Rajasthan High Court - Jodhpur
Nar Singh Narayan And Anr vs Mahesh Lal (2025:Rj-Jd:44397) on 9 October, 2025
Author: Rekha Borana
Bench: Rekha Borana
[2025:RJ-JD:44397]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Revision Petition No. 32/2008
1- u`flagukjk;.k ds dk;e eqdke %&
1@1 Jherh lhjsdkSj iRuh Lo- Jh u`flag ukjk;.k]
fuoklh iqf"Vdj Ldwy ds ihNs] tkyi eksgYyk] cukorks dh xyh] tks/kiqj A
1@2 Jherh 'khyw O;kl iRuh Jh mn; d`".k O;kl iq=h Lo- Jh u`flag
ukjk;.k]
fuoklh fxj/kj th dh xyh] rkih ckoM+h] Hkheth dk eksgYyk] tks/kiqjA
1@3 Jherh 'kf'kckyk iRuh Jh vksenRr g"kZ] iq=h Lo- Jh u`flag ukjk;.k]
fuoklh ekFkqjks dh iksy ds ikl] yks<+ks dh xyh] ohj eksgYyk] tks/kiqjA
1@4 Jherh larks"k cksgjk iRuh Jh ukjk;.k fd'ku cksgjk] ¼e`rd½ tfj;s dk;e
eqdke%&
1@4@1 iwtk cksgjk iRuh luh tks'kh
fuoklh tksf'k;ks dh iksy] pkSikluh eafnj ds ikl] tks/kiqj] jktLFkku
1@4@2 iYyoh iqjksfgr iRuh fiz;kad iqjksfgr
fuoklh xaxykvks dh iksy ds ikl] O;kl ikdZ] tks/kiqj
1@4@3 iquhr cksgjk iq= ukjk;.k fd'ku th]
fuoklh yYyk dksVM+h] Qrsg iksy Ldwy ds ikl] tks/kiqj
1@5 Jherh deyk O;kl iRuh Jh vfuy O;kl] iq=h Lo- Jh u`flag ukjk;.k]
fuoklh vej fo".kq nhi] fcLlks dh iksy ds lkeus] tkyi eksgYyk] tks/kiqj
1@6 Jherh eatw cksgjk iRuh Jh lquhy cksgjk] iq=h Lo- Jh u`flag ukjk;.k]
fuoklh cksgjks dh iksy] rkih ckoM+h] tks/kiqj
1@7 Jherh 'kdqaryk cksgjk iRuh Jh uUn fd'kksj cksgjk] iq=h LoxhZ; Jh
u`flag ukjk;.k]
fuoklh jru Hkou] uktjth dh ckoM+h ds ikl] tkyksjh ckjh ds vanj] tks/kiqj
2- izdk'k ukjk;.k iq= LoxhZ; Jh t;ukjk;.k th
¼ekuuh; U;k;ky; ds vkns'k fnukad 01-11-2023 ds tfj;s uke foyksfir½
----Petitioners
Versus
egs'kyky iq= Jh enuyky th] dkSe iq"dj.kk czkã.k ¼fcLlk½] fuoklh xwanh
dk eksgYyk] tks/kiqj
----Respondent
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[2025:RJ-JD:44397] (2 of 11) [CR-32/2008]
For Petitioner(s) : Mr. Akshay Nagori.
For Respondent(s) : Mr. R.K. Thanvi, Sr. Advocate assisted
by Mr. Narendra Thanvi & Mr.
Mahendra Thanvi.
HON'BLE MS. JUSTICE REKHA BORANA
Order
09/10/2025
1. The present revision petition has been filed against the
judgment and decree dated 26.10.2007 passed by Additional
District Judge (Fast Track) No.4, Jodhpur in Civil Original Suit
No.69/2006 whereby the suit under Section 6 of the Specific Relief
Act, 1963 (hereinafter referred to as 'the Act of 1963') as filed on
behalf of the plaintiff was decreed.
2. Vide the impugned judgment, the defendants were directed
to handover the possession of the area marked in green in the
map as annexed alongwith the plaint, to the plaintiff.
The defendants were further restrained from interfering with
the possession of the plaintiff on the first floor of the property in
question (marked as red in the map).
