Mohd. Akber Ali vs Mohd. Kareemuddin
2022 Latest Caselaw 6535 Tel

         THE HONOURABLE SRI JUSTICE M.LAXMAN

         CIVIL REVISION PETITION No.5662 of 2012

ORDER:

1. The present revision has been directed against judgment

and decree dated 11.09.2012 in O.S.No.108 of 2008 on the file of

Senior Civil Judge, Siddipet, wherein and whereby suit filed by

the appellant herein for recovery of possession based on prior

possession under Section 6 of the Specific Relief Act, 1963, was

dismissed. Aggrieved by the same, the present revision has been

preferred by the plaintiff in the suit.

2. The revision petitioner herein is plaintiff and respondent

Nos.1 to 11 are defendants in the suit. During pendency of the

present revision petition, respondent No.5 died and his legal

representatives were brought on record as respondent Nos.12

to 17. For the sake of convenience, the parties hereinafter are

referred as they were arrayed in the suit.

3. The case of the plaintiff is that commercial complex

covered by municipal door Nos.7-1-89 to 7-1-95 situated at

Market Cross Road, Siddipet, comprising of eight (8) mulgies,

RCC go-down and small open place were originally owned by

Late Mohd. Abdul Qader Saheb. Mohd. Abdul Qader Saheb had

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six (6) sons. During his life time, he executed a Will Deed dated

20.07.1980. After his death on 28.06.1985, his sons occupied

portions of mulgies received by them on the strength of the said

Will Deed. The sons of said Mohd. Abdul Qader Saheb were

doing their businesses in their respective portions either directly

or by letting out the same.

4. In view of the said Will Deed, the plaintiff, who is youngest

son of Mohd. Abdul Qader Saheb got mulgi bearing door

No.7-1-94 and go-down. Out of eight (8) mulgies, six (6) are

facing western side and two (2) are facing northern side. The

go-down is located immediately behind mulgies bearing door

Nos.7-1-89 and 7-1-90. The entrance to the go-down was from

north-western side. On the west side, there was road. On

account of road widening, front part of mulgies bearing door

Nos. 7-1-89 to 95/1 were demolished. As a result, the length of

mulgies was reduced.

5. Defendant Nos.1 to 4, who are sons of eldest son of Mohd.

Abdul Qader Saheb, are in occupation of mulgi bearing door

No.7-1-89 and defendant Nos. 5 to 8, who are sons of second

eldest son of Mohd. Abdul Qader Saheb, are in occupation of

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mulgi bearing door No.7-1-90. On account of demolition of

mulgies due to road widening, defendant Nos. 1 to 8 on

26.04.2008 and 27.04.2008 illegally removed the wall separating

their mulgies and plaintiff's go-down and dispossessed the

plaintiff and encroached into the go-down by extending their

premises. In this regard, a complaint was lodged by the plaintiff

to police, but as there was no action. He filed the present suit in

the month of October, 2008 seeking relief of recovery of

possession on the basis of prior possession.

6. It is the case of the defendants that they admitted that

they are in possession of mulgies bearing door Nos. 7-1-89 and

7-1-90. They also admitted that there was 5 feet road widening

on the west side of mulgies. After that road widening took place,

the defendants also modified their mulgies by extending them

into the open space which is on the eastern side of their mulgies.

There was no illegal encroachment or demolition of wall or

dispossession of plaintiff from go-down. They also submitted

that muslim personal law does not permit execution of any Will

Deed and there was no partition. According to them, plaintiff

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cannot exclusively claim enjoyment of go-down premises.

Hence, they prayed to dismiss the suit.

7. On the basis of the above pleadings, the trial Court has

framed the following issues:

"1. Whether the plaintiff is entitled for recovery of possession of schedule property from the defendant as prayed for?

2. Whether the defendants dispossessed the plaintiff from the suit property?

3. To what relief?"

8. The plaintiff, in support of his case, examined P.Ws.1 to 3

and relied upon Exs.A-1 to A-9. The defendants, to support

their case, examined D.Ws.1 and 2 and relied upon Exs.B-1 to

B-3.

