1 - Noor Mohammad Khan S/o Pyar Mohammad, Aged About 42 Years R/o Tikarkala v. 1 - Mohammad Mukhtar S/o Shoukat Ali, Aged About 45 Years R/o Tikarkala, Tehsil
Case Details
1 2025:CGHC:13275 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CR No. 117 of 2024 1 - Noor Mohammad Khan S/o Pyar Mohammad, Aged About 42 Years R/o Tikarkala, Tehsil - Pendraroad, Distt. Bilaspur (Now Gaurela Pendra Marwahi), Chhattisgarh ... Applicant s) versus 1 - Mohammad Mukhtar S/o Shoukat Ali, Aged About 45 Years R/o Tikarkala, Tehsil - Pendraroad, Distt. Bilaspur (Now Gaurela Pendra Marwahi), Chhattisgarh ... Respondent(s) For Applicant
Legal Reasoning
: Mr. Sanjay Patel, Advocate For Respondent : Mr. Hemant Gupta, Advocate SB.: Hon'ble Mr. Justice Deepak Kumar Tiwari
Decision
Order On Board 20/03/2025 1. This Civil Revision has been preferred against the judgment and SHYNA AJAY Digitally signed by SHYNA AJAY Date: 2025.03.22 11:38:01 +0530 decree dated 27.7.2023 passed by the Civil Judge Class-I, Pendra Road (CG) in Civil Suit No.18-A/2017, whereby, the suit filed by the 2 Applicant/Plaintiff under Section 6 of the Specific Relief Act, 1963 (in short (“the Act, 1963”) was dismissed. 2. Necessary facts of the case are that the applicant/plaintiff filed a Civil Suit on 11.5.2017 making averment inter alia that the plaintiff’s father had constructed a house in 1986. At the right side of the plaintiff’s house, there is an open land either bearing Khasra No.749/13 or Khasra No. 773/1p (the plaintiff is not sure about the correct Khasra Number), admeasuring 14 x 55 ft. The said land was being used by the plaintiff after purchase of the said house for drying the wet clothes and for Nistar (draining), water pipelines have also been laid underground the said land. The backdoor of the said house has its face towards the said plot/land. The subject land was also being used as a passage. It has been averred that on 20.4.2017, the defendant/respondent starting cutting the bushes/plants over the said land and on being asked, he stated that his house is adjoining to the said plot and due to fear of snakes and scorpion, he is cleaning the area. Thereafter, on 23.4.2017, the defendant started digging the subject plot for construction, on which, the plaintiff made the complaints before various authorities i.e. SDO (R) vide Ex.P/12, CMO (Municipality) vide Ex.P/13 and Tehsildar vide Ex.-P/14 and on 28.4.2017, he also made a complaint before the Police Station, Gorella. Hence, the subject suit was filed for restoration of possession. 3. The defendant in his written statement denied the averments made in the plaint and stated that he is the owner of the suit property. He has constructed the house on his own land and had not disturbed any easementary right of the plaintiff by such construction. On the basis of the pleadings of the parties, the trial Court framed as many as four 3 issues. The Plaintiff examined himself as PW-1 and his friend Mohd. Idrish Ansari as PW-2 and further exhibited 15 documents vide Ex.P/1 to Ex.P/15. The defendant did not examine any oral or documentary evidence. 4. After evaluating the evidence available on record, the trial Court reached to the conclusion that the plaintiff has failed to proved his case. Thereafter, the applicant/plaintiff preferred an appeal and the same was dismissed on the ground that no appeal would lie against a judgment passed under Section 6 of the Act, 1963. Hence, this Revision has been preferred. 5. Learned counsel for the applicant would submit that the trial Court has committed material illegality as the scope of Section 6 of the Act, 1963 is very limited and the title is irrelevant in the said suit. He submits that the sole point of determination, particularly under Section 6 of the Act, 1963, is whether the plaintiff was in possession of the disputed property within six months prior to the institution of the suit and in the present case, the plaintiff has successfully proved the said fact. However, the trial Court has dismissed the suit. In support of his submission, learned counsel for the applicant would place reliance on the matter of Sanjay Kumar Pandey and others Vs. Gulbahar Sheikh and others, reported in (2004) 4 SCC 664, and others and refer to para 4 thereof, which reads thus : 4. A suit under u/s 6 of the Act is often called a summary suit inasmuch as the enquiry in the suit u/s 6 is confined to finding out the possession and dispossession within a period of six months from the date of the institution of the suit ignoring the question of title. Sub-Section (3) of Section 6 provides that 4 no appeal shall lie from any order or decree passed in any suit instituted under this Section. No review of any such order or decree is permitted. The remedy of a person unsuccessful in a suit u/s 