Brij Kumar S/O Madanlal Sethi And ... vs Bimla Rani Wd/O Ramkrishan Sethi ...
2005 Latest Caselaw 1372 Bom

JUDGMENT

B.P. Dharmadhikari, J.

1. In this Civil Revision Application under Section 115 of Civil Procedure Code, the revision applicants i.e. original defendants No. 2, 3 and 4 have challenged the order dated 16-7-1996 passed by the 10th Additional District Judge, Nagpur, in Regular Civil Appeal No. 268 of 1996, holding that the appeal under Section 96 as filed by present revision applicants against the judgment and decree dated 6-4-1996 delivered by 6th Joint Civil Judge, Junior Division, Nagpur, in Regular Civil Suit No. 406 of 1981, was not maintainable as the trial Court had decided the suit under Section 6 of Specific Relief Act (hereinafter referred to as the Act) and as such revision alone was the only remedy. The revision applicants have in the alternative also made the prayers to set aside the said judgment of trial Court dated 6-4-1996, if it is found that the appeal was rightly held to be not maintainable.

2. The present respondents-non-applicants No. 1A to 1D are legal heirs of original non-applicant No. 1 and said non-applicant No. 1 had filed Regular Civil Suit No. 406 of 1981 before 6th Joint Civil Judge, Junior Division, Nagpur, for restoration of his possession. The suit as filed was under Section 6 of the Act and in the alternative under Section 5 thereof. The parties filed their pleadings and thereafter oral evidence was also led and the trial Court has on 6-4-1996 partly decreed the suit and directed the present revision applicants to hand over the vacant possession of suit block to original plaintiff. The prayer for damages and interest was dismissed and similarly suit against defendant No. 1A was also dismissed. This judgment and decree was challenged in Regular Civil Appeal No. 268 of 1996 by these revision applicants and on 16-7-1996, 10th Additional District Judge, Nagpur, held that the trial Court has decided the suit under Section 6 of the Act and hence the Additional District Judge cannot sit in revisional jurisdiction and appeal was not competent.

3. The revision was called out for final hearing on 17-11-2005 and on that date the arguments of learned Counsel for the revision applicants were heard in part and as nobody was present for respondents, the matter was adjourned to 18-11-2005. On 18-11-2005 also, nobody appeared for the respondents and therefore the matter was adjourned to today. Today, Shri Kshirsagar, learned Counsel for the revision applicants has completed his arguments and nobody appears for the respondents-non-applicants.

4. The learned Counsel for the revision applicants has invited attention to the case as pleaded by deceased respondent No 1 (original plaintiff) before the trial Court to demonstrate that there was no actual dispossession as contended or as envisaged under Section 6 of the Act. He states that the revision applicants being partners and the business being a joint family business, the revision applicants as also the plaintiff were in joint possession and it is the plaintiff who himself voluntarily withdrew from partnership. According to him, case of such a nature could not have been taken cognizance of under Section 6 of the Act. He further argues that in view of peculiar nature of suit itself, the plaintiff had stated that in the alternative, the suit should be tried as suit under Section 5 of the Act. He invites attention of the Court to issues framed by the trial Court to demonstrate that the trial Court has in fact found title in favour of plaintiff and after recording that finding, the trial Court has found that he was dispossessed and therefore has ordered restoration of possession. He contends that thus, it was wrong on the part of the Appellate Court to hold that the trial Court had taken cognizance of suit only under Section 6 of the Act. In order to point out the difference between the jurisdiction available to the Civil Court under Section 5 and Section 6 of the Act, he has placed reliance upon the judgment of the Hon'ble Apex Court in the case of Nagar Palika, Jind v. Jagat Singh, Advocate reported at 1995(2) Civil L.J. 465 and the judgment of the Gujarat High Court in the case of Ramanlal Ambalal Patel v. Hina Industries reported at 1994(3) Civil L.J. 370. He has further stated that enquiry Section 6 of the Act is of limited nature and scope and as such the present judgment of the trial Court cannot be treated as judgment delivered under Section 6 of the Act. He has invited attention also to the judgment of the Gauhati High Court in the case of Mohd. Nurul Islam v. Mohd. Julup Raja reported at 1995(3) Civil L. J. 595 in support. He has further contended that if partners are in possession or if the members of Joint family are the partners, it cannot be treated as dispossession and even if it is treated as dispossession, the same cannot be complained of under Section 6 of the Act. He has drawn this analogy from Section 145 of Criminal Procedure Code and in support has placed reliance upon the judgment in the case of F.M.C. D'Costa v. Rallis India Limited reported at 1996(2) Mh.L.J. 130 to contend that even if the delivery of possession is by unauthorised person, the person dispossessed on account of such Act cannot approach the Court under Section 145 of Criminal Procedure Code.

