Sekhar Dey And Ors. v. Khagendra Mazumder And Ors. Opposite Parties.

1. Heard Mr. P.C Dey, learned counsel for the petitioners and Mr. B.R Dey, learned senior counsel assisted by Mr. S. Dey for the opposite parties, This application under section 115 read with section 151 of the Code of Civil Procedure has been preferred by the plaintiffs challenging judgment and decree dated 29.3.2010 passed by the learned Munsiff, I Hojai, Sankardev Nagar, in T.S No. 33/2001 thereby dismissing the suit of the plaintiffs filed under section 6 of the Specific Relief Act, 1963.

2. By presenting the plaint in the court of learned Munsiff at Sankardev Nagar, Hojai, the petitioners asserted that they were in lawful possession of a plot of land measuring 11 Kathas, 13 Lechas covered by Dag No. 432 of Pub Lumding Kissamat under the Nagaon District but the defendants by forming unlawful assembly of about 40/50 persons trespassed into the land on 10.9.2001 and dispossessed the plaintiffs. It is also stated that on earlier occasions the same defendants had abortive attempts to dispossess the plaintiffs. The plaintiffs, therefore, filed the suit bearing T.S No. 33/2001 for restoration of possession under section 6 of the Specific Relief Act. The plaint was presented on 3.10.2001 and thereupon the learned court issued summons to the opposite parties/defendants. The defendants appeared and filed written statement contesting the claim of the plaintiffs.

3. The defendants disputed the possession of the plaintiffs over the suit land on or before 10.9.2001 and claimed that they have been in possession of the land since before the date referred to above. The defendants had also claimed the right, title and interest to the land aforesaid.

4. Defendant No. 3 filed a separate written statement while defendant No. 1 filed his own written statement. Since the proceeding is one under section 6 of the Specific Relief Act, the learned Trial court did not enter into the question of title and framed as many as 6 issues for the purpose of deciding as to whether the plaintiffs had possession over the suit Page: 153land on or before the alleged date of dispossession, i.e, 10.9.2001

5. Plaintiffs submitted affidavits under order XVIII, rule 4 of the Code of Civil Procedure and examined three witnesses including himself. The PW 1 was the plaintiff, the PW 2 was Rabindra Chakraborty and the PW 3 was Dipak Acharjee. PW 1 was cross-examined and discharged but the plaintiff failed to produce the other two witnesses for the purpose of cross-examination despite repeated adjournments were granted in their favour in this purpose. Under such compelling circumstances, the learned trial court, passed order expunging and striking out the examination-in-chief of PW 2 and PW 3 from the record and closed the evidence of the plaintiffs' side and directed the defendants to present their evidence. The defendants examined two witnesses, namely, Khagendra Mazumdar (DW 1) and Jogendra Nath Bora (DW 2) who were cross-examined by the plaintiffs'.

6. Upon perusal of the materials on record including the sole testimony of the plaintiff and the deposition of the two witnesses of the defendants, the learned trial court decided issue No. 4 against the plaintiff holding that plaintiffs failed to prove their possession over the suit land prior to 10.9.2001 and they also failed to prove that they were dispossessed from the suit land on 10.9.2001 in the manner suggested in the plaint and in the deposition of the PW 1. Since there was none to support the testimony of the sole PW 1, the learned trial court held that the pleaded story of the plaintiff, that they had been dispossessed from the suit land on 10.9.2001, could not be established. Having so found, the plaint filed under section 6 of the Specific Relief Act, was dismissed by judgment and decree dated 29.3.2010 This judgment has been called in question in the present revision petition.

7. In a proceeding under section 6 of the Specific Relief Act, a plaintiff is duty bound to establish that prior to his dispossession from the suit land he was in possession thereof. The second ingredient is to be established that he was dispossessed from the suit land by the defendants and third ingredient is that the application under section 6 of the Specific Relief Act was instituted within a period of six months from the date of dispossession. These are the three ingredients to be considered in a proceeding under section 6 of the Specific Relief Act. The court, in such a proceeding, is not supposed to enter into the question of title. No appeal lies against a finding or decision given by the court in a proceeding under section 6 of the Specific Relief Act. However, an aggrieved party is at liberty to file a regular title suit for right, title and interest and for getting possession over the suit land. Disposal of a proceeding under section 6 of the Specific Relief Act is not a bar for institution of regular title suit.

8. In the case in hand, admittedly it is a proceeding under section 6 of the Specific Relief Act. The plaintiffs, therefore, in this proceeding was duty bound to establish the following three things:

(I) that the plaintiffs were in possession of the suit land prior to 10.9.2001;

(II) that the plaintiffs were dispossessed forcefully by the defendants on 10.9.2001; and

(III) that the proceeding was instituted within a period of six months from 10.9.2001

The plaintiffs' version of being in possession and of being dispossessed on 10.9.2001 was not supported by any witness. No boundary witness or independent witness came to the witness box to prove that the plaintiffs were seen on the suit land to be in enjoyment thereof prior to the aforesaid date and that they were dispossessed on the date of occurrence. Under section 59 of the Evidence Act, all facts, except the contents of documents, are to be proved by oral evidence. Section 60 of Evidence Act provides that oral evidence must, in all cases, be direct; that is to say if it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it; if it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it and so on. Possession by a person is a fact which can be seen and so under section 60 of the Evidence Act such fact of possession has to be invariably proved by oral evidence by such a witness who has seen a person to be in possession. In the case in hand, plaintiffs claimed that they were in possession. This being a fact to be seen, some persons on the witness-box ought to have deposed that those persons have seen plaintiffs to be in possession. Unfortunately, PW 2 and PW 3 who submitted their cxamination-in-chief in the form of affidavit under-order XVIII, rule 4 of Code of Civil Procedure subsequently failed to make themselves available in the witness box for their cross-examination and despite repeated adjournments they could not be made available for cross-examination consequent to which their examinations-in-chief were struck out from the record. Resultantly there was none on record to say that he/they saw the plaintiffs to be in possession over the suit land on 10.9.2001 or on any other date. This being the position the claim of the plaintiffs to be in possession at any point of time was not proved. The findings of fact arrived at by the learned Trial court, therefore, cannot be said to be perverse. This being the position there is no scope for interference with the impugned judgment and decree in exercise of revisional jurisdiction by this court.

9. The revision petition is accordingly dismissed.

10. No order as to cost. It is needless to say that the dismissal of the Page: 155revision petition shall not be a bar for the plaintiffs to approach the competent civil court for adjudication of their claim by way of regular title suit, if so advised.