Bombay High Court
Smt. Ranjana W/O Ravindra Mendhe And ... vs Shri Kishor Baburao Dakhode And Another on 3 March, 2025
2025:BHC-NAG:2178
Judgment
368 cra93.19
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CIVIL REVISION APPLICATION NO.93 OF 2019
1. Smt.Ranjana w/o Ravindra Mendhe,
age about - 45 years, occupation
household.
2. Shri Ravindra s/o Balaji Mendhe,
age about 50 years, occupation
private work.
Both r/o 156, Shastri Nagar, Nagpur. ..... Applicants.
:: V E R S U S ::
1. Shri Kishor Baburao Dakhode, aged
about - 50 years, occupation business.
2. Smt.Meena w/o Kishor Dakhode,
aged about 45 years, occupation
household.
Both r/o 144, Shastri Nagar, Nagpur. ..... Non-applicants.
Shri K.B.Ambilwade, Counsel for Applicants.
Shri S.P.Kshirsagar, Counsel for Non-applicants.
CORAM : URMILA JOSHI-PHALKE, J.
CLOSED ON : 07/02/2025
PRONOUNCED ON : 03/03/2025
JUDGMENT
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368 cra93.19
1. The present revision application is filed challenging
judgment and decree dated 13.9.2017 passed by learned
27th Joint Civil Judge Junior Division, Nagpur in Regular
Civil Suit No.5017/2012 by which the suit filed under
Section 6 of the Specific Relief Act, 1963 is dismissed.
2. The applicants herein are original plaintiffs who
filed the suit for possession under Section 6 of the Specific
Relief Act, 1963 and for occupation charges for illegal use
of the property. The suit property involved in the suit is
plot No.156 having Corporation House No.500, City
Survey No.1, Sheet No.327/246, and 144 admeasuring
1080 square feet bounded as towards East - house of Shri
Dongre, towards West - house of Shri Prabhu Chavan,
towards North - house of Shri Shankar Moharle, and
towards South - Road and ground.
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3. The plaintiff Nos.1 and 2 are husband and wife and
defendant Nos.1 and 2 are also husband and wife. The suit
property is originally owned by Narayan Ramaji Wakekar
who died issueless. Deceased Narayan Ramaji Wakekar
obtained the suit property from the NIT on lease and
constructed the house on the suit property. Deceased
Narayan Ramaji Wakekar during his life time, initially,
executed a Will dated 23.11.2011 which was subsequently
revoked by him by executing another Will dated 1.8.2012
by which the house property was divided between the
plaintiffs and the defendants. In view of the said Will, half
portion of the house property was given to the plaintiffs
and half portion was given to the defendants. As per
contentions of the plaintiffs, they were already in
occupation and possession of the property. However,
15.10.2012, when they were out of station, the defendants
broke the lock and entered into the premises and obtained
.....4/-
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368 cra93.19
illegal possession of the suit property. The entire
household articles belonging to the plaintiffs and deceased
Narayan Ramaji Wakekar were in the suit property. The
plaintiffs got knowledge about possession taken by the
defendants 0n 22.10.2012. Initially, the plaintiffs
requested the defendants to hand over the possession, but
the defendants have not paid any heed towards it.
Therefore, the plaintiffs issued notice on 23.10.2012 asking
the defendants to open the lock and hand over the
possession of the suit property. After receipt of the notice
also, the defendants have not handed over the possession
and, therefore, the plaintiffs were constrained to file the
suit.
4. In response to the suit summons, the defendants
contested the suit by filing his written statement vide
Exh.10. The contents of the plaint are admitted only to the
extent that deceased Narayan Ramaji Wakekar executed a
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Will and partitioned the property. As per the contentions
of the defendants, deceased Narayan Ramaji Wakekar was
residing in old constructed portion and the new
constructed portion was given by him on a rent. After the
death of wife of deceased Narayan Ramaji Wakekar, the
defendants started residing with deceased Narayan Ramaji
Wakekar. Defendant No.1 has also performed all banking
transactions on behalf of deceased Narayan Ramaji
Wakekar. Deceased Narayan Ramaji Wakekar executed a
Will dated 28.11.2011. The said Will was opened on
14.10.2012. As per the terms and conditions of the said
Will, the possession of one backside room and one room of
pakka construction were given to the plaintiff No.1 and
possession of two rooms of old construction was given to
the defendant No.2. Accordingly, both beneficiaries
occupied their respective possession. Since then, the
plaintiffs shifted their residence in the pakka constructed
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portion of the house, whereas the defendants are residing
in old constructed rooms and the panchas confirmed their
possession. The defendants have denied that they have
obtained any possession of the premises which is given to
the plaintiffs. It is contended by the defendants that the
plaintiffs were in possession of the entire suit property and
the possession of the plaintiffs was only to the extent of
two rooms out of four rooms in view of the Will.
