Amar Yadav v. Munna Yadav

including the plaintiff and Sattan Yadav united. It is the case of the plaintiff that Bhagar Yadav was involved in several criminal cases. In one of the case arising from Bairia P.S. Case No. 59 of 3 1984, several properties were attached including the suit property, under the impression that the property attached belonged to Bhagar Yadav. It is stated that the plaintiff along with Sattan Yadav filed a claim case in the Court of Chief Judicial Magistrate, West Champaran at Bettiah giving rise to Claim Case No.1 of 1992 against the attachment of the suit property and the same was allowed. The suit property was released by the Chief Judicial Magistrate, West Champaran at Bettiah. It is further the case of the plaintiff that the defendant Amar Yadav mischievously filed a partition suit bearing Partition Suit No.86 of 2007 in the Court of Subordinate Judge, West Champaran at Bettiah for partition of the properties mentioned therein and which also includes the suit property. The said case is yet pending for adjudication. The plaintiff contends that on 19.4.2008 the defendants by adopting illegal means have forcibly dispossessed the plaintiff and his family from the suit property giving rise to the suit in question. The defendant No.1 is the son of Bhagar Yadav, the defendant No.2 is the wife of defendant No.1, the defendant No.3 is the mother of the defendant No.1, the defendant No.4 is his father-in-law and the defendant No.5 is the brother-in-law of the defendant No.1. The defendant Nos.4 and 5 did not appear in the suit and which was contested only by defendant Nos.1, 2 and 3 of 4 which only defendant No.1 filed a written statement which was adopted by the defendant Nos.2 and 3. The claim of the plaintiff was contested by the defendant No.1 who submitted that he had got some land on lease from the Bettiah Raj. It is his case that on this land measuring 1 katha and 10 dhurs which includes 9 dhurs of Holding No.525, Plot No. 3100, he constructed a house in the year 1997 and has been residing therein along with his family. The case of the defendant No.1 is that he is Ex-Chairman of the Zila Parishad and that a telephone connection and electricity connection are in his name. It is the defendant’s case that he had been paying tax to the Zila Parishad and that Jamabandi is running in his name in the records maintained in the Circle office. It is the case of the defendant that the plaintiff had filed a case bearing Jamabandi Case No.45 of 2007-08 in the Court of D.C.L.R, West Champaran and which was dismissed on 24.6.2008 and appeal therefrom bearing RS-78 of 2008-09 is pending hearing before the Collector, West Champaran at Bettiah. It is the case of the defendants that the plaintiff and the defendants separated in the year 1997 but since there was a property dispute hence he had instituted Partition Suit No.86 of 2007 which also includes the disputed property. It is also the case of the defendant that the plaintiff never had possession over the 5 suit property nor is he entitled thereto. It is contended that there are tenants in the disputed property who are paying rent to the defendant. The defendant has admitted that the land over which the disputed property has been erected was purchased in the name of the plaintiff vide sale deed dated 23.8.1981 but all the properties was joint and at the time of separation in the year 1997, the suit property along with some other property was allotted to him. It is stated that in this manner the defendant constructed the disputed building over 1 katha and 10 dhurs which included the disputed land and the land allotted by the Bettiah Raj. It is contended that the story of dispossession is wholly incorrect and that the defendant along with his mother and wife and others has been residing in the house. It was next contended that up till the year 1997 the property was joint and although separation took place in the year 1997 but there is no partition by metes and bounds and a Partition Suit No.86 of 2007 has been filed by him which is yet pending adjudication. It is stated that as prior to the year 1997 the family was joint hence Sattan Yadav had made application for release of the property. It is the defendant’s contention that at no stage the plaintiff had possession over the suit property nor has he been dispossessed rather the suit has been filed for grabbing the suit property. 6 On the basis of the rival contentions the learned trial Court framed issues of which issue No.3 is the most relevant issue germane to the matter in contest and which is, “whether the petitioner is entitled to relief under Section 6 of the Act. By the judgment and decree under question the learned trial Court upon examination of oral and documentary evidence led by the contesting parties, was of the opinion that the plaintiff had been illegally dispossessed from the suit property and that he had been able to prove his claim by oral and documentary evidence and that the defendant by his evidence could not dispel the claim of dispossession made by the plaintiff. The suit has been decreed with a direction of restoration of possession of the plaintiff and hence this civil revision application. Mr. S.S. Dwivedi, learned senior counsel has appeared for the defendant No.1-petitioner and Mr. Binod Kumar Singh, learned counsel has appeared for the plaintiff-opposite parties. Mr. Binod Kumar Singh had raised an issue of maintainability of the present civil revision application in the backdrop of the statutory provision underlying Section 6(4) of the Act. It was contended by Mr. Singh that Section 6 of the Act provides a remedy to a person dispossessed from an immovable property without his consent and otherwise then in due course of 7 law. Mr. Dwivedi, learned senior counsel appearing for the defendant-petitioner, well aware of his limitations, has submitted that even though the prohibition as to the forum of appeal and review has been expressly barred under the provisions of Section 6(3) of the Act but the forum of revision has not been barred and is available to a person aggrieved by such judgment and decree and which forum is in addition to his remedy by way of an independent suit. Mr. Dwivedi in support of his submission has relied upon the following judgments:- (a) (1999)8 SCC 274 (Mahabir Prasad Jain Vs Ganga Singh) paragraphs 12 to 14. (b) AIR 1963 SC 698 (Hari Shankar and others v. Rao Girdhari Lal Chowdhury), paragraphs 7 & 8. (c) (2010)13 SCC 216, paragraph 28 (Municipal Committee, Hoshiarpur Vs Punjab State Electricity Board and Others). It is submitted that the learned Judge while passing the judgment and decree has ignored relevant materials and without even meeting the evidence led by the defendant, the judgment has been pronounced on mere acceptance of the claim of the plaintiff. 