Shrimati Amar Kaur vs Hardev Singh and others

V. K. Jhanji, J.—The dispute in this second appeal relates to land measuring 3 Bighas 15 Biswas comprised in Rectangle No. 23, Killa No. 6/2 situated in village Khamano Tehsil Samrala District Ludhiana as per Jamabandi for the year 1972-73. Amar Kaur, plaintiff obtained a decree in suit decided on 7-1-1957 against her sons Dalip Singh and Malkiat Singh for recovery of Rs. 200/ - for six months as maintenance and for being entitled to remain in possession of 11 Bighas 7 Biswas of land comprised in Rectangle No. 22, Killa No. 10/2, 11, 20/1 out of rectangle No. 23, Killa No. 6/2 as per Jamabandi for the year 1954-55 in lieu of maintenance till her death. Since the amount of maintenance was not paid, Amar Kaur got the land of her sons Dalip Singh and Malkiat Singh including land comprised in Killa No. 6/2, auctioned in execution of decree and with the permission of the Court, purchased it herself on 24-5-1960. Amar Kaur became the absofute owner of the land which she purchased in auction in execution of the decree of her maintenance. Before Amar Kaur pur- chased the land in open auction, one of her sons namely, Malkiat Singh sold 15 Bighas 10 Biswas of land which was his 1/2 share out of total land of 31 Bighas 1 Biswa, to Hardev Singh, Sewa Singh and Hardev Kaur (now respondents) vide sale deed dated 12-6-1958 registered on 29-4-1959. However, no specific Khasra No. was sold vide the aforesaid sale deed.

Respondents i.e. vendees from Malkiat Singh, filed a suit for declaration that the sale in favour of Amar Kaur in open auction is not binding on them. This matter finally came up in High Court and C. G. Suri, J. (as his Lordship then was), vide judgment dated 11-5-1973 in Regular Second Appeal No. 1089 of 1963 held:

"Shri T. S. Mangat then argued that the decree was in respect of a Khasra number which had not been mentioned in the sale deed, executed by Malkiat Singh in favour of the plaintiff-respondents. This objection does not form the subject matter of any ground of appeal taken by Shri Mangat. Even otherwise, the decree is for joint possession and the decree-holder can only get symbolical possession during execution. The exact khasra numbers to be given to the vendee can be determined in a suit for partition of the joint holding."

Amar Kaur apprehending forcible dispossession from the land measuring 11 Bighas 7 Biswas which she had purchased in the open auction and was in possession of the same, filed a suit for injunction on 20-9-1973 seeking a restraint order against her forcible dispossession from the land included in Killa No. 6/2.

During the pendency of the suit, Amar Kaur was forcibly dispossessed from the land measuring 11 Bighas 7 Biswas comprised in Killa No. 6/2 and, therefore, learned Sub Judge trying that suit, decreed the suit in respect of the rest of the land except Killa No. 6/2 as the learned sub Judge was of the view that no injunction can be granted in respect of this land as she had already been dispossessed. However, it was observed by the learned Sub Judge that Amar Kaur could file a separate suit for possession in respect of Killa No. 6/2. This is how the present suit out of which the present appeal has arisen, was filed for possession of land measuring 3 Bighas 15 Biswas by Amar Kaur.

Plaintiff in her suit claimed that she was owner-in-possession of the land in suit and she had been forcibly dispossessed about 2 years back from the date of institution of the suit. The suit was Contested by the respondents raising various objections and the trial Court finally dismissed the suit holding that though Amar Kaur is proved to be co-owner of the property in dispute but she having claimed possession only on the basis of her dispossession, the suit could be filed within six months from her dispossession as provided u/s 6 of the Specific Relief Act. Amar Kaur being aggrieved of the judgment and decree of the trial Court, filed appeal before the first appellate Court and her appeal was also dismissed. Amar Kaur has filed this regular second appeal challenging the judgment and decree of the courts below.

The contention of learned counsel for the plaintiff (now appellant) is that the Courts below have not properly construed the pleadings of the parties. His submission is that the suit is not as contemplated u/s 6 of the Specific Relief Act but is based on possessory title as she wanted to get back possession from the respondents as she was dispossed otherwise than in due course of law.

