Thursday, 27 December 2018

When a person is not entitled to recover possession of property as per S 6 of specific relief Act?

 Section 6 of the Specific Relief Act, 1963 provides a special and speedy remedy for particular kind of grievance to replace in possession a person who had been evicted, from the immovable property of which he had been in possession otherwise than by process of law. Therefore, possession of the plaintiff over the immovable property on the date of dispossession is the condition precedent to invoke the jurisdiction of Section 6 of the aforesaid Act. Investigation into the title favouring such possession is irrelevant in the proceeding of such nature.

11. The plaintiff in the present suit has filed some documents to prove his tenancy over the suit property the said documents do not establish the possession of the plaintiff over the suit property. The said documents are the attested photo copy of the tenancy agreement dated January 25, 2006 being Exhibit 4 which does not speak that pursuant to the said agreement the plaintiff was put into possession of the suit property and the rent receipts also does not establish the possession of the plaintiff over the suit property, particularly when the landlord himself being the DW. 2 disputes the veracity of the said documents. The police complaints are self-serving documents in the absence of any other evidence aiding such document, only on the basis of the said complaints with the police the possession of the plaintiff over the suit property cannot be inferred. The plaintiff at best can rely upon the said documents in a suit or proceeding to establish his right of tenancy over the suit property. The present suit being under Section 6 of the Specific Relief Act, 1963 investigation into such question is totally unnecessary and irrelevant.

12. It appears from the cross-examination of the plaintiff dated December 2, 2014 that he admits that earlier Raghunath Kori was the tenant in the suit property. He also admits that he knew Raghunath Kori and his wife Durga Devi Kori and Raghunath Kori is dead. He further stated that he has no blood relation with Raghunath Kori. He also stated that there is eviction suit filed against Raghunath Kori by the landlord. He in his said cross-examination admits that Raghunath Kori has two sons. Therefore, it is an admitted position that the tenant of the suit property was said Raghunath Kori and on his death the said tenancy devolved upon the heirs of the said tenant and the landlords have filed eviction suit against the said tenant.

13. The cross-examination of the plaintiff clearly demonstrates that that the possession of the suit property could not be with the plaintiff as on the alleged date of his dispossession from there. The plaintiff when has failed to prove his possession over the suit property is not entitled to recover such possession by taking recourse to the provisions of Section 6 of the Specific Relief Act, 1963. 

IN THE HIGH COURT OF CALCUTTA

C.O. No. 3302 of 2017

Decided On: 19.09.2018

Ramesh Chnd Koiri  Vs.  Chandan Koiri and Ors.

Hon'ble Judges/Coram:
Biswajit Basu, J.

Citation: AIR 2018 Cal 314


1. The plaintiff in a suit under Section 6 of the Specific Relief Act, 1963 is the petitioner of the present revisional application under Article 227 of the Constitution of India.

2. The petitioner in the suit alleged that he is the tenant in respect of the suit property at a rent of Rs. 300/- payable according to english calendar month under Md. Israil, Makhtarul Islam and predecessor in interest of the opposite party Nos. 6(a) to 6(f) M.L. Jalil (Since deceased) by virtue of an agreement dated January 25, 2006. The said land lords have been arrayed as defendants in the suit.

3. The petitioner in the suit alleged that he was dispossessed from the suit property without his consent and without due process of law on September 26, 2018 by the defendant Nos. 1, 2 and 3. The petitioner immediately thereafter complaining his such dispossession from the suit property lodged written complaint with the police authorities.

4. The opposite party Nos. 1, 2 and 3 being the principal defendants contested the suit by filing written statement. The said defendants in their written statement strongly denied the allegation of the plaintiff that on September 26, 2008 they forcefully dispossessed the plaintiff from the suit property. The said defendants in their written statement categorically denied that the plaintiff is a tenant in respect of the suit property and was in possession of the same as a tenant. The plaintiff in the said written statement further contended, inter alia, that one Raghunath Kori was the original tenant of the suit property under the defendants-landlords. On the death of said Raghunath Kori the said tenancy was devolved upon his widow Durga Devi. The defendants Nos. 1, 2 and 3 being the relatives of the said Raghunath Kori and Gouri Devi have been possessing the suit property.

5. The plaintiff and the defendant No. 1 adduced evidence in the suit as P.W.1 and D.W.1 respectively. Md. Israil the defendant No. 4 adduced evidence in the suit as DW. 2.

6. The following seven issues were framed in the suit:-

1) Is the suit maintainable in its present form and prayer?

2) Is there any cause of action to file the suit?

3) Is the suit barred by under Section 34 of the Specific Relief Act?

4) Whether the plaintiff was a tenant in the suit property?

5) Whether the plaintiff was illegally evicted?

6) Whether the plaintiff is entitled to any relief?

7) To what other relief, or reliefs are claimed by the plaintiff?

7. The learned Trial Judge by the judgment and order under challenge dismissed the suit holding, inter alia, that Section 6 of the Specific Relief Act, 1963 speaks of recovery of possession not on the ground of title but on the basis of prior possession. The plaintiff in this suit is simply required to prove that he was in possession of the suit property, wherefrom he was ousted without due process of law. In this suit the plaintiff deposed as solitary witness. In support of his claim of prior possession, he produced some rent bills which are disputed by the defendant landlord Md. Israil as DW. 2. The plaintiff has failed to prove anything support of his possession over the suit property.

