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NON-REPORTABLE IN THE SUPREME COURT OF INDIA

CIVIL APPELATE JURISDICTION

CIVIL     APPEAL     No.        6071                    of     2012   ( Arising out of SLP (Civil) 9042/2007)

I.T.C. LIMITED … Appellant(s)

Versus

ADARSH COOP. HOUSING SOC. LTD. … Respondents

J      U      D      G      M      E      N     T   

RANJAN     GOGOI,     J   

Leave granted.

2. A simple issue with regard to possession of either of the  

parties to this over two decade long litigation has come to the  

last court at the instance of the defendant in a suit under  

Section 6 of the Specific Relief Act, 1963.  Notwithstanding  

the clear intent of the legislature to provide a summary  

remedy to a person illegally dispossessed of immovable  

property, the defendant has been persistent in its challenge to

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the decree passed against it. The learned trial court;  

thereafter the revisional court, i.e. court of the learned District  

Judge and lastly the Allahabad High Court have consistently  

held that possession of the disputed property on relevant date  

was with the plaintiff from which he was unlawfully  

dispossessed by the defendant, i.e. the petitioner herein. The  

unwavering view of the courts at all the three tiers of our  

hierarchical justice delivery system have not deterred the  

defendant to challenge the same by means of the present  

approach.  

3. The facts in brief, may now be noticed :

The respondent - plaintiff had filed suit No. 72 of 1989 in the  

court of Civil Judge, Agra, under Section 6 of the Specific  

Relief Act, 1963, (hereinafter referred to as ‘the Act’) praying  

for delivery of possession of the suit property from which the  

plaintiff claimed to have been illegally dispossessed by the  

defendant (petitioner herein) in the night intervening 19th/20th  

of November, 1988. According to the plaintiff, the land  

comprised in Khasra No. 877, measuring 2 bighas 3 biswas  

located in Village Basai Mustaqi Tajganj, Agra  was jointly  

owned by Murari Lal on the one hand and Jagdish Prasad,  

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Ramesh Chand, Suresh Chand and Haresh Chand  

(hereinafter referred to as ‘Jagdish & others.’) on the other.  

According to the plaintiff, by mutual consent, Murari Lal was  

in possession of his half share in northern part of the land  

whereas the half share of Jagdish & others was in the  

southern portion.  The plaintiff has averred that it came into  

possession of the southern portion of the plot (hereinafter  

referred to as the Suit land) on 22.5.1985 and on 03.01.1986  

Jagdish & others had sold the same to the plaintiff. On the  

basis of the aforesaid sale made by a registered deed, the  

revenue records were corrected and necessary entries were  

made showing the name of the plaintiff against the share of  

Jagdish & others. According to the plaintiff, Jagdish & others  

had entered into an agreement of sale of the same land with  

the defendant, though the land stood transferred in the name  

of the plaintiff and the revenue records corrected accordingly.  

In these circumstances, according to the plaintiff, suit No. 238  

of 1983 was filed by the defendant against Jagdish & others  

for specific performance of the agreement to sell.  Another  

Suit i.e. Suit No. 765 of 1984 was also filed by the defendant  

against Jagdish & others for an order of injunction restraining  

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Jagdish & others from raising any construction on the suit  

land and from transferring/ alienating the same.  According to  

the plaintiff, as the property involved in both the suits had  

already been transferred to the plaintiff, the plaintiff was  

impleaded as a party in both the above suits.  It was also  

averred by the plaintiff that as injunction prayed for by the  

defendant, as the plaintiff, in Suit No. 765 of 1984 was  

refused and the appeal against such refusal was dismissed,  

in the intervening night of 19th/20th  November, 1988, forcible  

possession of the suit land was taken by the defendant which  

fact was brought to the notice of concerned police station on  

20.11.1988 itself.  According to the plaintiff, a proceeding  

under Section 145 C. P.C. was also initiated at the instance  

of the plaintiff wherein an order of attachment of the disputed  

land, i.e. the suit land, was passed on 29.11.1988.  However,  

as the defendant continued to remain in possession of the  

suit land despite the order of attachment, Suit No.72/1989  

was instituted by the plaintiff seeking the reliefs already  

noticed.

