Mrs.Sarvesh Kumari Yadav vs Sh. H.C. Ahuja
2010 Latest Caselaw 5113 Del

*     HIGH COURT OF DELHI : NEW DELHI

      CRP No. 45/2010 & CM No. 4697/2010

%     Judgment reserved on: 16th September, 2010

      Judgment delivered on: 10th November, 2010

      Mrs. Sarvesh Kumari Yadav,
      W/o Sh. Virender,
      R/o H. No. 500, DDA Janta Flats,
      Pul Prahaladpur, New Delhi.
                                                   ....Petitioner.
                          Through:      Mr. Ranjan Kumar and Mr.
                                        Manoj Kumar, Advs.
                   Versus

      Sh. H. C. Ahjua,
      S/o Late Sh. G. D. Ahuja,
      Flat No. 251, M. I. G. Suraj Apartments,
      Pul Prahaladpur, New Delhi.
                                                   ....Respondent
                          Through:      Mr. M. L. Mahajan, Adv.



Coram:
HON'BLE MR. JUSTICE V.B. GUPTA

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                 Yes

2. To be referred to Reporter or not?              Yes

3. Whether the judgment should be reported
   in the Digest?                                  Yes


CRP No. 45/2010                                          Page 1 of 14
 V.B.Gupta, J.

Present revision petition has been filed by the petitioner

(Defendant in the trial court) against judgment dated 24 th July, 2009

passed by Civil Judge, vide which suit under Section 6 of the Specific

Relief Act, 1963 (for short as „Act‟) for possession filed by respondent

(Plaintiff in the trial court) was decreed.

2. Brief facts of this case are that respondent purchased property

bearing no. 500, DDA Janta Flat, Ground Floor, Pul Prahaladpur, New

Delhi from its owner Sh. Jagdish Chander Mehandiratta for sale

consideration of Rs.75,000/- on 13th August, 1996. The possession of

the said property was handed over to the respondent by its owner on

receipt of the whole of the sale consideration. The said owner

executed the possession letter showing the delivery of possession of

the said property to the respondent and also executed other documents

in favour of the respondent.

3. After purchase of the property, respondent has been letting out

the same to different tenants and ultimately got the same vacated in

December, 2000 and occupied it in January, 2001 and shifted his

house-hold goods and started living in the said house.

4. Respondent also owns another house at 251, MIG, Suraj

Apartments, Pul Prahaladpur, New Delhi and shifted to that house in

order to get the suit property repaired. While respondent was living at

house no. 251, MIG Suraj Apartments, Pul Prahaladpur, New Delhi,

he came to know on 29th March, 2001 that petitioner has broken open

the lock and trespassed into the property. Immediately, respondent

lodged a report with the police.

5. It is further alleged that petitioner on the other hand, filed a

false suit against him and his wife to the effect that she (petitioner) has

purchased the said property from his wife for a sum of Rs.2,42,500/-

and have paid a sum of Rs.1,27,500/- on 10th February, 2001 to his

wife.

6. It is stated that his wife has got nothing do with the property in

question and property is owned by him, which fact has been admitted

by petitioner in the suit filed by her. All the house-hold goods of

respondent are lying in the suit property. Thus, petitioner has illegally

tresspassed in to the suit property unauthorisedly, without any legal

right and as such respondent filed a suit for possession under Section 6

of the Act.

7. Petitioner in her written statement filed before the trial court has

taken preliminary objections that suit of respondent is devoid of any

cause of action and same is barred under Section 10 of the Code of

Civil Procedure (for short as „Code‟). Petitioner has already filed a

suit for injunction against respondent and his wife, which is pending

before the Civil Court.

8. On merits, it is stated that respondent misrepresented to the

petitioner that alleged flat was of his wife-Smt. Raj Kumari and

accepted part payment of Rs.1,27,500/- and handed over possession to

her on 10th February, 2001. Balance payment of Rs.1,15,000/- was

received by respondent on behalf of his wife, on 22nd March, 2001.

9. It is further alleged that respondent never resided in the Flat No.

500 and had been residing in Flat No. 226, MIG, Suraj Apartment,

New Delhi, from where he got his ration card, which clearly shows his

residence to be as above stated.