3. The facts are that a suit under Section 6 of the Act of 1963
was filed by plaintiff Mahesh Lal with a specific averment that the
property in question was of the ownership of his maternal grand-
mother and he resided with her since his childhood. Vide will
dated 22.09.1998, his maternal grand-mother bequeathed the
property to him and he was in sole possession of the property in
question. However, the defendants i.e. his maternal uncles served
notice dated 07.07.2004 calling upon him to vacate the room
situated on the first floor of the premise in question with an
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averment that he was permitted to use the said room on a
temporary basis but he had malafidely taken possession of the
same.
4. On the said notice being served, he preferred Civil Suit
No.79/2004 for 'Permanent Injunction' wherein a Commissioner
was appointed by the learned Trial Court. However, before the
Commissioner could visit the site to inspect the property, he was
dispossessed from the property on 28.07.2004 by the defendants.
Therefore, the present suit in terms of Section 6 of Act of 1963
was filed on 17.11.2004.
5. The case of the defendants was that the alleged will dated
22.09.1998 was a forged one and further that the plaintiff was
never in possession of the complete property in question. He was
in permissive possession of only one room of the first floor of the
premise and he having refused to handover the possession to
defendants, he was served with notice dated 07.07.2004.
It was therefore pleaded that the plaintiff was never in
possession of the complete premise and hence, total story of his
eviction on 28.07.2004 is a made up story as he was not evicted
on the said date.
6. On the basis of pleadings as made, the learned Trial Court
framed nine issues but then, proceeded on to delete Issue No.1
and 3 pertaining to the will in question.
The learned Court did the same as the present was a suit in
terms of Section 6 of the Act of 1963 and hence, issue of
ownership or the will could not have been gone into by the Court.
As a result, the following seven issues remained for consideration
of the Court :-
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"2- vk;k izfroknhx.k us vukf/kd`r :i ls fnukad 28-07-2004
dks fooknxzLr ifjlj ds okn in la[;k 6 o 7 esa of.kZr fgLls ls
oknh dks tcju csn[ky fd;k \
&&oknh
4- vk;k oknh izfroknhx.k ls fooknxzLr Bkao dk dCtk iqu%
okil ikus dk vf/kdkjh gS \
&&oknh
5- vk;k oknh fooknxzLr ifjlj ij dkfct Fkk \
&&oknh
6- vk;k oknh us iwoZ esa ,d okn viuh thfor ekrk dks e`r
crkdj is"k fd;k] vr% oknh dk ;g okn [kkfjt fd;s tkus ;ksX; gS\
&&izfroknh
7- vk;k oknh us iwoZ yafcr okn ls fojks/kkHkk'kh rF; bl okn esa
ntZ fd;s gS] ftldk bl okn ij D;k vlj gS\
&&izfroknh
8- vk;k izfroknhx.k fooknxzLr ifjlj ij dkfct gS] bldh
ejEer djokrs jgs gS] rFkk vius firk dh lEifRr ds oS/kkfud
mRrjkf/kdkjh gS\
&&izfroknh
9- vuqrks'k"
7. The learned Trial Court proceeded on to decide Issues No.2,4
& 5 in favour of the plaintiff and Issues No.6, 7 & 8 against the
defendants.
8. Learned counsel for the petitioners submits that the learned
Trial Court erroneously decided Issue Nos.2, 4 & 5 in favour of the
plaintiff and Issue Nos.6, 7 & 8 against the defendants solely on
basis of the pleadings of the plaintiff without going through the
oral evidence which was available on record.
9. Learned counsel submits that in a suit under Section 6 of the
Act of 1963 the Court was only required to go into the issue
whether the plaintiff was dispossessed from the premise in
question prior to a period of six months of the date of filing of the
suit. The issue of ownership had nothing to do with the same and
in a suit under Section 6 of the Act of 1963, the issue of
ownership could not even have been gone into. Learned counsel
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further submits that the learned Trial Court erroneously proceeded
on to record a finding that the defendants were not in physical
possession of the property in question whereas it was not even
the case of the defendants that they were residing in the said
premise. It was rather admitted on record that the defendants
were in possession of the property being the co-parceners and
were residing in house just adjacent to the property in dispute.
