In so far as the contention urged on behalf of the Defendants
that the suit property is not properly described is concerned, it is required
to be noted that the Defendants have not raised any such plea in their
written statement. The Defendants have proceeded on the basis of the
description given in the plaint and participated in the proceedings. The
parties can therefore be said to be aware as to in respect of which
premises they were litigating. The Defendants therefore cannot be heard
to now contend that the description of the suit property was not proper.
Hence, the judgment of the Apex Court in Maria Fernandes's case has no
application.
23. Since the decree passed in a suit filed under Section 6 is based
on prior possession, it is always open for the party claiming title to file a
suit for possession based on title. If any such suit is filed, needless to state
that the same would have to be considered on its own merits and in
accordance with law, uninfluenced by the observations and finding
recorded in the instant suit.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL REVISION APPLICATION NO.580 OF 2015
ALONGWITH
CIVIL APPLICATION NO.471 OF 2015
Smita Prakash Chikhale V Gajanan Yashwant Khatu
CORAM : R.M. SAVANT, J.
Dated : 26th NOVEMBER 2015
Citation:2016(6) ALLMR297
1. The Revisionary Jurisdiction of this Court is invoked against
the judgment and order dated 31.03.2015 passed by the Learned Judge of
the City Civil Court, Mumbai, by which order the suit in question being
Short Cause Suit No.2182 of 2012 came to be decreed and the Defendant
Nos.1 and 2 were directed to hand over vacant and peaceful possession of
the suit premises to the Plaintiff.
The facts giving rise to the filing of the above Civil Revision
Application can in brief be stated thus :
2. The parties would be referred to as per their nomenclature in
the suit. The above Civil Revision Application has been filed by the original
Defendants whereas the Respondent is the original Plaintiff in the suit in
question. The suit in question was filed invoking Section 6 of the Specific
Relief Act. The cause for filing of the suit was the alleged dispossession of
the Plaintiff by the Defendants on 16.11.2011. It is the case of the Plaintiff
that the suit shop belonged to one Dharnidhar Chikhale and the Plaintiff
started working in the said shop by assisting the said Dharnidhar Chikhale
in or about the year 19721973. The said shop was being conducted in the
name and style of “Shree Bidi Works”. It is the case of the Plaintiff that the
said Dharnidhar Chikhale handed over to him the entire business of the
said Shree Bidi Works within two years of the Plaintiff joining him, which
required the Plaintiff to be present in the shop till late hours. It is the case
of the Plaintiff that apart from salary the said Dharnidhar Chikhale had
promised to pay him overtime. It is the case of the Plaintiff that he only
took money which he required and kept the rest of the amount with
Dharnidhar Chikhale as he trusted him immensely. It is the case of the
Plaintiff that by 19901991, the amount accumulated in the name of the
Plaintiff was around Rs.5,00,000/. On the Plaintiff asking for the said
accumulated amount, Dharnidhar Chikhale expressed his inability to give
him the said amount. He however made an offer that he can start his
business in half of the shop and simultaneously look after the business of
Shree Bidi Works. The Plaintiff accepted the said offer and accordingly
commenced his typewriting business. The Plaintiff therefore started
managing the business of Shree Bidi Works as well as started the business
of Shree Typing Works. It is the case of the Plaintiff that he paid Rs.2000/
to Dharnidhar Chikhale as royalty for permitting him to use the premises.
The said Dharnidhar Chikhale suddenly died of heart attack in the year
1994.
3. It is the case of the Plaintiff that after the death of Dharnidhar
Chikhale, the Plaintiff approached Prakash the son of Dharnidhar Chikhale
and informed him about the arrangement between his father and the
Plaintiff. It is the case of the Plaintiff that the said Prakash also asked the
Plaintiff to continue the said business arrangement. However, he requested
the Plaintiff to increase the royalty to Rs.3000/ per month over and above
the income from the business of the said Shree Bidi Works. It is the case of
the Plaintiff that Prakash was facing financial stringency and the Plaintiff
was therefore giving him money from time to time. It is the case of the
Plaintiff that from the year 1994 to 2004 the Plaintiff had in all given
Prakash an amount totalling to Rs.10,00,000/. It is the case of the
Plaintiff that sometime around June 2005 Prakash asked the Plaintiff for
an amount of Rs.5,00,000/ on account of sudden need. The Plaintiff
however reluctantly agreed to give him Rs.3,75,000/ on condition that he
is allowed to use the entire premises by winding up the said business of
Shree Bidi Works. Prakash accepted the said proposal of the Plaintiff. The
Plaintiff accordingly paid him Rs.2,00,000/ by six cheques drawn on
Sahyadri Sahakari Bank and also paid Prakash Rs.1,75,000/ by cash. The
Plaintiff and Prakash accordingly executed a Samjhauta Patra. By the said
Samjhauta Patra the said Prakash accepted that he had put the Plaintiff in
exclusive possession of the shop. It was also agreed that the said
arrangement would continue till Prakash paid the entire amount of
Rs.18,75,000/. It is the case of the Plaintiff that he installed computers
etc. and also got done interior work of the shop. The Plaintiff also allowed
the said Prakash to earn his own income by allowing him to use one table
space in the suit premises and operate one of his Computers for making
his own living by doing Marathi and English typing work. The said
Prakash died on 31.07.2011. It is the case of the Plaintiff that after the
death of said Prakash, the Defendant Nos.1 and 2 started questioning the
Plaintiff and also demanded more money from him. It is the case of the
Plaintiff that he showed them the writing dated 05.10.2005 i.e. Samjhauta
Patra. The Defendants however threatened the Plaintiff with dire
consequences. The same constrained the Plaintiff to lodge a complaint
with L. T. Marg Police Station on 24.10.2011. The Plaintiff also filed one
more complaint with the Police Station on 14.11.2011. It is the case of the
Plaintiff that on 16.11.2011 a group of persons or hirelings of the
Defendants came to the suit property and asked the Plaintiff to sign a
paper in which it was mentioned that he had handed over the possession.
The Plaintiff was constrained to sign the said paper in view of the physical
threat given to him. It is the case of the Plaintiff that on the said evening
he locked the shop and left. However, on the next morning when the
Plaintiff went to the shop he could not open the lock as he found that the
locks were changed. He accordingly lodged a complaint with the L. T.
Marg Police Station. It is his case that the local Police did not take
cognizance of his complaint. It is further his case that on 21.11.2011 when
he went to the shop he was not allowed to enter the same which has
constrained him to file the instant suit being Short Cause Suit No.2182 of
2012.
4. In the suit, the Plaintiff has narrated the facts as aforestated
leading to his alleged dispossession on 16.11.2011. The Plaintiff in
support of his case has relied upon various documents which have been
annexed to the plaint amongst which is the Samjhauta Patra dated
05.10.2005. The sum and substance of the case of the Plaintiff was that he
was in exclusive possession of the suit premises wherein the business in
the name and style of Shree Typing Center was carried out. The Plaintiff
has made averments in respect of the manner in which he was
dispossessed on 16.11.2011. The principal relief sought in the plaint is to
the effect that the possession of the suit premises namely the shop situated
on the ground floor, Botawala Building, 481, Kalbadevi Rod, Mumbai 400
002 be restored to the Plaintiff to enable him to carry on his business of
Shree Typing Center. The Plaintiff has also sought an injunction for
restraining the Defendants, their agents, servants and persons claiming
through them from disturbing the Plaintiff's possession, enjoyment and use
of the suit premises after he is put in possession pursuant to the decree
that would be passed in the suit.