8 It was submitted that as the defendant-petitioner is questioning the judgment and decree on grounds of perversity and non-application of mind, hence this civil revision application is maintainable. Section 6 of the Specific Relief Act runs as follows:-

6. Suit by person dispossessed of immovable property.-(1) If any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through thereof, him may, by suit, recover possession notwithstanding any other title that may be set up in such suit. (2) No suit under this section shall be brought- (a) after the expiry of six months from the date of dispossession; or (b) against the Government. (3) No appeal shall lie from any order or decree passed in any suit instituted under this section, nor shall any review of any such order or decree be allowed. (4) Nothing in this section shall bar any person from suing to establish his title to such property and to recover possession thereof. It is manifest from the provisions of Section 6 of the Act that it is a remedy available to a person who has been dispossessed from an immovable property without following the due process of law provided he makes a complaint to this effect within 6 months of such dispossession, and whereupon he shall be entitled for restoration of possession even if the person so dispossessed does not claim title to the property in question. A suit instituted under Section 6 of the Act is not to be 9 tried like a regular suit rather it is a summary disposal of a claim of illegal dispossession, made by a plaintiff. The remedy of a suit under Section 6 of the Act is a statutory protection to a possession holder against the exercise of might by person claiming to be title holder, from being evicted by illegal means. The Court in such is only required to adjudicate upon the claim of dispossession. There is no occasion to hold a full fledged trial if the plaintiff is able to demonstrate that he was in possession of the suit property on the date of his dispossession and that the suit in question has been instituted by him within 6 months of the dispossession. Although no appeal or review lies against the judgment and decree passed in such suit and a remedy for the unsuccessful litigant lies by way of an independent suit but the revisional forum in appropriate cases, is not expressly barred provided the party questioning such judgment and decree is able to show that the suit itself was not maintainable or the judgment and decree has been passed de hors the evidence on record. Thus unless the judgment and decree can be questioned on the anvil of perversity, there is no scope for interfering with the judgment and decree passed in such suits, in revisional jurisdiction. I am thus in agreement with Mr. Dwivedi on his 10 submission that the forum of revision is not expressly barred and if the party aggrieved by a judgment and decree passed in a suit instituted under Section 6 of the Act, is able to demonstrate perversity and non-application of mind by the trial court concerned, such judgment and decree can stand scrutiny by the High Court in exercise of its revisional jurisdiction. Having cleared the deck on the issue of maintainability of the revision, the parties were asked to address the matter on the merits. The main thrust of the argument of Mr. Dwivedi, learned senior counsel appearing on behalf of the defendant-petitioner is that the judgment and decree under challenge is perverse as it has ignored relevant materials and has considered such material which are wholly irrelevant. He submits that the finding arrived at by the trial court is outrageous, ipse dixit and has been passed with complete non application of mind. It is submitted that while all along the case of the plaintiff is that he is the adopted son of Sattan Yadav, but at every place of the pleadings in the present case, he has referred himself as son of late Lakshan Yadav. Thus, his claim for adoption stands negated by his acceptance as reflected in the cause title of the plaint and his deposition made before the trial Court. It was further submitted 11 that although the plaintiff has charged the police of colluding with the defendant in the forceful ouster of the plaintiff from the suit premises by illegal means but he has not chosen to arraign them as defendant. It was submitted that the trial Court has failed to appreciate that a suit for partition was pending consideration in Partition Suit No.86 of 2007 and thus a co-sharer cannot be ejected from the premises. It was strenuously argued by Mr. Dwivedi that the trial court has failed to consider even a single evidence led by the defendant and thus the conclusion drawn does not reflect a correct position. It is further submitted that as the defendant has already filed a partition suit hence there is no other remedy available except by way of the present revision. It was further the contention of Mr. Dwivedi that as the property was joint hence there was no question of applicability of Section 6 of the Act and the suit itself was not maintainable. In continuation it was argued that though 11 witnesses each were examined by the plaintiff and the defendant and a number of documentary