5. The perusal of judgment of the Hon'ble Apex Court reported at 1995(2) Civil L.J. 465 (supra) reveals that in the said case, the Hon'ble Apex Court has considered the applicability of Section 6 of the Act. The suit filed was for injunction restraining the appellant before the Hon'ble Apex Court from interfering with possession of respondent over a portion of land and the plaintiff who was respondent before the Hon'ble Apex Court claimed to be the owner of said land and also asserted that he was in possession thereof. This claim was resisted by the appellant and the appellant-Municipal Council contended that the plaintiff had encroached upon the said portion. The trial Court recorded a finding that the plaintiff failed to prove that he was owner or he was in possession of suit land and it therefore dismissed the suit. The Appellate Court set aside the findings recorded by the trial Court and decreed the suit holding that title of predecessor in interest was established and it was also further held that the appellant was in possession thereof. In Second appeal filed by the Municipal Council before the High Court, the High Court dismissed the same and review filed against it was also dismissed in limine. It is in this background that the Hon'ble Apex Court has considered the provisions of Section 6 of the Specific Relief Act. The relevant observations in this respect as contained in para 8 of the judgment are as under :

Faced with this situation, the learned Counsel for the respondent, took a stand that even if the respondent had failed to prove his title, the suit filed on behalf of the respondent, should be treated as a suit based on possession and dispossession in terms of Section 6 of the Specific Relief Act, 1963. Once a suit has been filed by the respondent claiming to be the owner and being in possession of the land in question, how that suit can be treated as suit based on possession and dispossession without reference to title. Section 6 of the Specific Relief Act, 1963 says that if any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit. Section 6 is a corresponding provision to Section 9 of the Specific Relief Act, 1877. Section 9 of the earlier Act, which has been retained with some changes in the Specific Relief Act, 1963, is based on the principle that even a trespasser is entitled to protect his possession except against a true owner and purports to protect a person in possession from being dispossessed except in due course of law. Section 6 provides a summary remedy for a person who, being, in possession of immovable property is ousted therefrom. In such circumstances, it is possible that the person so dispossessed may pursue summary and speedy remedy through the medium of the Civil Court for restoration of possession. It has been said that this section is a reproduction of provision of the Roman law under which by an interdictum de vi a person wrongfully dispossessed from property could recover it by providing previous possession, without being required to prove his title. Disputed questions of title are to be decided by due process of law by the peaceful possession is to be protected from trespasser, under Section 6 of the Act without regard to the question of the origin of the possession. Such suit can be entertained and decreed, only where both the plaintiff and the defendant have no title to the suit land, but as the plaintiff proves his prior possession, because of that he is entitled to a decree for possession against the defendant who has dispossessed him. The plaint of such a suit must aver only previous possession and dispossession by the defendant, otherwise than in due course of law. In the case of Perry v. Clissold 1907 AC 73, it was said :

It cannot be disputed that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. And if the rightful owner does not come forward and assert his title by the process of law within the period prescribed by the provisions of the statute of limitation applicable to the case, his right is for ever extinguished and the possessory owner acquires an absolute title.

