R-44
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: 29.11.2010
Judgment Delivered on: 02.12.2010
+ RSA No.72/1991
SHRI MADAN LAL (through LRs.) & ORS. ...........Appellants
Through: Mr.O.P.Aggarwal, Advocate.
Versus
SHRI RAM PRATAP (through LRs.) & ORS. ..........Respondents
Through: Mr.Rajiv Kr.Ghawana, Advocate.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
1. Whether the Reporters of local papers may be allowed to
see the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest?
Yes
INDERMEET KAUR, J.
1. The present suit has the impugned judgment and decree
dated 19.09.1991 which had endorsed the finding of the trial judge
who vide judgment and decree dated 01.02.1986 had dismissed the
suit of the plaintiff.
2. Briefly stated the matrix of the case is as follows:-
i. Plaintiffs, Suraj Prasad and Madan Lal, had filed a suit
for possession of shop no. 1467, Fountain, Chandni Chowk,
Delhi. It had been alleged that the plaintiffs i.e. Suraj
Parsad – Madan Lal are tenants under Madan Lal since 1943
at a monthly rent of Rs.57.50/- which had been increased to
Rs.80/-. Rent note dated 11.07.1945 had been executed in
the favour of the landlord.
ii. Plaintiffs and defendant no.1 are real brothers.
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Defendant nos. 2 to 4 are the sons of defendant no.1.iii. Plaintiff no.2 was carrying on business of `paan‟,
`cigarette‟ etc. in Shop No.1469/1, Fountain, Chandni
Chowk, Delhi. There was no electricity in that shop. Plaintiff
was utilizing electricity from the adjoining shop. He got his
electricity connection 10 to 12 years ago.
iv. In 1952, plaintiffs allowed their brother Chhagan Lal
(now decreased) to carry on the plaintiffs business in the said
shop which he continued till the time of his death. After his
death, plaintiffs continued their business through their sons
till 1965.
v. Defendant no.1 was well acquainted with accounts; he
used to visit the disputed shop to write the accounts.
vi. In 1966, plaintiffs employed defendant no.3 to carry on
his business at Rs.3/- per day which arrangement continued
till January, 1967. Thereafter, defendant no.3
misappropriated the money of the plaintiffs. Plaintiffs came
to know about this and rebuked defendant no.3 who was
dismissed from their service on or about 1967. As a revenge
on 17.03.1967, defendants broke open the locks of the shops
of the plaintiffs and illegally took possession of the said shop
including the goods therein.
vii. Criminal complaint was lodged and proceedings under
Section 145 of the Code of Criminal Procedure were initiated.
viii. Present suit was thereafter filed.
ix. Defendants contested the suit; they denied that the
possession of the suit property had been taken by them
forcibly. They claimed title in their own right.
RSA No.72/1991 Page 2 of 10
x. Trial judge framed 8 issues. Issue no.2 was the crucialissue. It inter alia reads as follows:-
“Whether the plaintiff is a tenant in the suit premises or
whether the plaintiff is only a tenant as benamidar? OPD”xi. While disposing of this issue, trial court dealt with the 13
witnesses examined on behalf of the plaintiff, of whom PW4,
Sh.Dinesh Dayal, PW-6 Jaidev Gupta, PW-7 Ram Kishan
and PW-10 Madan Lal were the relevant witnesses. PW-7
had proved Ex.P21, the rent receipt issued by the landlord,
Sh.Madan Lal, in the name of Sh. Suraj Prasad. The landlord
had been examined as PW-10. He had proved the other rent
receipts as Ex.P28 to P37; these were issued in the name of
the firm „Suraj Prasad Madan Lal‟.
xii. Trial court on the basis of the oral and documentary
evidence held that the tenancy was created in the name of
the plaintiffs and defendant no.1 had only acted as a
mediator. All issues were decided in favour of the plaintiff
except issue no.4 i.e. the issue of limitation on the basis of
which the suit of the plaintiff had been dismissed. Trial
Judge while deciding Issue no.4 held that the plaintiff, as per
his own averment, had been dispossessed from the suit
premises on 17.03.1967; suit was filed on 12.06.1968 i.e.
after the expiry of more than one year; dispossession was on
17.03.1967 i.e. 15 months before the date of the filing of the
suit; suit was held to be barred by time. Provisions of Section
6 of the Specific Relief Act had been relied upon to non-suit
the plaintiffs. It was accordingly dismissed.
xiii. In first appeal, the first appellate court vide the
RSA No.72/1991 Page 3 of 10
impugned judgment and decree dated 19.9.1991 dismissedthe appeal.
