HIGH CQURTOFCHHATTISGWRHATBll.ASPUR k\ (SB: Hon'bte Mr. T.P.SHARiaA, J) Civil Revision No.171 of2008 Premlal and others Vs. Smt.Basanti Bai Kesharwani and another POST FOR ORDER QN 22/3/2010 Sd/- T.P. Sharma judge [_ ^ H!GH eOURTOF CHHATTISGARH AT BILASPUR Civil Revision No. 171 of 2008 ^ Apolicants Defendants No.1 to5 Non-aDplicants Piaintiif Defendant No.6 1. Premta! Agsd about 57 Years S/o Ramkesh Kesharwani 2. Balram Aged about 29 years S/o Premlal Kesharwani 3. Lakhanlal Aged about 28 years S/o Premlal Kesharwani 4. Lueky Aged about 27 years S/o Premlal Kesharwani 5. Manoj Kumar Aged about 30 years, S/o Chhedila! Kesharwani All residents of Near Water Tank Kududand, Bilaspur, Tehsit and District Biiaspur, Chhattisgarh Versus 1. Smt.Basanti Bai Kesharwa.ni Aged about 59 years Wd/o Lats KaahaiyaSal Keshwrwani R/o Mungeli Naka, Kududand Biiaspur, Tehsi! and District Bilaspur Chhattisgarh 2. State of Chhattisgarh Through Collector, Bilaspur Chhattisgarh CIViL REVISION UNDER SECTION 115 OF THE CODE OF CfVIL PROCEDURE, 908) (SB: Hon'bte Shrt Justice T.P.Sharma) Prssent: Mr.Ratnesh KumarAgrawal, counsei forthe appiicants Mr.P;K.Vemia, Senior Counsel wittLMr.Sumit Varma & Mr.Ramaks.nt Pandey,cbunse! for non-appiicant No.1. Mr.Chandradesh Shrivastava, Panet iawyer forthe State/non-applicant No.2. ORDER (Deiivered &n 22na Msrch, 2010) 1. By this revision, the applicants have challenged the legality & propriety of the judgment & decree dated 11.5.2007 passed bythe 3rd Additional District Judge, iilaspur, in CMI Suit No.38-Ay20Q7 decreeing the suit for possession of non- applicant 1. 2. Dwree is impugned on the ground that withput any proved fact of previous possession of non-applicant No.1 and subsequent dispossession by the applicants, the Court below has passed the decree a.nc! thereby committed ijlegality. (,> 3. As per pleadings of ttie parttes.plaintiff/non-appiicant No.1; wife of Kanaiyatal Kesharwani purchased the suit tand beraring Khasra No.316/2 vtde sate deed dated 23.4.1968. Sh®constructed house and hote! on the suit tand and start»d her hote! business. Non-applicant No.1 was issuetess. In the year 1980, she and her husband adopted one Sharda Prasad as a son. In the year 1993, husband of non-applteant No.1 was ill and was admitfed in hospital, During the course of his illness, present appljcant No.4 Premlal tried for execution of the sale deedof the suit iand in favour of his son i.e. applicant No.2Balram. They also tried for execution of adoption deed in favour of applteant No.2. in the year - l994,app!icantNo.1 Premialftled an applicatton underSection 145oftheCode i of Criminal Procedure, 1973 (in short 'the Code') and the iand was attached. The order of attachment was chaltenged before the Additionai Dtetrict Judge. According to pieading of non-applicarit No 1, on 14.5.97, all the appiicants forcefuliy after braklng doors of suit property dispossessed her. She Sodged report and tried to take heip of authoriUes and thereafter, she filed suit for posssssion on 12.11.97. 4. The present appljcants have denieci the adverse allegaflon made in the plaint and pleaded that non-applicant No.1 was never in possession of the suit land, she has not purohased the suit land. According to custom prevailing in their caste, woman does not engage herseff in hotel business. Husband of non- appticant No.1 Kanhaiyata! himself had purehased ttie suit land and was in possession of the suit la.nd. During life time of Kanhaiyalai, he \fyas in j possession of hotei as a owner. Applicarit No.1 Premlal used to sit in the hotel fo assist Kanhaiyalal. Non-applicant N6.1 and her husband have never adopted Sharda Prasad. In the year 1993, Kanhaiyaial was not admitted in hospital, he was not il!: Inthe year 1986, non-applicant No.1 and her husband adopted applicant No.2 Balram in accordanee with their custom. AdopUon deed was aiso registered on 3.3.92. Husband of non-appiicant No.1 has filed suit for divoree against hsr in the year 1994. Property was attachect under Sections 145 & 146 of the Code, Order waschallenged by non-applicant No.1, but the same was dismissedvideorderdated 27,10.99. Husband ofnon-applieanthto.1 has qteo filed one civii suit in ths year 1996 against non-applteant No.1 on 14.5.97. Husband of non-appticant No.1 died. Present applicants No-1 and 2 or applicants have not broken doors or !ock of the suit property, they have not oommitted any offence. Applicant No.2 was in possession ofthe suit tancl since life time of Kanhaiyaial and he is stjll in possession of the suit property. The suit filed by non-applicant No.1 in the present form is not maintaingbte. ,y 5. On the basis of averments made by the parties, issues were framed and after providing opportunity of hearing to ttie parties, suit was decreed in favour of non- applicantNo.1. 