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SCA/6630/2009 5/ 7 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 6630 of 2009
=====================================
PRAGNA
SHASHIKANT PAL - Petitioner(s)
Versus
ATULBHAI
MANSUKHBHAI PAL & 1 - Respondent(s)
=====================================
Appearance
:
MR RS SANJANWALA for
Petitioner(s) : 1,
MR DEEPAK VYAS for Respondent(s) : 1,
MR RR
MARSHAL with MR ADIL R MIRZA for Respondent(s) : 1,
None for
Respondent(s) : 2,
=====================================
CORAM
:
HONOURABLE
MR.JUSTICE RAVI R.TRIPATHI
Date
: 02/03/2010
ORAL
ORDER
1.0 Heard
learned Advocate Mr. RS Sanjanwala for the petitioner. Learned
Advocate for the petitioner pressed into service Sec. 6 of the
Specific Relief Act, 1963. Section 6 of the Specific Relief Act,
1963 reads as under:
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,
notwithstanding any other title that may be set up in such suit…
2.0 That
being so, even if the plaintiff has entered into possession of the
property in question just a day prior to the filing of the suit, the
remedy available to the person concerned is only by filing a suit
under Sec. 6 of the Specific Relief Act, 1963.
3.0 Learned
Senior Advocate Mr. RR Marshall with Mr. Mirza for respondent
vehemently submitted that if a person like petitioner is protected,
it will be nothing but miscarriage of justice and the two Courts
below have recorded categorical findings that the plaintiff has
entered into possession only a day prior. In this regard, learned
Senior Advocate invited attention of the Court to the following
observations made by the Court below:
[10.1] Learned
advocate for the defendant no. 1 has submitted written argument at
exh.32, inter aliw submitted that there is no description of
consideration of Rs.4.00 lacs given in the sale deed. Power of
Attorney executed in favour of Shri Bharatbhusan Amratlal Modi, but
his affidavit has not produced on record. Nothing has been mentioned
that, on which date, possession was handed over to the plaintiff.
Though, the defendant no.1 was in possession of the disputed
premises, plaintiff illegaly entered into the premises by breaking
lock etc. First, plaintiff has prepared suit and thereafter,l she
entered into premises. Plaintiff has not mentioned that there are
machineries in the suit premises. Writing of defendant no. 1
executed on 16.06.2008 is false document. Initially, there was date
mentioned as 15.06.2008 but it was erased and new date 16.06.2008 was
inserted to prepare false evidence. The order of the Hon’ble High
Court, which shows that the defendant no.1 and Mansukhbhai
Bhagwanbhai Pal has initiated proceedings against Mr. Yogeshbhai
Ranchhodbhai Patel and in that proceedings by the order of the Court,
possession was handed over to defendant no.1 and Mansukhbhai
Bhagwanbhai Pal, defendant no.1 was running factory i.e. weaving
machines in the suit premises. Affidavits of defendant persons also
shows that the defendant no.1 running business in the suit premises.
In oral argument also, he has submitted same things and further
submitted that the plaintiff has no right to obtain possession
forcefully and without due process of law, consequently prays to
dismiss the application.
[10.3] The
next question required to be considered is whether the plaintiff is
in possession of the suit property or not? If we consider sale deed
produced at mark 3/1 on page no. 16, it is specifically stated in
this sale deed that there is tenancy right of the plaintiff and other
tenants in the said property, therefore, symbolic possession i.e.
Paroksha Kabjo was handed over in context with the said sale
deed to the plaintiff. It is also specifically averred that,
plaintiff is entitled to transfer the said property by sale,
mortgage, gift, lease etc. and further she is entitled to recover the
possession from the tenants and collection of rent etc. This
contention of sale deed clearly established that, when the sale deed
was executed, actual physical possession was not handed
over to the plaintiff and only symbolic possession was given in
context with the sale deed.
Other contention like existence of tenancy right and entitlement of
plaintiff to recover possession from the tenant and collection of
rent etc. also shows that there is a tenant in the suit property, so
it cannot be said that by this sale deed, the plaintiff was put in
actual physical possession of the property and since then, she is in
possession of the suit property. When, no possession
was transferred by said sale deed, no question arise to transfer the
possession by second sale deed, which is executed by the society in
favour of the plaintiff, because, when the original
owner Mansukhbhai Bhagwanbhai Pal has not transferred possession to
the plaintiff, the society has no right to transfer or to put in
possession the plaintiff of the suit property. Another document
produced by the plaintiff at mark 40/1 to 40/5, photographs does not
help the plaintiff regarding possession over the suit property.