Even the possession of the plaintiff on the first floor of the house
was admitted by the defendants.
10. Learned counsel further submits that the learned Trial Court
erroneously even went to extent of recording a finding qua the will
in question which was not even called for. He submits that
because of the said findings as recorded by the learned Trial
Court, the defendants are facing serious consequences in the suit
for possession as filed by them qua the two rooms which are in
possession of the plaintiff.
11. Learned counsel while referring to the map of the site in
question as annexed along with the plaint, submits that a bare
perusal of the said map also makes it clear that some portion of
the premise has been reflected to be in joint possession of the
plaintiff and the defendants. The portion reflected to be in joint
possession is just a passage and nothing more than that. It is
beyond imagination as to when the complete premise was in
possession of the plaintiff then how only passage at the entrance
of the house was in joint possession of both the plaintiffs and the
defendants.
12. Learned counsel further submits that even the alleged
Commissioner report in the suit for injunction as filed by the
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[2025:RJ-JD:44397] (6 of 11) [CR-32/2008]
plaintiff was not exhibited in the present suit. Had the same been
exhibited the fact as to whether the plaintiff was dispossessed
could have been clear however, the same has intentionally not
been produced by the plaintiff.
13. Learned counsel further submits that the learned Trial Court
erroneously recorded a finding qua the defendants not being in
possession of the property in question only on the premise that all
their documents i.e. the Ration Card, Voter list etc. reflected their
address to be House No.124.
14. Learned counsel submits that the same was an admitted
case of the defendants that they were residing in House No.142.
But were in possession of House No.112 also being the rightful
owners of the same.
15. Counsel for the petitioner submits that in a suit under
Section 6 of the Act of 1963, the Court was only required to record
a finding as to whether the plaintiff was dispossessed from the
property in question within a period of six months before the filing
of the suit whereas no such finding to the effect that plaintiff was
dispossessed before a period of six months of the filing of the suit
has been recorded by the learned Trial Court. The learned Court
proceeded on to decide the issue in favour of the plaintiff on basis
of a finding recorded qua his ownership by virtue of the will.
16. With the above arguments, learned counsel submits that the
judgment and decree being totally contrary to the evidence
available on record deserves to be quashed and set aside.
17. Per contra learned counsel for the respondent plaintiff while
supporting the judgment and decree impugned submits that the
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same is in total consonance with the evidence as led by the
parties.
18. Learned counsel submits that it was evident on record that
the defendants were residing in House No.124 and not in House
No.112 i.e. the property in dispute. Further, defendant No.1 in his
cross examination specifically admitted that the rent of the
portions rented out was being received by the plaintiff. It was
further admitted by defendant No.1 that even on the room ( dejk)
situated on the ground floor the lock was of the plaintiff. Meaning
thereby, the possession of the plaintiff since the time of his
maternal grandmother was admitted.
19. Learned counsel submits that not a single document to prove
the possession of the defendants on the property in question was
exhibited rather the documents as exhibited proved to be
contrary.
20. So far as findings qua the will in question is concerned,
counsel submits that learned Trial Court merely made a reference
to the same and did not record any finding qua the ownership on
basis of said will. The same cannot be said to be a finding of
ownership and hence, does not deserve any interference.
21. With the above submissions, counsel submits that the
impugned judgment and decree does not deserve any interference
and the present petition be dismissed.
22. Heard the counsels and perused the material available on
record.
23. The learned Trial Court while deciding Issues No.2, 3 & 4
jointly observed and held as under:
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Þtc oknh dk oknxzLr edku ds dejs esa dCtk gksuk Lo;a
izfroknhx.k }kjk Lohdkj fd;k x;k gS] ,slh ifjfLFkfr esa iM+kslh dh Nr
ls mrj dj oknxzLr Nr esa izos'k dj dCts dj ysus dh ckr csekuh gks
tkrh gS] D;ksafd oknh dks oknxzLr edku ds mDr dejs esa vkus tkus dh
Lora=rk FkhA bl izdkj i{kdkjku dh lexz lk{; ds foospu ds vk/kkj ij
oknh egs'kyky dk ckY;dky ls viuh ukuh ds lkFk oknxzLr edku esa
fuokl djuk o oknh dh ukuh lhrknsoh dh e`R;q ds i'pkr~ oknh ds gd
esa fu"ikfnr olh;r ds vk/kkj ij cgSfl;r ekfyd 26-07-2004 rd
oknxzLr edku ij dkfct gksuk ik;k tkrk gSA vr% ;s rhuksa rufd;kr
oknh ds i{k esa fuf.kr dh tkrh gSAß
24. A bare perusal of the above finding reflects that the learned
Trial Court decided the said issues in favour of the plaintiff on the
premise that it was an admitted case of the defendants
themselves that plaintiff was in possession of the property in
question. Further, the learned Trial Court recorded a finding of the
possession of the plaintiff on basis of the will executed in his
favour by her maternal grandmother.
