Bhera Ram vs Bhanwar Lal And Ors. ...
2025 Latest Caselaw 14044 Raj

Rajasthan High Court - Jodhpur

Bhera Ram vs Bhanwar Lal And Ors. ... on 9 October, 2025

Author: Rekha Borana

Bench: Rekha Borana

[2025:RJ-JD:44487]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
               S.B. Civil Revision Petition No. 508/2006

Lrs. Of Bhera Ram:-
1. xxxx (Deleted vide order dt. 11.09.2024)
2. Sh. Banshilal S/o Bhera Ram Ji, aged 49 years, by caste Darji
R/o Rasala Road, Jodhpur.
                                                                         ----Petitioner
                                       Versus
1. xxxx (Deleted vide order dt 22.01.2025)
2. Kanhaiya Lal S/o Shri Bhanwarlal,
3. Jagdish S/o Shri Bhanwarlal,
  All by caste Dhorji, R/o Behind Secondary School Banar, Tehsil
& District Jodhpur (Raj.).
                                                                    ----Respondents


For Petitioner(s)            :     Mr. H.R. Soni
For Respondent(s)            :     Mr. M.K. Trivedi


              HON'BLE MS. JUSTICE REKHA BORANA

Order

09/10/2025

1. The present revision petition has been filed against

judgment and decree dated 05.08.2006 passed by the Civil Judge

(Jr. Div.), Jodhpur in Civil Original Suit No. 17/2002 whereby the

suit under Section 6 of the Specific Relief Act, 1963 (hereinafter

referred to as 'Act of 1963') and for permanent injunction as filed

on behalf of the plaintiff, stood dismissed.

2. Plaintiff Bhera Ram filed the suit against his brother

Bhanwar Lal (defendant No.1) and sons of Bhanwar Lal

(defendants No.2 & 3) with a submission that the land in question

was in possession of the plaintiff since the life time of their father

as their father Rupa Ram had already partitioned the property in

his life time. As per the said partition, the defendants were

residing in their portion after constructing their houses on the

same. One of their brothers Heera Ram was even issued a patta

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(dated 01.10.1981) by the Gram Panchayat on basis of the long

possession of the land which fell into his share.

3. It was further averred in the plaint that the plaintiff being of

old age, was residing with his son at Prathvi Pura, Rasala Road,

Jodhpur but frequently visited the disputed plot. He had visited

the plot a month ago when it was vacant. However, when his son

visited the plot on 19.04.2022, he found a wall of four feet height

constructed on the said plot. The said construction was a fresh

one and upon enquiry it was found that the same was raised by

the defendants. The defendants were then requested to remove

their illegal construction on the land in question but they declined

to do so. Therefore, the present suit in terms of Section 6 of the

Act of 1963 was filed within a period of six months from

19.04.2002.

4. Per contra the case of the defendants was that plaintiff

Bhera Ram was never in possession of the property in question.

The property being in possession of their father since years, was

admitted but the fact of any partition been made by their father,

was specifically denied. It was averred that the defendants too

had equal right on the property in question as that of the plaintiff,

the property being ancestral and no partition having been made

till the said date. It was further averred that the construction over

the plot in question was raised by the defendants almost ten years

ago and no new construction on 19.04.2002, as alleged by the

plaintiff, was made. It was lastly averred that the plaintiff was not

entitled for any relief without first getting the property in question

partitioned.

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5. On basis of the pleadings as made, the learned trial Court

framed the following issues:

"1- vk;k fookfnr Hkw[k.M ij oknh lsVYM its"ku ls its"kjh LoRo izkIr dj pqdk gS\ &oknhA 2- vk;k izfroknhx.k us fookfnr Hkw[k.M ij 19-4-02 ls dqN le; iwoZ fcuk fof/kd izfØ;k viuk;s oknh dks csn[ky dj vizsy 2002 ds f}rh; lIrkg esa dj fy;k gS\ &oknh 3- vk;k izfroknhx.k dk --R; fcuk vf/kdkfjrk fcuk l{ke vf/kdkfjrk j[kus okys vkWFkksfjVh dh vuqefr ds fcuk fd;k gS\ &oknhA 4- vk;k oknh fofufnZ'V vuqrks'k vf/kfu;e ds rgr izfroknhx.k ls dCtk iqu% izkIr djus dk vf/kdkjh gS\ oknhA 5- vk;k fookfnr Hkw[k.M ij oknh dk dHkh dCtk ugha jgk gS\ &izfroknhx.kA 6- vk;k caVokjk dh fMØh izkIr fd;s cxSj oknh dk okn iks'k.kh; ugha gS\ &izfroknhx.kA 7- vk;k okn fcuk; nkok ds vHkko esa iks'k.kh; ugha gS\ &izfroknhx.kA 8- vk;k fookfnr Hkw[k.M dh dher ,d yk[k ls T;knk gksus ls dksVZ Qhl ukdkQh gSA vr% okn deh eqnzkad ds vk/kkj ij [kkfjt djus ;ksX; gS\ &izfroknhx.kA 9- vuqrks'k \"