5. To the said suit, the Defendants filed their Written Statement.
As indicated above, the Defendant No.1 is the wife of the said Prakash,
whereas the Defendant No.2 is his mother and the wife of the late
Dharnidhar Chikhale who was the original tenant and father of Prakash.
The case put up by the Defendants in their Written Statement is one of
total denial. It is the case of the Defendants that the Plaintiff was never in
possession of the suit premises on 16.11.2011 and in fact it is their case
that though initially he was helping Dharnidhar Chikhale in carrying out
the business of Shree Bidi Works, the Plaintiff's services were terminated
sometime in the year 19821983 and that the said Dharnidhar Chikhale
was thereafter carrying out business on his own. It is therefore the case of
the Defendants that right from the year 19821983, the Plaintiff had
stopped coming to the suit premises. It was also the case of the Defendants
that the Plaintiff would occasionally make a visit to the shop to pay a
courtesy call on Dharnidhar Chikhale. The case of the Plaintiff that he was
in exclusive possession of the premises is sought to be denied by the
Defendants in fact as indicated hereinabove, the Defendants have denied
the fact that the Plaintiff was in possession on 16.11.2011. The
Defendants have also relied upon documents in support of their case that
they are in possession.
6. On the basis of the pleadings of the parties, the Trial Court
framed the following issues :
“1) Whether the Plaintiff proves that he was in lawful use,
occupation and possession of the suit premises i.e. shop
situated on the ground floor of the building known as
Botawala Building, 481, Kalbadevi Road, Mumbai400 002,
from where he was carrying on business of Shree Typing
Centre till 16th November 2011 ?
2) Whether the plaintiff proves that he was forcibly
dispossessed by the defendants from the suit premises on or
about 17th November 2011 without following due process
of law, in the circumstances mentioned in para 4 of he
plaint and is hence entitled to the restoration of possession
of the suit premises ?
3) Whether the defendants prove that the suit premises
was in exclusive possession of the defendant no.2's husband
and after his death in the exclusive use, occupation and
possession of the defendant no.2 and Prakash Chikhale, the
husband of defendant no.1 ?
4) Whether the Plaintiff's suit is maintainable against the
defendants/tenants ?”
7. In so far as the issue No.3 is concerned, it seems that the
Defendants had applied for recasting of the issue which application came
to be rejected by the Trial Court and consequently the said issue No.3 itself
was deleted and what remained was therefore issue Nos.1, 2 and 4 which
were answered by the Trial Court in the affirmative in favour of the
Plaintiff. In so far as issue No.3 is concerned, though the said issue has
been answered, there are no reasons recorded in the body of the order in
so far as the said issue No.3 is concerned.
8. In so far as the evidence led by the parties is concerned, on
behalf of the Plaintiff as many as twelve witnesses including himself were
examined. The Defendants examined five witnesses in assertion of their
case that the Plaintiff was not in possession of the suit premises and that
they were in possession on 16.11.2011. In so far as the Plaintiff is
concerned, the witnesses examined were on the point of proving the
document dated 05.10.2005 i.e. Samjhauta Patra, the payment of
Rs.2,00,000/ made to Prakash vide the cheques drawn on the Sahyadri
Sahakari Bank Ltd. i.e. his daughter's account, on the point of Plaintiff
carrying out the business in the name of Shree Typing Center which
evidence included the evidence of the Plaintiff's customers on the point of
the incident taking place on 16.11.2011 and the threats issued to the
Plaintiff.
9. The Trial Court on the basis of the evidence which has come
on record has recorded a finding that the evidence of PW8 to PW12 is
cogent and remained unshaken and fortifying the case of the Plaintiff that
he was running the business of Shree Typing Center from the suit premises
till he was dispossessed on 16.11.2011. The Trial Court has observed that
the testimony of the Defendants and their witnesses is self contradictory
which renders the same quite doubtful and improbable. The Trial Court
therefore held that the case of the Plaintiff appears to be more reliable and
creditworthy than the case of the Defendants. The Trial Court accordingly
decreed the suit and directed the Defendants to restore the possession to
the Plaintiff. As indicated above, it is the said judgment and order dated
31.03.2015 which is taken exception to by way of the above Petition.
10. Heard the Learned Counsel for the parties.
11. SUBMISSIONS OF THE LEARNED COUNSEL FOR THE
APPLICANTS MR. JAYESH BHATT :
I) That the Trial Court has erred in decreeing the suit when the
evidence on record does not discloses that the Plaintiff was in exclusive
possession of the suit premises.
II) The Plaintiff has not fulfilled the essential requisites for a suit under
Section 6 of the Specific Relief Act in as much as the suit premises have
not been properly described and therefore, the Trial Court could not have
decreed the suit. Reliance is placed on the judgment of the Apex Court
reported in AIR 2012 SC 1727 in the matter of Maria Margarida
Sequeria Fernandes and ors Vs. Erasmo Jack de Sequeria (Dead)
through L.Rs. and AIR 1975 Jammu and Kashmir 47 in the matter of
Munshi Vs. Mangoo.
III) That a decree for joint possession could not have been passed in a
suit filed under Section 6 of the Specific Relief Act. In support of the said
contention, the Leaned Counsel placed reliance on the judgment of a
Learned Single Judge of the Jammu and Kashmir High Court reported in
AIR 1975 Jammu and Kashmir 47 in the matter of Munshi Vs. Mangoo,
wherein a Learned Single Judge held that a decree for joint possession
outside the purview of the said Section 9 of the old Specific Relief Act
which is parimateria to the present Section 6.
IV) That the documents on which the Plaintiff himself relies disclose
that the Plaintiff was not in exclusive possession but was in joint
possession with the said Prakash Chikhale and therefore the Plaintiff could
not be put in exclusive possession of the suit premises. This in fact was the
principal contention of the Learned Counsel for the Applicants.
V) That the Trial Court failed to appreciate that the suit premises were
tenanted premises on which Dharnidhar Chikhale was the tenant and that
a suit is already pending in the Small Causes Court filed by the landlords
against the Defendants for their eviction and therefore, if the possession is
to be restored to the Plaintiff pursuant to the decree passed in the present
suit, the same is likely to prejudice the Defendants in the suit pending in
the Small Causes Court.
12. SUBMISSIONS OF THE LEARNED COUNSEL FOR THE
RESPONDENT (ORIGINAL PLAINTIFF) MS. D. S. RETIWALA :
I) That the case of the Defendants as set out in the Written Statement
was one of total denial i.e. the Plaintiff was never in possession of the suit
premises on 16.11.2011 and therefore the Defendants now cannot be
permitted to change their stand.