25. In the specific opinion of this Court, the findings as recorded
by the learned Trial Court are totally in contravention to the law
pertaining to Section 6 of the Act of 1963. Firstly for the reason
that Issues No.1 & 3 pertaining to the will in question as framed at
the initial stage were deleted by the learned Trial Court
subsequently for the reason that the same were not required to be
decided in the present suit. Secondly When once the said issues
were deleted, the Court was not even required to record a finding
regarding the said will and herein, the Court recorded a finding of
the possession of the plaintiff on basis of the said will only.
Admittedly, the execution of the will was a disputed question
and no finding qua the same could have been recorded by the
learned Trial Court and that too in a suit filed under Section 6 of
the Act of 1963 where it was only to be decided whether the
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plaintiff was in possession of the premise in question and had
been evicted by the defendants and whether the suit in question
was filed within a period of six months of the said eviction.
26. The learned Trial Court was not required to enter into any
issue further than that.
27. Coming on to the issue whether the plaintiff was in
possession of the disputed premise prior to the filing of the suit
and whether the suit in question had been filed within a period of
six months from the said eviction, this Court would find it apt to
take into consideration the map of the site in question as filed by
the plaintiff with his plaint. The said map was even got exhibited
by the plaintiff as Exhibit-3.
28. As is the admitted case of the plaintiff prior to the finding of
the suit, he was in possession of the complete ground floor and
first floor except the area marked in colour yellow. But on
28.07.2004, the date fixed for the Commissioner to visit the site,
the defendants took possession of the complete ground floor
except one room (vksjk).
29. The averments of the plaintiff seems to be self-contrary as
when it was the case of the plaintiff that he was in possession of
the complete premise being the owner of the premise in question
by virtue of the will executed in his favour by his maternal
grandmother, how the area marked in yellow was in possession of
the defendants is not comprehensible. The area marked in yellow
in the site map (Exhibit-3) reflects to be just an entry gate in the
premise in question and a passage. When the defendants were not
in possession of any area of the premise in question how were
they in possession of just the passage and the entry gate is
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[2025:RJ-JD:44397] (10 of 11) [CR-32/2008]
incomprehensible. Further, it is incomprehensible as to why the
defendants would take possession of the complete ground floor
and leave one room for the plaintiff and not take possession of the
same.
30. Furthermore, the finding of the learned trial Court is based
on the fact that it was an admitted case of the defendants that the
plaintiff was in possession of the property in question. In the
specific opinion of this Court, the said finding is also erroneous. As
is evident, it was the specific case of the defendants that they
were not in possession of the complete property and were living in
house No.124 just nearby to the property in question. It was
nowhere the case of the defendants that they were residing in the
property in question. Further, it was an admitted case of the
defendants that the plaintiff was in permissive possession. The
said permissive possession has erroneously been considered by
the learned Trial Court to be an exclusive possession. The
pleadings of the defendants have been misinterpreted by the
learned Trial Court.
31. This Court is of the clear opinion that there was nothing
available on record firstly to the effect that the plaintiff was in
possession of the complete premise and secondly that he has
been evicted on 28.07.2004 by the defendants. The finding on
Issues No.2, 4 & 5 therefore being totally contrary to the material
available on record is hereby quashed and set aside.
32. As a consequence the judgment and decree dated
26.10.2007 is hereby quashed and set aside. The revision petition
is hence, allowed.
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33. Stay petition and pending applications, if any, stand
disposed of.
(REKHA BORANA),J
146-KashishS/-
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