On the other hand, learned counsel for the respondents has maintained that the Courts below have rightly dismissed the suit of the plaintiff as the same could be filed within six months from her dispossession.

It is not disputed that the plaintiff has averred in her plaint that she is owner and was in possession of the land in dispute since 1960 uptill 27-1-1975 when she was forcibly dispossessed from land measuring 3 Bighas 15 Biswas by the respondents. Both the Courts below have also returned a finding that the plaintiff is a co-sharer and was in exclusive possession of the suit land till she was dispossessed by the respondents. Her suit was dismissed only on the ground that the same was filed beyond the period of limitation. I am not inclined to agree with the reasons of the Courts below. The object behind Section of the Specific Relief Act is to discourage persons taking law into their own hands.

It is a summary remedy available to the person in possession of the immovable property when he is dispossessed otherwise than in due process of law. A suit, u/s 6 of the Specific Relief Act is not maintainable against a person after the expiry of six months from the date of dispossession. When a person is dispossessed, then u/s 6 of Specific Relief Act, the Court is only required to consider whether a person has been wrongly dispossessed and has come to the Court within six months of the dispossession.

In the present case, the plaintiff has specifically averred in the suit that she is owner and was in exclusive possession of the property till 27-1-1975 when she was forcibly dispossessed from the land in suit by the respondents. Her suit is not u/s 6 of the Specific Relief Act but the plaintiff has come to the Court on the basis of possessory title as she wanted to get back possession from the respondents as she was dispossessed otherwise than in due course of law.

Article 64 of the Limitation Act provides as under:--

Description of suit Period of limitation Time from which period begins to run

"64. For possession of immovable property based on previous possession and not on title, when the plaintiff while in possession of the property has been dispossessed. Twelve years. The date of dispossession.

A bare reading of Article 64 of the Limitation Act shows that where plaintiff was in possession of certain immovable property and was dispossessed by the defendant, then the suit for possession can be brought within 12 years from the date of dispossession. In order to succeed, the plaintiff must prove possession within 12 years and dispossession by the defendant. In Nair Service Society Ltd. Vs. Rev. Father K.C. Alexander and Others, , it was held that in such a situation the plaintiff is not necessarily required to file a suit u/s 9 (now Section 6) of the Specific Relief Act. He can as well file a suit on prior possession within 12 years and title need not be proved unless the defendant can prove one. Following this proposition, it can safely be held that the plaintiff brought the present suit on prior possession and dispossession by the defendants (respondents). The suit having been brought within 12 years from the date of possession is thus within time. The mere fact that the defendants (respondents) claimed to he co-sharers will not make any difference because a co-sharer is entitled to remain in exclusive possession of separate and joint land under the arrangement consented to by other co-sharers and in that contingency it is not open to any such co-sharer to disturb the arrangement without the consent of the others except by filing a suit for partition. The objection that the plaintiff has not alleged or proved such prior arrangement is also without any substance. It may be noticed that the plaintiff obtained a decree against her sons Dalip Singh and Malkiat Singh in suit decided on 7-1-1957 for recovery of Rs. 200/-for six months and for being entitled to remain in possession of land measuring 11 Bighas 7 Biswas which also includes the suit land from which she was forcibly dispossessed by the respondents. In view of this, she has proved prior arrnagement in the form of decree vide which she was permitted to remain in exclusive possession. The respondents, in such a situation, could not forcibly dispossess the plaintiff by wrongful means. However, the respondents, can very well file a suit for partition against the plaintiff. The plaintiff, therefore, was entitled to protect her possession till partition and defendants (respondents) had no right to dispossess her forcibly.

The defendants (respondents) having wrongfully dispossessed the plaintiff from the land in suit, are liable to restore possession to the plaintiff. As a result therefore, the appeal is allowed and the judgments and decree of the Courts below are set aside and the suit of the plaintiff is decreed. However, parties are left to bear their own costs.

Appeal allowed.