II) That the Defendants cannot be heard to say that the suit premises
have not been properly described, when they have participated in the
proceedings and proceeded on the basis of the description given in the
plaint.
III) That the Trial Court has rightly rejected the case of the Defendants
on account of the inherent contradictions which has come in the testimony
of their witnesses which the Trial Court has referred to in its judgment.
IV) That the Plaintiff was in exclusive possession after the death of
Prakash in July 2011 and therefore on the day when the Plaintiff was
dispossessed he was in exclusive possession of the suit premises.
V) That the evidence adduced on behalf of the Plaintiff leads to only
one conclusion that it is the Plaintiff who was in possession and carrying
out business in the name and style of Shree Typing Center. The Trial Court
has therefore rightly disbelieved the evidence adduced on behalf of the
Defendants.
VI) That since in a suit filed under Section 6 the defining aspect is only
prior possession, the Trial Court has rightly refused to go into the aspect of
title in respect of the suit premises.
CONSIDERATION
13. Having heard the Learned Counsel for the parties. I have
considered the rival contentions. Since the instant suit is filed under
Section 6 of the Specific Relief Act, the question that is required to
addressed first is whether the Plaintiff has proved that he was in
possession of the suit premises prior to 16.11.2011 and whether he has
been forcibly dispossessed on the said day. As indicated hereinabove, the
Plaintiff has examined as many as eleven witnesses including himself in
support of his claim that he was in possession prior to 16.11.2011 and that
he was dispossessed on the said day. It would therefore be apposite to
briefly refer to the said evidence. In so far as the evidence of the Plaintiff
himself is concerned, he has testified in terms of his case set out in the
plaint. On the point of the Plaintiff carrying out the business in the name
and style of Shree Typing Center is concerned, the Plaintiff has examined
his customers i.e. Pawankumar Dhand who is an advocate who stated in
his evidence that he would get the typing work done from the Plaintiff.
The Plaintiff has also examined Dattatray Jagtap Treasurer of the Mathadi
Kamgar Mandal who also deposed along the similar lines. The Plaintiff has
then examined Umesh Jhaveri a small businessman and Kamlesh
Manshani who also does business. Both Umesh Jhaveri and Kamlesh
Manshani deposed as regards the typing they used to get done from the
Plaintiff. The said witness Umesh Jhaveri PW12 has also deposed that he
was a witness to the incident which took place on 16.11.2011 when some
2025 goons along with one lady had come to get the suit premises
vacated from the Plaintiff.
14. The Plaintiff has also examined Narendra Deshmukh who is a
computer hardware and network Engineer and who also runs a business in
the name and style of 'Siddhi Computers' dealing in computers,
peripherals, laptops, desktop etc. The said witness has testified that he had
supplied computer peripherals and accessories to the Plaintiff and that he
used to service the Plaintiff's computers. The Plaintiff has also examined
the photographer Joseph Polekad who had taken photographs showing the
Plaintiff in occupation of the suit premises. The evidence of the aforestated
witnesses therefore is on the point of the Plaintiff being in occupation and
carrying out business in the name and style of Shree Typing Center in the
suit premises.
15. The Plaintiff has also examined the Bank officials Devram
Nipane, Manager of Bank of India, Kalbadevi Branch where the Plaintiff
has an account and Madhav Hule Senior Manager of the Sahyadri
Sahakari Bank Ltd. in which Bank the Plaintiff's minor daughter Shweta
had an account. The said witnesses are examined on the aspect of
payment made to the late Dharnidhar as also the late Prakash. In so far as
the Samjhauta Patra i.e. document dated 05.10.2005 is concerned, the
Plaintiff has examined the Notary, Mohd. Nazir Naqvi who has testified as
regards the execution of the said Samjhauta Patra before him. It is on the
basis of his testimony which corroborated the testimony of the Plaintiff as
regards the execution of the Samjhauta Patra that the said document has
been held to be proved.
16. Now coming to the evidence of the Defendants. The
Defendants examined in all five witnesses including the Defendant No.1.
The Defendant No.1 has testified in keeping with the case of the
Defendants in the written statement. She has denied any cash transaction
between her husband and the Plaintiff or about the alleged hospitalization
of the son of the Plaintiff. She claims to have learnt about the transaction
between her husband Prakash and Plaintiff before his death in the year
2011. The Defendants have examined one Anil Salvi who is a typist and
who according to them was working for Prakash as a typist from
11.01.2010 till the suit shop was sealed in November 2011. He has
testified that he used to remain present in the shop from 10.00 a.m. to
8.00 p.m. The Defendants have also examined one Ganesh Shinde who
testified that he had annual maintenance contract with the deceased
Prakash which was renewed by the Defendant No.1 in the year 2012.
However in the crossexamination the said witness admitted that he had
no document to support his said claim and though he resided within 70 to
80 meters away from the Defendants house he could not state when
Prakash expired and what was the first name of the Defendant No.1. The
Defendants also examined one Candida D'souza who is a resident of
Botawala Building wherein the suit premises are located. She has testified
to the effect that she used to visit the suit shop since childhood and had
seen Prakash sitting there several times. She also stated that she has seen
Defendant No.1 Smita in the shop presently and that she talks to her
sometimes. However when confronted with the photograph of the shop,
she could not identify it, as the same shop which are the suit premises.
The last witness of the Defendants was a official from the Municipal
Corporation of Greater Mumbai one Ashok Tambe whose evidence was
adduced to prove the inspection reports. However, it has come in his
evidence that no register is maintained of the inspection reports and that
the inspection reports are prepared on the basis of the information
provided on site.
17. The Trial Court having regard to the evidence adduced on
behalf of the Plaintiff and the Defendants has recorded a finding that the
testimony of the witnesses of the Plaintiff appears to be quite cogent and
has been unshaken in the crossexamination. The said evidence according
to the Trial Court, of the persons who are the customers of the said typing
center as also the persons connected with the said typing center in various
capacities, fortify the case of the Plaintiff that he was running the same
from the suit premises till November 2011. As regards the evidence
adduced on behalf of the Defendants is concerned, the Trial Court has
recorded a finding that the evidence is selfcontradictory which renders
the same quite doubtful and makes the case of the Defendants improbable.
The Trial Court therefore concluded that the Plaintiff's case appears to be
more reliable and creditworthy than that of the Defendants and hence the
Trial Court deemed it fit to accept the case of the Plaintiff that he was
running the business of Shree Typing Center in the suit shop till 2011.
18. The Learned Counsel appearing on behalf of the Defendants
i.e. Applicants herein Mr. Jayesh Bhatt sought to challenge the finding of
the Trial Court in so far as the said Samjhauta Patra is concerned. It is the
contention of the Learned Counsel that though the Samjhauta Patra
according to the Plaintiff was executed on 05.10.2005, it does not find any
mention in the complaints made by the Plaintiffs to the Police either in
October 2011 or in November 2011 and it is for the first time that the said
document has surfaced in the suit. It was also the submission of the
Learned Counsel that the said document could not be said to be proved.
