Mohd. Ibrahim and ors. Vs. Smt. Munni @ Zainab Bee - Court Judgment

Excerpt:
- cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. teacher employed in the school run by cantonment board being covered under rule 2 (f) of the cantonment fund servants rules, 1937 can file appeal under rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [deolali cantonment board v usha devidas dongre, 1993 mah. lj 74; 1993 lab ic 1858 overruled]. -- maharashtra employees of private schools (conditions of service) regulations act, 1978 [act no. 3/1978]. sections 9 & 2(21): jurisdiction of school tribunal whether a school run by cantonment board is not a recognised school within the meaning of section 2(21)? - held, the act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the act shall apply to all private schools in the state whether receiving any grant-in-aid from the state government or not. private school is defined in section 2(2) of the act as a recognised school established or administered by a management other than the government or a local authority. recognised means recognised by director, the divisional board or state board. thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four directors, the divisional boards and four state boards. the second part of this definition which comes after the comma refers to any officer authorised by director or by any of such boards. the question to be examined is whether school run by the cantonment board could be said to be one run by any such boards. a private school has to be recognised by the state or the divisional board or by any officer authorised in that behalf. when this phrase namely: recognised by any officer authorised by the director or by any such boards, is included in the latter part of section 2(21), such boards will be of the level of the state board or the divisional board. the boards referred to in the definition of the word recognised means the boards which deal with education at levels other than that of the level at which primary schools are operating. thus for being recognised, the school has to be recognised by the board and therefore, it has to be operating at a higher level i.e., secondary level. section 2(21) of the act defines the term recognised. the last clause therein is by any of such boards. the term such is defined in oxford dictionary as of the kind or degree indicated or implied by the context. therefore, the term such board will have to mean a divisional board of or the level of divisional board or the state board. the divisional board holds the examination and issues certificates after 10th and 12th standard examinations. the state board advises the state government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. the cantonment board does not discharge any of such duties nor is there any other board or body under the cantonments act discharging any such duties. the duties of the cantonment board are laid down in section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. the cantonment board is not required to enter into the area of secondary education. therefore, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. that being the position, it is not possible to accept it to be a recognised school for being a private school under the act. for the reasons state above, the school tribunal constituted under section 8 of the act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. [deolali cantonment board v usha devidas dongre, 1993 mah.lj 74; 1993 lab ic 1858 overruled]. - 4. the main contention of the learned counsel for the revision petitioners is that inasmuch as a suit under section 6 of the act has to be filed within a period of six months from the date of dispossession, and since the alleged dispossession, according to the respondent, was in june, 1993 and since the suit is of the year 1997, the suit is clearly barred by time. ) held that no question of title either of the plaintiff or of the defendant can be raised or gone into in a suit under section 9 of the specific relief act, 1877 (corresponding to section 6 of the specific relief act, 1963) and that plaintiff would be entitled to succeed without proving any title on which he can fall back upon and the defendant cannot succeed even though he may be in a position to establish the best of all titles, and that the restoration of possession, in such a suit, is however always subject to a regular title suit and the person who has the real title, or even the better title cannot therefore be prejudiced in any way by a decree in such a suit, as it is always open to him to establish his title in a regular suit and to recover back possession. 8. though the contention that the suit is filed several years after the alleged dispossession, prima facie, it appears to be true, on an examination of the record of the trial court, it is seen that the respondent instituted the suit as an indigent person on 17-09-1993 and the trial court after enquiry into the means of the respondent, registered the suit in 1997. so, it is clear that the respondent filed the suit well within six months from the date of dispossession alleged by her and so the suit is perfectly within time. a-4- reply given thereto it is alleged 'the real fact is that your client and the first wife of my client are living happy life, but at the instance of your client's father's sister left the house of my client without any information and permission by taking all her luggage and at present she is residing with her cousin brother'.the date on which the respondent left the house is not mentioned and the allegation that she was not in possession of the house only from june 1993 onwards is not disputed in their reply notice. 1 clearly stated that she was driven away from the house. 2. it is well known that when a fact stated in the chief-examination is not disputed in the cross-examination, it should be deemed to be admitted.orderc.y. somayajulu, j.1. respondent filed a suit under section 6 of the specific relief act, 1963 (for short 'the act') for recovery of possession of the plaint schedule property alleging that plaint schedule property is her property and that the first revision petitioner, who is her husband, and other revision petitioners, who are the first wife and children of the first revision petitioner, have forcibly necked her out of the plaint schedule property.2. the first revision petitioner filed his written statement, inter alia, contending that after he developed intimacy with the respondent priorto the marriage, he purchased a vacant site in the name of the respondent and constructed a house therein later and so the plaint schedule property, in fact, belongs to him and that the sale deed in favour of the respondent is only a benami transaction and that the respondent out of her own volition went away from the house and so she is not entitled to any relief.3. on the basis of the pleadings, the trial court framed two issues for trial. in support of her case, the respondent examined herself as p.w.1. and another witness as p.w.2 and marked exs.a-1 to a-5. on behalf of the revision petitioners, the first revision petitioner examined himself as r.w.1. and two other witnesses as r.ws.2 and 3, but they did not adduce any documentary evidence on their behalf. the trial court held in favour of the respondent and decreed the suit directing the revision petitioners to vacate the plaint schedule property within two months from the date of the judgment. aggrieved by the