The aforesaid view was approved by this Court in the case of Nair Service Society v. Alexander AIR 1968 SC 1165 : (1988)3 SCR 163. This Court said in connection with the plaintiff of that case that he being in peaceful possession was entitled to remain in possession and only the State could evict him. It was further said that the action of the Society was a violent invasion over the possession of the plaintiff. It was pointed out :

...the law as it stands in India the plaintiff could maintain a possessor suit under the Specific Relief Act in which title would be immaterial or a suit for possession within 12 years in which the question of title could be raised.

After considering the position as mentioned above, the Hon'ble Apex Court has applied the law to the facts before it and in paragraphs 9 and 10 has found that Section 6 of the Act had no application to the case of the plaintiff who was respondent before it. The Hon'ble Apex Court, therefore, restored the order of trial Court and has set aside the order of first Appellate Court and even the orders of High Court in the Second Appeal.

6. The perusal of the judgment of the Gujarat High Court reported at 1994(3) Civil L.J. 370 (supra) reveals that the said High Court has also considered the difference between the remedies available to a person under Sections 5 and 6 of the Act and in para 13 observed that it is not possible to combine both remedies i.e. one under Section 5 and the other under Section 6 of the Act in one and the same suit and has held that the amendment as sought was therefore liable to be rejected. Initially Suit was filed under Section 5 of the Act and thereafter amendment was sought therein which actually changed it to a suit under Section 6 thereof. It has been held that in suit under Section 6 of the Act, the plaintiff is not required to prove his title to possess the property, nor is the defendant in such a suit permitted to establish his title to the suit property. In such a suit, the plaintiff is not entitled to claim mesne profits or damages and the only relief a plaintiff can seek is for possession and nothing else. It is further made clear that in suit under Section 5, the entirely different considerations are applicable and the plaintiff who seeks possession of immovable property has to prove his title to get the possession of the property. In such a suit, the defence has entirely different complexions and under Section 6 of the Act the only possible defence would be the denial of the allegation that the plaintiff was in possession of the suit property within six months preceding the filing of the suit while in suit under Section 5 of the Act, the defendant can point out that the plaintiff has no title to be in possession of the property and he can also take plea of adverse possession or of part performance, delay, laches, acquiescence etc.

7. The judgment of Gauhati High Court reported at 1994(3) Civil L. J. 370 (supra) again considers the limited scope of enquiry available under Section 6 of the Act. In fact, it was a revision before the High Court in a suit filed under Section 6 of the Act. The High Court has held that in that suit the question related to right, title or interest and possession of vendor of plaintiff was not required to be decided by trial Court and only question to be decided was as to whether the , plaintiffs were in possession of suit land and they were dispossessed therefrom without their consent and otherwise than due process of law within six months from the date of filing of suit. As the High Court found that such findings were not recorded by the trial Court, the matter was remanded back to trial Court for fresh decision in accordance with law.

8. Thus, the judgment delivered by the trial Court will have to be examined in this light. The perusal of judgment reveals that the plaintiff approached the trial Court with a case that he was running his business in suit block as sole proprietor and on 1-9-1973 by a deed of partnership, present revision applicant Nos. 1 and 2 were inducted as partners along with him and they were given 30% share in profit and loss of the firm. The said partnership continued upto 30-10-1977 and from 1-11-1977 revision applicant No. 3 was inducted as partner and the fresh partnership was executed and plaintiff had 20% share in profit and loss in reconstituted firm. It is mentioned that duration of partnership was at Will. It is further stated by plaintiff that on 29-8-1980, he addressed a notice to defendants No. 2 to 4 and expressed his desire to retire from partnership from 30-9-1980. It is stated that accordingly he called upon the revision applicants to join him in deed of dissolution evidencing his retirement from the firm. The revision applicants received notice on 29-8-1980 and they hastily reconstituted a partnership vide deed dated 1-10-1980 and they have also informed the Bankers of the firm viz., State Bank of India, about reconstitution of the firm. The revision applicants No. 2, 3 and 4 became partners and started operating accounts of the Bank from 30-9-1980. It is contended by the plaintiff that till that date, he was alone operating the bank account. It is further contended that these revision applicants in collusion with original defendant No. 1 (landlord) continued to wrongfully occupy the said block wherein they are running a business of footwear in the same name and style. Thus they dispossessed the plaintiff with effect from 1-10-1980 otherwise than in due process of law. The plaintiff contended that he being statutory tenant could not have been dispossessed by the defendant otherwise than with due process of law. The dispossession of the plaintiff is without his consent and hence he is entitled to restoration. He further stated that the landlord has also been issuing rent receipts in the name of revision applicants from 1-10-1980.

