Bombay High Court
Radheshyam Badluji Jaiswal (D) ... vs Shri Jawahar S/O Badluji Shahu on 25 January, 2018
Bench: A.S. Chandurkar
205-cra-44-05 judg.- 1/10
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CIVIL REVISION APPLICATION NO. 44 OF 2014
APPLICANTS :- Radheshyam Badluji Jaiswar,
(Since deceased through his L.Rs.)
1. Smt. Shashikala wd/o Radheshyam
Jaiswar (Sahu)
Aged about 70 years
Occup. Household.
2. Sudhir s/o Radheshyam Jaiswar
(Sahu)
Aged about 41 years
Occup. Business.
3. Chhotu s/o Radheshyam Jaiswar
(Sahu)
Aged about 39 years
Occup. Business.
4. Sharad s/o Radheshyam Jaiswar
(Sahu)
Aged about 37 years
Occup. Business.
All 1 to 4 r/o Kothi Road, Mahal,
Nagpur- 440032.
5. Manjusha Jaiswar d/o Radheshyam
Jaiswar (Sahu)
Aged Major
Occup. Household, R/o Raipur (M.P)
...VERSUS...
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205-cra-44-05 judg.- 2/10
RESPONDENT :- Shri. Jawahar s/o Badluji Shahu,
(Jaiswal),
Aged about 70 years,
Occup. Business
R/o Kothi Road, Mahal
Nagpur-440032.
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Shri.S.P. Kshirsagar, Advocate for the applicants.
Shri N.K. Ambilwade Advocate for the respondent
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CORAM : A. S. CHANDURKAR
, J.
DATED : 25.01.2018
O R A L J U D G M E N T
1. The applicants have filed this Civil Revision Application
being aggrieved by the judgment dated 8.2.2012 passed by the
trial court in the suit filed by the non applicant under section 6 of
the Specific Relief Act, 1963 (for short 'the said Act').
2. It is the case of the non applicant that the original
defendant was his brother. There was some dispute between them
with regard to their properties. Initially, the defendant had filed
Regular Civil Suit No.520 of 2001 for Specific Performance of an
agreement entered into between them. That suit had been
205-cra-44-05 judg.- 3/10
dismissed and the appeal was also dismissed. According to the
plaintiffs, they had gone to Ahmedabad on 13.12.2006. Taking
advantage of the absence of the plaintiffs, the defendant
demolished the structure admeasuring about 450 sq.ft. and
thereafter constructed a wall thereon. The plaintiffs lodged the
report on 18.12.2006 and thereafter filed suit under Section 6 of
the said Act seeking declaration that the defendant had illegally
taken possession.
3. The defendant filed his written statement below Exh.24
and denied that forcible possession of the suit property was taken.
According to the defendant the alleged compound wall had been
constructed on the property of the defendants and hence, the suit
was liable to be dismissed.
4. The parties examined themselves and their witnesses. The
trial Court after considering the evidence on record held that the
plaintiff had proved that the defendant had taken forcible
possession of the suit property. It therefore decreed the suit and
directed removal of the construction made by the defendants.
205-cra-44-05 judg.- 4/10
Being aggrieved the defendant has filed this Civil Revision
Application.
5. Shri.S.P. Kshirsagar, learned counsel for the applicant
submitted that in the suit filed under Section 6 of the said Act the
plaintiff did not make any prayer for possession and only a
declaration was sought that the defendant had taken forcible
possession. It was then submitted that the deposition of the
original plaintiff in earlier Civil Suit bearing No. 520 of 2001 was
placed on record as Exh.51. In that evidence the plaintiff herein
had admitted that he had handed over possession of the property
mentioned therein to the defendants. This piece of evidence was
not taken into consideration. It was further submitted that the
witnesses examined by the plaintiff did not bring on record the
aspect of forcible possession. It was therefore, submitted that the
trial Court committed an error in decreeing the suit when in fact
the same should have been dismissed.
6. Shri. N.K Ambilwade, learned counsel for the non
applicant /plaintiff submitted that the evidence brought on record
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by the plaintiff was sufficient to support the impugned decree.
He referred to the plaint averments as well as the written
statement to urge that the case as pleaded was not specifically
controverted. According to him his deposition in the earlier suit
was not brought on record and therefore, it could not be taken
into consideration. He placed reliance on the decisions in:-
(1) Nair Services Society Ltd V. K.C. Alexander and
ors AIR 1968 SC,1165.