Though it is true that there is no mention of said document in the
complaints made by the Plaintiff to the Police. The efficacy of the said
document in so far as the case of the Plaintiff is concerned, cannot be
determined on the said basis. The said document records the financial
transaction which took place between the Plaintiff and the said Prakash in
the matter of the Plaintiff advancing an amount of Rs.3,75,000/ to the
said Prakash. It is not as if that the Plaintiff was put in possession pursuant
to the said document. The Plaintiff's case is that he was always in
possession, which possession was traceable to the arrangement between
the Plaintiff and the father of the said Prakash late Dharnidhar Chikhale.
The said document therefore is not the only piece of evidence on which
the Plaintiff's case that he was in possession of the suit premises depends
upon. In so far as the proof of the said document is concerned, the
Plaintiff is a signatory to the said document and is therefore an executant
of the said document. The said document was sought to be proved by
adducing evidence of the Notary, Mohd. Nazir Naqvi before whom the said
document was executed. The said Notary has identified that the said
document was executed before him, though he does not recognize the
persons who had come to execute the document. This was bound to be as
the Notary cannot be expected to recognize a stranger who had come to
execute a document before him almost five years prior to his evidence
being recorded. The Trial Court has therefore rightly concluded that the
said document stands proved and can be relied upon for a collateral
purpose for drawing a conclusion as regards the arrangement or
understanding arrived at between the parties. In so far as the said
document is concerned, it is also required to be noted that the case of the
Defendants was one of total denial. However, confronted with the fact of
the payment of Rs.2,00,000/ vide the six cheques mentioned in the said
document, the Defendant No.1 had to accept the fact that payment was in
fact received. However, the said payment was sought to be justified on the
ground that the said payment was made by the Plaintiff for return of the
loan which the Plaintiff had taken from the said Prakash. The Trial Court
in my view, has rightly concluded that the Defendants cannot approbate
and reprobate i.e. on the one hand deny the execution of the said
document and on the other hand accept the payment made under the said
document but deny the purpose for which the payment was made. The
aforesaid fact is therefore one more instance on the basis of which it can
be said that the said document stands proved.
19. The Trial Court has also rightly drawn an adverse inference
against the Defendants for not producing the diaries Exh.108/ 1 & 2 as
they are not free of doubt.
20. The Learned Counsel for the Applicants Mr. Jayesh Bhatt
sought to contend that the Plaintiff could not be put in exclusive
possession of the suit premises as the documents on which the Plaintiff
relies show that the said Prakash was in joint possession with the Plaintiff.
It was further the submission of the Learned Counsel that in the guise of
the decree passed in the instant suit, the Defendants cannot be ousted
from possessing their own premises. In so far as the said aspect is
concerned, as indicated above the Plaintiff in the plaint has traced the
history as to how he has come in possession of the suit premises and that
how he was put in exclusive possession of the suit premises after the
Samjhauta Patra was executed on 05.10.2005. The said case of the
Plaintiff has been denied by the Defendants. It is required to be noted that
the Defendants have merely denied that the Plaintiff was in exclusive
possession, it is not their case that the Defendants were in joint possession
on 16.11.2011 i.e. on the day when the Plaintiff was dispossessed. In fact,
as mentioned hereinabove, issue No.3 which was framed by the Trial
Court was deleted by the Trial Court by order dated 26.06.2014 which
order was not challenged by the Defendants by filing any proceeding and
therefore the Defendants accepted the position that such an issue as issue
No.3 originally framed was not required to be framed in the suit. If the
Defendants were claiming to be in joint possession, the same is not borne
out by their pleadings by way of averments made in the written statement
nor did the Defendants seek any amendment in the written statement nor
seek any alternate relief by filing any counterclaim. In the absence of any
pleadings and any issue framed in that behalf, it is not possible to accept
the claim of the Defendants that they were in joint possession on
16.11.2011 and therefore, even if the Plaintiff is to be put in possession it
can be only along with the Defendants. Now coming to the judgment of
the Learned Single Judge of the Jammu and Kashmir High Court in
Munshi's case (supra). In the said case, a suit was filed under Section 9 of
the Specific Relief Act 1877, which provision was pari materia to the
present Section 6. It was alleged by the Plaintiff who was a coowner in a
piece of land, that he was dispossessed from part of the land admeasuring
10 marlas out of the concerned Khasra. It was the case of the Plaintiff that
he was in exclusive possession of the whole of the land out of which he
was dispossessed from the part admeasuring 10 marlas. The Plaintiff and
the Defendant were brothers. The Defendant set up a defence that he was
in exclusive possession of the whole of the land admeasuring 1 kanal and
14 marlas. The Trial Court came to a conclusion that the parties were in
joint possession, however granted a decree of “Khas” possession (i.e.
exclusive possession) to the Plaintiff in respect of the said 10 marlas. The
decree of the Trial Court was found fault with by the Learned Single Judge
of the Jammu and Kashmir High Court who held that the Trial Court had
erred in decreeing the suit after coming to a conclusion that the parties
were in joint possession. The Learned Single Judge held that under
Section 9, no decree would be passed for a joint possession; having regard
to the object with which Section 9 has been enacted.
21. In my view, the judgment of the Learned Single Judge of the
Jammu and Kashmir High Court in Munshi's case (supra) does not further
the case of the Defendants as in the instant case the Plaintiff has claimed
to be in exclusive possession and the Trial Court has not recorded any
finding that the parties were in joint possession.
22. In so far as the contention urged on behalf of the Defendants
that the suit property is not properly described is concerned, it is required
to be noted that the Defendants have not raised any such plea in their
written statement. The Defendants have proceeded on the basis of the
description given in the plaint and participated in the proceedings. The
parties can therefore be said to be aware as to in respect of which
premises they were litigating. The Defendants therefore cannot be heard
to now contend that the description of the suit property was not proper.
Hence, the judgment of the Apex Court in Maria Fernandes's case has no
application.
23. Since the decree passed in a suit filed under Section 6 is based
on prior possession, it is always open for the party claiming title to file a
suit for possession based on title. If any such suit is filed, needless to state
that the same would have to be considered on its own merits and in
accordance with law, uninfluenced by the observations and finding
recorded in the instant suit.
24. For the reasons aforestated, the judgment and order passed by
the Trial Court cannot be said to suffer from any error of jurisdiction or
any other illegality or infirmity for this Court to exercise its Revisionary
Jurisdiction. The Civil Revision Application is accordingly dismissed. In
view thereof, the Civil Application does not survive and to accordingly
stand disposed of.
[R.M. SAVANT, J]
26.11.2015 (At the time of pronouncement of judgment)
1. The Receiver who was appointed by the order dated 28th
January 2014 and who is in possession of the premises in question to hand
over possession to the Respondent herein. The Respondent herein to pay
the Receiver's charges and expenses. On possession being handed over, the
Receiver to stand discharged without passing of accounts.
2. At this stage the Learned Counsel for the Applicants applies
for stay of the instant judgment. However, the interest of justice would be
served if the Receiver is directed not to hand over possession for a period
of six weeks, subject to the orders that would be passed by the Apex Court.