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4. The defendant contested the suit by contending that no  

partition, formal or otherwise, of the land covered by Khasra  

No.877 had taken place between Murari Lal and Jagdish &  

others.  The defendant specifically contended that Jagdish  

was not in possession of the suit land.  According to the  

defendant, in the absence of any formal partition between the  

co-sharers, i.e. Murari Lal and Jagdish & others, and also in  

the absence of any mutual agreement between the parties  

with regard to possession of any specific share of the  land,  

no exclusive right in the suit land had vested in  Jagdish &  

others so as to confer legitimacy to the sale deed dated  

03.01.1986 executed by Jagdish & others in favour of the  

plaintiff.   The defendant also contended that on the date of  

execution of the aforesaid sale deed, there was a pre-existing  

agreement executed by Jagdish & others to sell the same  

land to the defendant and in fact a suit for specific  

performance of the said agreement (Suit No. 238/1983) was  

pending in the competent court.  The defendant also  

contended that pursuant to the aforesaid agreement between  

the defendant and Jagdish & others, possession of the land  

was handed over to the defendant way back in 1976.  

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Consequently, the possession sought for in Suit No. 238/84  

filed by the defendant was not physical but proprietary  

possession.

5. In the written statement filed, the defendant, had also claimed  

that it was in possession of the entire of the land covered by  

Khasra No. 877, i.e. both the northern and southern portions.  

According to the defendant, by a lease deed dated  

01.04.1976, Jagdish & others had leased their half share of  

the land of Khasra No. 877 in favour of an officer of the  

defendant-Company acting for and on behalf of the said  

Company.  The said deed was for an initial period of six  

months which period was subject to further extension(s).  The  

defendant also claimed that on 19.09.1976, an agreement to  

sell was entered into by and between the defendant-

Company and Jagdish & others for sale of the half portion of  

the land and further that on 28.9.1978, an agreement was  

executed by and between  Jagdish & others and Murari Lal by  

which the possession of the defendant on the entire suit land  

w.e.f. 01.04.1976 was admitted by both co-sharers.   

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Furthermore, according to the defendant, Murari Lal had  

entered into a separate agreement dated 01.10.1976 for sale  

of his half share to the defendant wherein, once again, he  

had admitted the possession of the defendant over the entire  

land.  Thereafter, on 21.08.1982, Murari Lal executed the  

sale deed conveying his half share of the suit property in  

favour of the defendant.  According to the defendant, by the  

said sale deed dated 21.08.1982, the share of Murari Lal that  

was transferred to the defendant was the southern portion i.e.  

the suit land.  In the written statement filed, it was also  

averred that before execution of the sale deed dated  

21.08.1982, Murari Lal had executed two other documents  

both dated 03.03.1982 admitting the execution of the  

unregistered agreement dated 01.10.1976 in favour of the  

defendant and also admitting the delivery of possession of  

the half share belonging to him to the defendant in  

furtherance of the aforesaid unregistered agreement dated  

01.10.1976.  The defendant contended that the sale dated  

03.01.1986 purported to be executed by Jagdish & others in  

favour of the plaintiff was a void document and also hit by the  

principle of lis pendens.

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6. Section 6 of the Specific Relief Act 1963 under which  

provision of law the suit in question was filed by the plaintiff-

respondent is pari-materia with Section 9 of the Act of 1877.  

A bare reading of the provisions contained in Section 6 of the  

Act of 1963 would go to show that a person who has been  

illegally dispossessed of his immovable property may himself  

or through any person claiming through him recover such  

possession by filing a suit.  In such a suit, the entitlement of  

the plaintiff to recover possession of property from which he  

claims to have been illegally dispossessed has to be  

adjudicated independently of the question of title that may be  

set up by the defendant in such a suit.  In fact, in a suit under  

Section 6, the only question that has to be determined by the  

Court is whether the plaintiff was in possession of the  

disputed property and he had been illegally dispossessed  

therefrom on any date within six months prior to the filing of  

the suit.  This is because Section 6 (2) prescribes a period of  

six months from the date of dispossession as the outer limit  

for filing of a suit.  As the question of possession and illegal  

dispossession therefrom is the only issue germane to a suit  

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under Section 6, a proceeding thereunder, naturally, would  

