ORDER
Abhay M. Naik, J.
1. This revision is directed against judgment and decree dated 4th December, 08, passed by the Court of Additional Judge to the Court of First Additional District Judge, Gwalior in Civil Suit No. 29-A/08, filed under Section 6 of the Specific Relief Act, 1963.
2. Plaintiffs instituted a suit, mainly, with the allegations that the suit house situated at Narayani Bai Ki Ganji, Shinde Ki Chhawni, Bijali Ghar, Lashkar Gwalior bearing Municipal Number 1174 Ward No. 32 (old number 1046 Ward No. 32 and earlier number 943 Ward No. 23) was owned and possessed by the plaintiffs which was entered into the municipal record in the name of Sunderpal, husband of the plaintiff No. 1 and father of plaintiff Nos. 2 to 6. Plaintiffs used to reside in the suit house. However, due to the absence of facility of water and electricity and further due to its dilapidated condition, plaintiffs kept there old domestic material inside and put a lock over it and shifted to their another house in the same area. They used to keep supervision over it up to August, 06. However, the entire family in the month of September, 06 fell sick by 'Chikangunia' and they failed to visit the house for a month. During this period, defendant demolished the plaintiff's construction and constructed two Pucca rooms after removing the belongings of the plaintiffs which were kept inside the suit house. The suit house was surrounded by various properties belonging to the community of the defendant, therefore, the plaintiffs could not come to know about their forcible dispossession and construction made by the defendant.
3. Plaintiff No. 1 is a poor widow and employed as a peon in A.G. Office. On 1-10-06, she lodged a report with the Police Station, Jayendraganj, Gwalior. When no cognizance was taken on her report, she made a written complaint to Municipal Corporation, Gwalior on 5-10-06. Again no heed was paid. However, the defendant completed the construction and occupied the suit house forcibly, hence the suit was instituted on 18-10-06 with a prayer for restoration of possession.
4. It is not out of place to mention here that by virtue of amendment vide order dated 21-1-08, a relief was added that the construction made by the defendant may be demolished and removed.
5. Defendant/revisionist submitted his written statement denying thereby the claim of the plaintiffs. It was, inter alia, staled that the suit property is in continuous possession of the defendant since 1976. It is stated that there was a pucca Patore belonging to the defendant which was being used by the defendant to keep fodder of buffaloes. He was running a dairy, which was closed and consequently, the said Patore was of no use and was, therefore, demolished and removed. Thereafter the construction of two room was made over it. Boundaries were already constructed. It was further stated that no construction was made during the period of two years and only plastering and whitewashing were made.
6. It was denied that the plaintiff and her family members were suffering from Chikanguniya. It was denied that the belongings of the plaintiffs were inside the Patore. On the contrary, it was stated that waste and unusable domestic material was kept inside. Accordingly, it was stated that the suit under Section 6 of the Specific Relief Act is liable to dismissal. Additionally, it was stated that the Court dealing with the suit under Section 6 of the Specific Relief Act has no power to direct to remove the construction from the suit premises.
7. After recording the evidence, learned Trial Judge decreed the suit in favour of the plaintiffs. Learned Trial Judge held that the plaintiffs are entitled to restoration of possession and the defendant has been directed to remove his construction within a period of two months and deliver possession thereafter. He was also further directed to refrain from making any construction and interference after delivery of possession to the plaintiffs. Aggrieved by the same, present civil revision is submitted.
8. Shri H.D. Gupta, learned Sr. Advocate and Shri Ashok Khedkar, learned Counsel appearing for the revisionist and non-applicants, respectively, made their submissions at length which have been considered in the light of the material on record.
9. It has been contended by Shri Gupta, learned Sr. Counsel for the revisionist that prior possession of the plaintiffs within a period of six months preceding the institution of the suit is not established. On the contrary, the defendant has successfully proved that he was in possession of it. It is further submitted that the learned Trial Judge has considered the question of title to the suit house whereas the question of title is beyond the purview of Section 6 of the Specific Relief Act.
10. On perusal, the submission of learned Sr. Advocate is not found impressive. Issue No. 1 is in respect of plaintiffs possession up to August, 06 whereas issue No. 2 is about forcible possession by the defendant in September, 06. This issue further involves the question of construction of two pucca rooms after forcible occupation by the defendant. There is no issue framed by the learned Trial Judge with regard to title of the suit property which clearly goes to show that the learned Trial Judge while dealing with the suit under Section 6 of the Specific Relief Act was fully aware of his limitation. In Paragraph 13 of the impugned judgment learned Trial Judge reminded himself of the fact that while dealing with the matter under Section 6 of the Specific Relief Act, it has to be determined that whether the plaintiff was in possession of the suit property and has been dispossessed illegally and forcibly and that after such dispossession a suit under Section 6 of the Specific Relief Act for restoration of possession has been brought within a period of six months from the date of their dispossession. From these specific contents of Paragraph 13, it is clear that the learned Trial Court was fully aware of its limitation under Section 6 of the Specific Relief Act. From Paragraph 14 onwards to Paragraph 39, learned Trial Judge has discussed the entire evidence and has finally concluded in Paragraph 40 after appreciating the evidence on record that it has been proved by the documentary and oral evidence that the plaintiffs were in possession of the suit property till August, 06. It has further been held that in September, 06 defendant forcibly occupied the suit house and has further constructed two rooms over it. Appreciation made by the learned Trial Judge and the result arrived therefrom is not impeachable merely on the ground that a different view was possible. It is not permissible in law as observed by the Hon'ble Supreme Court of India in the case of Bhojraj Kunwarji Oil Mill and Ginning Factory and Anr. v. Yograjsinha Shankersinha Parihar and Ors. : AIR 1984 SC 1894. It was held that no interference is warranted in exercise of revisional jurisdiction merely on the ground that a different view was possible.
