Anandraj S/O Khemraj Dhariwal And ... vs Nemichand Gulabchand Parekh ...
2022 Latest Caselaw 4595 Bom

                                             CORRECTED-Judgment in WP 2313.2021.odt




          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                   NAGPUR BENCH AT NAGPUR

                  WRIT PETITION NO. 2313 OF 2021

1) Shri Anandraj S/o Khemraj Dhariwal
   Aged about 63 years, Occ : Business,
   R/o. Mulik Complex, Somalwada, Nagpur
2) Smt. Santoshidevi wd/o Khemraj Dhariwal,               .. Petitioner
   Aged about 82 years, Occ : Nil,
   R/o. Ward No. 67, Near Police Chowki, Sadar,
   Nagpur
                      Versus

   Shri Nemichand Gulabchand Parekh (Dead)
   Through his Legal Heirs
i) Shri. Vinod S/o Nemichand Parekh
   Aged about Major, Occ : Business,
   R/o. Opp Hanuman Mandir, Goleccha Marg,
   Sadar Bazar, Sadar, Napur

ii) Smt. Vimaladevi W/o Subhashchand Ranka
    Aged about Major, Occ : Housewife,                  .. Respondents
    R/o. Main Road Khidkiya, Via Itarsi,
    Tal. Iatarsi, Dist. Khandwa (M.P.)

iii)Shri. Vivek S/o Hukumchand Surana,
    Aged about Major, Occ: Business,
    R/o. C/o. Abhaychandji S/o Fulchandji
    Khiwsara,
    Jama Masjid Square, Lonar, Tal. Lonar,
    Dist. Buldhana



  Mr. Devendra Chauhan along with Mr. Aditya Chaudhari
  Advocate for petitioners.
  Mr. Kamal Satuja, advocate for respondent Nos.1(i).




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                          CORAM :              MANISH PITALE, J.
                 RESERVED ON          :        12/04/2022
             PRONOUNCED ON            :        29/04/2022



JUDGMENT

Rule. Rule made returnable forthwith. Heard finally

with consent of the learned counsel appearing for the rival parties.

(2) The present writ petition challenges order dated

23/09/2016, passed by the Court of 6 th Joint Civil Judge Junior

Division, Nagpur, whereby an application filed by the respondent

under Order 7 Rule 11 of the Code of Civil Procedure (CPC) was

allowed and the plaint stood rejected. The petitioners had filed a suit

for restoration of possession under Section 6 of the Specific Relief Act,

1963 and on the basis of the statements made in the plaint, it was

found that the suit was filed beyond the period of limitation of six

months.

(3) Initially, the petitioners had filed revision

application before this Court and when an objection regarding the

tenability of the same was raised, it was converted into a first appeal.

Due to change in pecuniary jurisdiction by way of amendment, the

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appeal stood transferred to the District Court. But, by order dated

10/02/2021, the said appeal was permitted to be withdrawn with

liberty to avail appropriate remedy. It was thereafter, that the

petitioners filed the present writ petition.

(4) Upon notice being issued for final disposal in the

writ petition, the respondents entered appearance through counsel.

(5) As per the case pleaded by the petitioners in the suit

for restoration of possession under Section 6 of the aforesaid Act, the

suit house property was occupied by the petitioners and the petitioner

No.1 put his lock on the suit property as his mother i.e. petitioner No.2

continued to reside in the said house, despite the petitioner No.1

having shifted to an apartment. It was claimed that the defendants are

related to the petitioners as the father of the petitioner No.1 was

brother-in-law of the father of original defendant No.1. It was stated

in the plaint that on 28/04/1995, the respondents had put another

lock over the lock of the petitioner on the suit premises.

(6) On this basis, the petitioner filed Regular Civil Suit

No.784/1995 for injunction, wherein an application for grant of

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temporary injunction was also filed. The said application was rejected.