6. Banshi Lal (PW1), the son of plaintiff Bhera Ram and

Pukhraj (PW2), son of Heera Ram entered the witness box and

three documents were got exhibited: copy of the patta issued in

favour of Heera Ram (Exhibit-1A); the charge-sheet as filed in the

FIR lodged by the plaintiff (Exhibit 2); order-sheet dated

18.07.2002 whereby congnizance was taken by the competent

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court in the criminal proceedings (Exhibit 3). On behalf of the

defendants, Bhanwar Lal (DW1), Jagdish (DW 2), Narayan Singh

(DW3) and Bhanwar Singh (DW4) were examined.

7. The learned trial Court, after hearing the counsels and

analysing the evidence as led on behalf of both the parties,

decided issues No. 1, 2, 3 & 4 against the plaintiff; Issue No.5 in

favour of the defendants; and issues No. 6, 7 and 8 against the

defendants. As a consequence of Issues No. 1 to 4 having been

decided against the plaintiff, the suit was dismissed.

8. At the very inception, counsel for the respondents raised a

preliminary objection that after the death of respondent No.1

Bhanwar Lal, his legal representatives were not substituted and

hence the revision petition stood abated. Counsel submits that at

the request of learned counsel for the appellant, the name of

respondent No.1 Bhanwar Lal was permitted to be deleted at the

risk of the petitioner. In absence of all the legal representatives of

respondent No.1 Bhanwar Lal, the present revision petition cannot

survive and the same has abated and deserves to be dismissed as

such.

9. Responding to the above objection, counsel for the

petitioner submitted that the suit was filed against three

defendants (defendant Nos. 2 and 3 being sons of defendant No.1

Bhanwar Lal) with an averment that the possession was taken

over by the said defendants. The present suit was filed under

Section 6 of the Act of 1963 wherein the plaintiff was only

required to prove that the possession had been taken over within

a period of six months from the date of filing of the suit meaning

thereby that the essential parties were only those who had taken (Uploaded on 14/10/2025 at 07:19:22 PM)

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over the possession from the plaintiff. All the said three parties

having been impleaded, there was no necessity of the daughters

of defendant No.1 Bhanwar Lal to be impleaded in the suit. Their

non-impleadment/ substitution would make no difference so far as

the relief prayer for is concerned and hence, the suit would not

have abated and nor would the present revision petition.

10. Counsel further submits that even otherwise it is not the

case of the defendants that the daughters of Bhanwar Lal were

also in possession of the property in question. Therefore also, they

were not required to be substituted.

11. So far as the objection raised by counsel for the

respondents is concerned, this Court is of the clear opinion that

the revision petition would not abate, firstly, for the reason that

the other legal representatives of respondent No.1 Bhanwar Lal

are already on record as respondent Nos.2 and 3 and the right to

sue definitely survive against them. Secondly, as averred by

counsel for the petitioner, it was no one's case that the daughters

or any other legal representative of Bhanwar Lal was in possession

of the property. Therefore, it cannot be concluded that they were

the necessary parties to be substituted in place of Bhanwar Lal.

The objection as raised by counsel for the respondents is

therefore, not found to be tenable.

12. On merit, counsel for the petitioner submitted that the

learned Trial Court erroneously held that the plaintiff failed to

prove his possession over the property in question. He submitted

that the documentary evidence as placed on record, that is, the

patta issued in favour of Heera Ram, his brother, was sufficient

enough to prove the same. The said patta clearly reflected the (Uploaded on 14/10/2025 at 07:19:22 PM)

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property of plaintiff Bhera Ram to be situated in east of the said

plot. Counsel submitted that no document to controvert the said

situation/fact was placed on record by the defendants. Further, the

fact of the patta having been issued in favour of Heera Ram was

also not specifically denied by the defendants.

12.1. So far as the finding of the possession being taken over by

the defendants prior to a period of six months of the date of filing

of the suit is concerned, counsel submitted that defendant No.1

Bhanwar Lal, in his cross-examination, specifically admitted that

half portion of his residential house was constructed just three

years ago. In view of the said specific admission, no other fact

was required to be proved by the plaintiff and hence the finding as

recorded by the learned trial Court on issue No.2 being totally

contrary to the evidence as available on record, deserves to be set

aside.

12.2. Counsel submitted that once the possession of the plaintiff

on the land in question was proved and the same having been

taken over by the defendant was also admitted, the plaintiff was

definitely entitled for relief in terms of Section 6 of the Act of

1963.

