1. cra 493-07.doc RMA IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO. 493 OF 2007 Sanjay Maruti Jadhav & Anr .. Applicants Vs Amit Tatoba Sawant .. Respondent Mr. Rajiv Patil i/b Mr. Sachin Punde for the Applicants Mr. A.P. Sathe for the Respondent CORAM : D.G. KARNIK, J. DATE : 9th JUNE, 2011. P.C.: 1. Heard. 2. This revision application is directed against the order dated 30th June 2007 passed by the District Judge, Pune dismissing Civil Appeal No. 770 of 2003 filed by the revision applicants as not maintainable. 3. The revision applicants are the owners of flat no. 1 situated in Dhanlaxmi Park Co-operative Housing Society at Survey No. 97/8, Pune. (Hereinafter referred to as the ‘suit flat’). By an agreement of leave and licence dated 20th February 2000, the revision applicants gave the suit flat on leave and licence to 1 1. cra 493-07.doc the respondent. It is the case of the respondent that he continued in possession of the suit flat even after expiry of the leave and licence agreement. However on 4th May 2002, the revision applicants illegally, unauthorizedly and by use of force, evicted the respondent. Within six months of dispossession, the respondent filed a suit bearing Regular Civil Suit No. 698 of 2002 for repossession in the Court of Civil Judge, Junior Division, Pune. The revision applicants appeared and contested the suit. They contended that the respondent had voluntarily vacated the suit premises on 21st January 2001 and had even executed a possession receipt in their favour. After considering the oral and documentary evidence adduced by the parties, the trial Court came to conclusion that the respondent was in possession of the suit premises till 4th May 2002 as contended by the respondent. It further held that the respondent was unlawfully and forcibly dispossessed by the revision applicants on 4th May 2002. The trial Court disbelieved the case of the revision applicants that the respondent had surrendered the possession of the suit premises to them on 21st January 2001. The trial Court also disbelieved the possession receipt which was produced by the revision applicants in the trial Court and marked as Article 'A'. Consequently, the trial Court decreed the suit. 4. Aggrieved by the decision of the trial Court, the revision 2 1. cra 493-07.doc applicants filed an appeal in the District Court, Pune. Before the District Court, the respondent contended that the appeal was not maintainable as the suit was under Section 6 of the Specific Relief Act and therefore, only a revision would lie against the decision of the trial Court. The District Court accepted the contention and dismissed the appeal. Present revision application is directed against that order. 5. The learned counsel for the revision applicants firstly contended that the suit of the respondent was not under Section 6 of the Specific Relief Act inasmuch as in the suit, the respondent had also claimed a declaration of his tenancy. Since the declaration of tenancy was prayed, the suit could not be regarded as suit for possession simplicitor under Section 6 of the Specific Relief Act. I am unable to agree. It is true that in a suit for possession under Section 6 of the Specific Relief Act, the plaintiff is not required to plead and prove how he came in possession and / or origin of his right to possess. All that he is required to plead and prove is that he was in possession of the suit premises; that he was dispossessed unlawfully and without following due process of law within six months before the filing of the suit. It is however common knowledge that in a suit under 6 of the Specific Relief Act, parties do plead certain facts as to the origin of possession. Therefore, the mere fact that the respondent had pleaded that 3 1. cra 493-07.doc he was inducted initially in the suit premises as a licensee and that he is continued in possession even after expiry of licence would not, by itself, be a ground to hold that the suit was not under Section 6 of the Specific Relief Act. It is true that declaration of tenancy was also claimed but it appears that the said prayer was not pressed and in any event, the said declaration has not been granted by the Court. The trial Court passed the decree under Section 6 of the Specific Relief Act. Parties went to the trial of the suit on the basis that the suit was under Section 6 of the Specific Relief Act and it was for this reason, the issue No. 3 was framed, whether the suit was within the limitation. The issue was framed because the suit under Section 6 of the Specific Relief Act is required to be filed within six months from the date of dispossession. Further while deciding Issue No. 5, the trial Court observed as follows:- “On this aspect, the plaintiff proved that as per Section 6 of the Specific Relief Act, he is entitled for possession of suit property." This clearly shows that the suit was under Section 6 of the Specific Relief Act and the parties went to trial on that basis. 6. Section 6(2) of the Specific Relief Act provides that no appeal shall lie against the decree passed under Section 6. Consequently, lower Appellate Court did not commit any error in holding that the appeal was not maintainable. 4 1. cra 493-07.doc 7. It may also be noted that if I have to accept the contention of the revision applicants that the suit was not under Section 6 of the Specific Relief Act, since the declaratory relief of tenancy was also claimed, then, against the decision of the District Judge dismissing the appeal, Revision Applicants ought to have file a second appeal. Revision against the decision of the District Judge dismissing the appeal is not maintainable as if the intention of the revision applicants is accepted, an appeal would lie under Section 100 of the Code of Civil Procedure dismissing the first appeal on any ground including its non- maintainability. Hence, Revision Application is not maintainable. On this ground also, the application is liable to be dismissed. 8. For the reasons mentioned above, there is no merit in the Revision Application and it is hereby rejected. [ D.G. KARNIK, J ] 5 1. cra 493-07.doc 6