The petitioner filed appeal against the rejection of application for

temporary injunction. It was claimed that during pendency of the said

appeal, the respondents on 11/06/1996, illegally broke open the lock

on the suit house premises, thereby giving cause of action to the

petitioners to file the suit for restoration of possession. The said suit

was filed on 05/12/1996 and accordingly, it was claimed that since the

dispossession was within six months of filing of the suit, the same was

within limitation, as prescribed in Section 6 of the said Act.

(7) The respondents filed an application under Order 7

Rule 11 of the CPC, contending that even on the basis of the

statements made in the plaint, the suit was clearly barred by

limitation, as the cause of action actually arose on 28/04/1995 and the

suit was filed well beyond the limitation of six months on 05/12/1996.

The said application was opposed by the petitioner, but, by the

impugned order the contentions of the respondents were accepted and

the plaint was rejected.

(8) Mr. Devendra Chauhan, learned counsel appearing

along with Mr. Aditya Chaudhary, learned counsel for the petitioners

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submitted that the impugned order deserves to be set aside because

actual dispossession of the petitioners took place on 11/06/1996,

when the respondents illegally broke open the lock on the suit house

premises. The suit was admittedly filed on 05/12/1996, which was

within the period of limitation of six months. It was submitted that the

earlier date of 28/04/1995, was irrelevant for calculating the period of

limitation for the reason that illegal dispossession of the petitioners

actually took place on 11/06/1996.

(9) The learned counsel for the petitioners relied upon

the judgment of the Hon'ble Supreme Court in the case of Sudhir Jaggi

Vs. Sunil Akash Sinha Choudhary (2004) 7 SCC 515 , to elaborate on

the true purport of the expressions "possession" and "dispossession".

(10) On the other hand, Mr. Kamal Satuja, learned

counsel appearing for the respondents contended that statements

made in the plaint demonstrated that when the respondents put

another lock on the suit house premises on 28/04/1995, the

petitioners stood dispossessed and the cause of action accrued on that

very date. On this basis, it was claimed that the suit, admittedly filed

on 05/12/1996, was beyond the period of limitation of six months and

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that therefore, the impugned order rejecting the plaint was justified. It

was claimed that the proceedings under Section 6 of the aforesaid Act

were necessarily a remedy of summary nature for a person

dispossessed within six months and it was for this reason that the

provision of appeal was also taken away against orders passed in such

suit. It was submitted that the aggrieved party could then file a fresh

suit for establishing title or for any other claim. It was submitted that

even symbolic dispossession was covered under the expression

"dispossessed" used in Section 6 of the said Act and in this case, even

as per the pleadings of the petitioners themselves, they were actually

dispossessed from 28/04/1995 itself. On this basis it was submitted

that the writ petition deserved to be dismissed.

(11) In order to examine the rival contentions in the

present case, it would be appropriate to refer to Section 6 of the

Specific Relief Act, 1963, which reads as follows :-

"6. Suit by person dispossessed of immovable property.-- (1) If any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person 1[through whom he has been in possession or any person] claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit.

(2) No suit under this section shall be brought--

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(a) after the expiry of six months from the date of dispossession; or

(b) against the Government.

(3) 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.

(4) Nothing in this section shall bar any person from suing to establish his title to such property and to recover possession thereof."

(12) As per the above quoted provision, a person who is

dispossessed without his consent from immovable property, may file a

suit for recovering possession only within six months from the date of

dispossession. It is specifically provided that no appeal shall lie from

any order or decree passed in such a suit and that nothing in the

Section would bar any person from suing to establish his title to such

property and to recover possession thereof.

(13) The very nature of remedy provided in the above

quoted Section 6 of the said Act is summary in nature, to ensure that

the person who has been illegally dispossessed within six months can

approach the Court to seek redressal of his grievance and for being

restored with possession.

(14)               The    key   word      in   the    aforesaid       Section        is


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"dispossessed". The period of six months limitation specifically

provided in the above quoted provision starts at the point when the

aggrieved person is dispossessed from the property. Both the parties

have not disputed the position of law that under Section 6 of the

aforesaid Act, summary proceedings are contemplated and that a

person aggrieved by the order passed in such a suit can indeed

institute a fresh suit to establish title and seek recovery of possession.

