NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELATE JURISDICTION
CIVIL APPEAL No. 6071 of 2012
( Arising out of SLP (Civil) 9042/2007)
I.T.C. LIMITED … Appellant(s)
Versus
ADARSH COOP. HOUSING SOC. LTD. … Respondents
J U D G M E N T
RANJAN GOGOI, J
Leave granted.
2. A simple issue with regard to possession of either of the parties to
this over two decade long litigation has come to the last court at
the instance of the defendant in a suit under Section 6 of the
Specific Relief Act, 1963. Notwithstanding the clear intent of the
legislature to provide a summary remedy to a person illegally
dispossessed of immovable property, the defendant has been
persistent in its challenge to the decree passed against it. The
learned trial court; thereafter the revisional court, i.e. court of
the learned District Judge and lastly the Allahabad High Court have
consistently held that possession of the disputed property on
relevant date was with the plaintiff from which he was unlawfully
dispossessed by the defendant, i.e. the petitioner herein. The
unwavering view of the courts at all the three tiers of our
hierarchical justice delivery system have not deterred the
defendant to challenge the same by means of the present approach.
3. The facts in brief, may now be noticed :
The respondent - plaintiff had filed suit No. 72 of 1989 in the
court of Civil Judge, Agra, under Section 6 of the Specific Relief
Act, 1963, (hereinafter referred to as ‘the Act’) praying for
delivery of possession of the suit property from which the
plaintiff claimed to have been illegally dispossessed by the
defendant (petitioner herein) in the night intervening 19th/20th of
November, 1988. According to the plaintiff, the land comprised in
Khasra No. 877, measuring 2 bighas 3 biswas located in Village
Basai Mustaqi Tajganj, Agra was jointly owned by Murari Lal on the
one hand and Jagdish Prasad, Ramesh Chand, Suresh Chand and Haresh
Chand (hereinafter referred to as ‘Jagdish & others.’) on the
other. According to the plaintiff, by mutual consent, Murari Lal
was in possession of his half share in northern part of the land
whereas the half share of Jagdish & others was in the southern
portion. The plaintiff has averred that it came into possession of
the southern portion of the plot (hereinafter referred to as the
Suit land) on 22.5.1985 and on 03.01.1986 Jagdish & others had sold
the same to the plaintiff. On the basis of the aforesaid sale made
by a registered deed, the revenue records were corrected and
necessary entries were made showing the name of the plaintiff
against the share of Jagdish & others. According to the plaintiff,
Jagdish & others had entered into an agreement of sale of the same
land with the defendant, though the land stood transferred in the
name of the plaintiff and the revenue records corrected
accordingly. In these circumstances, according to the plaintiff,
suit No. 238 of 1983 was filed by the defendant against Jagdish &
others for specific performance of the agreement to sell. Another
Suit i.e. Suit No. 765 of 1984 was also filed by the defendant
against Jagdish & others for an order of injunction restraining
Jagdish & others from raising any construction on the suit land and
from transferring/ alienating the same. According to the
plaintiff, as the property involved in both the suits had already
been transferred to the plaintiff, the plaintiff was impleaded as a
party in both the above suits. It was also averred by the
plaintiff that as injunction prayed for by the defendant, as the
plaintiff, in Suit No. 765 of 1984 was refused and the appeal
against such refusal was dismissed, in the intervening night of
19th/20th November, 1988, forcible possession of the suit land was
taken by the defendant which fact was brought to the notice of
concerned police station on 20.11.1988 itself. According to the
plaintiff, a proceeding under Section 145 C. P.C. was also
initiated at the instance of the plaintiff wherein an order of
attachment of the disputed land, i.e. the suit land, was passed on
29.11.1988. However, as the defendant continued to remain in
possession of the suit land despite the order of attachment, Suit
No.72/1989 was instituted by the plaintiff seeking the reliefs
already noticed.