11. Admittedly, the Trial Court had a requisite jurisdiction to decide the suit under Section 6 of the Specific Relief Act. It had two sets of evidence; one adduced by plaintiff and another adduced by defendant. It has believed the evidence produced by the plaintiffs on the question of possession for the reasons slated in the judgment while appreciating the evidence. It is not a case of no evidence. In such a situation, it is not desirable to interfere in the findings recorded by the Trial Judge since there is no jurisdictional error. I may successfully refer to the decision of the Supreme Court of India in the case of D.L.F. Housing and Construction Co. (P) Ltd. v. Sarup Singh and Ors. : AIR 1971 SC 2324, wherein it is observed:
The position thus seems to be firmly established that while exercising the jurisdiction under Section 115, it is not competent to the High Court to correct errors of fact however, gross or even errors of law unless the said errors have relation to the jurisdiction of the Court to try the dispute itself. Clauses (a) and (b) of this Section on their plain reading quite clearly do not cover the present case. It was not contended, as indeed it was not possible to content, that the learned Additional District Judge had either exercised a jurisdiction not vested in him by law or had failed to exercise a jurisdiction so vested in him, in recording the order that the proceedings under reference be stayed till the decision of the appeal by the High Court in the proceedings for specific performance of the agreement in question. Clause (c) also does not seem to apply to the case in hand. The words 'illegally' and 'with material irregularity' as used in his Clause do not cover either errors of fact or of law; they do not refer to the decision arrived at but merely to the manner in which it is reached. The errors contemplated by this Clause may, in our view, relate either to breach of some provision of law or to material defects of procedure affecting the ultimate decision, and not to errors either of fact or of law, after the prescribed formalities have been complied with. The High Court does not seem to have adverted to the limitation imposed on its power under Section 115 of the Code. Merely because the High Court would have felt inclined, had it dealt with the matter initially, to come to a different conclusion on the question of continuing stay of the reference proceedings pending decision of the appeal, could hardly justify interference on revision under Section 115 of the Code when there was no illegality or material irregularity committed by the learned Additional District Judge in his manner of dealing with this question. It seems to us that in this matter the High Court treated the revision virtually as if it was an appeal.
12. Shri H.D. Gupta, learned Sr. Advocate placing reliance on the decision of the Apex Court in the case of Mahabir Prasad Jain v. Ganga Singh : (1999) 8 SCC 274, submitted that erroneous presumption drawn by the Trial Court and non-consideration of evidence on record cannot be ignored while exercising revisional power under Section 115 of the Code of Civil Procedure. His submission cannot be doubted at all. However, it could not be pointed out that the finding about the prior possession of the plaintiffs and their dispossession by the defendant is based on erroneous presumption or non-consideration of any particular material piece of evidence. Learned Trial Judge has discussed the evidence at length from Paragraph 9 to Paragraph 39. Though, the defendant has asserted his possession since the year 1976, it may be seen that adjacent to the disputed land in southern direction, the defendant/revisionist had purchased the immovable property vide Exh. P-13. In the map annexed to it, disputed property is shown to be that of Sunderlal. Although, the defendant/revisionist stated that the husband of plaintiff No. 1 was Sunderpal and not Sunderlal, but it has been found by the Trial Court as discussed in Paragraph 18 of the impugned judgment that Sunderpal was also known as Sunderlal. Suit property shown in the map of Exh. P-13 is not shown to be in possession of the defendant. There is further detailed discussion of evidence in Paragraph 30 of the impugned judgment. Thus, it cannot be said that the findings are recorded by the Trial Judge by drawing erroneous presumption and/or by ignoring any material piece of evidence on record.
13. It is further submitted that relief for removal of construction could not have been granted in a suit under Section 6 of the Specific Relief Act. Reliance for this purpose is placed on the Apex Court decisions in the cases of Mahabir Prasad Jain v. Ganga Singh : (1999) 8 SCC 274, Rahmatulla v. Maftzuilla and Ors. AIR 1915 Cal. 687 and Sona Mia and Anr. v. Prakash Chandra Bhattachariya and Ors. : AIR 1940 Calcutta 464.