8. Mr. Ganguly learned advocate appearing on behalf of the petitioner vehemently submits that the learned Trial Judge has acted with material irregularity and erred in dismissing the suit without taking into consideration the documents i.e. rent bills, written complaints with the police and attested copy of the tenancy agreement filed by the plaintiffs and proved in the suit being Exhibit Nos. 1, 2, 3 and 4 respectively. He places reliance on the case of Lallu Yeshwant Singh vs. Rao Jagdish Singh and others reported in MANU/SC/0425/1967 : AIR 1968 Supreme Court 620 to contend that landlord has no right to reenter he must approach the Court for dispossession of tenant and forcibly taking possession is illegal. Mr. Ganguly learned advocate also places reliance on the case of Nair Service society Ltd. Vs. K.C. Alexander and others reported in MANU/SC/0144/1968 : AIR 1968 SUPREME COURT 1165 to get support of his said submission.

9. Mr. Swarup Banarjee learned advocate appearing on behalf of the opposite party Nos. 1, 2 and 3 submits that the claim of the plaintiff over the suit property is totally false. The plaintiff has failed to produce the alleged original tenancy agreement instead produced a photo copy of the same. The said alleged tenancy agreement although has been marked as Exhibit No. 4 in the suit but the requirement of Section 65 of the Evidence Act, 1872 since has not been complied with there is no evidentiary value of the said document. He further contends that the admitted tenant of the suit property was Raghunath Kori and on his death the said tenancy devolved upon his legal heirs and representatives and his clients being the cousin and other relations of the said Raghunath Kori has been possessing the suit property. The plaintiff was never a tenant and/or possessor of the suit property. The learned Trial Judge, therefore, according to him has rightly dismissed the suit by the order impugned which does not call for any interference.

Heard the learned advocates of the parties perused the materials on record.

10. Section 6 of the Specific Relief Act, 1963 provides a special and speedy remedy for particular kind of grievance to replace in possession a person who had been evicted, from the immovable property of which he had been in possession otherwise than by process of law. Therefore, possession of the plaintiff over the immovable property on the date of dispossession is the condition precedent to invoke the jurisdiction of Section 6 of the aforesaid Act. Investigation into the title favouring such possession is irrelevant in the proceeding of such nature.

11. The plaintiff in the present suit has filed some documents to prove his tenancy over the suit property the said documents do not establish the possession of the plaintiff over the suit property. The said documents are the attested photo copy of the tenancy agreement dated January 25, 2006 being Exhibit 4 which does not speak that pursuant to the said agreement the plaintiff was put into possession of the suit property and the rent receipts also does not establish the possession of the plaintiff over the suit property, particularly when the landlord himself being the DW. 2 disputes the veracity of the said documents. The police complaints are self-serving documents in the absence of any other evidence aiding such document, only on the basis of the said complaints with the police the possession of the plaintiff over the suit property cannot be inferred. The plaintiff at best can rely upon the said documents in a suit or proceeding to establish his right of tenancy over the suit property. The present suit being under Section 6 of the Specific Relief Act, 1963 investigation into such question is totally unnecessary and irrelevant.

12. It appears from the cross-examination of the plaintiff dated December 2, 2014 that he admits that earlier Raghunath Kori was the tenant in the suit property. He also admits that he knew Raghunath Kori and his wife Durga Devi Kori and Raghunath Kori is dead. He further stated that he has no blood relation with Raghunath Kori. He also stated that there is eviction suit filed against Raghunath Kori by the landlord. He in his said cross-examination admits that Raghunath Kori has two sons. Therefore, it is an admitted position that the tenant of the suit property was said Raghunath Kori and on his death the said tenancy devolved upon the heirs of the said tenant and the landlords have filed eviction suit against the said tenant.

13. The cross-examination of the plaintiff clearly demonstrates that that the possession of the suit property could not be with the plaintiff as on the alleged date of his dispossession from there. The plaintiff when has failed to prove his possession over the suit property is not entitled to recover such possession by taking recourse to the provisions of Section 6 of the Specific Relief Act, 1963. There is no dispute with regard to the proposition of law laid down in the decision of the Hon'ble Apex Court reported in AIR 1968 (SC) 620 (Supra) relied on by Mr. Ganguly that forceable possession of the land is illegal. But in the present case the plaintiff has failed to prove his prior possession, therefore, the said decision has no manner of application in the present case. The other decision of the Hon'ble Apex Court reported in MANU/SC/0144/1968 : AIR 1968 SUPREME COURT 1165 (Supra) relied on by Mr. Ganguly is also not relevant to the facts and circumstance in the present case in as much as the said decision of the Hon'ble Apex Court was on the question of the adverse possession.

14. In view of the discussion made above the judgment and order dated July 19, 2017 passed by the learned Civil Judge (Junior Division), 1st Court Sealdah, in Title Suit No. 23 of 2009 do not call for any interference and the same is hereby affirmed.

CO No. 3302 of 2017 is dismissed. No order as to costs.

Urgent certified copy of this order, if applied for, be supplied to the parties upon compliance with all requisite formalities.

The lower Court records be sent down to the Court below immediately.


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