[R.M. SAVANT, J]
Print Page
that the suit property is not properly described is concerned, it is required
to be noted that the Defendants have not raised any such plea in their
written statement. The Defendants have proceeded on the basis of the
description given in the plaint and participated in the proceedings. The
parties can therefore be said to be aware as to in respect of which
premises they were litigating. The Defendants therefore cannot be heard
to now contend that the description of the suit property was not proper.
Hence, the judgment of the Apex Court in Maria Fernandes's case has no
application.
23. Since the decree passed in a suit filed under Section 6 is based
on prior possession, it is always open for the party claiming title to file a
suit for possession based on title. If any such suit is filed, needless to state
that the same would have to be considered on its own merits and in
accordance with law, uninfluenced by the observations and finding
recorded in the instant suit.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL REVISION APPLICATION NO.580 OF 2015
ALONGWITH
CIVIL APPLICATION NO.471 OF 2015
Smita Prakash Chikhale V Gajanan Yashwant Khatu
CORAM : R.M. SAVANT, J.
Dated : 26th NOVEMBER 2015
Citation:2016(6) ALLMR297
1. The Revisionary Jurisdiction of this Court is invoked against
the judgment and order dated 31.03.2015 passed by the Learned Judge of
the City Civil Court, Mumbai, by which order the suit in question being
Short Cause Suit No.2182 of 2012 came to be decreed and the Defendant
Nos.1 and 2 were directed to hand over vacant and peaceful possession of
the suit premises to the Plaintiff.
The facts giving rise to the filing of the above Civil Revision
Application can in brief be stated thus :
2. The parties would be referred to as per their nomenclature in
the suit. The above Civil Revision Application has been filed by the original
Defendants whereas the Respondent is the original Plaintiff in the suit in
question. The suit in question was filed invoking Section 6 of the Specific
Relief Act. The cause for filing of the suit was the alleged dispossession of
the Plaintiff by the Defendants on 16.11.2011. It is the case of the Plaintiff
that the suit shop belonged to one Dharnidhar Chikhale and the Plaintiff
started working in the said shop by assisting the said Dharnidhar Chikhale
in or about the year 19721973. The said shop was being conducted in the
name and style of “Shree Bidi Works”. It is the case of the Plaintiff that the
said Dharnidhar Chikhale handed over to him the entire business of the
said Shree Bidi Works within two years of the Plaintiff joining him, which
required the Plaintiff to be present in the shop till late hours. It is the case
of the Plaintiff that apart from salary the said Dharnidhar Chikhale had
promised to pay him overtime. It is the case of the Plaintiff that he only
took money which he required and kept the rest of the amount with
Dharnidhar Chikhale as he trusted him immensely. It is the case of the
Plaintiff that by 19901991, the amount accumulated in the name of the
Plaintiff was around Rs.5,00,000/. On the Plaintiff asking for the said
accumulated amount, Dharnidhar Chikhale expressed his inability to give
him the said amount. He however made an offer that he can start his
business in half of the shop and simultaneously look after the business of
Shree Bidi Works. The Plaintiff accepted the said offer and accordingly
commenced his typewriting business. The Plaintiff therefore started
managing the business of Shree Bidi Works as well as started the business
of Shree Typing Works. It is the case of the Plaintiff that he paid Rs.2000/
to Dharnidhar Chikhale as royalty for permitting him to use the premises.
The said Dharnidhar Chikhale suddenly died of heart attack in the year
1994.
3. It is the case of the Plaintiff that after the death of Dharnidhar
Chikhale, the Plaintiff approached Prakash the son of Dharnidhar Chikhale
and informed him about the arrangement between his father and the
Plaintiff. It is the case of the Plaintiff that the said Prakash also asked the
Plaintiff to continue the said business arrangement. However, he requested
the Plaintiff to increase the royalty to Rs.3000/ per month over and above
the income from the business of the said Shree Bidi Works. It is the case of
the Plaintiff that Prakash was facing financial stringency and the Plaintiff
was therefore giving him money from time to time. It is the case of the
Plaintiff that from the year 1994 to 2004 the Plaintiff had in all given
Prakash an amount totalling to Rs.10,00,000/. It is the case of the
Plaintiff that sometime around June 2005 Prakash asked the Plaintiff for
an amount of Rs.5,00,000/ on account of sudden need. The Plaintiff
however reluctantly agreed to give him Rs.3,75,000/ on condition that he
is allowed to use the entire premises by winding up the said business of
Shree Bidi Works. Prakash accepted the said proposal of the Plaintiff. The
Plaintiff accordingly paid him Rs.2,00,000/ by six cheques drawn on
Sahyadri Sahakari Bank and also paid Prakash Rs.1,75,000/ by cash. The
Plaintiff and Prakash accordingly executed a Samjhauta Patra. By the said
Samjhauta Patra the said Prakash accepted that he had put the Plaintiff in
exclusive possession of the shop. It was also agreed that the said
arrangement would continue till Prakash paid the entire amount of
Rs.18,75,000/. It is the case of the Plaintiff that he installed computers
etc. and also got done interior work of the shop. The Plaintiff also allowed
the said Prakash to earn his own income by allowing him to use one table
space in the suit premises and operate one of his Computers for making
his own living by doing Marathi and English typing work. The said
Prakash died on 31.07.2011. It is the case of the Plaintiff that after the
death of said Prakash, the Defendant Nos.1 and 2 started questioning the
Plaintiff and also demanded more money from him. It is the case of the
Plaintiff that he showed them the writing dated 05.10.2005 i.e. Samjhauta
Patra. The Defendants however threatened the Plaintiff with dire
consequences. The same constrained the Plaintiff to lodge a complaint
with L. T. Marg Police Station on 24.10.2011. The Plaintiff also filed one
more complaint with the Police Station on 14.11.2011. It is the case of the
Plaintiff that on 16.11.2011 a group of persons or hirelings of the
Defendants came to the suit property and asked the Plaintiff to sign a
paper in which it was mentioned that he had handed over the possession.
The Plaintiff was constrained to sign the said paper in view of the physical
threat given to him. It is the case of the Plaintiff that on the said evening
he locked the shop and left. However, on the next morning when the
Plaintiff went to the shop he could not open the lock as he found that the
locks were changed. He accordingly lodged a complaint with the L. T.
Marg Police Station. It is his case that the local Police did not take
cognizance of his complaint. It is further his case that on 21.11.2011 when
he went to the shop he was not allowed to enter the same which has
constrained him to file the instant suit being Short Cause Suit No.2182 of
2012.
4. In the suit, the Plaintiff has narrated the facts as aforestated
leading to his alleged dispossession on 16.11.2011. The Plaintiff in
support of his case has relied upon various documents which have been
annexed to the plaint amongst which is the Samjhauta Patra dated
05.10.2005. The sum and substance of the case of the Plaintiff was that he
was in exclusive possession of the suit premises wherein the business in
the name and style of Shree Typing Center was carried out. The Plaintiff
has made averments in respect of the manner in which he was
dispossessed on 16.11.2011. The principal relief sought in the plaint is to
the effect that the possession of the suit premises namely the shop situated
on the ground floor, Botawala Building, 481, Kalbadevi Rod, Mumbai 400
002 be restored to the Plaintiff to enable him to carry on his business of
Shree Typing Center. The Plaintiff has also sought an injunction for
restraining the Defendants, their agents, servants and persons claiming
through them from disturbing the Plaintiff's possession, enjoyment and use
of the suit premises after he is put in possession pursuant to the decree
that would be passed in the suit.
