This appeal is at the instance of original defendants against the judgment and order dated 8th September, 1998 passed by learned Additional District Judge, Wardha in Regular Civil Appeal No. 120/1996 whereby the appeal was dismissed. The said appeal stems from judgment and order passed on 9th September, 1996 passed by learned Civil Judge, Junior Division, Hinghanghat in Regular Civil Suit No. 65/ 1991 which was decreed for possession and injunction.
2. Facts in brief are these:
The dispute relates to suit house consisting a total of seven rooms bearing Municipal House No. 2 in Swami Vivekanand Ward at village Hinghanghat, District Wardha. The plaintiff had sued defendants to permanently restrain them from obstructing his possession of house property. The suit house was owned by Narayanrao Wanikar (father of defendant no.1). The plaintiff is paying rent of Rs. 40/ per month since more than 15 years. The plaintiff paid rent to Narayanrao, father of first defendant and, after his demise, to the first defendant. The defendant no.1 had agreed to sell the suit house to second defendant. Since plaintiff was in actual possession, the defendant had attempted to dispossess the plaintiff by harassing the plaintiff i.e. removing tiles of the roof. First defendant sent letter dated 11.11.1989 asking the plaintiff to vacate the house. The plaintiff apprehended forcible dispossession at the hands of the defendants and moved for temporary injunction, which was granted in favour of the plaintiff on 16.3.1991. The defendants appeared to contest the suit. At their instance, a Commissioner was appointed, who had in report dated 10.09.1991 shown the plaintiff in occupation of only two rooms while showing defendants in occupation of five rooms. The plaintiff had thereafter moved an application dated 29.10.1991 for restoration of possession, alleging forcible dispossession by the defendants in respect of five rooms. The injunction was vacated on 30.11.1991. However, the plaintiff had filed Misc. Civil Appeal No.107/1992. Learned 3rd Additional District Judge, Wardha modified order dated 5th August 1994 and issued injunction in respect of two rooms of western side out of the suit house. The plaintiff proposed amendment in the plaint which was allowed vide Exh. 50 the application dated 15.2.1995. The plaintiff contended that on 17.6.1991, second defendant had forcibly dispossessed the plaintiff of the suit house except two rooms. The plaintiff had objected, but he was threatened. The report was lodged at Police Station but no action was taken. On 29.6.1991 second defendant gave threat to the plaintiff. Report was lodged with police on 30.6.1991. The suit was was resisted on the ground that the plaintiff had owned house No.134 near the suit house. One Ambatkar was tenant of the suit house but he was allotted another residence being a floodaffected; hence he had vacated the suit house. First defendant and his brother and mother were at Nagpur, at that time. In some part of the suit house, household articles of defendants were lying. The plaintiff took disadvantage of absence of defendants' family and occupied western side room of the suit house. The defendant denied that plaintiff was tenant of the suit house, but contended that the entry in Municipal record was related to only one room. According to first defendant, he was allotted a new site by the Government as the suit house is situated in flood affected area and the first defendant was bound to surrender the suit house to the Government. The first defendant had agreed to sell standing dilapidated structure to the second defendant and possession of suit house; except the western room was handed over to second defendant. It is thus contended that the plaintiff was bound to hand over possession of the western room and has no right to retain possession of the said room. The defendant denied the alleged incident of forcible dispossession of the plaintiff from the suit house in June 1991. The defendant prayed for dismissal of the suit also on the ground that full description of the suit house was not given in the plaint and that suit was barred by limitation as suit under section 6 of the Special Relief Act is required to be filed within six months of dispossession.
3. The trial Court upon evidence led, found that the plaintiff was forcibly dispossessed of five rooms of the suit house and that the plaintiff is entitled to possession of those five rooms on east, north, south side of the suit house. The trial Court appears to have recorded findings that the plaintiff is tenant at the annual rent of Rs. 480/ as per municipal record Exh. 57 and Exh. 58 extracts from assessment register showing that Narayan Wanikar is owner of suit house and possession as tenant is with the plaintiff. The trial Court, further, found that the first defendant had by letter (Exh.59) dated 11.11.1989 threatened the plaintiff as the first defendant intended to get back vacant possession of the suit house. The letter (Exh.59) mentioned a veiled threat in vernacular which reads thus : ......................................................................................................... ................................................................................................................... ( I have not given you any threat till today; but I wish to alert you) which reveals a bellicose intention of the first defendant to dispossess the plaintiff. The first defendant dispossessed the plaintiff of three rooms on 17.6.1991 taking disadvantage of the fact that the plaintiff had gone out of the town. The trial Court found that first defendant and second defendant prepared an agreement for sale Exh. 75 and Exh.76 as if to give impression that possession of five rooms were handed over to second defendant on that basis. Finding afterthoughts and inconsistencies in the version of defendants, the trial Court believed the plaintiff's case of his forcible dispossession from five rooms in the suit house and decreed the suit claim restraining the defendants from disturbing possession of the plaintiff's two rooms on western side of the suit house and also allowing the plaintiff to recover possession of rest of five rooms from the defendants.
4. The first appellate Court recorded its concurrent findings and confirmed judgment and order passed by the trial Court and dismissed the appeal.
5. The Second Appeal against two concurrent judgments was admitted on 20.10.1998 on the basis of substantial question of law carved out in the memorandum of appeal.
6. I have heard submissions at the Bar. It is contended on behalf of the appellants ( Ori. defendants) that the trial Court ought not to have permitted amendment in the plaint which allowed the plaintiff to introduce case of dispossession after efflux of a year of alleged forcible dispossession. It is further contended that the Courts below were not justified in accepting the case of the plaintiff about the dispossession. It is also submitted that the suit could not have been decreed as it was not filed within six months of alleged dispossession. According to learned Advocate for the appellant, the suit ought to have been dismissed on the ground of limitation although it was not set up as defence.
7. Learned Advocate for the respondent contended that the Court can always in cases where muscle power is used to dispossess a party in possession, use inherent powers as permitted under section 94 and 151 of the Code of Civil Procedure and order restoration of possession to the dispossessed party to meet the ends of justice. Learned Advocate for the plaintiff/respondent made a reference to Harishchandra Narayan Maurya vs. Rajendra Prasad Verma : 1997 (3) Mh.L.J. 437.
8. It is wellsettled legal position that an amendment in the pleadings is permissible if it can enable the court to finally determine the real controversy between the parties. No fault can be found with the trial Court in this regard so as to allow amendment in pleadings during pendency of the suit. Actual physical possession is considered as nine points of law as peace, law and order in society is of vital importance. The dispute between the parties has to be settled in a civilized manner by taking recourse to legally available remedy and not by taking law unto one's own hands by any member of the public. This is essential to ensure law, tranquility and order in the society. This legal position is settled in Shantikumar vs. Shakutnala Devi (2004) 1 SCC
438. I do not find any ground to interfere with the concurrent findings of facts recorded by the Courts below. The Courts below have considered oral as well as documentary evidence and dealt with pleadings and questions of law by wellreasoned concurrent judgments. I do not find any perversity whatsoever in the impugned judgments. No ground is made out to set aside the concurrent findings of facts.
9. In the result, the appeal being sans merit, deserve dismissal, which I direct.