4. The defendant contested the suit by contending that no partition,
formal or otherwise, of the land covered by Khasra No.877 had taken
place between Murari Lal and Jagdish & others. The defendant
specifically contended that Jagdish was not in possession of the
suit land. According to the defendant, in the absence of any
formal partition between the co-sharers, i.e. Murari Lal and
Jagdish & others, and also in the absence of any mutual agreement
between the parties with regard to possession of any specific share
of the land, no exclusive right in the suit land had vested in
Jagdish & others so as to confer legitimacy to the sale deed dated
03.01.1986 executed by Jagdish & others in favour of the plaintiff.
The defendant also contended that on the date of execution of the
aforesaid sale deed, there was a pre-existing agreement executed by
Jagdish & others to sell the same land to the defendant and in fact
a suit for specific performance of the said agreement (Suit No.
238/1983) was pending in the competent court. The defendant also
contended that pursuant to the aforesaid agreement between the
defendant and Jagdish & others, possession of the land was handed
over to the defendant way back in 1976. Consequently, the
possession sought for in Suit No. 238/84 filed by the defendant was
not physical but proprietary possession.
5. In the written statement filed, the defendant, had also claimed
that it was in possession of the entire of the land covered by
Khasra No. 877, i.e. both the northern and southern portions.
According to the defendant, by a lease deed dated 01.04.1976,
Jagdish & others had leased their half share of the land of Khasra
No. 877 in favour of an officer of the defendant-Company acting for
and on behalf of the said Company. The said deed was for an
initial period of six months which period was subject to further
extension(s). The defendant also claimed that on 19.09.1976, an
agreement to sell was entered into by and between the defendant-
Company and Jagdish & others for sale of the half portion of the
land and further that on 28.9.1978, an agreement was executed by
and between Jagdish & others and Murari Lal by which the
possession of the defendant on the entire suit land w.e.f.
01.04.1976 was admitted by both co-sharers.
Furthermore, according to the defendant, Murari Lal had entered
into a separate agreement dated 01.10.1976 for sale of his half
share to the defendant wherein, once again, he had admitted the
possession of the defendant over the entire land. Thereafter, on
21.08.1982, Murari Lal executed the sale deed conveying his half
share of the suit property in favour of the defendant. According
to the defendant, by the said sale deed dated 21.08.1982, the share
of Murari Lal that was transferred to the defendant was the
southern portion i.e. the suit land. In the written statement
filed, it was also averred that before execution of the sale deed
dated 21.08.1982, Murari Lal had executed two other documents both
dated 03.03.1982 admitting the execution of the unregistered
agreement dated 01.10.1976 in favour of the defendant and also
admitting the delivery of possession of the half share belonging to
him to the defendant in furtherance of the aforesaid unregistered
agreement dated 01.10.1976. The defendant contended that the sale
dated 03.01.1986 purported to be executed by Jagdish & others in
favour of the plaintiff was a void document and also hit by the
principle of lis pendens.
