Bashir Afzar and Others vs Ali Ahmad and Others

Hon''ble Satyendra Singh Chauhan, J.—I have heard learned counsel for the parties and perused the record.

Two points which have been put forward before this Court are that the suit u/s 6 of the Specific Relief Act does not amount to res judicata and the appellate court cannot re-appreciate or substitute its own finding in respect of the finding recorded by the trial court. So far as the proceedings u/s 6 of the Specific Relief Act are concerned, they are summary in nature and the title is not to be adjudicated in the aforesaid proceedings. It is still open for a person to institute a regular suit, if he is unable to get relief in summary proceedings for declaration of his rights in accordance with law.

What right has been acquired by the plaintiff after he executed the sale deed and a deed of re-conveyance entered into between the parties with the stipulation that in case the plaintiff fails to repurchase the land within a period of three years, his rights over the land in question will come to an end. After the expiry of the period of three years, the respondent no.2 sold the land to respondent no.1. The rights after the expiry of the period of three years matured in favour of respondent no.2. He perfected his title as landlord after the expiry of the period of three years. The deed of reconveyance became effective after the expiry of the period of three years, as the sale amount was not paid.

It is admitted in the plaint that the plaintiff was dispossessed forcibly in the year 1966. It has to be seen as to what right the plaintiff was having on the date of institution of suit. The plaintiff was merely a lessee on the said date. The lease has already come to an end after the expiry of the period of three years. As and when the lease has come to an end, whether the plaintiff can institute a suit for recovery of possession and damages in respect of the property, on which, his rights emerging from the reconveyance deed also came to an end in the year 1964. It is stated that plaintiff was ousted forcibly. If a person whose right to occupy the land has come to an end, either as a lessee or as a tenant after the expiry of the period of three years, the re-conveyance deed provided that the land in question will be let-out to the plaintiff for a period of three years and in the meantime, in case the sale consideration is returned back, the sale deed will become ineffective.

In view of the aforesaid stipulation, right to get possession by a person, who was having no title as owner or as lessee or as tenant to the suit property could not be granted. The sale amount has already been received and the tenancy period has come to an end after three years. The sale deed was executed on 28.3.1961, therefore, the appellate court has committed no illegality in re-appreciating the evidence in the aforesaid context and allowing the appeal. So far as the question regarding re-appreciation of evidence is concerned, the appellate court has got full powers, as contemplated u/s 96 of the CPC to re-appreciate the evidence and take a correct view, if any illegality has been committed by the trial court.

It has also to be noted that the premises were let out to respondent no.3 before the date of execution of sale deed and so also it is apparent that the land in question was in possession of the plaintiff.

In respect of possession, some evidence has tried to be established, but the appellate court found that the said licence for running business of coal was in respect of other land and not in respect of the present land. The respondent no.3 was in possession before the date of execution of the sale deed and deed of re-conveyance, therefore, in the above circumstances, the appellate court has committed no illegality and it was well within the domain of the appellate court to correct the illegality or infirmity, if any, in the judgment of the trial court.

In view of above, I do not find any merit in the second appeal and it is accordingly dismissed with costs.