The crucial question is, as to when can an aggrieved person be said to

have been dispossessed, triggering cause of action for filing such a suit

of summary nature under Section 6 of the aforesaid Act.

(15) The learned counsel appearing for the petitioners

placed much emphasis on judgment of the Supreme Court in the case

of Sudhir Jaggi (supra). In the said judgment the Supreme Court has

referred to its earlier judgment in the case of Superintendent and

Rememberancer of Legal Affairs W.B. vs. Anil Kumar Bhunja (1979)

4 SCC 274, wherein the word "possession" has been deliberated upon.

A reference is also made to earlier judgment of Kumar Kalyan Prasad

Vs. Kulanand Vaidik of the Patna High Court reported in AIR 1985 Pat

374. It is recorded in the judgment of the Supreme Court in the case

of Sudhir Jaggi (supra), after referring to the said earlier judgments,

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that the word "possession" implies a right and a fact. It involves power

of control and intention to control. It is also found that the word

"dispossessed" would not only mean actual physical dispossession but,

it would not exclude violation of other forms of possession including

symbolic possession.

(16) The word "dispossess" or "dispossessed" have been

defined in Cambridge dictionary as taking away of property. In the

Merriam Webster dictionary it is defined as being deprived of homes or

possession. In Collins dictionary it is defined as being ousted from land

or property. In Black's Law dictionary, Eighth Edition, the word

"dispossess" means to oust or evict someone from property and the

word "dispossession" means deprivation of or eviction from rightful

possession of property.

(17) Therefore, a crucial aspect of the word "possession"

is control over the property. The word "dispossession" means being

deprived of or being ousted from such property. In the present case, in

the plaint itself the petitioners stated that on 28/04/1995, the

respondents put their lock on the suit property. The moment the

respondents put their lock on the suit property, the petitioners could

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not have entered the said property even if they opened their lock on

the said property. In other words, on 28/04/1995 itself, even as per the

statement made in the plaint, the petitioners were clearly deprived of

entering into the said property. Till the respondents put their lock on

the said property, the petitioners were in control of the same and the

moment the said lock was put by the respondents, the petitioners

stood effectively ousted physically from the suit property. Therefore,

the cause of action accrued on 28/04/1995 itself, for the petitioners to

avail of the summary remedy under Section 6 of the aforesaid Act and

they could have availed of the same only within six months from

28/04/1995. It is a different matter that the petitioners chose to file a

Suit for injunction, wherein they filed an application for temporary

injunction which was rejected by the trial Court and the appeal against

the same also failed.

(18) Once the cause of action stood triggered on

28/04/1995 for filing a suit under Section 6 of the aforesaid Act, the

petitioners could not claim later that when the respondents, on

11/06/1996, illegally broke open the lock of the suit premises that

they were dispossessed and that the cause of action accrued on

11/06/1996, further claiming that the suit filed on 05/12/1996 was

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within the limitation period of six months.

(19) This Court is of the opinion, that the Court below

correctly found that the cause of action for filing the suit under Section

6 of the aforesaid Act, accrued to the petitioners on 28/04/1995 itself

and the suit having been admittedly filed on 05/12/1996, was clearly

beyond the period of limitation of six months. The rejection of plaint

was therefore, justified.

(20) Reliance placed on judgment of the Supreme Court

in the case of Sudhir Jaggi (supra) on behalf of the petitioners is

misplaced. On the contrary, the position of law clarified in the

aforesaid judgment supports the contentions of the respondents that in

the present case, the suit was clearly barred by limitation, on the basis

of the statements made in the plaint itself. Therefore, no error can be

attributed to the impugned order passed by the Court below, allowing

the application under Order 7 Rule 11 of the CPC and rejecting the

plaint.

(21) In view of the above, the writ petition is dismissed.

Rule discharged.

[ MANISH PITALE J.] KOLHE Digitally signed byRAVIKANT CHANDRAKANT KOLHE Signing Date:29.04.2022 17:26 PAGE 11 OF 11