Shri Durgappa vs Shri Nagamma and Others

A.S. Pachhapure

The respondents herein instituted a suit in OS No. 117/1997 seeking the relief of possession of suit property measuring 31 guntas out of Sy.No.25/8P situated in Kundavad Village, Davangere Taluk against the appellant herein who is defendant before the Trial Court. The parties will be referred as per their rank before the Trial Court for the sake of convenience.

The plaintiff claims that he is the adopted son of Ningappa who had no issues through his wife Kariyavva. The plaintiff is said to have been taken in adoption by Ningappa as per the custom. So also, the plaintiff claims that his adopted father executed a Will on 16.11.1968 bequeathing the land measuring 31 guntas out of 1 acre 22 guntas in bearing Sy.No.25/8P in his favour. After the death of Ningappa, plaintiff and his adopted mother are said to have continued in the possession of suit property and after the death of Kariyavva, in the year 1996, he was dispossessed at the hands of defendant. Therefore, he has instituted a suit for possession of the suit property on the aforesaid grounds.

The suit was contested by the defendant. It was his claim that Kariyavva - the wife of Ningappa had bequeathed the suit property i.e., 31 guntas of land out of 1 acre 22 guntas in Sy.No.25/8P by executing a Will on 26.09.1983 in his favour. Therefore, he claims that he is in possession of the suit property on the basis of Will and sought for dismissal of the suit.

The Trial Court framed the issues and ultimately after recording the evidence and after hearing the parties has dismissed the suit. Aggrieved by the dismissal of the suit, plaintiff approached the First Appellate Court in RA No.114/2002 and vide judgment and decree dated 20.07.2006, the said appeal came to be allowed holding that the plaintiff is entitled for possession of the suit property as he was dispossessed within 6 months prior to the institution of suit and therefore, granted a decree u/s 6 of the Specific Relief Act. Aggrieved by the judgment and decree of the First Appellate Court, the appeal has been filed by the defendant.

This Court after hearing learned Counsel for both the parties has framed the following substantial questions for following consideration:

a) Whether the First Appellate Court was justified in reversing the judgment and decree of the Trial Court on the finding that the Will set up by the plaintiff is proved when the suit filed was one for possession on the basis of previous possession u/s 6 of Specific Relief Act?

b) Whether the application filed by the appellant under the provision of Order 41 Rule 27(b) of CPC deserves to be allowed?

I have heard learned Counsel for both the parties. As could be seen from the pleadings, the plaintiff has set up a Will dated 16.11.1968 in his favour said to have been executed by Ningappa - the husband of Kariyavva. So also, there is a pleading to the effect that he is the adopted son of Ningappa and Kariyavva. This fact has been disputed by the defendant in his written statement. But anyhow, as could be seen from the allegation in pars 7 and 8 of the plaint, the plaintiff has not given a specific date on which he was dispossessed at the hands of defendant. He has stated in para 7 that the dispossession was in the year 1996. The suit came to be instituted by the plaintiff on 25.02.1997. There is insufficient material on record " relating to the date of dispossession. So, the First Appellate Court could have considered the question as to whether the suit instituted is within 6 months from the date of dispossession. Even otherwise, it is relevant to note that in para 24 of the judgment of First Appellate court, has held that the suit instituted by the plaintiff is u/s 6 of the Specific Relief Act and as the dispossession is proved and the suit is said to have been instituted within 6 months, it gave a finding to the effect that the suit is u/s 6 of the Specific Relief Act. On the basis of this finding, it proceeded further to grant the relief of possession by allowing the appeal.

If it is once held that the suit is u/s 6 of the Specific Relief Act, then against the decree passed in the suit there is no appeal or any review against such decree. The relevant portion of the provisions of Section 6 of the Specific Relief Act is extracted herein for the sake of convenience:

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) No suit under this section shall be brought-

(a) after the expiry of six months from the date of dispossession; or

(b) against the Government.

(3) No appeal shall lie from any order or decree passed in any suit instituted under this section, nor shall any review of any such order or decree be allowed.

(Emphasis supplied)

(4)....

So, under the aforesaid provision, no appeal shall lie from the decree passed in the suit instituted u/s 6 of the Specific Relief Act and therefore, the appeal filed by the plaintiff in First Appellate Court appears to be incompetent. In the circumstances, as the finding of the First Appellate Court to the effect that the suit is u/s 6 of the Specific Relief Act is not on elaborate discussion of the material placed on record and as it has not taken into consideration the date on which the plaintiff was dispossessed and the other grievances made by the plaintiff with regard to claim of the property on the basis of Will and also on the basis of grant and adoption, I think it is just and proper to remit the matter back to the First Appellate Court to consider the appeal on the aforesaid questions. Hence, I am of the opinion that it is a fit case wherein the judgment and decree of the First Appellate Court will have to be set aside by remitting the matter back to the First Appellate Court to decide the questions as to whether the suit instituted was u/s 6 of the Specific Relief Act; on elaborate discussion of the material placed on record and also to consider as to whether the appeal filed is competent in case if it holds that the suit is u/s 6 of the Specific Relief Act. In that view of the matter, as there is no material at this stage to answer the substantial question of law conclusively, it is kept open for consideration by the First Appellate Court.

Learned Counsel for the appellant has filed IA.1/2011 seeking permission to examine the attesting witnesses of the Will said to have been executed by Kariyavva. As could be seen from the affidavit and the reasons putforth by the appellant, I do not find any justification in granting the permission as there is inordinate delay in filing this application. It is relevant to note that appellant did not take any steps before the First Appellate Court by filing the said application. Therefore, I am of the opinion that it is an after thought by the appellant in seeking this permission. Hence, the said application cannot be maintained.

In the result the appeal is allowed and the judgment and decree passed by the First Appellate Court in RA No. 114/2002 dated 20.07.2006 is set aside. The matter is remitted back to the First Appellate Court with a direction to dispose of the appeal in accordance with law and in the light of the observations made above. IA.1/2011 is rejected. Both the parties are directed to appear before the First Appellate Court on 26.06.2012, to avoid the delay in disposal. As the appeal before the First Appellate Court is of the year 2002, the First Appellate Court is directed to dispose of the appeal as expeditiously as possible preferably within 6 months from the date of communication of this order.