10. It is also alleged that respondent did not give receipt for the

earnest money and started demanding Rs.60,000/- extra and threatened

the petitioner of dispossession along with balance amount. Fearing

dispossession, petitioner filed a suit for injunction which is pending

for disposal.

11. It is further alleged that respondent also got signed from her on

ten blank papers for giving the property documents, which was never

done by the respondent.

12. After framing of the issues and recording of the evidence, trial

court decreed the suit for possession in favour of the respondent.

13. It is contended by learned counsel for the petitioner that

petitioner has purchased the flat in question from respondent‟s wife,

for which price was fixed at Rs.2,42,500/-. Accordingly, petitioner

paid Rs.1,27,500/- as an advance and earnest money to the

respondent‟s wife, on 10th February, 2001. The physical and peaceful

possession of the flat was also given to the petitioner immediately on

that date and balance amount of Rs.1,15,000/- was also paid by the

petitioner to respondent‟s wife, on 22nd March, 2001.

14. Petitioner being an illiterate lady signed certain blank papers

and gave the same to respondent for further processing. Despite

repeated request made by petitioner, papers were not given to her and

instead respondent demanded more money.

15. It is also contended that respondent and his wife threatened the

petitioner that if more money was not paid, then she shall be evicted

out. Fearing eviction, petitioner filed a suit for permanent injunction

against respondent‟s wife in February, 2001. Thereafter, respondent

filed suit for possession under Section 6 of the Act.

16. It is further contended that trial court did not consider the

written arguments filed by the petitioner. Respondent has failed to

prove the basic ingredients of Section 6 of the Act, qua his possession

before 29th March, 2001 as claimed by him. In cross-examination,

respondent admitted that on 28th March, 2001, he was staying at flat

No. 251, Suraj Apartments, Prahlad Pur. This goes on to show that

respondent was not in possession of the flat in question, prior to the

alleged dispossession on 29th March, 2001. It is the petitioner, who is

living in flat in question since 10th February, 2001 and possession of

the flat was given to her after taking due consideration by the

respondent.

17. It is also contended that respondent in cross-examination before

Sub-Divisional Magistrate admitted that he remained in possession of

the flat in question till February, 2001. Thus, Section 6 of the Act is

not applicable to the facts of the present case and impugned judgment

is liable to be set aside.

18. On the other hand, it is contended by learned counsel for the

respondent that petitioner has not placed any document on record to

sustain her claim. When admittedly dispute has been arisen between

the parties in February, 2001, then how petitioner could pay the

balance amount in March, 2001.

19. It is further contended that it is the respondent who is the owner

of flat in question and necessary documents in this regard have been

duly proved on record. Since, petitioner has not placed any document

with regard to the alleged sale consideration, trial court rightly

decided the suit in favour of the respondent.

20. In support of its contention, learned counsel cited following

judgments:-

i) Prasanna Kumar Singh vs. Golak Chandra Madhulal & Anr., I (1996) CLT 18 and

ii) Sudhir Jaggi & Anr. vs. Sunil Akash Sinha Choudhury & Ors., V (2004) SLT 41.

21. The main controversy in the present case is as to whether

respondent is entitled to decree for possession of the suit property,

under Section 6 of the Act or not. This Section read as under:-

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 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--

(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."

22. In the present case, essential conditions for grant of relief of

possession under Section 6 of the Act are that respondent has to

prove his previous possession and dispossession by the petitioner,

otherwise than in due course of law, within six months of the suit.

Thus, sole point for determination is whether respondent was in

possession of the disputed property within six months previous to the

institution of the suit or not and whether he had been deprived of

such possession by the petitioner, otherwise in due course of law.

23. Supreme Court in Sanjay Kumar Pandey & Ors. vs. Gulbahar

Sheikh & Ors. 2004 (4) SCALE 441 while dealing with Section 6 of

the Act observed:-

"A suit under Section 6 of the Act is often called a summary suit inasmuch as the enquiry in the suit under Section 6 is confined to finding out the possession and dispossession within a period of six months from the date of the institution of the suit ignoring the question of title. Sub-Section (3) of Section 6 provides that no appeal shall lie from any order or decree passed in any suit instituted under this Section. No review of any such order or decree is permitted. 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. Thus, as against a decision under Section 6 of the Act, the remedy of unsuccessful party is to file a suit based on title. 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 the revisional jurisdiction under Section 115 of the Code."