9. The trial Court after having considering the respective

submissions of the parties held that there is no valid execution

of Will Deed and there was partition of property. Therefore,

plaintiff cannot claim exclusive possession over the go-down and

he also failed to prove his dispossession within six months,

thereby suit was dismissed.

10. Heard both sides.

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11. In the light of above submissions, the point emerging for

consideration in this revision petition is as follows:

"Whether the plaintiff established that he was in possession of suit property within six months from the date of dispossession?"

Point:-

12. It is the case of the plaintiff that defendants dispossessed

him on 26.04.2008 and 27.04.2008 by demolishing wall, which

separates mulgies from the go-down. According to the plaintiff,

such a demolition was on account of previous demolition of

defendants mulgies on the western side, for the purpose of road

widening. There is no clear finding from the trial Court that

both parties i.e., children of Mohd. Abdul Qader Saheb, were in

occupation and enjoyment of their respective mulgies from 1980.

Having accepted such possession, the Court could not grant

relief on two grounds. The first is that parties admitted that

property belongs to Mohd. Abdul Qader Saheb, who is father of

plaintiff and grandfather of some of the defendants. The second

is that there was no proof of partition and allocation of mulgies

and their possession is deemed to be constructive possession.

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13. The evidence of defendants clearly shows that they

admitted the location of premises as reflected in the plaint map.

After demolition on western side for road widening, they moved

their mulgies back. They claimed that such moving back was

into open space. Similarly, other brothers of the plaintiff also

moved back after demolition. The defendants admitted their

true possession from the plaint map. As seen from the plaint

map, there is no open space behind the mulgies of defendants

i.e., bearing door Nos.7-1-89 and 7-1-90. The open space is only

behind the mulgi bearing door No.7-1-91. It is also not in

dispute that the entire commercial complex is covered by RCC

and there is no question of open space on the eastern side

behind the mulgies of defendants.

14. The contention of learned counsel for defendants is that

plaintiff could not able to prove his dispossession within six

months. According to them, the constructions were made

immediately after demolition of their mulgies after road widening

was effected in the year 2007. As seen from the pleadings, there

is no such claim from defendants that immediately after

demolition of mulgies for the purpose of road widening, they

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re-constructed the mulgies. In fact, they have claimed that there

is no encroachment or dispossession of plaintiff's go-down. They

say that they only modified and moved back their mulgies into

open space, which is not established through evidence. There is

evidence from the plaintiff which clearly demonstrates that he

was dispossessed on 26.04.2008 and 27.04.2008. The suit is

filed on 23.10.2008, which is within six months. When the suit

is filed within six months, the title is immaterial and if party has

established his possession within six months prior to suit, he is

entitled to recover such possession from those who illegally

dispossessed the plaintiff. Even, if there is no partition, one

co-owner, who is in exclusive possession of property cannot be

disturbed without resorting to procedure contemplated under

the law. Further, a person in exclusive possession, even of

common property, has a right to protect such property, until

appropriate steps are initiated for division of common

possession, as per law.

15. In the present case, it appears the defendants filed suit for

partition and if they really claim that there is no partition, such

an issue cannot be adjudicated in this proceedings. They have

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no right to illegally evict the plaintiff from his exclusive

possession and enjoyment, in respect of go-down. Therefore, the

trial Court has erroneously considered the case of plaintiff and

dismissed the suit. Hence, this revision is liable to be allowed.

16. In the result, the civil revision petition is allowed and

judgment and decree dated 11.09.2012 in O.S.No.108 of 2008

on the file of Senior Civil Judge, Siddipet, is set aside.

Consequently, the suit is decreed granting recovery of

possession of suit schedule property i.e., go-down, under Section

6 of the Specific Relief Act, 1963. There shall be no order as to

costs. Miscellaneous petitions, if any, pending, shall stand

closed.

______________ M.LAXMAN, J Date: 07.12.2022 GVR