6 of the Act is to file a regular suit establishing his title to the suit property and in the event of his succeeding he will be entitled to recover possession of the property notwithstanding the adverse decision u/s 6 of the Act. Thus, as against a decision u/s 6 of the Act, the remedy of unsuccessful party is to file a suit based on title. The remedy of filing a revision is available but that is only by way of an exception; for the High Court would not interfere with a decree or order u/s 6 of the Act except on a case for interference being made out within the well settled parameters of the exercise of revisional jurisdiction u/s 115 of the Code. Lastly, learned counsel for the applicant prays to allow the Revision. 6. Per contra, learned counsel for the respondent would support the impugned judgment passed by the trial Court. He submits that Section 6 of the Act, 1963 would only apply when there is an established possession. He submits that the plaintiff has only pleaded certain easementary rights, which have also not been perfected, and furthermore, no suit has been filed for easementary rights. In the plaint averments, it is revealed that when the plot was an open land, the plaintiff himself created certain nuisances thereon, which would not amount to juridical possession or settled possession of the plaintiff. He would further submit that no witness of the locality has been examined by the plaintiff and only Mohd. Idris Ansari (PW-2), who is the friend of the plaintiff, was examined. Furthermore, the said person does not reside in the locality of the disputed property but resides one km away from the disputed plot. He would further submit that the Special Relief 5 Act is based on principles of justice, equity, and good conscience and the plaintiff himself has not come with clean hands. He has neither proved the sanctioned building map nor the documents of the authorities of the Municipalities, whereby, a permission has been granted to lay the underground pipeline to connect the same with the land of others. In support of his submission, learned counsel for the respondent would place reliance on the matter of Manisha Mahendra Gala and others Vs. Shalini Bhagwan Avatramani and others, reported in (2024) 6 SCC 130 . He submits that the easementary right by necessity could be acquired only in accordance with Section 13 of of the Easements Act, 1882, which provides that such easementary right would arise if it is necessary for enjoying the dominant heritage. Lastly, learned counsel for the respondent submits that no case is made out in favour of the plaintiff and the suit has been rightly dismissed by the trial Court. 7. Heard learned counsel for the parties and also perused the record with utmost circumspection. 8. On perusal of the photographs-Ex-P/9, which have been produced during trial by the plaintiff himself, it is explicit that the subject land/plot is an open land situated between the two houses i.e. one of the plaintiff and the other of the defendant. The plaintiff himself is not aware about the Khasra Number of the aforesaid plot. However, as per the averments in the plaint, the plaintiff is enjoying certain easementary rights by using the place for drying wet clothes and water pipelines have also been laid underground the subject plot. One backdoor of the house of the plaintiff also opens towards the subject plot and further, the place is also used as a passage. The suit was not 6 filed claiming any easementary right but has been filed under Section 6 of the Act, 1963. Such nature of temporary use does not create any peaceful settled possession of the property. The aim of Section 6 the Act, 1963 is to protect possession by ensuring that no person can be dispossessed of immovable property without their consent and outside the due process of law. 9. Admittedly, with regard to such nature of suit, the title is irrelevant. The object of the said Section is to refrain the people from taking law into their own hands, however good the title may be, and also to prevent the people from being ousted from possession except by the due process of law. It is well established that a person who had juridical possession of immovable property and is dispossessed without his consent, can sue under this Section. 10. In view of the above, this Court is of the view that the plaintiff has failed to establish the necessary elements to claim a right under Section 6 of the Act, 1963. 11. For the foregoing, this Court does not find any infirmity or illegality in the impugned judgment warranting interference of this Court by invoking its revisional jurisdiction. 12. According, the Revision fails and is hereby dismissed upholding the impugned judgment passed by the concerned trial Court. Sd/- (Deepak Kumar Tiwari) Judge Shyna