24. Petitioner has not disputed the ownership of the suit property.

As per her defence in the written statement, respondent declared to the

petitioner who was keen to buy the flat in question that it was of his

wife (Smt. Raj Kumari). Thus, it caused petitioner to believe about

respondent‟s wife property and deal was struck at the shop of the

respondent. Hence, petitioner herself admits that respondent‟s wife

was the owner of suit property.

25. Further, the case of petitioner is that cost of suit property was

fixed at Rs.2,42,500/-, out of which Rs.1,27,500/- was paid by her on

10th February, 2001 and physical possession of the suit property was

handed over to her. The balance payment was made on 22nd March,

2001 and respondent got signed upon ten blank papers from her and

promised her to give the property documents. After some time with

malafide intention, respondent‟s wife tried to dishonestly usurp the

flat in question. Respondent fabricated a false story that petitioner

break open the lock of the flat in question and trespassed into the

same on 29th March, 2001.

26. As per petitioner‟s case, balance payment was made on 22nd

March, 2001. However, petitioner in her written statement states that

fearing dispossession of the flat by respondent, she filed an injunction

suit dated 26th February, 2001, which is pending before the Civil

Judge. In that suit for injunction, petitioner took the stand that cause

of action arose in her favour on 24th February, 2001 and against

respondent when they came along with unknown persons to flat in

question and threatened that they would dispossess her from the said

flat.

27. When on 24th February, 2001, respondent threatened petitioner

to dispossess her from the flat in question then it does not appeal to

the common sense that, on 22nd March, 2001 (when other litigation

between the parties was pending) petitioner would make payment of

balance amount to the respondent and that too without any receipt.

28. Further, defence of petitioner is that respondent has got her

signatures on ten blank papers. There is nothing on record to show

that any complaint to this effect was lodged with the police

immediately thereafter or petitioner ever demanded back those blank

papers purported to have been signed by her.

29. Petitioner‟s case is that she has purchased the flat in question at

the cost of Rs.2,42,500/-, but she has not placed even single document

on record.

30. Trial court in this regard observed:-

"It is deposed by the plaintiff that on 29 th March, 2001 the defendant has forcibly dispossessed him from the suit property by breaking open the locks and trespassed into the property and he immediately lodged report with the Police Station Sangam Vihar but no action was taken. It is further deposed that he had never sold the suit property to the defendant on 11.02.2001 and his wife was never the owner of the suit property nor she could have sold the suit property on 11.02.2001. Nothing has come in the cross examination of the plaintiff which goes against

the testimonies of the plaintiff regarding wrongful dispossession and institution of suit within six months.

Admittedly, the defendant is in possession of the suit property. No documents has been produced by the defendant to prove that her possession qua the suit property is legal. The defendant has simply deposed that she purchased the suit property from the wife of the plaintiff for a total consideration of Rs.2,42,500/-, however, she has produced no documents to prove that she had purchased the suit property. The defendant has failed to prove her contention to the fact that the plaintiff never resided in the suit property, moreover, her contention is without any substance as it is not necessary that the plaintiff had actual physical possession of the suit property as the possession may be symbolic. The plaintiff was dispossessed from the suit property on 29.03.2001 and he has instituted the present suit on 04.08.2001 which is within limitation period."

31. Thus, it stand established from the record that respondent is the

owner of flat in question and it is proved that he was in possession of

the flat in question within six months prior to the filing of the suit.

Respondent has also proved that on 29th March, 2001, he was

dispossessed without his consent from the flat in question by the

petitioner otherwise than in due course of law. The present suit has

been instituted by the respondent within six months of such wrongful

dispossession.

32. Under these circumstances, no ambiguity or illegality can be

found in the impugned judgment. Present petition is therefore not

maintainable and same is hereby dismissed.

33. Parties shall bear their own costs.

CM No. 4697/2010

34. Dismissed.

35. Trial court record be sent back.

November 10, 2010                                V.B.GUPTA, J.
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