said judgment, this revision is preferred.4. the main contention of the learned counsel for the revision petitioners is that inasmuch as a suit under section 6 of the act has to be filed within a period of six months from the date of dispossession, and since the alleged dispossession, according to the respondent, was in june, 1993 and since the suit is of the year 1997, the suit is clearly barred by time. his next contention is that the dispute between the respondent and the first revision petitioner is purely a marital dispute and the respondent by converting the marital dispute between her and her husband, the first revision petitioner, wants to grab the property purchased by him in her name, to cause wrongful loss to him and that the trial court without properly appreciating the evidence on record, erroneously decreed the suit. it is also his contention that when it is specifically alleged by the revision petitioners that the respondent voluntarily left the society of the first revision petitioner, it cannot be said that there was any dispossession or forcible dispossession of the respondent by the revision petitioners and so the court has no jurisdiction to entertain a suit under section 6 of the act.5. the contention of the learned counsel for the respondent is- that since the specific case of the respondent is that she was necked out of the house by the first revision petitioner and since the sale deed relating to the plain schedule property is standing in her name as evidenced by ex.a-1 and since there is no reason for the respondent to leave the society of the first revision petitioner and stay somewhere else out of her own accord, the contention that she left the society of the first revision petitioner voluntarily, and was not necked out from the plaint schedule property cannot be believed or accepted. it is also his contention that the specific evidence of the respondent, as p.w.1 in her chief-examination, that she was dispossessed from the house is not denied or disputed by the revision petitioners in her cross-examination by them and similarly the evidence of p.w.2 that the respondent was necked out of the house was not disputed in his cross-examination, the contention that there was no forcible dispossession of the respondent cannot be accepted and contended that since the trial court gave cogent reasons for its conclusion, there are no grounds to interfere with the judgment under revision.6. though arguments are advanced on the question of title relating to the plaint schedule property, since the suit is under section 6 of the act, i need not go into the question of title, as a full bench of allahabad high court in yar muhammad v. lakshmi das : air1959all1 (f.b.) held that no question of title either of the plaintiff or of the defendant can be raised or gone into in a suit under section 9 of the specific relief act, 1877 (corresponding to section 6 of the specific relief act, 1963) and that plaintiff would be entitled to succeed without proving any title on which he can fall back upon and the defendant cannot succeed even though he may be in a position to establish the best of all titles, and that the restoration of possession, in such a suit, is however always subject to a regular title suit and the person who has the real title, or even the better title cannot therefore be prejudiced in any way by a decree in such a suit, as it is always open to him to establish his title in a regular suit and to recover back possession. therefore, it is not necessary for me to go into the question of title relating to the plaint schedule property in this case. the person who feels that he has a title to the property, if aggrieved by the judgment in the suit, can always file a suit for declaration of title and recovery of possession.7. as rightly contended by the learned counsel for the revision petitioners the only point for consideration in this revision would be whether the respondent was in possession of the property and if she was forcibly dispossessed from the property within six months prior to the date of filing of the suit.8. though the contention that the suit is filed several years after the alleged dispossession, prima facie, it appears to be true, on an examination of the record of the trial court, it is seen that the respondent instituted the suit as an indigent person on 17-09-1993 and the trial court after enquiry into the means of the respondent, registered the suit in 1997. so, it is clear that the respondent filed the suit well within six months from the date of dispossession alleged by her and so the suit is perfectly within time.9. since it is the case of the revision petitioners that the respondent walked out of the house it is clear that they are not disputing the fact that she was in possession of the plaint schedule property till june, 1993. so the question is whether the respondent was forcibly dispossessed from the plaint schedule property. ex.a-3 is the registered notice dated 28-07-1993 issued by the respondent to the first revision petitioner where it is specifically alleged 'some 1 1/2 months back you have necked out my client and her daughter from the house of my client bearing no. ..'.in ex.a-4- reply given thereto it is alleged 'the real fact is that your client and the first wife of my client are living happy life, but at the instance of your client's father's sister left the house of my client without any information and permission by taking all her luggage and at present she is residing with her cousin brother'. the date on which the respondent left the house is not mentioned and the allegation that she was not in possession of the house only from june 1993 onwards is not disputed in their reply notice. in the plaint it is alleged that in the month of june, 1993 defendant nos.1 and 2 came to the suit house and forcibly evicted the plaintiff without her consent. in the written statement it is specifically alleged that the respondent left voluntarily from the house. while giving evidence the respondent as p.w.1 clearly stated that she was driven away from the house. in the long cross-examination that statement of hers was not disputed. the whole cross-examination concentrated on who purchased the plaint schedule property. p.w.2 also stated that the husband of the plaintiff dispossessed the plaintiff from the plaint schedule property. no cross-examination was done on that statement of p.w.2. it is well known that when a fact stated in the chief-examination is not disputed in the cross-examination, it should be deemed to be admitted. therefore, the contention that there is no evidence on record to show that the respondent was forcibly dispossessed cannot be accepted.10. since the evidence on record shows that the respondent who was in possession of the plaint schedule property was forcibly evicted there from, and since the suit is filed within six months from the date of dispossession, the finding of the trial court that the respondent is entitled to recover possession from the revision petitioners cannot be said to be erroneous. therefore, i find no ground to interfere with the judgment under revision.11. hence, the revision is dismissed with costs. revision petitioners are granted two months time for vacating the suit house. it is needless to say that if the revision petitioners feel that they are the owners of the property, they are entitled to file a suit for declaration of their title which shall be decided on its merits.