(2) Kishore Deorao Deshpande V. Sarang Padmakar Patil
2012(1) Mh.L.J, 934
(3) Habeebunnisa Begum V. Mohammed Abdul Khadeer
AIR 2010 Andhra Pradesh 220.
It was submitted that the plaintiff had satisfied of the
ingredients of Section 6 of the said Act and therefore, no
interference was called for.
7. I have heard the learned counsel for the parties at length
and with their assistance I have perused records of the case. In
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the plaint it was pleaded that the defendant had filed Regular
Civil Suit No.520 of 2001 against the plaintiff for specific
performance and the plaintiff intended to rely upon the same. It
was pleaded that this suit was dismissed and the appeal filed by
the defendant was also dismissed. The suit property as described
in the plaint is having area of about 450 sq.ft. In the written
statement the earlier litigation was not disputed. The defence
was raised that in the earlier proceedings the plaintiff had
admitted that the suit property was not in his possession. It was
therefore asserted that the defendant was in possession since
1990-1991. It was also pleaded that construction made was on the
defendants own property.
8. Before the trial Court the wife of the plaintiff was examined
below Exh.43. Another witness Yuvraj Motiramji Thakare was
examined at Exh.44. The defendant examined his son at Exh.46.
Perusal of the evidence on record indicates that both the parties
sought to rely upon the earlier adjudication in RCS No.520 of
2001 . In the cross-examination of the defendant the evidence of
his father in RCS No.520 of 2001 was exhibited as Exh. 51. In the
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cross-examination the plaintiff herein had admitted that the area
shown in the plaint map and marked with alphabets was not in his
possession and this area was given by him to the defendant. This
was done in the year 1990-1991 and it was in possession of the
defendant. A shed was constructed thereon. The trial Court in
the impugned judgment however, has not referred to this piece of
evidence especially when both the parties has pleaded in that
respect. The trial court took into consideration the evidence of
the plaintiffs and decreed the suit.
9. The evidence on record indicates that there was an earlier
litigation between the parties and the suit property was
specifically described therein in the plaint map. There is an
admission of the present plaintiff in the suit that he had handed
over possession of the suit property in that suit to the defendant
herein. The effect of that evidence has not been taken into
consideration by the trial court. While according to the plaintiff he
was forcibly dispossessed on 14.12.2006, according to the
defendant and as admitted by the plaintiff in his cross-
examination he was in possession of the suit property in Regular
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Civil Suit No.520 of 2001 since 1990-1991. I find that this aspect
of the matter has material bearing in the present proceedings. The
effect of this evidence on record was required to be taken into
consideration by the trial Court. Having failed to do so I find that
there is non consideration of relevant material. Whether that piece
of evidence would support the case of the plaintiff or the
defendant is a matter to be adjudicated a fresh. On this ground, I
am inclined to remand the proceedings to the trial Court for re
consideration of the evidence on record.
10. As regards the contention that there was no prayer for
possession, I find that on a complete reading of the plaint and the
fact that suit was filed under Section 6 of the said Act the plaintiff
can be said to have prayed for delivery of possession. Though the
prayer clause may not be happily worded, in prayer clause 4 in
the plaint the plaintiff has sought inquiry into mesne profits till
delivery of possession. Hence this submission on behalf of the
applicant cannot be accepted.
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11. As the proceedings are being remanded to the trial court it
is not necessary to enter into other merits of the matter. Those
contentions can be urged before the trial Court. Hence, I do not
find it necessary to advert to the decisions cited by the learned
counsel for the non applicant.
12. In view of the aforesaid the following order is passed.
ORDER
i) The judgment of the trial court in RCS No.120 of 2007
dated 8.2.2012 is quashed and set aside.
ii) Proceedings are remanded to the trial court for fresh
consideration in the light of observations made in this
order.
iii) The parties shall appear before the trial court on 15th
February 2018. As the suit is of the year 2007 it shall be
decide expeditiously and within a period of six months
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from said date. The record and Proceedings be send to the
trial court forthwith.
(iv) It is clarified that the trial court shall decide the proceedings
on its own merits without being influenced by any
observations made in this order.
(v) The Civil Revision Application is allowed in the aforesaid
terms with no costs.
JUDGE
KAVITA