partake the character of a summary proceeding against  

which the remedy by way of appeal or review has been  

specifically excluded by sub-Section 3 of Section 6.  Sub-

Section 4 also makes it clear that an unsuccessful litigant in a  

suit under Section 6 would have the option of filing a fresh  

suit for recovery of possession on the basis of title, if any.  In  

fact, the above view has found expression in several  

pronouncements of this Court of which reference may be  

made to the decisions in Lallu Yashwant Singh (dead) by  

his LRs. Vs. Rao Jagdish Singh & Ors.1, Krishna Ram  

Mahale (D) by LRs Vs. Mrs.Shobha Venkat Rao2 and  

Sanjay Kumar Pandey & Ors. V. Gulabahar Sheikh &  

Ors.3 .  In fact, para 4 of this Court’s judgment passed in  

Sanjay Kumar Pandey (supra) may be a useful reiteration of  

the law in this regard.  The same is, therefore, extracted  

hereinbelow:-

“4. “A suit under Section 6 of the Act is often called a summary suit  inasmuch as the enquiry in the suit under Section 6 is confined to finding  out the possession and dispossession within a period of six months from  the date of the institution of the suit ignoring the question of title.  Sub-

1 AIR 1968 SC 620 2 AIR 1989 SC 2097 3 SCC 2004 (4) 664

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Section (3) of Section 6 provides that no appeal shall lie from any order or  decree passed in any suit instituted under this section.  No review of any  such order or decree is permitted.  The remedy of a person unsuccessful  in a suit under Section 6 of the Act is to file a regular suit establishing his  title to the suit property and in the event of his succeeding he will be  entitled to recover possession of the property notwithstanding the adverse  decision under Section 6 of the Act.  Thus, as against a decision under  Section 6 of the Act, the remedy of unsuccessful party is to file a suit  based on title.  The remedy of filing a revision is available but that is only  by way of an exception; for the High Court would not interfere with a  decree or order under Section 6 of the Act except on a case for  interference being made out within the well-settled parameters of the  exercise of revisional jurisdiction under Section 115 of the Code.”

7. It is indeed sad, if not unfortunate, that what was intended by  

the legislature to be a summary proceeding to enable a  

person illegally dispossessed to effect quick recovery of  

possession of the immovable property has, in the present  

case, erupted into an over two decades old litigation. The  

sheer number of pending lis permitted the learned Trial Court  

to return its findings, after almost a decade, that it is, indeed,  

the plaintiff who was in possession of the disputed property  

on the relevant date and was dispossessed therefrom in an  

illegal manner by the defendant.  Though Section 6 (3) of the  

Act of 1963 bars the remedy of appeal and review, a small  

window, by way of a revision, was kept open by the  

legislature possibly to enable the High Court to have a  

second look in the matter in an exceptional situation.  

However, section 115 of the CPC was amended in its  

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application to the State of Uttar Pradesh and the forum for  

exercise of the revisional jurisdiction came to be recognized  

as the next Superior Court and not necessarily by the High  

Court.  That is how the unsuccessful defendant moved the  

learned District Judge. Though the Revisional Court  

reiterated the findings of the learned Trial Court, another half  

a decade rolled by. Next in the hierarchical system of courts,  

i.e. the High Court was thereafter approached by way of a  

Civil Miscellaneous Writ Petition filed under Article 277 of the  

Constitution.  The High Court answered the question, again,  

against the defendant.  The manner and content of the same  

has been challenged before this Court in the present Appeal,  

primarily, on the ground that when formal partition of the land  

had not taken place the issue of possession of specific  

shares by the co-sharers could not have been determined so  

as to vest jurisdiction in the trial Court to pass a decree under  

Section 6 of the Act of 1963.   

8. A reading of the judgment of the learned Trial Court indicates  

that in coming to the findings recorded, the learned Trial  

Court took into account the pleaded case of the defendant  

that it was in possession of the entire land comprised in  

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Khasra No. 877 and not only the southern portion in respect  

of which recovery of possession was prayed for by the  

plaintiff.   The learned Court, at the outset, noticed that the  

relevant revenue records on the crucial date, i.e. date of filing  

of the Suit, showed the possession of both parties to the Suit  

over the land comprising Khasra No. 877. According to the  

plaintiff, the southern portion which is the suit property was  

sold to it by Jagdish & others whereas according to the  

defendant, the said suit property, i.e. southern portion was  

sold to it by Murari Lal.  The difference in the identity of the  

property, as claimed, would hardly make a difference to the  

core issue in the case inasmuch as according to the  

defendant it was in possession of the entire property, the  

northern portion by way of a lease deed executed by Jagdish  

& others and the southern portion by way of a sale deed  

executed by Murari Lal.  The police report dated 21.11.1988  

submitted in connection with the proceeding under Section  

145 CPC recorded that in the northern portion of the land  

comprising Khasra No. 877, possession of the defendant was  

established and the dispute was with regard to the southern  

portion of the land.  From the above report, the conclusion  

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recorded by the learned Trial Court that the plaintiff was in  

