C.R. No. 168 of 2008 1
IN THE PUNJAB AND HARYANA HIGH COURT AT
CHANDIGARH
C.R. No. 168 of 2008 (O&M)
Date of Decision : 28.10.2009
Jasbir Singh
.......... Petitioner
Versus
Baldev Singh
...... Respondent
CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA
Present : Mr. Naresh Prabhakar, Advocate
for the petitioner.
Mr. Hitesh Kaplish , Advocate
for the respondent.
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VINOD K. SHARMA, J. (ORAL)
This revision petition is directed against the order dated
26.9.2007 passed by the learned Civil Judge ( Jr. Divn.), Phagwara vide
which suit filed by the plaintiff / petitioner under Section 6 of the Specific
Relief Act, has been ordered to be dismissed.
The plaintiff / petitioner sought possession of room No. 7, as
shown in the red colour in the site plan, on the plea that defendant /
respondent had illegally taken possession of the suit property after
demolishing the intervening wall between the tenanted premises and the
room in possession of the plaintiff.
The case of the plaintiff / petitioner was that a suit for specific
performance was decreed by the learned Court on 26.2.1996. In execution
C.R. No. 168 of 2008 2
of the decree the possession of the property was handed over to the
petitioner on 22.5.2000. It was further the case of the petitioner that after the
possession was given to the petitioner, the respondent / defendant illegally
took possession of the property in dispute by demolishing the intervening
wall.
The suit was contested, wherein a specific plea was taken that
the premises in dispute were under tenancy of the defendant / respondent
and that he had not taken any illegal possession of the property.
On the pleadings of the parties, the learned trial Court was
pleased to frame the following issues :-
“1. Whether the plaintiff is entitled to the decree of
possession of suit premises ?
2. Whether the plaintiff is entitled to recover the
amount of Rs. 200/- as tentative mesne profit for
the room in dispute ? OPP
3. Whether the present suit is not maintainable ?
OPD
4. Whether the plaintiff has no locus standi to file
the present suit ? OPD
5. Whether the suit of the plaintiff is not properly
valued for the purpose of court fee and
jurisdiction ? OPD
6. Relief.”
The parties led evidence. The learned trial Court on
appreciation of evidence held that the plaintiff / petitioner in his cross-
examination admitted that he had filed a rent petition under Section 13 of
the East Punjab Urban Rent Restriction Act, and the dispute in the said
C.R. No. 168 of 2008 3
petition and in the present petition was the same. He further admitted in his
cross-examination that at the time of execution of agreement to sell he had
not taken possession of any portion of the building and further admitted
that, on 22.5.2000 symbolic possession of the property was given to the
petitioner / plaintiff because the property was in possession of different
tenants.
Even the Bailiff though in his statement stated that possession
of the property was given to the plaintiff / petitioner, but in cross-
examination admitted that he had not marked in the warrants of possession,
the shops and rooms of which the actual physical possession was given.
Strangely it was asserted that 13 tenants had handed over the possession to
Jasbir Singh at that time. The learned Court, on appreciation of evidence
held, that petitioner had failed to show that the possession of the property in
dispute was illegally taken by the respondent, so as to maintain a suit under
Section 6 of the Specific Relief Act.
Mr. Naresh Prabhakar, learned counsel appearing on behalf of
the petitioner vehemently contended that the findings recorded by the
learned trial Court are on the face of it perverse, and cannot be sustained for
the reason, that the learned Court below has failed to take note of the
documentary evidence i.e. the warrants of possession, showing that
possession of the property in dispute was handed over to the petitioner. It
was also contended that the report of the Bailiff, coupled with the fact that
the Local Commissioner had reported that intervening wall was demolished,
leaves no manner of doubt that the defendant / respondent had taken illegal
C.R. No. 168 of 2008 4
possession of the property in dispute.
The learned counsel for the petitioner also contended that the
learned trial Court committed an error in trying the suit as a regular suit by
permitting the parties to lead evidence, whereas it was to be tried in
summary manner.
On consideration, I find no force in the contentions raised by
the learned counsel for the petitioner. The admission is the best piece of
evidence. When the plaintiff / petitioner himself admitted that he had not
taken physical possession of the property, while taking possession on
22.5.2000 and that he was only given symbolic possession as the property
was in possession of the tenants, it cannot be said that the learned Court
misread the documentary evidence or oral evidence.
The Bailiff, who appeared in the Court also in his cross-
examination gave evasive reply regarding delivery of possession of 13
shops. The plea of the petitioner that all the 13 tenants handed over
possession to the petitioner in execution of a decree against the vendor in a
suit for specific performance cannot be accepted on the face of it.
Admittedly, there was no decree against any of the tenants, nor any
evidence was brought on record to prove the handing over of the possession
by any of the tenant. The plaintiff / petitioner failed to prove illegal
dispossession to maintain suit under Section 6 of the specific performance.
The contention of the learned counsel for the petitioner that suit
was not tried in summary manner, therefore, the judgment deserves to be set
aside, is also totally misconceived merely because the petitioner had been
C.R. No. 168 of 2008 5
given opportunity to prove his case, but he failed to do so, can not be a
ground to set aside the decree, when no prejudice is shown to have been
caused to the petitioner by trying the suit under Section 6 of the Act as a
regular suit.
No fault, therefore, can be found with the procedure adopted by
the learned Court below.
However, the judgment and decree passed under Section 6 of
the Act would not bar the petitioner / plaintiff from seeking possession of
the property on the basis of his ownership in accordance with law.
No merit.
Dismissed.
28.10.2009 ( VINOD K. SHARMA ) 'sp' JUDGE