Issue no.5 i.e.
“whether the defendant took the possession illegally on
17.05.1967?”was modified.
It was held that the plaintiffs were in possession but
not in exclusive possession. On Issue no.4 i.e. on the point of
limitation, the finding of the trial Judge had been endorsed.
Suit was held to be barred by limitation. The contention of
the appellant that the provisions of Articles 64-65 of the
Indian Limitation Act would be applicable had been repelled.
xiv. The finding of the first appellate court, in this context,
inter alia reads as follows:
“In the present case, the plaintiffs have not filed the
suit on the basis of title. It was on the basis of possession.
That possession was disrupted by defendants as alleged in
the plaint on 17.03.1967 and Section 6 of the Specific
Relief Act was the right Section to apply and ld. Sub Judge
rightly did so. Section 5 of the Specific Relief Act uses the
words “entitled to possession”. That means that the
plaintiff has a legal right to title to possession on the basis
of ownership. In order to succeed the plaintiff has to show
that he is a person entitled to get possession. The title in
the present suit obviously must be held to be possession if
Section 5 could be attracted.12. The exclusive possession of the plaintiff to the
exclusion of the defendants is no-where proved on record.
As observed above, so long the relations amongst the
brother were cordial, there were no differences. The rent
receipts of the shop, which was admittedly taken on rent by
defendant no.1, were signed by plaintiff no.1. The mail of
both the parties was received on the address of the suit
shop. The minor brother of the parties was at the shop for
ten to eleven years (managing the shop and receiving
income. Defendant no.1 Ram Partap admittedly was
writing accounts. It would be thus too far-fetched a
contention that the plaintiffs were in exclusive possession
of the premises till 15.03.1967- the crucial date on which
Ganga Charan was allegedly dismissed from service by the
plaintiffs. The locks were allegedly broken by the
defendants on 17.03.1967 when the plaintiffs were
dispossessed. Surprisingly there are receipts even of the
year after 1967 while the dispossession was complete as
per the plaintiff in March, 1967. The receipts no.468067
(page 269 of the lower Court record) is dated 31.05.1968
and so is receipt dated 31.05.1968 bearing no.51090 (page271) of the lower court record). The only conclusion that
can be thus reached, on the basis of facts, circumstances
RSA No.72/1991 Page 4 of 10
and evidence is that the plaintiffs did not have the exclusive
right or possession in the shop. It was sort of family
business based on some understanding amongst the
brothers. The plaintiffs, however, asserted that they had
possession as well as right and that they were illegally and
forcibly dispossessed on 17.03.1967. In the background of
such categorical pleading, the suit could be brought within
a period of six months of such dispossession under Section
6 of the Specific Relief Act. Even if Section 5 was to apply,
there was nothing on record for this ld. Sub Judge to hold
that the plaintiffs were in exclusive possession throughout
within 12 years prior to the dispossession. The finding on
the point of limitation, therefore, is perfectly sound and no
interference is warranted. The Appeal no.49/90 in
consequence merits dismissal only and the same is hereby
dismissed.”3. This is a second appeal. On 05.11.1991; appeal was admitted
and the following substantial question of law was formulated which
inter alia as follows:-
“Whether possessory right of a tenant can be enforced by a suit
under Section 5 of the Specific Relief Act carrying the longer
period of limitation?”4. On behalf of the appellant, it has been urged that the
judgment of the Trial Court is illegal and arbitrary. The impugned
judgment had wrongly held that the provisions of Section 6 of the
Specific Relief Act would be applicable; the said provision would be
applicable only if a dispute arose between a landlord and a tenant
which is not so in the instant case. In this case, the plaintiff
himself has averred that he is a tenant of the suit property; he was
in possession of this property right from 1943 and his exclusive
possession had in fact been endorsed by trial Judge. He has been
non suited only on the ground of limitation; the plaintiff having
established by oral and documentary evidence that he was in
possession of this property since the year 1943 provisions of
Section 5 of the Specific Relief Act would be applicable and in this
view of the matter such a suit for possession of this immovable
property could be filed within a period of three years in terms of
Article 65 of 1st Schedule of the Indian Limitation Act,1963. It is
RSA No.72/1991 Page 5 of 10
within time. Counsel for the appellant has placed reliance upon ajudgment of the Apex Court reported in AIR 1968 SC 1165 Nair
Service Society Ltd. Vs. Rev. Father K.C. Alexander and Ors. to
support his submission that under Article 64 of the Indian
Limitation Act a suit can be filed within 12 years from the date of
dispossession which is a suit to be based on possession and not on
title.