possession of the southern portion is a possible conclusion  

that could be reasonably reached in view of what was  

disclosed by the police report dated 21.11.1988 read with the  

relevant revenue records.  The reluctance of the first  

revisional court as well as the High Court to interfere with the  

said conclusion is but natural and the same cannot be  

understood to be unreasonable so as to warrant interference  

by us in the present appeal.

9. That apart, the learned Trial Court also took note of the fact  

that lease deed dated 01.04.1976 purported to be executed  

by Jagdish & others, on the basis of which the defendant  

claimed to have entered possession of the share of the land  

belonging to Jagdish & others have not been proved by the  

defendant.  Similarly, the agreement dated 28.9.1978,  

executed by Jagdish & others and Murari Lal on the basis of  

which the defendant claimed possession of the entire land  

had also not been proved.  The reason for which the learned  

Trial Court came to the aforesaid conclusion, i.e., that the  

lease deed dated 01.04.1976 and the agreement dated  

28.9.1978 have not been proved is that the signatures of the  

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executors and the witnesses thereon have not been proved  

as required by law.  Such a conclusion cannot be faulted. In  

fact, a further conclusion which has the effect of casting a  

serious doubt with regard to the claims of the defendant  

reasonably follows from the above.  The fact that the  

defendant had instituted Suit No. 238 of 1983 and Suit No.  

765 of 1984 claiming possession and injunction in respect of  

the suit property was rightly understood by the learned Trial  

Court to be a reasonable indication of the fact that the  

defendant, on the dates of filing of the said suits, was not in  

possession of the suit property.  In such a situation, the  

dispossession which the plaintiff claimed to have taken place  

in the intervening night of 19th/20th of November, 1988, has to  

be understood to have been proved and established.  The  

issues raised by the defendant with regard to the validity of  

the Sale deed dated 03.01.1986 executed by Jagdish &  

others in favour of the plaintiff on account of the pendency of  

Suit No. 238 of 1983 and the validity of the entries in the  

revenue records are questions surrounding title and are not  

strictly relevant for deciding the issue that was required to be  

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decided in the suit in question namely, who was in  

possession of the suit property on the relevant date.

10. The argument raised on behalf of the petitioner (defendant)  

that highly contentious issue having arisen in the present  

proceeding, the same ought not to have been adjudicated in  

a suit under Section 6 would hardly merit acceptance,  

inasmuch, the foregoing discussion would enable us to come  

to the conclusion that the issue with regard to possession  

was capable of being decided on the materials on record and  

was, accordingly, so decided.   A mutual understanding  

amongst the original co-sharers with regard to possession of  

specific areas of the entire land is fairly well established.

11. Another argument has been raised on behalf of the petitioner  

that in the present case the courts below have decided the  

issue of possession by holding the defendant not to be in  

possession of the suit land instead of recording a finding that  

it was the plaintiff who was in possession. The said  

argument, again, would not merit acceptance by us.  In a civil  

proceeding, the issues that may arise are required to be  

decided by balancing the claims and counter-claims of the  

parties before the Court and on the basis of a preponderance  

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of probabilities.  The conclusion that the defendant could not  

have been in possession, as claimed, was necessary to be  

reached in order to answer the question that was before the  

Court in the present case.

12. The discussion that have preceded leads us to conclude that  

the findings recorded by the learned Trial Court and affirmed  

by the revisional Court as well as by the High Court are  

essentially findings on question of fact which have been  

arrived at on the basis of the evidence and materials adduced  

by the parties.  We, therefore, find no reason whatsoever, to  

disturb the said findings and the same are hereby affirmed.  

Consequently, we dismiss the appeal and affirm the decree  

passed by the learned Courts below.

...……………………J.   [P SATHASIVAM]

………………………J.   [RANJAN GOGOI]

New Delhi,    27th  August, 2012.      

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