6. Judgment & decres was chalienged by the applicante in Firet Appeat No.75 of 2007 whjch was not maintainable under the iaw, therefore, the same was withdrawn vide order dated 10.1 1.2008. 7. I have heard tearned counsel for the parties, perused the judgment & decree impugned and record of the Court below. 8. Learned couinsel for the applicants vehemently argued that this is suit for "possession after dispossession of non-applicant No.1 by the applicants governed under Section 6 of the Specific Relief Act, 1963 (in short 'the Aet, 1963'). In case of sult for possession after dispossession, the suit may be fited withjn six months and in that case, the Court is npt required to examine title of the parties. in the present case, admittediy, the applicants were in possession ofthe suit property. Relation of non-appiicant No.1 with her husband was not cordial. Divorce petition and civjl suit between non-applicant No-1 and her husband was pending. Non-applicant No.1 was residing separateiy. Appticant No-2 Balram was assisting Kanhaiyalai in hotel business during his life time since 1986. Present non-apptteant No.1 was not in possession of the suit iand on 14.5.97 or prior to 14,5.97. !n these circumstances, suit filed under Section 6 oftheAct, 1983wasnotmaintainab!eandwastime barred. 9. On theother hand, tearncd counsel for non-applicant No.1 opposed the revision petition and srgued that although in case of suit fiied under Section 6 ofthe Act, 1963, the question of titie or rtght is anclllary and the Court is required to consider the possession of the parties on fte alleged date of dispossession. Even otherwise, according to pleading of both the parties, present appHcante No.1 and 2 were not having any right or interest over the property. Non-applicant No.1 was only in possession ofthe suit property during life time of her husband; but after death of her husband taking benefit of her helplessness, the present applicants have dispossessed her from the suit la.nd foreefully. She has filed suit within six months from the date 6f dispossession, therefore, she is entitled for possession on!y on the basis of her previous dispossession. 10,Previousiy, the applicants have approached wrong forum. They have filed First Appea! No.75 of 2007 whteh vras dismissed as wittidra.wn vide order dated 10.11.2008. 11 .This is civil rsvision and is maintainable under sub-section (1) of Section 115 of the Code of Civil Procedure, 1908 against the fina! order/judgment and suit was ^^ _^ aiso maintatnable under Section 6 of Ifte Act, 1963 for possession on the ground pf previous dispossession within six months from <he date of such dispossesslon as pleaded in plaint. Non-applicant No.1 was dispossessed on 14.5.97 and the present suit has been flled by her on 12.11 .97 which is within s'ix months from the date of allsged date ofdispossession. 12.The only short question involved in the present revision is whether ttie Court below has failed to exercise the jurisdtetion vested on it by not considering the previous possession of the applicants on the date of atleged dispossession. Initially the burden was on non-applicant No.1 to prove her possession on 14.5.97 and subsequent dispossession by the applicants on 14.5.97. 13.in order to discharge her burden, she has examined herself and has deposed that she was in possession of the suit !and and was running hotel business in the suit premises. She has proved the documents sale deed Ex.P/1, copy of judgment & desree Exs.P/2and P/3, copy of ths judgment passed by the 3 Additional District Judg®,Bilaspur Ex.P/4 anct income certfficate Ex.P/5. In her deteil cross-examination, she has denied the fachim of adoption of applteant No.2 Balram She has specifically deniect that Premial and Balram ysed to help hotel business along with her hysband, but has admitted in para 8 of her cross-examination that applicant No. I Premtal used to clean hotet and presentiy, he wassitting as a proprietor in the hotel. In para 9 of her cross- examination, she has admitted that she has executed sale deed in favour of Sutekha Kesharwani, but she has executed sale deed at the instance of her husband. Sh®has also admitted in para 10 of her cross-oxamination that her husband has filed petition for divorce which was dismissed after death of her husband. She has denied the suggestion that she was residing in separate house situated near the house ofRamsubran ..layaswal, Advocate. She has also cleniedthesuggestion-in para 11 of her cross-examination that properfy was attached from the possession of applicant No.2 Balra.m and she vras explained that it was attached from the possessipn of her husband. She has specifically stated that she was in joint possession wift her husband during life time of her husband. 