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Smt. Sobhabati Vs. Lakshmi Chand and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 8 of 1981
Judge
Reported inAIR1984Ori171; 58(1984)CLT49; 1984(I)OLR560
ActsCode of Civil Procedure (CPC) , 1908 - Sections 115; Specific Relief Act, 1963 - Sections 6
AppellantSmt. Sobhabati
RespondentLakshmi Chand and ors.
Appellant AdvocateR.N. Sinha, ;S.N. Sinha and ;P.K. Rourray, Advs.
Respondent AdvocateC.A. Rao and ;C.M.K. Murty, Advs. (for Nos. 3 to 5)
DispositionRevision dismissed
Cases ReferredIn Sitla Din v. Mohan
Excerpt:
.....law. on an appreciation of the evidence, the learned munsif recorded a categorical finding that the plaintiff had failed to prove her possession over the suit land......recorded a categorical finding that the plaintiff had failed to prove her possession over the suit land. on going through the judgment i find that the learned munsif has considered the evidence of each of the witnesses examined on behalf of the plaintiffs, assessed its worth and after weighing the probabilities, negatived the plaintiff's version. it cannot be said on a perusal of the evidence that the finding recorded is perverse one which could not have been reasonably reached. may be, after shifting from bargarh, the plaintiff's husband who was a wage earner occupied a piece of vacant land and raised a kucha structure and occupied the same. but admittedly, he moved away from barpali within three years when he got an employment and shifted from place to place. the hutments which.....
Judgment:
ORDER

R.C. Patnaik, J.

1. This is a revision against the decision of the learned Munsif, Bargarh, dismissing the plain-tiff's suit under Section 6, Specific Relief Act, for recovery of possession.

2. The property in dispute is 8 decimals in extent located in an important locality in Barpali. The plaintiff's case is that the land which was full of ditches was levelled by her and small kucha hutments were constructed thereon. One of the hutments was occupied by her husband and herself and the rest were let out to others. This continued for three years. When her husband got a job, she shifted to a house in the basti. Nevertheless the property remained in their possession and enjoyment. They had put fence around the plot and used to repair the same year after year until 1978 when defendant 1 acting at the behest of the other defendants unauthorisedly came upon the land and started digging foundation and erecting structures. This furnished the cause of action for the suit.

3. The plea of the contesting defendants is that the suit property belonged to the Gram-panchayat which stood recorded as the tenant in the Record-of-Fights. After the constitution of the Notified Area Council for Barpali, the latter is the owner. The husband of the plaintiff who was an Amin got the name of his wife recorded- in the remarks column of the Record-of-Rights though she was never in possession. During the year 1975-76, the ditches were covered up with earth and a road was constructed over it for the market complex. Foundation stone for the market complex was laid in 1976 over a portion of the land. The parties went to trial and the learned Munsif disbelieved the story of the plaintiff that she was in possession until 1978 when she was dispossessed and accordingly dismissed the suit.

4. Mr. R.N. Sinha, the learned counsel for the petitioner, has sought to assail the finding of the learned Munsif by urging that the evidence on record clearly established the possession of the plaintiff within six months next before the institution of the suit and she was dispossessed otherwise than in due process of law. Mr. Murthy, the learned counsel for opposite parties 3 to 5, has submitted, that if is not open to this Court in its revisional jurisdiction to reassess the evidence, and consider the correctness of the findings recorded by the learned Munsif.

5. The object behind Section 6, Specific Relief Act, is to discourage persons taking law into their own hands, and is based and founded on public policy. It is a summary remedy available to the person in possession of immoveable property when he is dispossessed otherwise than in due process of law. The suit is not maintainable against the Government and after the expiry of the period of six months from the date of dispossession. Section 6 does not operate as a bar to the institution of a suit for recovery of possession on the basis of title.

6. In this case, the plaintiff examined five witnesses including herself. Two witnesses were examined on behalf of the defendants. The Record-of-Rights and the village map were exhibited. On an appreciation of the evidence, the learned Munsif recorded a categorical finding that the plaintiff had failed to prove her possession over the suit land. On going through the judgment I find that the learned Munsif has considered the evidence of each of the witnesses examined on behalf of the plaintiffs, assessed its worth and after weighing the probabilities, negatived the plaintiff's version. It cannot be said on a perusal of the evidence that the finding recorded is perverse one which could not have been reasonably reached. May be, after shifting from Bargarh, the plaintiff's husband who was a wage earner occupied a piece of vacant land and raised a kucha structure and occupied the same. But admittedly, he moved away from Barpali within three years when he got an employment and shifted from place to place. The hutments which were originally there crumbled and as P. W. 1 admits:

'..... Plaintiff is not occupying or residing on the suit land for the last 17years.'

P. W. 4 for the plaintiff states that he has no idea about the suit land. The plaintiff herself admits that she has no separate income of hers; but labourers were engaged for construction of the hutments. The expenses must have been met by the husband. He has not come forward to depose. The plaintiff herself admits that she occupied the suit land for 3 years only. That was 20 years back according to her.

7. I have taken note of the broad features of the case with a view to judging, if the finding recorded by the learned Munsif is perverse. In my view, the learned Munsif could come to the conclusion he has reached cm a preponderance of probabilities of the case. The Rote of possession in the remarks column of Ext. 2 does not lead us any where in reaching the conclusion.

8. The next important question is: Should the High Court interfere in its discretionary revisional jurisdiction with a decision given under Section 6, Specific Relief Act? The parties have an elective remedy by way of a suit for declaration of title and possession. That is the normal remedy. In Jwala v. Ganga Prasad, (1908) ILR 30 All 331, it was observed by a Bench of the Allahabad High Court that against the decision in a suit under Section 9 (now Section 6), Specific Relief Act, the remedy lies not in revision but in the institution of a suit for declaration of title and for possession. The same view was also taken in Ram Kishan Das v. Jai Kishan Das, (1911) ILR 33 All 647 and in Badri Das v. Mt. Dhanni, AIR 1934 All 541. In Sitla Din v. Mohan, AIR 1937 Oudh 183, it was observed that relief should not be granted in revision under Section 115, Civil P. C., to a person whose suit has been dismissed under Section 9, Specific Relief Act, as remedy lies by way of a regular suit and as the power under Section 115 is discretionary.

9. In the result, I see no merit in this revision which is accordingly dismissed. In the facts and circumstances of the case, there would be no order as to costs.


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