13.1 Counsel further submitted that the learned trial Court

erroneously entered into the issue whether the land was

partitioned or not. He submitted that firstly, the same could not

have been an issue under consideration in a suit under Section 6

of the Act of 1963. Secondly, ownership of the land cannot also be

a subject of consideration in a suit under Section 6 of the Act of

1963. The only issue required to be decided was whether the

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possession was taken over within a period of six months of the

filing of suit or not.

13.2. In support of his submission counsel relied upon the

judgment passed in Kanti Lal V/s Smt. Shanti Devi & Ors.;

AIR 1997 Raj 230.

14. Per contra counsel for the respondents while supporting the

impugned judgment submitted that the learned trial Court rightly

recorded the finding that the plaintiff failed to prove his

possession on the property in dispute and further that any

possession was taken over by the defendants within a period of six

months prior to the filing of the suit.

15. Counsel submitted that it was proved on record that the

defendants were in possession of the property since long and no

encroachment/possession was made/taken over on 19.04.2022 as

alleged by the plaintiff. He submitted that the defendants were not

only in possession of the property since long but had even raised

their residential houses on the same more than ten years ago.

Therefore, the plaintiff was not entitled to any relief in terms of

Section 6 of the Act of 1963 and the learned Trial Court rightly

decided so.

16. Counsel for the defendants-respondents further submitted

that even otherwise plaintiff Bhanwar Lal never entered the

witness box and therefore, the averments as raised on his behalf

could not be said to be proved. It was an admitted case even of

PW1 Banshi Lal that no partition of the property in question was

ever made and that both the plaintiff and defendant No.1 were

equally entitled to the property in question. Counsel submitted

that the specific evidence led on behalf of the defendants that (Uploaded on 14/10/2025 at 07:19:22 PM)

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they were in possession of the property in question since the life

time of Rupa Ram, remained uncontroverted and no rebuttal

evidence to controvert the same was led on behalf of the plaintiff.

Hence, the plaintiff failed to discharge the burden of proving

Issues No.1 to 4 and hence, the suit was rightly dismissed.

17. In support of his submissions, learned counsel relied upon

the judgment of this Court rendered at Jaipur Bench in the matter

of Yusuf (Deceased)Thro' LR's Vs. Gulam Kadir & Anr.; S.B.

Civil Writ Petition No.5773/2010 (decided on 28.11.2011).

18. Heard the Counsels. Perused the record.

19. The whole issue which arise in the present petition is

whether the plaintiff was in possession of the land in question and

whether he was dispossessed from the land prior to a period of six

months from the date of filing of the suit. That is to say whether

issues No. 1 to 4 have rightly been decided against the plaintiff by

the learned Trial Court.

20. To adjudicate the above issues, consideration of the

relevant evidence as led by the parties would be apt.

21. DW-1 Bhanwarlal i.e. the defendant, in his cross-

examination, deposed and admitted as under:-

";g lgh gS fd o'kZ 2002 ds ckn tc ls iês dh tkudkjh gq;h geus mls fujLr djokus gsrq dksbZ dk;Zokgh ugha dhA ;g dguk xyr gS fd oknxzLr IykV HkSjth dk IykV dgyk;k tkrk gksA ;g eq>s irk ugh fd iwjs xkao okys bl IykV dks HkSjth ds IykV ds uke ls tkurs gksA iês ds iM+ksl esa HkSjth dk IykV n"kkZ;k x;k gks eq>s tkudkjh ugha gSA ;g dguk xyr gS fd HkSjth o mldk yM+dk ca"kh dbZ ckj mDr IykV dks laHkkyus vkrs FksA esjk oknxzLr edku iqjkuk cuk gqvk gS dkQh o'kZ iqjkuk gSA ;g lgh gS fd esjk vk/kk edku vHkh rhu o'kZ igys cuk;k Fkk vk/kk iqjkuk cuk FkkA ;g lgh gS fd eSa edku fuekZ.k ckcr xzke

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iapk;r ls vuqefr ugha yh FkhA ;g lgh gS fd esjh tehu ds dksbZ dkxtkr ugha gSA "

22. A bare perusal of the above statements of defendant No.1

reflect that he admitted that half of the portion of his house was

constructed three years ago. The statements of DW-1 were

recorded on 22.09.2005 and the suit in question was filed in the

month of April 2002. Meaning thereby, the fact of the plaintiff

having been dispossessed and the defendant having raised

construction on the said land was rather admitted by defendant

No.1 himself. Defendant No.1 specifically admitted that the half

portion of his house was constructed three years ago. The said

admission itself proves that the construction was raised within a

period of six months prior to filing of the suit.

23. In the specific opinion of this Court, in view of the specific

admission of defendant No.1, the learned trial Court erred in

deciding issues No.1 to 4 against the plaintiff.