Merely putting Board or printing some instructions on
the wall of a premise does not prove actual physical possession.
On the contrary, accordingly to say of plaintiff, she was put in
possession on the date of sale deed dated 16.07.2007, where the
question arise to get from defendant no.2 Nanalal Ramjibhai on 16th
June 2008. This writing has been produced at mark 40/6,
which shows that, it was prepared on 15 th
June 2006 but afterwards, the dates were changed on the top and
bottom of the writing and new date i.e. 16 th
June 2008 was inserted. This person Nanalal Ramjibhai has filed an
affidavit at exh. 15 in favour of the defendant, in which, he has
specifically stated that he was getting his
weaving labour work from defendant no.1 for last two or three months
but on 16 th June
2008, suddenly plaintiff Pragnaben and Mr. Ravi Shashikant Pal,
Sudhaben Vinay Modi, Minaxiben Dipak Jinwala and one other boy were
rushed into the factory at about 10.00 to 10.30 A.M. and they have
locked this property from inside. Thereafter, Police were called but
plaintiff has not opened the lock. There was a board
of Atul Mansukhbhai Pal in the name of Atul Textiles. The plaintiff
has brushed the said board by black colour. Further, on the same
day, at about 2.00 or 3.00 P.M. they have insisted to get his goods
out, therefore, the defendant no.2 has taken away his goods from the
suit premises, so against writing of mark 14/16, if we consider an
affidavit of defendant no.2 Nanalal Ramjibhai, it clearly suggest
that the defendant no.1 was running business of weaving in the suit
premises in the name and style of Atul Textiles but the plaintiff has
suddenly snatched away possession of the suit property on 16th
June 2008 and after brushing board of Atul Textiles, they have
printed their own instruction. If we consider photographs produced
at mark 30/1 to 40/5, it is clearly transpires that the instructions
are written haphazardly. If the plaintiff was in possession of the
suit premises from the date of sale deed i.e. 16th
July 2007, she must be running on business, she must have other proof
like board of her business and licence, bills and other documentary
evidence, which are normally available with an industrial unit. So,
on plain perusal of these photographs and the document mark
40/6, it clearly transpires that the plaintiff has illegally snatched
away possession of the suit property from the defendant no.1. If we
consider title of the plaintiff mentioned in plaint, it is one and
same of the unit property but at the same time, if we consider
address of the plaintiff in sale deed mark 3/1, she was residing at
Mumbai. The suit property is industrial shed and one cannot reside
in that property, so the address of the plaintiff given in plaint of
the suit property become doubtful. (emphasis
supplied)
4.0 Learned
Senior Advocate for the respondent also submitted that the First
Appellant Court has not disturb the order passed by the learned trial
Court and that shows that the equity as well as law is in favour of
the respondent.
4.1 Learned
Senior Advocate could not give any convincing answer to a question as
to then in what circumstances Sec. 6 of the Specific Relief Act, 1963
is to be resorted to.
4.2 Learned
Senior Advocate submitted that Sec. 6 of the Specific Relief Act,
1963 may be the remedy of the respondent but the question is whether
the Court will be granting relief to a person who grabbed the
possession from the person who was in possession of the property and
in this particular case, possession was handed over to the present
respondent in a proceeding before this Court
being Misc. Civil Application (For Review) No. 2586 of 2006 in
Civil Application No. 10765 of 2005 in Misc. Civil Application No.
2042 of 2004 with Misc. Civil Application No. 2587 of 2006 in Civil
Review Application No. 1003 of 1999 with Civil Revision Application
No. 1003 of 1999 decided by this Court (Coram: Honourable Mr. Justice
KM Mehta) by judgment and order dated 10th July 2007.
5.0 Be
that as it may the fact remains that the Courts below have recorded a
finding that, ‘the plaintiff is in possession may be that the same is
taken illegally from the present respondent’. That being so, in the
opinion of the Court, the only remedy available to the present
respondent is to file appropriate proceedings under Sec. 6 of the
Specific Relief Act, 1963.
6.0 At
the request of learned Senior Advocate it is clarified that in the
event the respondent approaches the concerned Court by filing
appropriate proceedings under Sec. 6 of the Specific Relief Act,
1963, the same will be considered in light of the observations made
by this Court hereinabove and pendency of this petition will not be a
bar in entertaining such proceedings and passing appropriate orders.
It goes without saying that it will be open for both the parties to
take all legal contentions available to them.
7.0 Rule.
The parties are directed to maintain status quo qua the
property in question.
[
Ravi R. Tripathi, J. ]
hiren
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