5. To the said suit, the Defendants filed their Written Statement.
As indicated above, the Defendant No.1 is the wife of the said Prakash,
whereas the Defendant No.2 is his mother and the wife of the late
Dharnidhar Chikhale who was the original tenant and father of Prakash.
The case put up by the Defendants in their Written Statement is one of
total denial. It is the case of the Defendants that the Plaintiff was never in
possession of the suit premises on 16.11.2011 and in fact it is their case
that though initially he was helping Dharnidhar Chikhale in carrying out
the business of Shree Bidi Works, the Plaintiff's services were terminated
sometime in the year 19821983 and that the said Dharnidhar Chikhale
was thereafter carrying out business on his own. It is therefore the case of
the Defendants that right from the year 19821983, the Plaintiff had
stopped coming to the suit premises. It was also the case of the Defendants
that the Plaintiff would occasionally make a visit to the shop to pay a
courtesy call on Dharnidhar Chikhale. The case of the Plaintiff that he was
in exclusive possession of the premises is sought to be denied by the
Defendants in fact as indicated hereinabove, the Defendants have denied
the fact that the Plaintiff was in possession on 16.11.2011. The
Defendants have also relied upon documents in support of their case that
they are in possession.
6. On the basis of the pleadings of the parties, the Trial Court
framed the following issues :
“1) Whether the Plaintiff proves that he was in lawful use,
occupation and possession of the suit premises i.e. shop
situated on the ground floor of the building known as
Botawala Building, 481, Kalbadevi Road, Mumbai400 002,
from where he was carrying on business of Shree Typing
Centre till 16th November 2011 ?
2) Whether the plaintiff proves that he was forcibly
dispossessed by the defendants from the suit premises on or
about 17th November 2011 without following due process
of law, in the circumstances mentioned in para 4 of he
plaint and is hence entitled to the restoration of possession
of the suit premises ?
3) Whether the defendants prove that the suit premises
was in exclusive possession of the defendant no.2's husband
and after his death in the exclusive use, occupation and
possession of the defendant no.2 and Prakash Chikhale, the
husband of defendant no.1 ?
4) Whether the Plaintiff's suit is maintainable against the
defendants/tenants ?”
7. In so far as the issue No.3 is concerned, it seems that the
Defendants had applied for recasting of the issue which application came
to be rejected by the Trial Court and consequently the said issue No.3 itself
was deleted and what remained was therefore issue Nos.1, 2 and 4 which
were answered by the Trial Court in the affirmative in favour of the
Plaintiff. In so far as issue No.3 is concerned, though the said issue has
been answered, there are no reasons recorded in the body of the order in
so far as the said issue No.3 is concerned.
8. In so far as the evidence led by the parties is concerned, on
behalf of the Plaintiff as many as twelve witnesses including himself were
examined. The Defendants examined five witnesses in assertion of their
case that the Plaintiff was not in possession of the suit premises and that
they were in possession on 16.11.2011. In so far as the Plaintiff is
concerned, the witnesses examined were on the point of proving the
document dated 05.10.2005 i.e. Samjhauta Patra, the payment of
Rs.2,00,000/ made to Prakash vide the cheques drawn on the Sahyadri
Sahakari Bank Ltd. i.e. his daughter's account, on the point of Plaintiff
carrying out the business in the name of Shree Typing Center which
evidence included the evidence of the Plaintiff's customers on the point of
the incident taking place on 16.11.2011 and the threats issued to the
Plaintiff.
9. The Trial Court on the basis of the evidence which has come
on record has recorded a finding that the evidence of PW8 to PW12 is
cogent and remained unshaken and fortifying the case of the Plaintiff that
he was running the business of Shree Typing Center from the suit premises
till he was dispossessed on 16.11.2011. The Trial Court has observed that
the testimony of the Defendants and their witnesses is self contradictory
which renders the same quite doubtful and improbable. The Trial Court
therefore held that the case of the Plaintiff appears to be more reliable and
creditworthy than the case of the Defendants. The Trial Court accordingly
decreed the suit and directed the Defendants to restore the possession to
the Plaintiff. As indicated above, it is the said judgment and order dated
31.03.2015 which is taken exception to by way of the above Petition.
10. Heard the Learned Counsel for the parties.
11. SUBMISSIONS OF THE LEARNED COUNSEL FOR THE
APPLICANTS MR. JAYESH BHATT :
I) That the Trial Court has erred in decreeing the suit when the
evidence on record does not discloses that the Plaintiff was in exclusive
possession of the suit premises.
II) The Plaintiff has not fulfilled the essential requisites for a suit under
Section 6 of the Specific Relief Act in as much as the suit premises have
not been properly described and therefore, the Trial Court could not have
decreed the suit. Reliance is placed on the judgment of the Apex Court
reported in AIR 2012 SC 1727 in the matter of Maria Margarida
Sequeria Fernandes and ors Vs. Erasmo Jack de Sequeria (Dead)
through L.Rs. and AIR 1975 Jammu and Kashmir 47 in the matter of
Munshi Vs. Mangoo.
III) That a decree for joint possession could not have been passed in a
suit filed under Section 6 of the Specific Relief Act. In support of the said
contention, the Leaned Counsel placed reliance on the judgment of a
Learned Single Judge of the Jammu and Kashmir High Court reported in
AIR 1975 Jammu and Kashmir 47 in the matter of Munshi Vs. Mangoo,
wherein a Learned Single Judge held that a decree for joint possession
outside the purview of the said Section 9 of the old Specific Relief Act
which is parimateria to the present Section 6.
IV) That the documents on which the Plaintiff himself relies disclose
that the Plaintiff was not in exclusive possession but was in joint
possession with the said Prakash Chikhale and therefore the Plaintiff could
not be put in exclusive possession of the suit premises. This in fact was the
principal contention of the Learned Counsel for the Applicants.
V) That the Trial Court failed to appreciate that the suit premises were
tenanted premises on which Dharnidhar Chikhale was the tenant and that
a suit is already pending in the Small Causes Court filed by the landlords
against the Defendants for their eviction and therefore, if the possession is
to be restored to the Plaintiff pursuant to the decree passed in the present
suit, the same is likely to prejudice the Defendants in the suit pending in
the Small Causes Court.
12. SUBMISSIONS OF THE LEARNED COUNSEL FOR THE
RESPONDENT (ORIGINAL PLAINTIFF) MS. D. S. RETIWALA :
I) That the case of the Defendants as set out in the Written Statement
was one of total denial i.e. the Plaintiff was never in possession of the suit
premises on 16.11.2011 and therefore the Defendants now cannot be
permitted to change their stand.