24. This Court is of the above opinion also for the reason that

the only documentary evidence exhibited on record was the patta

issued in favour of Heeralal, the brother of both plaintiff Bheraram

and defendant No.1 Bhanwarlal. The said patta has not been

controverted by any of the parties. The defendants have only

pleaded ignorance of the said document, but have not denied the

same. That being the only documentary evidence and the same

being an uncontroverted one, the reliance on the said document

would be apt.

25. It is evident on record that the said patta reflected the plot

of plaintiff Bheraram to be in the East of the said plot. Defendant

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No. 1 was even cross-examined on the said aspect as is evident

from the statement as reproduced above.

26. The fact of the plaintiff being in possession of the land in

question was further substantiated by the statements of PW-2

Pukhraj, who was the nephew of both the plaintiff and defendant

No.1.

27. Further, the fact of the construction having been raised just

prior to the filing of the suit is evident even from the observation

as made by the Court while passing interim order dated

12.09.2007 in the present revision petition. The Court observed as

under:-

"I considered the submissions of learned counsel for the parties and perused the Photographs placed on record by learned counsel for the respondents-defendants showing the huge structure which has already been raised and in view of the fact that the house appears to be incomplete, there appears to be no reason for denying enjoyment of the property which is in possession of the respondents-defendants from time before filing of the suit by the plaintiff- petitioner. However, if the respondents will raise any construction or will incur any expenditure over the property in dispute then there will be no equity in their favour on this ground.

In view of the above reasons, instead of directing the respondents to maintain the status quo, it is directed that the respondents shall not alienate the property nor create any charge nor they will mortgage the property during the pendency of this revision petition."

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28. A bare perusal of the above observation reflects that on

12.09.2007 too, the construction was incomplete. Meaning

thereby, it was a new construction undertaken by defendant No.1

before the filing of the suit which remained incomplete because of

the interim orders of the Court.

29. In view of the overall facts and observations, this Court is of

the opinion that once the possession on the land in question was

proved to be of the plaintiff and the same having been taken over

by defendant No.1 was admitted on record, the issue whether the

land had been partitioned between the parties or not, was

irrelevant for the purposes of a suit under Section 6 of the Act of

1963.

30. As is the settled position of law, in a suit under Section 6 of

the Act of 1963, the ownership of a land cannot be a subject

matter of consideration and the Court is only required to

adjudicate whether the person alleging dispossession was in

possession and whether he had been dispossessed within a period

of six months prior to the date of filing of the suit. The said

position of law was settled by the Hon'ble Apex Court in the case

of Nair Service Society Ltd. Vs. Rev. Father K.C. Alexander

& Ors.; AIR 1968 SC 1165 wherein the Court while dealing with

Section 9 of the Specific Relief Act (akin to the present Section 6

of the Act of 1963) held that in a suit under Section 9 of the Act, a

person is not required to prove his title. He can succeed merely on

basis of his prior possession after establishing that he has been

dispossessed otherwise than in accordance with law within six

months from the date of filing of the suit.

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31. In view of the above ratio and in view of the findings as

recorded by this Court in the preceding paragraphs, this Court is

of the clear opinion that the plaintiff was in possession of the

property in question before the possession been taken over in the

month of April 2022. The fact of possession is further fortified by

the patta issued in favour of Heeralal which reflected the plaintiff

to be in possession of the plot in his neighbourhood. The fact of

dispossession of the plaintiff is also fortified by admission of DW-1

to the effect that the construction of half of his house was raised

in the year 2002.

32. In view of the above overall facts, the finding as recorded

by the learned trial Court on issues No. 1 to 4 deserves to be and

is hereby quashed and set aside.

33. All the four issues are decided in favour of the plaintiff. It is

hereby held that the petitioner was illegally dispossessed from the

property in question in the month of April 2002 by the defendants

and the plaintiff is entitled to be restored back the possession of

the said property.

34. Issues No. 1 to 4 been decided in favour of the plaintiff, it is

hereby directed that the defendants shall hand over the vacant

possession of the property in question to the plaintiffs within a

period of two months from now.

35. As is admitted on record, a construction has been raised on

the property in question. It is relevant to note here that before

reserving the judgment, this Court had orally directed the

Counsels to explore the possibility of amicable settlement between

the parties but, as per the Counsels, the same could not fructify.

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possession while paying for the construction in question, he shall

be at liberty to do so and the defendants shall be at liberty to

value the construction over the property in question and receive

the amount as per the said valuation, if they so wish. If no

consensus regarding the valuation of construction is arrived

between the parties, the plaintiff shall be entitled for vacant

possession of the property in question as it was already observed

in interim order dated 12.09.2007 that no equity shall be created

in favour of the respondents because of the construction or

expenditure over the property.

36. The revision petition stands allowed.

37. Pending application, if any, stands disposed of.

(REKHA BORANA),J 154-Manila/DhananjayS/-

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