Judgment:
ORDER

C.Y. Somayajulu, J.

1. Respondent filed a suit under Section 6 of the Specific Relief Act, 1963 (for short 'the Act') for recovery of possession of the plaint schedule property alleging that plaint schedule property is her property and that the first revision petitioner, who is her husband, and other revision petitioners, who are the first wife and children of the first revision petitioner, have forcibly necked her out of the plaint schedule property.

2. The first revision petitioner filed his written statement, inter alia, contending that after he developed intimacy with the respondent priorto the marriage, he purchased a vacant site in the name of the respondent and constructed a house therein later and so the plaint schedule property, in fact, belongs to him and that the sale deed in favour of the respondent is only a benami transaction and that the respondent out of her own volition went away from the house and so she is not entitled to any relief.

3. On the basis of the pleadings, the trial Court framed two issues for trial. In support of her case, the respondent examined herself as P.W.1. and another witness as P.W.2 and marked Exs.A-1 to A-5. On behalf of the revision petitioners, the first revision petitioner examined himself as R.W.1. and two other witnesses as R.Ws.2 and 3, but they did not adduce any documentary evidence on their behalf. The trial Court held in favour of the respondent and decreed the suit directing the revision petitioners to vacate the plaint schedule property within two months from the date of the judgment. Aggrieved by the said judgment, this revision is preferred.

4. The main contention of the learned Counsel for the revision petitioners is that inasmuch as a suit under Section 6 of the Act has to be filed within a period of six months from the date of dispossession, and since the alleged dispossession, according to the respondent, was in June, 1993 and since the suit is of the year 1997, the suit is clearly barred by time. His next contention is that the dispute between the respondent and the first revision petitioner is purely a marital dispute and the respondent by converting the marital dispute between her and her husband, the first revision petitioner, wants to grab the property purchased by him in her name, to cause wrongful loss to him and that the trial Court without properly appreciating the evidence on record, erroneously decreed the suit. It is also his contention that when it is specifically alleged by the revision petitioners that the respondent voluntarily left the society of the first revision petitioner, it cannot be said that there was any dispossession or forcible dispossession of the respondent by the revision petitioners and so the Court has no jurisdiction to entertain a suit under Section 6 of the Act.

