CR 127.02 - Lala Ram Vs. Shri Dhalji through LRs & Ors. Judgment dt.16.2.2009
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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR.
JUDGMENT
Lala Ram Vs. Shri Dhalji through LRs & Ors.
S.B. CIVIL REVISION PETITION NO.127/2002
Date of Judgment : 16th February, 2009
PRESENT
HON'BLE DR. JUSTICE VINEET KOTHARI
Mr. Narpat Singh for the petitioner.
Mr. K.C. Samdariya for the respondents.
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BY THE COURT:-
1. Heard learned counsels.
2. This revision petition has been filed by the plaintiff Lala
Ram being aggrieved by the judgment and decree of the learned trial
court dated 6.3.1995 whereby the learned trial court rejected the suit
filed by the plaintiff petitioner under Section 6 of the Specific Relief
Act.
CR 127.02 – Lala Ram Vs. Shri Dhalji through LRs & Ors. Judgment dt.16.2.2009
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3. The plaintiff-petitioner Lala Ram claimed that he was
tenant of the suit shop at Bheru Ghat, Pali of the defendant Dhalji and
others, who forcibly dispossessed him from the suit shop at about
8:00 PM in the night of 28.7.1979 and, therefore, he was liable to be
put back in possession under Section 6 of the Specific Relief Act.
The defendant on the other hand claimed that the suit shop was given
on rent to the plaintiff Lala Ram on 7.11.1970 at monthly rent of
Rs.10/- which was later increased to Rs.12/- per month but since his
business was not running very well, the tenant voluntarily handed
over the vacant possession of the suit shop to the defendant on
14.1.1979 on the day of Makar Sakranti and when they approached
him again on 28.7.1979 for payment of arrears of rent, he set up the
story of forcible dispossession of him and also lodged an FIR at
police station on next day 29.7.1979 to avoid the payment of rent and
seek repossession of the suit shop.
4. The learned trial court by the impugned judgment dated
6.3.1995 dismissed the suit filed by the plaintiff-petitioner Lala Ram
finding inter alia that the plaintiff had voluntarily handed over the
vacant possession of the suit shop to the defendant on 14.1.1979 and
CR 127.02 – Lala Ram Vs. Shri Dhalji through LRs & Ors. Judgment dt.16.2.2009
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had failed to prove that he was in possession of the suit shop after the
said date 14.1.1979 until 28.7.1979 and the photographs of forcible
possession of 29.7.1979 were not proved by the plaintiff-petitioner
and, therefore, the plaintiff could not be said to have been forcibly
dispossessed from the said suit shop in question and, therefore, was
not entitled to a decree of repossession under Section 6 of the
Specific Relief Act. The learned trial court, therefore, dismissed the
suit of the plaintiff.
5. Being aggrieved by the same, the plaintiff Lala Ram has
preferred this revision petition before this Court. He had also filed an
appeal before the learned District Judge against the said judgment
which came to be dismissed by learned District Judge on 11.9.1998 as
the said appeal was not maintainable in view of prohibition of
maintaining an appeal contained in Section 6(3) of the Act. However,
the plaintiff also filed second appeal before this Court which second
appeal i.e. S.B. Civil Second Appeal No.389/1998 has also been
dismissed by the order of this Court today as no substantial question
of law arises and as the present revision petition already filed is being
decided on merits.
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6. Mr. Narpat Singh Charan, learned counsel appearing for
the plaintiff-petitioner vehemently submitted that on the FIR lodged
by the plaintiff against the forcible dispossession of the plaintiff from
the said suit shop on 28.7.1979 the competent Court had convicted
the defendants for the offence under Section 448 I.P.C. and that
conviction was upheld by the learned appellate court also on
12.7.1994. However, the defendants were released on probation by
the learned appellate court in Criminal Appeal No.29/1993. He
further submitted that merely because the witnesses, who appeared
before the learned Criminal Court, could not be produced before the
learned civil Court in the present suit filed under Section 6 of the
Specific Relief Act, the learned trial court could not have dismissed
the suit filed by the plaintiff, who was forcibly removed from the said
suit shop on 28.7.1979. He, therefore, prayed for allowing of the
present revision petition and setting aside the judgment of the learned
trial court dated 6.3.1995, the possession of the suit shop to be
restored to the petitioner.
7. On the side opposite, Mr. K.C. Samdariya learned
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counsel appearing for the defendant-respondents emphatically
submitted that the findings of facts arrived at by the courts below are
not required to be interfered with in the revisional jurisdiction of this
Court and since the court below has categorically found that the
vacant possession of the suit shop was voluntarily handed over by
the plaintiff to the defendants on 14.1.1979, the unbelievable story set
up by the plaintiff that he was forcibly dispossessed on 28.7.1979
when the defendants approached him for payment of arrears of rent
cannot be believed as the plaintiff had failed to adduce any evidence
in support of the same. He further submitted that the plaintiff failed
to prove the photographs produced before the learned trial court to
establish the story of the forcible dispossession and, therefore, there
was no evidence before the learned trial court to establish such
forcible dispossession. He also submitted that mere repayment of
some installment of loan by the plaintiff to the Bank of Baroda vide
Exhibit 2 and 3 does not establish that the plaintiff was in possession
of the suit shop after 14.1.1979. The plaintiff has failed to produce
any evidence showing the payment of rent to the defendant after
14.1.1979. He also submitted that the conviction in the criminal trial
is of no relevance and that does not per se establish the case of the
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plaintiff of forcible dispossession from the suit shop. He, therefore,
prayed for dismissal of the present revision petition.
8. Having heard learned counsels and upon perusal of the
impugned judgment of the learned trial court and record of the case,
this Court is satisfied that the learned trial court has not erred in
rejecting the suit of the plaintiff under Section 6 of the Specific
Relief Act. Merely on the basis of conviction of the defendants under
Section 448 I.P.C. even though upheld by the learned appellate court
vide order dated 12.7.1994 as submitted by the learned counsel for
the petitioner, it is not sufficient to hold that the plaintiff was forcibly
dispossessed from the suit shop in question. On 14.1.1979 when the
plaintiff voluntarily handed over the vacant possession of the suit
shop to the defendants, the fact duly established by the defendants on
the basis of evidence before the learned trial court, it cannot be said
that for the FIR lodged on 29.7.1979 which resulted in the conviction
of the defendants, it should be presumed that the vacant possession of
the suit shop was not handed over to the defendant and on 14.1.1979.
The contention of the learned counsel for the petitioner when that
when he was forcibly dispossessed on 28.7.1979 there was
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outstanding bank loan of Rs.800/- and he repaid installments of that
loan vide Exhibits 2 and 3 does not establish, in the opinion of this
Court, the continued possession of the plaintiff after 14.1.1979. The
repayment of bank loan is not directly related to the possession of the
suit shop in question. The learned appellate court, therefore, cannot
be said to have erred in believing the case set up by the defendant that
the plaintiff put his shop items in front of the suit shop on 28.7.1979
and made up this story of forcible dispossession. The defendants by
their witnesses had established before the court below like DW-3
Mangal Chand and DW-4 Dungar Mal that the defendants were doing
the business of manufacture of Tilpati after the suit shop was vacated
by the plaintiff on 14.1.1979.
9. Thus, the learned appellate court cannot be said to have
erred in arriving at the findings of fact which he arrived on the basis
of evidence before it. The said findings not being perverse are not
required to be interfered with or reversed in revisional jurisdiction.
10. Consequently, this revision petition is found to be devoid
of merit and the same is hereby dismissed. No costs
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[ DR. VINEET KOTHARI ], J.
item No.3
babulal/-