the learned counsel for the respondent. According to him, the suit was filed by the plaintiff under Sec. 6 of the Specific Relief Act, 1963 (''the Act'', for short). Under sub-sec. 3 of Sec. 6 of the Act, a bar has been placed that "no appeal shall lie from any order or decree passed in any suit instituted under this section, nor shall any review of any such order or decree be allowed". According to him, the use of word "shall" clearly indicates that it is a mandatory provision. Since the suit was for recovery of possession of the plot in dispute, since it was based solely on the ground that the plaintiff had been dispossessed from the plot in dispute without his consent, therefore, obviously the suit had been filed under Sec. 6 of the Act. Hence, the appeal is non-maintainable.

On the other hand, Mr. R.S. Choudhary, the learned counsel for the appellant has vehemently contended that a bare perusal of the plaint clearly reveals that it nowhere mentions the fact that the plaint is being filed under Sec. 6 of the Act. In fact, a bare look at the prayer clause clearly reveals that recovery is being sought in a mandatory form. Therefore, the respondent is not justified in claiming that the suit had been filed under Sec. 6 of the Act. Secondly, in the plaint, the plaintiff nowhere states that he has been forcefully dispossessed from the plot and nowhere pleads that the suit is being filed within the stipulated period of six months from the date of dispossession. In case, the suit was filed under Sec. 6 of the Act, the plaintiff would have pleaded both these facts. In fact, the suit has been filed under Sec. 39 of the Act seeking mandatory injunction against the defendant. Since the suit has not been filed under Sec. 6 of the Act, the bar contained in sub-sec. 3 of Sec. 6 is inapplicable to the present case. Hence, the appeal can be filed against the impugned judgment and decree.

Heard the learned counsel and perused the record as well as the impugned judgment and decree.

A bare perusal of the plaint clearly reveals that the subject matter of the plaint reads as under:--

Thus, the very title of the suit clearly reveals that according to the plaintiff, the defendant had dispossessed without violative the procedure established by law and had forcefully occupied the plot in dispute. Moreover, the plaintiff is seeking the relief of recovery of possession. Thus, the very title of the suit and the subject matter clearly reflects the elements of Sec. 6 of the Act.

Even in para 6, 7 and 9 of the plaint, the plaintiff had pleaded as under:-

A bare perusal of these paragraphs clearly reveal that according to the plaintiff-respondent, he was forcefully dispossessed from his plot on 13.01.2008 and the defendant-appellant encroached upon his plot. According to para 7, he was dispossessed without adopting the procedure established by law. According to para 9 on 05.04.2008, he had pleaded that the defendant-appellant had not vacated the plot. Moreover, the defendant has threatened him that he would construct on the disputed plot and would also sell the property to other persons. The suit was filed on 09.04.2008. Hence, the suit was filed within the limitation of six months. Hence, the contention raised by the learned counsel for the appellants that Sec. 6 of the Act has not been mentioned in the plaint is without any force.

Merely because, the plaintiff-respondent has sought the mesne profit would not take the case out of the ambit and scope of Sec. 6 of the Act. Moreover, merely because Sec. 6 of the Act has not been mentioned specifically in the plaint, it would still not take the suit out of ambit and scope of Sec. 6 of the Act. After all, while adjudicating the issue whether the suit was filed within six months, the Court would have to look at the tenor of the plaint. According to prayer No. 1 made to the Court, the respondent-plaintiff has prayed that the defendant be directed to restore the possession of the plaintiff and in case he fails to do so, then the possession should be restored even with the use of force by the Court. Thus, obviously prayer No. 1 is for recovery of possession.

For the reasons stated above, this Court is of the opinion that in fact suit was filed under Sec. 6 of the Act. Therefore, considering the mandatory bar prescribed under sub-sec. 3 of the Sec. 6 of the Act, obviously the appeal cannot be filed against the impugned judgment and decree. Therefore, this appeal is not maintainable. It is, hereby dismissed. Stay applications also stand dismissed.