14.1n order to disprove the ailegation of non-applicant No.l, appiicant N6.2 Balram has deposed in his evidence that originally the land was purchased in the nama of non-applicant No.1, but he was in possession of the suit land along with adopti.ve father Kanhaiyaial. He has specifically (toposed that retation between non-appticant No.1 and her husband were not cordial; thersfore, she was residing separateiy from her husband and present applica.nt N0.2 was residing with Kanhaiyalal, husband of non-applicant No.1 as adoptive son and was in ^ possession of the aforesaid suit land. In para 26 of his cross-examination, he has admitted that non-applicantNo.1 istegallyweededwife ofKanhaiyaial. Ravi Kumar (DW-2), Premlal (DW-3) and SmtParo Thakur (DW-4) have also corroboratad the evidence of Balram (DW-1), although in the matter of suit for possession on the basis of previous dispossession, the question of Utle or other interest or entitlement is ancitlary, but Exs.P/2 to P/5 copies Qf thejudgment & decree of civil suit, the appetlate Court and income certificate reveal that adoption deed executed in favour of appticant No,2 Balram was chaltenged by non-applicant No.1 and the Court has declared that applicant No.2 Balram has j.not adopted son ofnon-applicant No.1 and her husband Kanhaiyaial. Ex.D/2 petition for divoree filed on behaif of husband of non-applicant No.1 reveate that relatiori between husband and wife were not cordial. Ex.D/8 reveals that ietter written by Life Insurance Corporation toapplicant No.1 Premlat reveals that after death of Kanhaiyalal he has claimed the payment of policy amount which was dented on the ground of change of npmination by Kanhaiyalal dated 28.11.95 just two years before his death. 15.As per pleading of the applicants, espscially Para 13 of written statement, applicant No.2 Balramwas used to sit in the hotej to assist Kanhafyatal andafter his death, he is running hotel as a owner. Para 13 of written statement shows that during life time of Kanhaiyalal, appticant No.2 was sitting to assist Kanhaiyalal in the suit property and he was not in possession of the suit property. By assisting some person to run business does not give any rtght to possess the property orjtwould not besufficient to infer that by assishng some person. the pereon was in possession of Ifte property. 16.As per pleading ofthe applfcants, applicant No.2 iscontinuing in possession as a owner of the property. The applicants have not beenabte to show that how they become owner of the property, interalia, Exs.P/2 to P/5, copies of the judgment & decree and incQme eertificate and Ex.D/8 further denial of claim for obtaining policy amount from Life Insurance Corporation negate the claim of ownership or interest of applicant No.2 Balram ovar the preperty, although relation of non-applicant No.1 and her husband were not cordiat, butadmittedly, the property was recorded in the name of non-applicant No.1. Her joint possession cannot be ruied out along with her husband during life time of her husband. Onty by assisUng the husbantil of non-applicant No.1 and running his business or cleaning hotel or locking and unlocldng hotel wouid not give any right to possess the property to any person or is notsufneient for presMmption that the person eoncerned who assistthe reai owner and occupier of the property in day-to-day buslness or used to clean the premises or used to close ttie door or open the door is a person in possession of ths property. "^•i'.-^'-~ ZTT^ c/^ 17.1n the present case, non-appliGant No.1 has discharged her burden to prove the fact that on 14.5,97, she was in ppssession of the suit property anct has been illegally dispossessed by the applicants, inter aiia, the applicants have not been able to rebut the burden that non-appiicant No.1 was not in possession 6f the propertyon 14.5.97. 18.0n the basis of pleading and the evidence, the Court below has decreed the suit in favour of nQn-applicant No.1 . While decreeing the suit, the Court below has not committed any illegality. The Court below has not exceeded the jurisdiction vested on it or failed to exereise the jurisdiction vested on it. 19.For the foregoing reasons, the revision petition being devoid of merit is liabte to be dismissed and is accordingly dismissed with costs. The applicante shall bear their own costs, cost of the suit as we!l as costs ofthe revision and cost of ttie non-applicants. (' 20.Advocate fees as per schedute. Sd/- T.P. Sharma Judge