II) That the Defendants cannot be heard to say that the suit premises
have not been properly described, when they have participated in the
proceedings and proceeded on the basis of the description given in the
plaint.
III) That the Trial Court has rightly rejected the case of the Defendants
on account of the inherent contradictions which has come in the testimony
of their witnesses which the Trial Court has referred to in its judgment.
IV) That the Plaintiff was in exclusive possession after the death of
Prakash in July 2011 and therefore on the day when the Plaintiff was
dispossessed he was in exclusive possession of the suit premises.
V) That the evidence adduced on behalf of the Plaintiff leads to only
one conclusion that it is the Plaintiff who was in possession and carrying
out business in the name and style of Shree Typing Center. The Trial Court
has therefore rightly disbelieved the evidence adduced on behalf of the
Defendants.
VI) That since in a suit filed under Section 6 the defining aspect is only
prior possession, the Trial Court has rightly refused to go into the aspect of
title in respect of the suit premises.
CONSIDERATION
13. Having heard the Learned Counsel for the parties. I have
considered the rival contentions. Since the instant suit is filed under
Section 6 of the Specific Relief Act, the question that is required to
addressed first is whether the Plaintiff has proved that he was in
possession of the suit premises prior to 16.11.2011 and whether he has
been forcibly dispossessed on the said day. As indicated hereinabove, the
Plaintiff has examined as many as eleven witnesses including himself in
support of his claim that he was in possession prior to 16.11.2011 and that
he was dispossessed on the said day. It would therefore be apposite to
briefly refer to the said evidence. In so far as the evidence of the Plaintiff
himself is concerned, he has testified in terms of his case set out in the
plaint. On the point of the Plaintiff carrying out the business in the name
and style of Shree Typing Center is concerned, the Plaintiff has examined
his customers i.e. Pawankumar Dhand who is an advocate who stated in
his evidence that he would get the typing work done from the Plaintiff.
The Plaintiff has also examined Dattatray Jagtap Treasurer of the Mathadi
Kamgar Mandal who also deposed along the similar lines. The Plaintiff has
then examined Umesh Jhaveri a small businessman and Kamlesh
Manshani who also does business. Both Umesh Jhaveri and Kamlesh
Manshani deposed as regards the typing they used to get done from the
Plaintiff. The said witness Umesh Jhaveri PW12 has also deposed that he
was a witness to the incident which took place on 16.11.2011 when some
2025 goons along with one lady had come to get the suit premises
vacated from the Plaintiff.
14. The Plaintiff has also examined Narendra Deshmukh who is a
computer hardware and network Engineer and who also runs a business in
the name and style of 'Siddhi Computers' dealing in computers,
peripherals, laptops, desktop etc. The said witness has testified that he had
supplied computer peripherals and accessories to the Plaintiff and that he
used to service the Plaintiff's computers. The Plaintiff has also examined
the photographer Joseph Polekad who had taken photographs showing the
Plaintiff in occupation of the suit premises. The evidence of the aforestated
witnesses therefore is on the point of the Plaintiff being in occupation and
carrying out business in the name and style of Shree Typing Center in the
suit premises.
15. The Plaintiff has also examined the Bank officials Devram
Nipane, Manager of Bank of India, Kalbadevi Branch where the Plaintiff
has an account and Madhav Hule Senior Manager of the Sahyadri
Sahakari Bank Ltd. in which Bank the Plaintiff's minor daughter Shweta
had an account. The said witnesses are examined on the aspect of
payment made to the late Dharnidhar as also the late Prakash. In so far as
the Samjhauta Patra i.e. document dated 05.10.2005 is concerned, the
Plaintiff has examined the Notary, Mohd. Nazir Naqvi who has testified as
regards the execution of the said Samjhauta Patra before him. It is on the
basis of his testimony which corroborated the testimony of the Plaintiff as
regards the execution of the Samjhauta Patra that the said document has
been held to be proved.
16. Now coming to the evidence of the Defendants. The
Defendants examined in all five witnesses including the Defendant No.1.
The Defendant No.1 has testified in keeping with the case of the
Defendants in the written statement. She has denied any cash transaction
between her husband and the Plaintiff or about the alleged hospitalization
of the son of the Plaintiff. She claims to have learnt about the transaction
between her husband Prakash and Plaintiff before his death in the year
2011. The Defendants have examined one Anil Salvi who is a typist and
who according to them was working for Prakash as a typist from
11.01.2010 till the suit shop was sealed in November 2011. He has
testified that he used to remain present in the shop from 10.00 a.m. to
8.00 p.m. The Defendants have also examined one Ganesh Shinde who
testified that he had annual maintenance contract with the deceased
Prakash which was renewed by the Defendant No.1 in the year 2012.
However in the crossexamination the said witness admitted that he had
no document to support his said claim and though he resided within 70 to
80 meters away from the Defendants house he could not state when
Prakash expired and what was the first name of the Defendant No.1. The
Defendants also examined one Candida D'souza who is a resident of
Botawala Building wherein the suit premises are located. She has testified
to the effect that she used to visit the suit shop since childhood and had
seen Prakash sitting there several times. She also stated that she has seen
Defendant No.1 Smita in the shop presently and that she talks to her
sometimes. However when confronted with the photograph of the shop,
she could not identify it, as the same shop which are the suit premises.
The last witness of the Defendants was a official from the Municipal
Corporation of Greater Mumbai one Ashok Tambe whose evidence was
adduced to prove the inspection reports. However, it has come in his
evidence that no register is maintained of the inspection reports and that
the inspection reports are prepared on the basis of the information
provided on site.
17. The Trial Court having regard to the evidence adduced on
behalf of the Plaintiff and the Defendants has recorded a finding that the
testimony of the witnesses of the Plaintiff appears to be quite cogent and
has been unshaken in the crossexamination. The said evidence according
to the Trial Court, of the persons who are the customers of the said typing
center as also the persons connected with the said typing center in various
capacities, fortify the case of the Plaintiff that he was running the same
from the suit premises till November 2011. As regards the evidence
adduced on behalf of the Defendants is concerned, the Trial Court has
recorded a finding that the evidence is selfcontradictory which renders
the same quite doubtful and makes the case of the Defendants improbable.
The Trial Court therefore concluded that the Plaintiff's case appears to be
more reliable and creditworthy than that of the Defendants and hence the
Trial Court deemed it fit to accept the case of the Plaintiff that he was
running the business of Shree Typing Center in the suit shop till 2011.
18. The Learned Counsel appearing on behalf of the Defendants
i.e. Applicants herein Mr. Jayesh Bhatt sought to challenge the finding of
the Trial Court in so far as the said Samjhauta Patra is concerned. It is the
contention of the Learned Counsel that though the Samjhauta Patra
according to the Plaintiff was executed on 05.10.2005, it does not find any
mention in the complaints made by the Plaintiffs to the Police either in
October 2011 or in November 2011 and it is for the first time that the said
document has surfaced in the suit. It was also the submission of the
Learned Counsel that the said document could not be said to be proved.