6. Section 6 of the Specific Relief Act 1963 under which provision of
law the suit in question was filed by the plaintiff-respondent is
pari-materia with Section 9 of the Act of 1877. A bare reading of
the provisions contained in Section 6 of the Act of 1963 would go
to show that a person who has been illegally dispossessed of his
immovable property may himself or through any person claiming
through him recover such possession by filing a suit. In such a
suit, the entitlement of the plaintiff to recover possession of
property from which he claims to have been illegally dispossessed
has to be adjudicated independently of the question of title that
may be set up by the defendant in such a suit. In fact, in a suit
under Section 6, the only question that has to be determined by the
Court is whether the plaintiff was in possession of the disputed
property and he had been illegally dispossessed therefrom on any
date within six months prior to the filing of the suit. This is
because Section 6 (2) prescribes a period of six months from the
date of dispossession as the outer limit for filing of a suit. As
the question of possession and illegal dispossession therefrom is
the only issue germane to a suit under Section 6, a proceeding
thereunder, naturally, would partake the character of a summary
proceeding against which the remedy by way of appeal or review has
been specifically excluded by sub-Section 3 of Section 6. Sub-
Section 4 also makes it clear that an unsuccessful litigant in a
suit under Section 6 would have the option of filing a fresh suit
for recovery of possession on the basis of title, if any. In fact,
the above view has found expression in several pronouncements of
this Court of which reference may be made to the decisions in Lallu
Yashwant Singh (dead) by his LRs. Vs. Rao Jagdish Singh & Ors.[1],
Krishna Ram Mahale (D) by LRs Vs. Mrs.Shobha Venkat Rao[2] and
Sanjay Kumar Pandey & Ors. V. Gulabahar Sheikh & Ors.[3] . In
fact, para 4 of this Court’s judgment passed in Sanjay Kumar Pandey
(supra) may be a useful reiteration of the law in this regard. The
same is, therefore, extracted hereinbelow:-
“4. “A suit under Section 6 of the Act is often called a
summary suit inasmuch as the enquiry in the suit under Section 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 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 under Section 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 under Section 6 of
the Act. Thus, as against a decision under Section 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 under Section 6 of the Act except on a case for
interference being made out within the well-settled parameters of
the exercise of revisional jurisdiction under Section 115 of the
Code.”
7. It is indeed sad, if not unfortunate, that what was intended by the
legislature to be a summary proceeding to enable a person illegally
dispossessed to effect quick recovery of possession of the
immovable property has, in the present case, erupted into an over
two decades old litigation. The sheer number of pending lis
permitted the learned Trial Court to return its findings, after
almost a decade, that it is, indeed, the plaintiff who was in
possession of the disputed property on the relevant date and was
dispossessed therefrom in an illegal manner by the defendant.
Though Section 6 (3) of the Act of 1963 bars the remedy of appeal
and review, a small window, by way of a revision, was kept open by
the legislature possibly to enable the High Court to have a second
look in the matter in an exceptional situation. However, section
115 of the CPC was amended in its application to the State of Uttar
Pradesh and the forum for exercise of the revisional jurisdiction
came to be recognized as the next Superior Court and not
necessarily by the High Court. That is how the unsuccessful
defendant moved the learned District Judge. Though the Revisional
Court reiterated the findings of the learned Trial Court, another
half a decade rolled by. Next in the hierarchical system of courts,
i.e. the High Court was thereafter approached by way of a Civil
Miscellaneous Writ Petition filed under Article 277 of the
Constitution. The High Court answered the question, again, against
the defendant. The manner and content of the same has been
challenged before this Court in the present Appeal, primarily, on
the ground that when formal partition of the land had not taken
place the issue of possession of specific shares by the co-sharers
could not have been determined so as to vest jurisdiction in the
trial Court to pass a decree under Section 6 of the Act of 1963.
8. A reading of the judgment of the learned Trial Court indicates that
in coming to the findings recorded, the learned Trial Court took
into account the pleaded case of the defendant that it was in
possession of the entire land comprised in Khasra No. 877 and not
only the southern portion in respect of which recovery of
possession was prayed for by the plaintiff. The learned Court, at
the outset, noticed that the relevant revenue records on the
crucial date, i.e. date of filing of the Suit, showed the
possession of both parties to the Suit over the land comprising
Khasra No. 877. According to the plaintiff, the southern portion
which is the suit property was sold to it by Jagdish & others
whereas according to the defendant, the said suit property, i.e.
southern portion was sold to it by Murari Lal. The difference in
the identity of the property, as claimed, would hardly make a
difference to the core issue in the case inasmuch as according to
the defendant it was in possession of the entire property, the
northern portion by way of a lease deed executed by Jagdish &
others and the southern portion by way of a sale deed executed by
Murari Lal. The police report dated 21.11.1988 submitted in
connection with the proceeding under Section 145 CPC recorded that
in the northern portion of the land comprising Khasra No. 877,
possession of the defendant was established and the dispute was
with regard to the southern portion of the land. From the above
report, the conclusion recorded by the learned Trial Court that the
plaintiff was in possession of the southern portion is a possible
conclusion that could be reasonably reached in view of what was
disclosed by the police report dated 21.11.1988 read with the
relevant revenue records. The reluctance of the first revisional
court as well as the High Court to interfere with the said
conclusion is but natural and the same cannot be understood to be
unreasonable so as to warrant interference by us in the present
appeal.