5. The plaintiffs and the defendants have adduced
their evidence respectively and also placed reliance on
documents. After appreciating the evidence on record,
learned Judge below has observed that the plaintiffs have
failed to that defendants dispossessed them from the suit
property. In fact, the oral evidence is contrary to the
documentary evidence as report filed by the plaintiffs with
the police is only to the extent that defendants try to take
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possession of the suit property, which indicates that the
plaintiffs are not dispossessed and dismissed the suit.
6. Heard learned counsel Shri K.B.Ambilwade for the
applicants and learned counsel Shri S.P.Kshirsagar for the
non-applicants.
7. Learned counsel for the applicants submitted that
question to be answered is, whether the plaintiffs are in
possession of the suit property. The plaintiffs have
examined two witnesses to prove the dispossession. The
complaint is also lodged by the plaintiffs as to the
dispossession. The possession of the plaintiffs as well as the
dispossession by the defendants are also established and,
therefore, judgment impugned is erroneous and illegal.
8. Per contra, learned counsel for the non-applicants
submitted that the suit filed under Section 6 of the Specific
Relief Act, 1963 is a summary suit and the enquiry in the
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suit under Section 6 is confirmed to find out the possession
and dispossession within a period of six months from the
date of institution of the suit ignoring the question of title.
The remedy of a person unsuccessful in a suit under
Section 6 of the Act is to file a regular suit establishing his
title to the suit property and in the event of his succeeding
he will be entitled to recover possession of the property
notwithstanding the adverse decision under Section 6 of
the Act. The remedy of filing a revision is available but
that is only by way of an exception; for the High Court
would not interfere with a decree or order under Section 6
of the Act except on a case for interference being made out
within the well settled parameters of the exercise of
revisional jurisdiction under Section 115 of the Code.
In support of his contentions, he placed reliance on
Sanjay Kumar Pandey and ors vs. Gulbahar Sheikh and ors,
reported in (2004)4 SCC 664.
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9. The suit was filed by the plaintiffs under Section 6
of the Specific Relief Act, 1963. In order to establish a
claim under Section 6 of the Act, three things are required
to be established - (1) the plaintiffs were in possession of
the suit property; (2) the plaintiffs has been dispossessed
otherwise than in due course of law, and (3) the suit for
recovery of possession is filed within six months from the
date of alleged dispossession.
10. It is not in dispute that the suit property is originally
owned by deceased Narayan Ramaji Wakekar who died
issueless. Deceased Narayan executed a Will and half
portion of the house property was given to the plaintiffs
and half portion was given to the defendants. Deceased
Narayan Ramaji Wakekar was residing in old constructed
portion and the new constructed portion was given by him
on lease. As per the Will, pakka constructed portion was
given to plaintiff Ranjana and rest of the constructed
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portion was handed over to defendant No.2. It is
specifically mentioned that old constructed portion was
given to the defendant No.2. Whereas new constructed
house was given to the plaintiff. The said Will at Exh.52 is
executed on 1.8.2012. Thus, as far as hand over of the
possession of the suit premises is concerned, as per the
Will, it was handed over by the panchas and the plaintiffs
and the defendants were in possession of the suit
properties respectively.
11. The oral evidence of the plaintiffs by way
examination-in-chief is the reproduction from the
averments in the plaint and defendant No.2 also examined
herself as a witness. She has also examined one Pramod @
Chotu Murlidhar Midkatwar vide Exh.71, Archana Mohurle
vide Exh.70.