In the case of Mahabir Prasad Jain (supra), there was no prayer for removal of the construction in the plaint. Relief granted by the Trial Court for removal of construction was confirmed by the High Court. In this background the Apex Court has observed as under:
As already pointed out, the decree passed by the Trial Court as affirmed by the High Court travels beyond the prayer in the plaint and also the scope of Section 6 of the Specific Relief Act. Apart from granting a decree for possession as prayed for by the respondent, the Trial Court has granted an additional relief which was not prayed for by him in that the Trial Court has directed the appellant to remove the construction put up by him including the dismantling of the glass. Such a relief cannot be granted under the provisions of Section 6 of the Specific Relief Act, particularly when there is no prayer therefor in the plaint.
14. Judgment of Calcutta in the case of Rahmatulla (supra), relied upon by learned Sr. Advocate for the revisionist is very short which may be reproduced as under:
The suit is, therefore, decreed with costs against defendant Nos. 1 to 8 and it is ordered that the plaintiffs do recover possession of the land by removing the house built on it by the defendants if necessary.
We granted a Rule calling upon the opposite party to show cause why the order complained of should not be set aside on the ground that it was beyond the jurisdiction of the Court. That portion of the order which allows the plaintiff to remove the house built on the land by the defendant is beyond the jurisdiction of the Court under the Section; for under that Section the Court cannot do more than make an order with respect to possession of the land. The rule is, therefore, made absolute, the first part of the order remains unaffected and that part of the order which directs to remove the house, etc., is set aside. The petitioner is entitled to his costs, the hearing fee being assessed at one gold mohur.
15. In another decision of Calcutta High Court in the case of Sona Mia and another (supra), it has been held as under:
All that the Court can do under Section 9, Specific Relief Act, is to restore the plaintiffs to physical possession. It cannot direct the defendants to remove any structures which they have erected on the land or permit the plaintiffs to pull down the structures. In a suit under Section 9 of the Act the question of the title of the respective parties is not adjudicated upon and, therefore, it would be wrong to pass any order regarding the structures on the land. The order of the learned Munsif ejecting the defendants from the land is maintained, but the order regarding the structures erected on the land by the defendants is set aside.
16. From the aforesaid decisions, it is clear that in a suit filed under Section 6 of the Specific Relief Act, the hands of the Courts are not tied if the defendant dispossesses the plaintiff and the plaintiff establishes that he was in possession within six months preceding the institution of the suit and dispossessed by the defendant in an illegal and forcible manner. Possession of suit property may be restored to him. Limitation of six months in such a suit is provided under Section 6 itself of the Specific Relief Act. Even if the defendant after dispossessing the plaintiff in an illegal and forcible manner makes a construction in hasty manner that will not dislodge the plaintiff from invoking Section 6 of the Specific Relief Act and jurisdiction of the Court under Section 6 (supra), cannot be ousted by the wrong of the defendant in the form of illegal and forcible construction. In case of contrary interpretation, it would provide a tool in the hands of the defendant to forcibly occupy anybody's property and make a speedy construction. It, perhaps, may not be the object of Legislative intent. Even the Apex Court in the case of Mahabir Prasad Jain (supra), has not held that in case if the construction is made on the subject matter of the suit under Section 6 of the Specific Relief Act, the suit will have to be dismissed tor want of jurisdiction. In the cases of Calcutta High Court cited above, the judgments pertaining to restoration of possession have been maintained, setting aside the direction for removal.
17. Shri Khedkar, learned Counsel for the non-applicants placing reliance on 1977 MPWN SN 519, Somnalh and Ors. v. Badri and Ors., contended that remedy against impugned judgment and decree is to file a regular suit for establishing title to the suit property. It is provided in Sub-section (4) of Section 6 of the Specific Relief Act and, therefore, no revision lies under Section 115 of the Code of Civil Procedure. In the case of Somnath (supra), itself, it is mentioned that there being no exceptional circumstance to justify interference, the revision was not maintainable in view of availability of remedy of civil suit. In the present case, direction for removal of construction is issued to the revisionist, which obviously is exceptional circumstance, therefore, I do not feel it proper to dismiss the revision on that count. I may derive benefit from the decision of the Supreme Court in the case of Sanjay Kumar Pandey and Ors. v. Gulbahar Sheikh and Ors. : (2004) 4 SCC 664, wherein it has been held:
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-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 properly 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.
18. Apart from the aforesaid, it may be seen that the suit was instituted on 18-10-06 whereas the amendment regarding relief was made on 22-1-08, which was obviously after about one year from the date of dispossession. No issue was raised on the question of relief pertaining to direction to the defendant for removal of construction. Thus, in the set of facts and circumstances of the case, direction for removal is found illegal and same is liable to be set aside. Accordingly, impugned judgment and decree with regard to direction to the defendant for removal of construction within two months is hereby set aside. Rest of the judgment is maintained. Decree be modified accordingly. However, this order will come into force after one month in order to enable the defendant to either remove the construction or to institute a suit as envisaged in Sub-section (4) of Section 6 of the Specific Relief Act.
No order as to costs.