5. Arguments have been countered by the learned counsel for
the respondent. Attention has been drawn to the version of various
witnesses who had been examined before the trial Court. It is
pointed out that the first Appellate Court had re-appreciated the
oral and the documentary and had drawn a conclusion that the
plaintiff was not in exclusive possession of the suit property; the
impugned judgment had correctly held that the provision of
Section 6 of the Specific Relief Act (hereinafter referred to as the
“SPRA”) is the applicable provision which is relatable not only to a
dispossession between a landlord and tenant; it speaks of “any
person”.
6. Perusal of the record shows that the Trial Judge had non-
suited the plaintiff only on the ground of limitation; all the other
issues had been decided in favour of the plaintiff. While disposing
of issues no.4, it had held that the plaintiff as per his own averment
had been dispossessed from the suit property on 17.3.1967; suit
filed on 12.6.1968 was barred by time in view of the provisions of
Section 6 of the Specific Relief Act.
7. Relevant would it be to extract the said provision of law; it
inter alia reads as follows:
“6. Suit by person dispossessed of immovable property. – (1) If any
person is dispossessed without his consent of immovable property
RSA No.72/1991 Page 6 of 10
otherwise than in due course of law, he or any person claiming
through him may, by suit, recover possession thereof,
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.”
8. The averments made in the plaint are relevant. The suit
property is a shop bearing no.1467, Fountain, Chandani Chowk,
Delhi. As per the plaintiff in 1943 the two plaintiffs had taken on
rent the aforestated shop from its owner Madan Lal at monthly
rental of Rs.57.50. Defendant no.3 being well versed in accounts
used to sit in the shop to write accounts of the firm; the firm name
was „Suraj Parsad – Madan Lal‟. On 17.3.1967 the defendants (of
whom defendant no.1 is brother of the two plaintiffs and
defendants no.2 to 4 are his sons) had taken illegal and
unauthorized possession of the aforestated shop. The cause of
action has been detailed in para 21; it also states that on 17.3.1967
the defendants had illegally dispossessed the plaintiff. Suit was
admittedly filed on 12.6.1968 i.e. after a lapes of about 15 months.
9. The impugned judgment had modified the finding on issue
no.5 holding that the plaintiff is not in exclusive possession of the
suit premises. Ex.P-21to P-23 which were rent receipts relied upon
by the trial Judge related to property situated in Bhagirath Palace,
Chandni Chowk, Delhi as is evident from the version of PW-4; the
present property is a shop situated at Fountain, Chandni Chowk
which is a distinct property. Reliance by the Trial Judge on Ex.P-21
RSA No.72/1991 Page 7 of 10
to P-23 to hold that the plaintiff was the tenant in the suit property
is thus a clear illegality. PW-7 Ram Kishan had brought the record
from the Municipal Corporation; in his cross-examination he had
stated that the defendant had made payments on several occasions
of the taxes due to the department. PW-10 Madan Lal is the owner
of the disputed shop; rent receipts Ex.P-28 to P-37 issued by him
were in the name of the firm „Suraj Parsad- Madan Lal‟; in his
cross-examination he had admitted that defendant no.1 has come
to him take the shop on rent in the name of the plaintiffs; PW-12
(also) Madan Lal, the plaintiff in his cross-examination admitted
that defendant no.1 had deposited the arrears of rent of Rs.3500/-
in the Court qua this suit property; his mail was also addressed at
the suit premises. DW-1 Lachhi Ram, DW-5 Thakur Dass and DW-6
Dwarka Nath were witnesses of the neighbourhood who had
proved the possession of the defendant in the shop since 1954-55.