9. That apart, the learned Trial Court also took note of the fact that
lease deed dated 01.04.1976 purported to be executed by Jagdish &
others, on the basis of which the defendant claimed to have entered
possession of the share of the land belonging to Jagdish & others
have not been proved by the defendant. Similarly, the agreement
dated 28.9.1978, executed by Jagdish & others and Murari Lal on the
basis of which the defendant claimed possession of the entire land
had also not been proved. The reason for which the learned Trial
Court came to the aforesaid conclusion, i.e., that the lease deed
dated 01.04.1976 and the agreement dated 28.9.1978 have not been
proved is that the signatures of the executors and the witnesses
thereon have not been proved as required by law. Such a conclusion
cannot be faulted. In fact, a further conclusion which has the
effect of casting a serious doubt with regard to the claims of the
defendant reasonably follows from the above. The fact that the
defendant had instituted Suit No. 238 of 1983 and Suit No. 765 of
1984 claiming possession and injunction in respect of the suit
property was rightly understood by the learned Trial Court to be a
reasonable indication of the fact that the defendant, on the dates
of filing of the said suits, was not in possession of the suit
property. In such a situation, the dispossession which the
plaintiff claimed to have taken place in the intervening night of
19th/20th of November, 1988, has to be understood to have been
proved and established. The issues raised by the defendant with
regard to the validity of the Sale deed dated 03.01.1986 executed
by Jagdish & others in favour of the plaintiff on account of the
pendency of Suit No. 238 of 1983 and the validity of the entries in
the revenue records are questions surrounding title and are not
strictly relevant for deciding the issue that was required to be
decided in the suit in question namely, who was in possession of
the suit property on the relevant date.
10. The argument raised on behalf of the petitioner (defendant) that
highly contentious issue having arisen in the present proceeding,
the same ought not to have been adjudicated in a suit under Section
6 would hardly merit acceptance, inasmuch, the foregoing discussion
would enable us to come to the conclusion that the issue with
regard to possession was capable of being decided on the materials
on record and was, accordingly, so decided. A mutual
understanding amongst the original co-sharers with regard to
possession of specific areas of the entire land is fairly well
established.
11. Another argument has been raised on behalf of the petitioner that
in the present case the courts below have decided the issue of
possession by holding the defendant not to be in possession of the
suit land instead of recording a finding that it was the plaintiff
who was in possession. The said argument, again, would not merit
acceptance by us. In a civil proceeding, the issues that may arise
are required to be decided by balancing the claims and counter-
claims of the parties before the Court and on the basis of a
preponderance of probabilities. The conclusion that the defendant
could not have been in possession, as claimed, was necessary to be
reached in order to answer the question that was before the Court
in the present case.
12. The discussion that have preceded leads us to conclude that the
findings recorded by the learned Trial Court and affirmed by the
revisional Court as well as by the High Court are essentially
findings on question of fact which have been arrived at on the
basis of the evidence and materials adduced by the parties. We,
therefore, find no reason whatsoever, to disturb the said findings
and the same are hereby affirmed. Consequently, we dismiss the
appeal and affirm the decree passed by the learned Courts below.
...……………………J.
[P SATHASIVAM]
………………………J.
[RANJAN GOGOI]
New Delhi,
27th August, 2012.
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[1] AIR 1968 SC 620
[2] AIR 1989 SC 2097
[3] SCC 2004 (4) 664
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