evidences were led by each of the parties but whereas while the trial court has referred to the evidence led by the plaintiffs, it has ignored the evidences led by the defendant. With reference to Exhibits A to N led by the defendant 12 for opposing the prayer made in the suit, it was submitted that the exhibits included electricity bill, the rent-receipts, and documents relating telephone connection which demonstrated possession of the defendant over the property. It was contended that whereas the evidence of Sattan Yadav in Claim Case No.1 of 1992 and the order passed in the case were never marked as exhibits, yet the trial court has relied upon the said documents. It was submitted that Exhibits-1 to 6 were never proved in accordance with the provisions of sections 65 to 68 of the Evidence Act and thus could not have been relied upon by the trial court. With reference to the judgment of the Supreme Court reported in 2013 (1) PLJR 48 (SC) more particularly to paragraphs 33 and 34 it was submitted that the duty and obligation of a court concerned to record reasons for its conclusion has been explained in the judgment. It was submitted that hallmark of exercise of judicial power is upon disclosure of the reasons for arriving at a conclusion and which is manifestly missing in the present case. It was submitted that whereas it is the case of the plaintiffs that the house in question is constructed over an area of 9 dhurs but the fact is that the construction is over an area of 1 katha and 10 dhurs which includes the 9 dhurs of land belonging to the plaintiffs and thus it was the bounden duty of the 13 trial court to have satisfied itself on this issue by appointment of an Advocate Commissioner. Learned counsel concluding his arguments submitted that even if the arguments of the defendant do not find favour, certainly the relief claimed by the plaintiffs has to be restricted to the structure standing over 9 dhurs of land and not beyond that. Mr. Binod Kumar Singh, learned counsel appearing for the plaintiffs has contested the arguments of Mr. Dwivedi to submit that the judgment and decree impugned is fully in accordance with law and based upon appreciation of the evidence led by the parties and thus requires no interference. It is submitted that the only relevant consideration in a suit filed under section 6 of the Act is whether or not the plaintiff is able to establish that he has been dispossessed illegally and within six months of the filing of the suit. He submits that as the plaintiff has been able to establish his claim with supportive evidences, this Court would not venture into the sufficiency of the evidence led by the parties and the defendant has his recourse to the remedy available under section 6(4) of the Act. It was submitted that the plaintiff and his family were illegally dispossessed from the suit premises on 19. 4. 2008 and immediately thereafter the suit was filed on 29.4.2008. It was submitted that the documentary evidences led by the plaintiff 14 consist of original rent-receipts led as Exhibit-1, the original Municipal receipts led as Exhibit-2 series, the original sale-deed dated 23.10.1981 led as Exhibit-3, the land possession certificate led as an Exhibit-4, the complaint made by the plaintiffs dated

16.2.2008 against the defendant of trying to forcibly dispossess them from the property which was led as Exhibit-5, the information given to the Superintendent of Police led as Exhibits- 6 and 7, the plaint of Partition Suit No.86 of 2007 led as Exhibit- 9, the written statement filed by Sattan Yadav in Partition Suit No.86 of 2007 led as Exhibit-9/A in which he has admitted to the attachment of the property in question in 1992 and its release on

18.5.1994, the written statement and affidavit of Bhagar Yadav alias Bhagwat Yadav filed in Partition Suit No.86 of 2007 admitting to the partition by metes and bounds amongst the three sons of late Durga Yadav and to the construction of the house by Sattan Yadav for Munna Yadav and about forcible dispossession of Munna Yadav by Amar Yadav which were led as Exhibits 9/C and 9/D. It was submitted that the newspaper reports were also led as Exhibit-14 series which contained the photographs of forcibly dispossession of the plaintiff and his family at the hands of the defendants. With reference to Exhibit-13 it was submitted that the mutation order passed in Mutation Case No.233 of 1990- 15 91 also proves the possession of the plaintiff. It was submitted that although the defendant had managed to get his name entered in Jamabandi No.593 under the order of the Circle Officer without holding any proceeding but the said order has been set aside by the Additional Collector by order dated 2.11.2012 during the pendency of the present application and which subsequent event also has relevance in the present case although a writ against the said order is pending before this Court in CWJC No.1956 of 2013. While admitting the contention of Mr. Dwivedi that the depositions of Sattan Yadav in Claim Case No. 1 of 1992 were never marked as exhibits and thus cannot be looked into, it was submitted that as the suit under the Specific Relief Act is in the nature of a summary proceedings, such documents of unimpeachable character cannot be brushed aside. Commenting upon the evidence led by the defendant in the trial court it was submitted that since the evidence both oral and documentary, led by the defendant were not of such character so as to demolish the claim set up by the plaintiff, hence the defendant cannot make any complaint in respect thereto. It was submitted that the trial court while referring to the evidence led by the defendant has clearly held that all the documents were either of the year 2002 or thereafter and thus it cannot be said that the evidence led by the 16 defendant was ignored. With reference to the judgment of the Supreme Court and of this Court reported in 2004(3) PLJR 267 (SC), 2004(4) PLJR 34, 2007(1) PLJR 456, 1999(1) PLJR 158,