1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Second Appeal No. 380/2003 (Smt. Sulekha Begum Mohd. Shafi VERSUS Marium Bi wd/o Inamur Rahim & 9 others) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- Shri Z.A. Haq, counsel for the appellant. CORAM : SMT. VASANTI A. NAIK, J. DATE : JUNE 26, 2008. Heard the learned counsel for the appellant/original plaintiff. A suit was filed by the plaintiff bearing Special Civil Suit No.94/1993 seeking the relief of possession of the suit property along with other ancillary reliefs. It was the case of the plaintiff that the defendant nos.1 and 2 had executed a registered sale-deed in respect of the suit property in favour of the plaintiff on 23.01.1985 for a valuable consideration of Rs.60,000/-. The plaintiff pleaded that the defendants had agreed to vacate a part of the suit property, which was in their possession, within a period of six months and since they did not vacate the suit premises, the suit was instituted by the plaintiff seeking possession of the suit property. The defendants denied the claim of the plaintiff and pleaded that since the defendant 2 no.1 was dealing in the business of Moped, he was in need of money, and therefore, a loan of Rs.60,000/- was advanced to defendant no.1 by the plaintiff. The defendant pleaded that the alleged sale-deed dated 23.01.1985 was not to be acted upon. It was further pleaded by the defendants that in the year 1986, Special Civil Suit No.26/1986 was instituted by the plaintiff against the defendants for possession on the basis of their title. The same was dismissed by the trial Court. A civil revision application was filed by the plaintiff against the same but, had later on withdrawn the same as the civil revision application was not maintainable. The defendant, therefore, sought for the dismissal of the suit on a preliminary issue that the present suit was barred as per the provisions of Section 11 of the Code of Civil Procedure. The trial Court framed the aforesaid issue about the maintainability of the suit and decided the same against the plaintiff holding that the second suit filed by the plaintiff was not maintainable. It is held by the trial Court that the findings recorded in the judgment and decree in Special Civil Suit No.26/1986 operated as Res- Judicata and the plaintiff was not entitled to institute the present suit. 3 The first appellate Court also confirmed the finding recorded by the trial Court. It is submitted on behalf of the appellant that the suit filed by the plaintiff in the year 1986 was a suit under the provisions of Section 6 of the Specific Relief Act, and hence, the present suit is maintainable. The counsel for the appellant submitted that the Court Fees paid on the valuation of the suit property in the earlier suit of 1986 clearly showed that it was a suit under Section 6 of the Specific Relief Act. Since the record was called, I had an occasion to go through the plaint in Special Civil Suit No.26/1986. A perusal of the plaint clearly shows that it was not a suit under Section 6 of the Specific Relief Act, but, was a suit for possession of the property on the basis of title. In a suit filed under Section 6 of the Specific Relief Act, it is necessary for the plaintiff to plead and prove that he was in possession of the suit property within a period of six months before the date of institution of the suit and he has been wrongly dispossessed by the defendant without due process of law. Such is not the case here. In the earlier suit filed in the year 1986 also, the plaintiff had claimed title to the suit property. It was not the claim of the plaintiff that he was in 4 possession of the suit property at any point of time and the defendants had wrongfully dispossessed the plaintiff. In fact, it was the plea of the plaintiff that he had purchased the suit property from the defendants for a consideration of Rs.60,000/- and though the defendants had agreed to vacate the suit property within a period of six months from the date of execution of the sale-deed, they had not vacated the same. In view of the aforesaid pleas, a decree for possession was sought. It also reveals from the written statement filed by the defendants in the earlier suit of 1986 that they had denied that they had sold the suit property to the plaintiff and had pleaded that the suit property was worth Rs.1,50,000/- at the relevant time and the sale- deed was not to be acted upon as it reflected a loan transaction. On the aforesaid issue, the trial Court in Special Civil Suit No.26/1986, framed as many as 15 issues. The issues about ownership of plaintiff, the payment of consideration, the nature of the sale-deed, the market value of the property at the relevant time, the question of loan transaction and the effect of the sale-deed were considered. It appears that in stead of challenging the judgment dated 01.10.1992 in 5 Special Civil Suit No.26/1986 in a first appeal, wrongly a civil revision application was filed and was subsequently withdrawn as it was not maintainable. In the backdrop of the aforesaid facts, it is amply clear that the earlier suit of the plaintiff instituted in the year 1986 was not a suit under Section 6 of the Specific Relief Act and was a suit for possession based on title. Both the Courts have, therefore, rightly held that the present Special Civil Suit No.94/1993 was barred by the principles of Res-Judicata. From the aforesaid facts, it is clear that no substantial question of law arises for consideration in this second appeal and the same is dismissed with no order as to costs. JUDGE APTE