10. It was on the basis of this oral and documentary evidence
which had been re-appreciated in the impugned judgment that the
first Appellate Court had held that the plaintiffs are not in exclusive
possession of the suit shop.
11. The question which thus arises and has to be answered is
whether the suit of the plaintiff was one under Section 5 of the
SPRA or under Section 6 of the Act.
12. Section 5 of the SPRA reads as follows:
“5. Recovery of specific immovable property- A person entitled to
the possession of specific immovable property may recover it in
the manner provided by the Code of Civil Procedure, 1908.”
13. Provisions of Sections 5 and 6 of the said Act are not
mutually exclusive. A suit based on purely possessory title can be
filed and can be decreed if the fact of possession is proved in
RSA No.72/1991 Page 8 of 10
favour of the plaintiff and dispossession by the defendant is
established within 12 years before filing of the suit. The findings in
the impugned judgment that the plaintiff was not in exclusive
possession of the suit property are based on a sound reasoning.
The oral and documentary evidence had been re-appreciated; there
is no perversity in this finding. It had on the basis of the cogent
and coherent evidence drawn a conclusion that the plaintiff does
not have a exclusive possession over the suit property; the suit
property i.e. the shop had been rented out in the name of the firm
„Suraj Parsad – Madal Lal‟; defendant had gone to take this shop on
rent from its owner Madan Lal. Defendant no.3 was looking after
the accounts of the firm; mail of the defendants was received at
this address; there were admissions by the plaintiff himself. It was
a sort of a family business which was being carried out from these
premises. A positive finding was thus returned that the plaintiffs
and the defendants are both in joint possession of the suit property.
The case of the defendant stood on an equal if not a better footing
as that of the plaintiff; both were in possession; plaintiff not having
a better title that that of the defendant. In these circumstances, the
plaintiff not being in exclusive possession of the suit property, the
suit under Section 5 of the said Act did not lie.
14. The averments made in the plaint also essentially show that
this was a suit filed under Section 6 of the Act. The note at the end
of the plaint stated that the plaintiffs had reserved their right to
file a separate suit for recovery of the goods lying in the said shop
and also for recovery of mesne profits. Contention of the learned
counsel for the respondents that the plaintiffs knew that they are
filing a suit under Section 6 of SPRA is evident from this note
RSA No.72/1991 Page 9 of 10
which has been given at the end of the plaint; a suit under Section
6 of SPRA could not include a claim for mesne profits whereas a
suit filed under Section 5 of the said Act, relief of mesne profits
could have claimed. This argument also carries force.
15. The limitation for filing a suit under Section 6 was six months
from the date of dispossession which as per the averments in para
21 of the plaint was on 17.3.1967. Suit filed on 12.6.1968 was
rightly held to be barred by limitation.
16. In AIR 1998 SC 1132 Tirumala Tirupati Devasthanams Vs.
K.M.Krishaiah where the plaintiff had alleged that he had been
dispossessed from the suit property; plaintiff having filed a suit for
possession beyond six months of dispossession, such a suit was not
maintainable; it being barred by limitation.
17. The judgment of Nair Service Society Ltd. (supra) does not
come to the aid of the plaintiff. In this case Apex Court had laid
down the proposition that in a suit under Section 6 (Section 9 of
the Specific Relief Act, 1977) the plaintiff need not prove title;
however, if the period of six months has passed the question of title
can be raised and if it is so done; the plaintiff has to establish a
better title or else his suit must fail. In the instant case, the
plaintiff has not been able to establish a better title. Suit of the
plaintiff must fail.
18. There is no merit in the appeal. It is dismissed.
INDERMEET KAUR, J.
DECEMBER 02, 2010
nandan
RSA No.72/1991 Page 10 of 10