ORDER
Dalava Subrahmanyam, J.
1. The revision petitioners, who are the defendants 2 to 4 in the suit, filed the revision against the common judgment in OS No.294, 300, 301 and 302 of 1995 on the file of the Junior Civil Judge, Medchal, Ranga Reddy District in decreeing the suit with costs and directing the revision petitioners to restore the possession of the suit schedule plots.
2. The brief facts leading to the filing of the revision are as follows:
The respondents, plaintiffs in OS Nos. 294, 300, 301 and 302 of 1995 on the file of the
Junior Civil Judge, Medchal, filed the above suits praying for recovery of possession of the suit schedule property from the defendants in respect of the suit property in S. Nos. 30, 31 and 33 of Nagaram village, Keesara Mandal, Ranga Reddy District. The plaintiffs contended that late Kishan Rao Deshpande and his sons Dr. Nagaraj Deshpande and 6th defendant were the pattedars of the land including the suit schedule lands situated at Nagaram village. M.Pochi Reddy and his two brothers claiming themselves to be the protected tenants filed a suit against late Kishan Rao Deshpande and 6th defendant in OS No. 237 of 1980 for perpetual injunction and the said suit was compromised and the lands in S. Nos. 30, 31 and 33 fallen to the shares of the defendants and the 6th defendant. The 6th defendant and his father made lay out of the properties in S. Nos. 30, 31 and 33 of Nagaram village and the lay out was sanctioned and after obtaining the sanction, the 5th defendant sold the plot Nos. 45, 46, 55 and 56 admeasuring 300 sq. yards each to the plaintiff in the suit and delivered the possession under registered sale deeds. Since then, the plaintiffs have been in possession and enjoyment of the said properties. While so, the defendants 1 to 4 illegally encroached into the suit properties and took possession of the suit property in the 3rd week of October, 1995. The plaintiffs gave a police report and there was no action. Hence, the plaintiffs filed the suit under Section 6 of the Specific Relief Act (for short ‘the Act’), for recovery of possession, within six months from the date of dispossession. The defendants 2 to 4 filed written statement contending that the 6th defendant and his farther were pattedars and the 1st defendant and his two brothers were protected tenants in S. Nos. 30, 31, 33 and 25 and they compromised the suit in OS No. 237 of 1980. They were allotted some portions described in the compromise decree. The defendants are not aware as to the sale in favour of
the plaintiffs. The defendants contended that the plaintiffs were never in possession of the respective plots and the plaintiffs were never dispossessed.
3. On the basis of the said pleadings several issues were framed in all the suits and the plaintiffs adduced evidence and several documents were also marked on their behalf. Defendants also adduced evidence and marked documents. After appreciating the oral and documentary evidence, the learned Junior Civil Judge, came to the conclusion that the plaintiffs proved their right title and possession of the suit property and that the defendants dispossessed them on 3.10.1995 and therefore the plaintiffs were entitled for recovery of possession. Accordingly, the suits were decreed directing the defendants to deliver the possession and restore the possession of the suit schedule plots to the respondents-plaintiffs.
4. Aggrieved against the said decree and judgment, the defendants 2 to 4 filed the above revision petition contending that the learned Junior Civil Judge committed an error apparent on the face of record. It is also contended that the learned Judge failed to appreciate the mandatory provisions under Section 6 of the Act. The lower Court committed error in observing that the plaintiffs were dispossessed on 3.10.1995. The lower Court failed to appreciate the documentary and oral evidence adduced on both sides. For the above said reasons, the decree and judgment of the lower Court is liable to be set aside by allowing the revision.
5. Now the point for consideration is whether the learned Junior Civil Judge, Medchal committed error in coming to the conclusion that the plaintiffs were entitled for the recovery of possession of the suit schedule properties from the defendants and if so, whether the revision is liable to be allowed?
6. The plaintiffs filed the suit for recovery of possession of the respective plots from the defendants under Section 6 of the Act. Section 6 of the Act reads as follows:
Section 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 him may, by suit, recover possession thereof, not withstanding any other title that may be setup 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.
7. The plaintiffs having filed the suit under Section 6 of the Act have to prove that they are entitled to immoveable property and that they were in possession of the suit property and the defendants illegally dispossessed them within a period of six months and thereby they are entitled for recovery of possession from the defendants. The learned Counsel appearing for the revision petitioners contended that the lower Court committed error in decreeing the suits and failed to appreciate the contentions of the defendants. The defendants denied having dispossessed the plaintiffs. The defendants contended that they have been in possession of the respective plots which fell to their share in the suit survey numbers and they never dispossessed the plaintiffs at any time. It is
also contended by the learned Counsel for the revision petitioners that the plaintiffs never proved that they were dispossessed from the suit properties and therefore the lower Court committed error in decreeing the suit. The learned Counsel appearing for the respondents contended that the defendants are not disputing the right and title to the suit property and the plaintiffs having alleged that they were dispossessed during the 3rd week of October, 1995, the lower Court rightly decreed the suit. It is also contended that the plaintiffs need not prove the actual date of dispossession, if title is proved it is not necessary to ascertain the date of dispossession. The learned Counsel for the respondents relied on decision in Gitarani Paul v. Dibyendra Kundu, , wherein it was held that on perusal of pleadings the date of dispossession was specifically pleaded and even otherwise, in view of title having been proved, it was not necessary to ascertain the date of dispossession.
8. The plaintiffs having filed the suit under Section 6 of the Act, evidence must be adduced that the plaintiffs were forcibly dispossessed and the suit must be filed within six months from the date of dispossession. The burden is on the plaintiffs to establish the date on which the defendants forcibly dispossessed the plaintiffs. The plaint averments would disclose that the plaintiffs were dispossessed during the third week of October, 1995. The defendants filed written statement denying the said fact. The defendants denied their interference with the suit property. PW1, husband of the plaintiff in OS No.294 of 1995, deposed that he visited the suit property for the first time prior to his purchase and subsequently when he visited the suit property during October, 1995 he saw ploughing of the land. PW1 did not state that the defendants removed the survey stones or forcibly entered possession of the suit property. PW2 E.Satyanarayana deposed that he did not physically witness the removal of boundary stones and he cannot say when the plaintiffs were dispossessed. PW3 G.Narayana Reddy also deposed that he was not physically present when the boundary stones were removed. PW4 Ram Reddy and PW5 D. Sambasiva Rao also deposed that they were informed that D1 removed the boundary stones. Therefore, there is absolutely no evidence that the defendants actually removed the boundary stones or dispossessed the plaintiffs. In view of the fact that there is no evidence that the defendants dispossessed the plaintiffs, the suit is liable to be dismissed in view of the decision reported in R. Deemudu v. P. Deemudamma, . The defendants denied having encroached the suit property and never interfered with the suit property and therefore there is no cause of action for the suits. The learned Junior Civil Judge, Medchal committed error in coming to the conclusion that in view of the fact that the plaintiffs proved their right and tide, they are entitled for recovery of possession, even though there is no evidence that the plaintiffs were dispossessed. For the above said reasons, there is an error apparent on the face of record and for this reason, the judgment and decree of the learned Junior Civil Judge, Medchal are liable to be set aside by allowing the revisions.
9. In the result all the revision petitions are allowed and decree and judgment in OS No. 294, 300, 301 and 302 of 1995 on the file of the learned Junior Civil Judge, Medchal dated 27.6.2001 are set aside. No order as to costs.