5. The contention of the learned Counsel for the respondent is- that since the specific case of the respondent is that she was necked out of the house by the first revision petitioner and since the sale deed relating to the plain schedule property is standing in her name as evidenced by Ex.A-1 and since there is no reason for the respondent to leave the society of the first revision petitioner and stay somewhere else out of her own accord, the contention that she left the society of the first revision petitioner voluntarily, and was not necked out from the plaint schedule property cannot be believed or accepted. It is also his contention that the specific evidence of the respondent, as P.W.1 in her chief-examination, that she was dispossessed from the house is not denied or disputed by the revision petitioners in her cross-examination by them and similarly the evidence of P.W.2 that the respondent was necked out of the house was not disputed in his cross-examination, the contention that there was no forcible dispossession of the respondent cannot be accepted and contended that since the trial Court gave cogent reasons for its conclusion, there are no grounds to interfere with the judgment under revision.

6. Though arguments are advanced on the question of title relating to the plaint schedule property, since the suit is under Section 6 of the Act, I need not go into the question of title, as a Full Bench of Allahabad High Court in Yar Muhammad v. Lakshmi Das : AIR1959All1 (F.B.) held that no question of title either of the plaintiff or of the defendant can be raised or gone into in a suit under Section 9 of the Specific Relief Act, 1877 (corresponding to Section 6 of the Specific Relief Act, 1963) and that plaintiff would be entitled to succeed without proving any title on which he can fall back upon and the defendant cannot succeed even though he may be in a position to establish the best of all titles, and that the restoration of possession, in such a suit, is however always subject to a regular title suit and the person who has the real title, or even the better title cannot therefore be prejudiced in any way by a decree in such a suit, as it is always open to him to establish his title in a regular suit and to recover back possession. Therefore, it is not necessary for me to go into the question of title relating to the plaint schedule property in this case. The person who feels that he has a title to the property, if aggrieved by the judgment in the suit, can always file a suit for declaration of title and recovery of possession.

7. As rightly contended by the learned Counsel for the revision petitioners the only point for consideration in this revision would be whether the respondent was in possession of the property and if she was forcibly dispossessed from the property within six months prior to the date of filing of the suit.

8. Though the contention that the suit is filed several years after the alleged dispossession, prima facie, it appears to be true, on an examination of the record of the trial Court, it is seen that the respondent instituted the suit as an indigent person on 17-09-1993 and the trial Court after enquiry into the means of the respondent, registered the suit in 1997. So, it is clear that the respondent filed the suit well within six months from the date of dispossession alleged by her and so the suit is perfectly within time.

9. Since it is the case of the revision petitioners that the respondent walked out of the house it is clear that they are not disputing the fact that she was in possession of the plaint schedule property till June, 1993. So the question is whether the respondent was forcibly dispossessed from the plaint schedule property. Ex.A-3 is the registered notice dated 28-07-1993 issued by the respondent to the first revision petitioner where it is specifically alleged 'some 1 1/2 months back you have necked out my client and her daughter from the house of my client bearing No. ..'.In Ex.A-4- reply given thereto it is alleged 'the real fact is that your client and the first wife of my client are living happy life, but at the instance of your client's father's sister left the house of my client without any information and permission by taking all her luggage and at present she is residing with her cousin brother'. The date on which the respondent left the house is not mentioned and the allegation that she was not in possession of the house only from June 1993 onwards is not disputed in their reply notice. In the plaint it is alleged that in the month of June, 1993 defendant Nos.1 and 2 came to the suit house and forcibly evicted the plaintiff without her consent. In the written statement it is specifically alleged that the respondent left voluntarily from the house. While giving evidence the respondent as P.W.1 clearly stated that she was driven away from the house. In the long cross-examination that statement of hers was not disputed. The whole cross-examination concentrated on who purchased the plaint schedule property. P.W.2 also stated that the husband of the plaintiff dispossessed the plaintiff from the plaint schedule property. No cross-examination was done on that statement of P.W.2. It is well known that when a fact stated in the chief-examination is not disputed in the cross-examination, it should be deemed to be admitted. Therefore, the contention that there is no evidence on record to show that the respondent was forcibly dispossessed cannot be accepted.

10. Since the evidence on record shows that the respondent who was in possession of the plaint schedule property was forcibly evicted there from, and since the suit is filed within six months from the date of dispossession, the finding of the trial Court that the respondent is entitled to recover possession from the revision petitioners cannot be said to be erroneous. Therefore, I find no ground to interfere with the judgment under revision.

11. Hence, the revision is dismissed with costs. Revision petitioners are granted two months time for vacating the suit house. It is needless to say that if the revision petitioners feel that they are the owners of the property, they are entitled to file a suit for declaration of their title which shall be decided on its merits.