9. The defence of revision applicants was that the said shop was allotted by the Rent Controller to the joint family on the strength of refugee card issued to one Madanlal Sethi. They contended that the shop was obtained in the name of plaintiff alone but it was the property of joint family and business of foot-wear was being carried in it which also belong to joint family. According to them, the partnership was entered into only for the purpose of avoiding the provisions of Rent Control Legislation.

10. In view of these findings, the trial Court has framed about 16 issues and has answered them as under :

  ________________________________________________________________________________
                            Issues                              Findings
________________________________________________________________________________
  1.  Do the defendants No. 2 to 4 prove that the block            No
      in question was allotted in the name of plaintiff on
      strength of refugee card of Madanlal Sethi to run
      the joint family business?

  2.  Do   they   further   prove   that   to   avoid   the        No
      complication of Rent  Control  proceedings  the
      plaintiff was shown as partner in the partnership
      firm, which is running its business in the premises
      of suit block?
  3.  Whether the suit block is sublet by the plaintiff?           No

  4.  Whether the plaintiff is entitled for a decree of            Yes
      possession of the suit block?

  5.  What order and decree?                               As per final order.

  6.  Whether the plaintiff proves that he is                      Yes
      dispossessed by the defendant No.  2 to 4 in
      collusion with defendant No. 1?

  7.  Whether the suit is barred by limitation?                     No

  8.  Does plaintiff prove that he is entitled to the               Yes
      restoration of possession on the basis of
      possessory title?

  9.  Does plaintiff further prove that he is a statutory    Deleted as not
      tenant of suit block? matter in issue.

 10.  Do defendants prove that the suit claim is under              No
      valued?

 11.  Does plaintiff prove that he was in exclusive                 Yes
      possession of suit block from 7th June 1967 to
      30th September, 1980?

 12.  Do defendants prove that the suit block is the                No
      assets of the family business of plaintiff and
      defendants?

 13.  Do defendants prove that plaintiff has given up his           No
      claim of tenancy in favour of defendant Nos. 2 and
      4 to run the business?

 14.  Do defendants prove that the plaintiff permitted to      Deleted as issue
      Shri   Madanlal   Sethi   to   run   the   partnership   No. 2 covers this
      business of footwear along with his sons in suit         issue also.
      blocks?

 15.  Whether the plaintiff proves that he is entitled to           No
      recover damages Rs.  125/- per day in place of
      Rs. 30/- as contended?

 16.  Whether the plaintiff is entitled to claim interest at        No
      the  rate of 24% per annum from 1-10-1980 till the
      date of restoration of possession?
________________________________________________________________________________
      
 

The trial Court stated issues No. 1 and 2 as crux of the matter and thereafter while deciding these issues has considered the evidence adduced. Though there are some contradictions in evidence and its appreciation by Court below, it is not necessary for this Court to go into details of all these findings and discussion because at the end of para 45, the trial Court has observed that shop in dispute was obtained by parties on the basis of refugee card. However, thereafter it is held in para 46 that it is difficult to hold that the suit shop was obtained out of any joint family fund and in para 48 a finding has been given that between 1947 to 1967, the parties were residing separately and as parties were separate in residence and business, there was no nucleus or joint family business. It is further held that there is no substance in averment that as refugee card was in the name of Madanlal Sethi, the plaintiff is deprived of his claim to suit block which was allotted to him in his individual capacity. It noted that the block came to be allotted under Clause 23 of C. P. and Berar Letting of Houses and Rent Control Order, to the plaintiff in his individual capacity and it was not allotted to joint family. It has been further observed at the end of para 49 that the business in said shop was, therefore, not joint family business,