Though it is true that there is no mention of said document in the
complaints made by the Plaintiff to the Police. The efficacy of the said
document in so far as the case of the Plaintiff is concerned, cannot be
determined on the said basis. The said document records the financial
transaction which took place between the Plaintiff and the said Prakash in
the matter of the Plaintiff advancing an amount of Rs.3,75,000/ to the
said Prakash. It is not as if that the Plaintiff was put in possession pursuant
to the said document. The Plaintiff's case is that he was always in
possession, which possession was traceable to the arrangement between
the Plaintiff and the father of the said Prakash late Dharnidhar Chikhale.
The said document therefore is not the only piece of evidence on which
the Plaintiff's case that he was in possession of the suit premises depends
upon. In so far as the proof of the said document is concerned, the
Plaintiff is a signatory to the said document and is therefore an executant
of the said document. The said document was sought to be proved by
adducing evidence of the Notary, Mohd. Nazir Naqvi before whom the said
document was executed. The said Notary has identified that the said
document was executed before him, though he does not recognize the
persons who had come to execute the document. This was bound to be as
the Notary cannot be expected to recognize a stranger who had come to
execute a document before him almost five years prior to his evidence
being recorded. The Trial Court has therefore rightly concluded that the
said document stands proved and can be relied upon for a collateral
purpose for drawing a conclusion as regards the arrangement or
understanding arrived at between the parties. In so far as the said
document is concerned, it is also required to be noted that the case of the
Defendants was one of total denial. However, confronted with the fact of
the payment of Rs.2,00,000/ vide the six cheques mentioned in the said
document, the Defendant No.1 had to accept the fact that payment was in
fact received. However, the said payment was sought to be justified on the
ground that the said payment was made by the Plaintiff for return of the
loan which the Plaintiff had taken from the said Prakash. The Trial Court
in my view, has rightly concluded that the Defendants cannot approbate
and reprobate i.e. on the one hand deny the execution of the said
document and on the other hand accept the payment made under the said
document but deny the purpose for which the payment was made. The
aforesaid fact is therefore one more instance on the basis of which it can
be said that the said document stands proved.
19. The Trial Court has also rightly drawn an adverse inference
against the Defendants for not producing the diaries Exh.108/ 1 & 2 as
they are not free of doubt.
20. The Learned Counsel for the Applicants Mr. Jayesh Bhatt
sought to contend that the Plaintiff could not be put in exclusive
possession of the suit premises as the documents on which the Plaintiff
relies show that the said Prakash was in joint possession with the Plaintiff.
It was further the submission of the Learned Counsel that in the guise of
the decree passed in the instant suit, the Defendants cannot be ousted
from possessing their own premises. In so far as the said aspect is
concerned, as indicated above the Plaintiff in the plaint has traced the
history as to how he has come in possession of the suit premises and that
how he was put in exclusive possession of the suit premises after the
Samjhauta Patra was executed on 05.10.2005. The said case of the
Plaintiff has been denied by the Defendants. It is required to be noted that
the Defendants have merely denied that the Plaintiff was in exclusive
possession, it is not their case that the Defendants were in joint possession
on 16.11.2011 i.e. on the day when the Plaintiff was dispossessed. In fact,
as mentioned hereinabove, issue No.3 which was framed by the Trial
Court was deleted by the Trial Court by order dated 26.06.2014 which
order was not challenged by the Defendants by filing any proceeding and
therefore the Defendants accepted the position that such an issue as issue
No.3 originally framed was not required to be framed in the suit. If the
Defendants were claiming to be in joint possession, the same is not borne
out by their pleadings by way of averments made in the written statement
nor did the Defendants seek any amendment in the written statement nor
seek any alternate relief by filing any counterclaim. In the absence of any
pleadings and any issue framed in that behalf, it is not possible to accept
the claim of the Defendants that they were in joint possession on
16.11.2011 and therefore, even if the Plaintiff is to be put in possession it
can be only along with the Defendants. Now coming to the judgment of
the Learned Single Judge of the Jammu and Kashmir High Court in
Munshi's case (supra). In the said case, a suit was filed under Section 9 of
the Specific Relief Act 1877, which provision was pari materia to the
present Section 6. It was alleged by the Plaintiff who was a coowner in a
piece of land, that he was dispossessed from part of the land admeasuring
10 marlas out of the concerned Khasra. It was the case of the Plaintiff that
he was in exclusive possession of the whole of the land out of which he
was dispossessed from the part admeasuring 10 marlas. The Plaintiff and
the Defendant were brothers. The Defendant set up a defence that he was
in exclusive possession of the whole of the land admeasuring 1 kanal and
14 marlas. The Trial Court came to a conclusion that the parties were in
joint possession, however granted a decree of “Khas” possession (i.e.
exclusive possession) to the Plaintiff in respect of the said 10 marlas. The
decree of the Trial Court was found fault with by the Learned Single Judge
of the Jammu and Kashmir High Court who held that the Trial Court had
erred in decreeing the suit after coming to a conclusion that the parties
were in joint possession. The Learned Single Judge held that under
Section 9, no decree would be passed for a joint possession; having regard
to the object with which Section 9 has been enacted.
21. In my view, the judgment of the Learned Single Judge of the
Jammu and Kashmir High Court in Munshi's case (supra) does not further
the case of the Defendants as in the instant case the Plaintiff has claimed
to be in exclusive possession and the Trial Court has not recorded any
finding that the parties were in joint possession.
22. In so far as the contention urged on behalf of the Defendants
that the suit property is not properly described is concerned, it is required
to be noted that the Defendants have not raised any such plea in their
written statement. The Defendants have proceeded on the basis of the
description given in the plaint and participated in the proceedings. The
parties can therefore be said to be aware as to in respect of which
premises they were litigating. The Defendants therefore cannot be heard
to now contend that the description of the suit property was not proper.
Hence, the judgment of the Apex Court in Maria Fernandes's case has no
application.
23. Since the decree passed in a suit filed under Section 6 is based
on prior possession, it is always open for the party claiming title to file a
suit for possession based on title. If any such suit is filed, needless to state
that the same would have to be considered on its own merits and in
accordance with law, uninfluenced by the observations and finding
recorded in the instant suit.
24. For the reasons aforestated, the judgment and order passed by
the Trial Court cannot be said to suffer from any error of jurisdiction or
any other illegality or infirmity for this Court to exercise its Revisionary
Jurisdiction. The Civil Revision Application is accordingly dismissed. In
view thereof, the Civil Application does not survive and to accordingly
stand disposed of.
[R.M. SAVANT, J]
26.11.2015 (At the time of pronouncement of judgment)
1. The Receiver who was appointed by the order dated 28th
January 2014 and who is in possession of the premises in question to hand
over possession to the Respondent herein. The Respondent herein to pay
the Receiver's charges and expenses. On possession being handed over, the
Receiver to stand discharged without passing of accounts.
2. At this stage the Learned Counsel for the Applicants applies
for stay of the instant judgment. However, the interest of justice would be
served if the Receiver is directed not to hand over possession for a period
of six weeks, subject to the orders that would be passed by the Apex Court.
[R.M. SAVANT, J]
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