Chattisgarh High Court
Thakur Mohan Singh And Anr vs Tarabai And Ors on 26 October, 2021
Page 1 of 5
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Order Reserved on : 26.08.2021
Order Passed on : 26/10/2021
C.R. No. 153 of 2014
1. Thakur Mohan Singh, S/o. Sukhlal Singh, aged about 66 years,
Occupation- Business.
2. Rajkumar alias Raju, S/o. Thakur Mohan Singh, aged about 44 years,
Both are R/o. Sarangarh, Distt. Raigarh C.G., Civil and Revenue District
- Raigarh (C.G.)
---- Applicants
Versus
1. Tarabai, Wd/o. Late Sadanand Bani, aged about 75 years, R/o. Village-
Bhojpur, Tah. Sarangarh, Distt. Raigarh C.G.
2. Ramnath, S/o. Late Sadanand Bani, aged about 50 years, R/o. Village-
Kelobihar, Near Murgi Farm, Raigarh C.G.
3. Raminbai, W/o. Chinta Bani, aged about 51 years, R/o. Shivrinarayan,
Now Distt. Janjgir-Champa C.G.
4. Sarojni Bai, W/o. Bharatlal, aged about 47 years, R/o. Kharod, Now
Distt. Janjgir-Champa C.G.
5. Shaodari Bai, W/o. Bharatlal, aged about 34 years, R/o. Bhojpur, Tah.
Sarangarh, Distt. Raigarh C.G.
6. Laxmibai, W/o. Surendra Bani, aged about 36 years, R/o. Gharghora,
Distt. Raigarh C.G.
7. Govind, S/o. Late Sadanand Bani, R/o. Kutela, Tah. Sarangarh, Distt.
Raigarh C.G.
---- Respondents
For Applicants : Mr. B.P. Sharma, Advocate with
Mr. H.S. Patel, Advocate
For Respondents : Mr. M.P.S. Bhatia, Advocate
Hon'ble Shri Justice Rajendra Chandra Singh Samant
C A V Order
1. This revision petition has been brought against the impugned judgment
an decree dated 24.01.1994, passed by the learned Civil Judge Class-
II, Sarangarh, in Civil Suit No.24-A/1987, whereby the suit filed by the
plaintiffs/respondents has been decreed.
2. The facts in brief are this that the deceased plaintiff Sadanand filed a
civil suit under Section 6 of the Specific Relief Act, 1963 praying for
relief of restoration of possession over a vacant plot measuring 710
sq.ft.. The applicants/defendants appeared and contested the civil suit.
Civil suit was decreed by the judgment dated 24.01.1994 in favour of
the respondents directing restoration of possession in favour of the
respondents. The applicants preferred an appeal. The appellate Court
entertained the appeal and framed three issues and the case was
remanded to the learned trial Court, which was directed to consider and
decide the additional issues. The learned Trial Court has then passed
the order dated 28.08.1998. The issue No.1 on the point of forgery of
the gift deed was decided in favour of the respondents. Second issue on
the point of maintainability of the civil suit was again decided in favour of
the respondents, however, the third issue on the point of limitation was
decided holding that the civil suit has been filed specifically under
Section 6 of the Specific Relief Act and the suit being filed with delay
was not maintainable. The learned appellate Court then decided the civil
appeal No.4A/94 dated 27.02.1999 and dismissed the appeal on the
ground that appeal is barred under Section 6 (3) of Specific Relief Act,
1963. The applicants then preferred second appeal No.387 of 1999,
before this Court that appeal was dismissed as withdrawn on
13.11.2013.
3. It is submitted by the learned counsel for the applicants that after the
remand of the case by the first appellate Court, the learned trial Court
has decided the additional issues framed by the appellate Court without
recording any evidence. Reliance has been placed on the judgment of
Supreme Court in case of Maria Margarida Sequeira Fernandes &
Ors. Vs. Erasmo Jack De Sequeira (dead) through LRS., reported in
(2012) 5 SCC 370, in which it has been held, that the possession is
important, however, if there are documents on record of title, before the
Court, it is the title, which has to be looked at first, which has to be given
preference. It is submitted that subsequent to the finding of the learned
trial Court in order dated 28.08.1998, the civil suit of the respondent was
either required be dismissed or remanded to the learned trial Court to
decide the issue afresh after giving opportunity to both the parties for
bringing evidence as the suit was not strictly U/s. 6 of Specific Relief
Act. Reliance has also been placed on the judgment in case of
Krishnadevi Malchand Kamathia Vs. Bombay Environmental Action
Group, reported in (2011) 3 SCC 363. Hence, it is prayed that this
revision petition be allowed.
4. It is further submitted that the the suit filed by the respondents was not
strictly under Section 6 of the Specific Relief Act, 1963. The pleadings
clearly shows that the respondents have prayed for title on the basis of
the unregistered gift deed dated 01.01.1960, therefore, it was a title suit.
It is submitted that it is because of these pleadings the learned appellate
Court framed the additional issues and the same were remanded for
decision to the learned trial Court. Hence, it was not a plain case for
restoration of possession. Hence, it is prayed that revision petition be
allowed.
5. Learned counsel for the respondents opposes the petition and the
submission made in this respect. It is submitted that the suit filed by the
respondents was clearly within limitation. There is clear pleading in the
plaint that respondents were dispossessed from the suit property on
27.05.1987. The suit was filed on 07.07.1987. The construction on the
suit property was raised during the pendency of the suit, which is
mentioned in the judgment of the trial Court. The appeal preferred
against the judgment and decree of the trial Court was not maintainable
as Section 6 (3) of the Specific Relief Act, which clearly bars filing of
appeal against the judgment and decree passed under Section 6 of the
Specific Relief Act 1963. Therefore, the appeal preferred by the
applicants was not maintainable. Therefore, any order passed in the
appeal as remand order was not existent. The provisions under Section
6 of the Act, 1963 is very specific, which prevent abuse of powers and
high handedness of the influential parties. It is submitted that present
civil revision is without any substance, which may be dismissed.
6. I have heard the learned counsel for the parties and perused the
documents placed on record.
7. On reading of the plaint itself it is found that the suit has titled as under
Section 6 of the Specific Relief Act, 1963, although there is pleading
present regarding the entitlement for possession in the plaint, but the
relief was prayed only for restoration of possession on the ground of
illegal dispossession of the plaintiff/respondent. Therefore, in absence
of any other relief for declaration of title etc. it can not be said that the
civil suit was not restricted to Section 6 of the Act, 1963 and that the
question of title was also involved. This being the case, the preference
of appeal under Section 6 against the judgment and decree of such
Court was clearly not maintainable. Appeal preferred against the
judgment and decree was at first remanded with direction to consider
and decide the additional issue, which has been decided by the order
dated 28.08.1998. These orders passed by the appellate Court for
remanding the case and by the trial Court for deciding the issue are
non-est in the eyes of law, as this authority was exercised by the
appellate Court without any jurisdiction and without any empowerment
from the provision under the law. Therefore, these orders of the
appellate Court and trial Court both are non-est and thus non-existent
in the eyes of law, which can be ignored. The learned appellate Court
has by the appellate judgment and decree dated 27.02.1999 dismissed
the appeal on the ground of its maintainability alone.
8. Hence, in such circumstances, the order dated 28.08.1998, which is
non-est order, which is ignored. The submissions made by the applicant
counsel to bring the civil suit in the category of title suit have no force,
which does not affect the judgment and decree dated 24.01.1994 in
Civil Suit No.24-A/1997, therefore, the civil revision is without any
substance, which is dismissed.
Sd/-
(Rajendra Chandra Singh Samant)
Judge
Balram