11. It is in this background that the Court below has proceeded further to examine further facts in para 65 though Court has made reference to summary nature of the suit, it has found that in fact the suit had lost its identity as summary suit. Thereafter it has further proceeded further to examine whether the plaintiff before it was in possession of suit block prior to six months of filing of suit and has stated that this was simple question involved in the matter. However, from the entire discussion by the trial Court in its judgment mentioned above, it is apparent, that the trial Court has first found out whether the plaintiff alone was entitled to possession of suit block as exclusive tenant/allottee thereof. Thus, the finding of title has been delivered after appreciating the evidence on record. It is apparent that thereafter only the Court has proceeded to examine the issue of dispossession of plaintiff by present revision applicants in the mode and manner aforesaid.

12. The very first part of the judgment of trial Court reveals that suit filed by plaintiff was for restoration of possession either under Section 6 of Specific Relief Act or in the alternative under Section 5 of the Act. In view of the discussion above, it is apparent that the Court below has exercised the jurisdiction under Section 5 of the Act. It has not restricted exercise of its jurisdiction plain and simple to Section 6 thereof. In the light of law as settled in the judgment mentioned above, it is apparent that it is not possible to hold that the trial Court has exercised jurisdiction under Section 6 of Specific Relief Act while granting relief to the original plaintiff before it.

13. In these circumstances, I find that the Appellate Court was not justified in holding that the appeal before it was not maintainable. While so doing, the Appellate Court has only considered the observations and findings recorded by the trial Court against issue No. 11 and has overlooked the other application of mind by trial Court. It is to be noted that from paragraph 65 onwards the trial Court has considered the issue Nos. 7, 8 and 11 together but it has dealt with question of title i.e. issues Nos. 1 and 2 from paragraph 21 onwards upto paragraph No. 55. It has itself said that these two issues are the crux of the matter. It is apparent that had the trial Court found that the shop in question was allotted to the joint family or business therein was business of family, the entire judgment would have been different. From the facts it is apparent that the plaintiff has alleged dispossession by revision applicants, who were jointly in possession with him as his partners, after plaintiff voluntarily withdrew from the partnership. Thus, the nature of business carried in the shop had vital bearing on the issue of restoration of possession as claimed by the plaintiff. It is also obvious that all these persons i.e. revision applicants and original plaintiff were in joint possession and the third person who was not in possession has not forcibly entered the possession to dispossess the plaintiff. In such circumstances, it is apparent that the trial Court could not have decided the suit as suit only under Section 6 of Specific Relief Act. Here, the trial Court could have at the most reinstated original plaintiff back in possession along with revision applicants/partners but could not have ordered eviction of these partners under Section 6 of the Act. Hence, it is apparent that jurisdiction exercised is under Section 5 of Specific Relief Act,

14. As the remedy of appeal under Section 96 is available to the revision applicants, it is not necessary for this Court to record any finding in detail upon the various arguments and comments of learned Counsel for the revision applicants in relation to application of mind by the trial Court while finding out the answer to issue Nos. 1 and 2 or by the Appellate Court in appeal which is being restored back to its file.

15. With the result, the order dated 16-7-1996 passed by the 10th Additional District Judge, Nagpur, in Regular Civil Appeal No. 268 of 1996 is quashed and set aside. Said appeal is restored back to its file for its adjudication on merits in accordance with law after giving due opportunity to the parties concerned. Writ Petition is disposed of accordingly. Rule is made absolute in above terms. There shall be no order as to costs.

16. At this stage Shri Kshirsagar, learned Counsel for the revision applicants states that the revision applicants are in possession and this Court has on 3-8-1996 directed maintenance of status quo and on the strength of that order, the revision applicants are continuing in possession even today.

17. Under the circumstances, the said order of status quo shall continue to operate till the Appellate Court considers the application for grant of stay moved by the revision applicants in Regular Civil Appeal No. 268 of 1996. The Appellate Court shall consider the said application as early as possible and in any case within a period of two months from the date of communication of this order to it.