Delhi High Court
Sandhya & Ors vs Naresh & Anr on 10 February, 2017
$~A-13
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 10.02.2017
+ CM(M) 302/2015 & CM No.6340/2015
SANDHYA & ORS ..... Petitioners
Through Mr.Manish Sharma, Advocate
versus
NARESH & ANR ..... Respondents
Through Mr.Harsh Sinha, Advocate
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J. (ORAL)
1. By the present petition filed under Article 227 of the Constitution of
India, the petitioners seek to impugn the order dated 04.03.2015 by which a
suit filed by the petitioners under Section 6 of the Specific Relief Act was
dismissed at the threshold.
2. The petitioners had filed a suit for possession and mandatory
injunction under Section 6 of the Specific Relief Act. It was claimed that a
settlement was arrived at between the parties on 20.09.2012 that the
petitioners are in possession of 41 sq.yds. of land out of which there is a
room in the area of about 34.50 sq.yds. and in the remaining area of 6.50
sq.yds. the petitioners were using the same for passage and for bathroom. It
was averred that on 02.03.2013 petitioner No.1 had gone to attend a function
at Jetpur, Rajasthan and when she came back to her house she found
respondent No.1 has demolished his portion and demolished the bathroom of
the petitioners and taken forcibly and illegally possession of 6.50 sq.yds. of
CM(M) 302/2015 Page 1
land. Hence, the present suit was filed.
3. The trial court by the impugned order noted as follows:
(i) The suit property is not properly identified in the plaint.
(ii) Documents of title of the land are not produced as evidence in proof
of the ownership of the said land.
(iii) The settlement arrived at between the parties is not capable of being
given effect to because the said settlement is inherently ambiguous
inasmuch as the settlement does not record the fact of possession of
the parties over specific identified portion of the concerned property.
(iv) The settlement confines itself to possession and not possessory title or
proprietary title in respect of property.
Hence, in view of the above reasons, the trial court dismissed the suit.
4. I have heard the learned counsel for the parties.
5. The learned counsel for the petitioners has pointed out that the suit
has been dismissed at the threshold without framing of issues or evidence.
He further submits that the trial court has wrongly gone on the issue of title
whereas in a suit under Section 6 of the Specific Relief Act the issue of title
is not material.
6. The learned counsel for the respondents has tried to point out that the
suit is entirely frivolous and contrary to the settlement on record including
the settlement dated 29.05.2012, settlement of 2009 and a compromise of
2006.
7. Section 6 of the Specific Relief Act reads as follows:
"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,
CM(M) 302/2015 Page 2
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."
8. I may first see the judgment of this court in the case of Dharam Dir &
ors. vs. Ancha Devi, 53(1994) DLT 191. This court held as follows:
"6. ........ However, with respect, I do feel that since the right
to possession of immovable property and the right to enjoy
profits thereby are distinct causes of actions, a person who
stands dispossessed of immovable property is entitled to sue for
its possession under Section 6 and has to leave the question of
damages/manse profits for another suit since that would depend
on title, a matter which is beyond the pale of a suit under
Section 6 of the Act. We can ill afford to ignore the object of
Section 6 which clearly is to discourage forcible and unlawful
possession and in order to grant relief the Court is required only
to see whether the person seeking relief was dispossessed
within six months of the date of the institution of the suit. It is
not required to go into any other question. This being the
position, I do feel that a Court cannot pass a decree for
damages/manse profits under Section 6 of the Act Along with a
decree for possession. The question, however, is that if that be
so is the impugned decree liable to be set aside altogether?"
9. Hence, the legal position as stated in the above judgment is that the
right to possession of immovable property and the right to enjoy property
are distinct cause of action. In a suit filed under Section 6 of the Specific
CM(M) 302/2015 Page 3
Relief Act, the court is only concerned with the possession of the party
claiming to have been dispossessed. The issue of title does not arise. The
trial court has erroneously gone into issues other than possession and
dismissed the said suit without discussion on merits of the case. The order
suffers from material illegality and is contrary to the legal position.
10. Keeping in view the above, the present petition is allowed and the
impugned order is quashed. The matter is remanded back to the trial court
for fresh adjudication. Pending applications, if any, also stand disposed of
accordingly.
11. The parties are directed to appear before the trial court on 08.03.2017
for appropriate adjudication of the suit as per law.
JAYANT NATH, J.
FEBRUARY 10, 2017/v
CM(M) 302/2015 Page 4