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12. Thus, as per the oral as well as the documentary
evidence, the suit property is divided between the plaintiffs
and the defendants as per the Will and one room from the
old construction and one room from pakka construction
were given to the plaintiffs. Whereas, two rooms of old
construction was given to the defendant No.2. Now, the
plaintiffs have come with a case that they were
dispossessed by the defendants by entering into the suit
property on 15.10.2012 and they got knowledge about the
said incident on 22.10.2012. The dispossession alleged
was of 15.10.2012. It is further contended by the plaintiffs
that he made a complaint to the police about the said
incident. If the complaint given to the police is considered,
it shows that the defendants by entering into the premises
attempted to obtain the possession of the suit property, but
the plaintiffs restrained them, snatched locks from their
hands and applied their own lock. Thus, the complaint
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given to the police is concerned, the allegation is only to
the extent of attempt to take possession.
13. The notice Exh.41 shown to have served upon the
defendants. The incident of dispossession is narrated in the
said notice. By the said notice, defendants were asked to
open the lock and hand over the possession.
14. As observed earlier, the Will Exh.52 is registered
before the Sub Registrar at Nagpur. The Will was opened
in presence of plaintiffs, defendants, and panchas on
14.12.2012. As per the contents of the Will, the possession
was handed over to the respective persons.
15. The plaintiffs filed the electric bill in the name of
plaintiff No.1. Wheres, defendants relied upon their oral
evidence. The plaintiffs have come with a case that
deceased Narayan Ramaji Wakekar was residing at the suit
property. Whereas, the defendants claimed that after the
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368 cra93.19
death of deceased Narayan Ramaji Wakekar, the plaintiffs
came to stay at the suit property. The plaintiffs have filed
document i.e. identity card of their son who is admitted in
school which shows that the plaintiffs are residing at 156,
Shastri Nagar, Nagpur from 2011 to 2014. Thus, on the
day of the incident admittedly the plaintiffs were not
residing in the suit premises. Moreover, the complaint
lodged by the plaintiffs is only to the extent that the
defendants tried to take possession of the suit property.
Nothing is on record to show that the defendants have
obtained the possession without following due process of
law.
16. A proceeding under Section 6 of the Specific Relief
Act, 1963 is intended to be a summary proceeding the
object of which is to afford an immediate remedy to an
aggrieved party to reclaim possession of which he may
have been unjustly denied by an illegal act of
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dispossession. Questions of title or better rights of
possession does not arise for adjudication in a suit under
Section 6 where the only issue required to be decided is as
to whether the plaintiff was in possession at any time six
months prior to the date of filing of the suit. The legislative
concern underlying Section 6 of the Specific Relief Act,
1963 is to provide a quick remedy in cases of illegal
dispossession so as to discourage litigants from seeking
remedies outside the arena of law. The same is evident
from the provisions of Section 6(3) which bars the remedy
of an appeal or even a review against a decree passed in
such a suit.
17. As far as the facts of the present case are concerned,
there is no dispute as to the possession over two rooms of
the plaintiffs. As far as dispossession is concerned, the
evidence of the plaintiffs is falsified by his own document
which is complaint filed with the police station after the
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alleged incident on 15.10.2012 which nowhere shows that
the possession was obtained by the defendants.
18. Thus, considering the material on record, the fact of
dispossession itself is not proved by the plaintiffs.
19. In view of the decision in the case of Sanjay Kumar
Pandey and ors supra, remedy available to the present
plaintiffs is not of a revisional jurisdiction. The Hon'ble
Apex Court specifically held that The remedy of a person
unsuccessful in a suit under Section 6 of the Act is to file a
regular suit establishing his title to the suit property and in
the event of his succeeding he will be entitled to recover
possession of the property notwithstanding the adverse
decision under Section 6 of the Act. The remedy of filing a
revision is available but that is only by way of an
exception; for the High Court would not interfere with a
decree or order under Section 6 of the Act except on a case
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368 cra93.19
for interference being made out within the well settled
parameters of the exercise of revisional jurisdiction under
Section 115 of the Code
20. Thus, the plaintiffs have failed to prove his
dispossession by the defendants. Moreover, the revision
itself is not maintainable in view of the decision of the
Hon'ble Apex Court.
21. In this view of the matter and in view of the
observations of the Hon'ble Apex Court in the case supra,
the present revision is devoid of merits and liable to be
dismissed and the same is dismissed.
Revision stands disposed of.
(URMILA JOSHI-PHALKE, J.)
!! BrWankhede !!
Signed by: Mr. B. R. Wankhede
Designation: PS To Honourable Judge ...../-
Date: 05/03/2025 11:14:04
