1 mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3334 OF 1999 Narayan Janardan Naik and others Petitioners versus Reva Mohanlal Rohit and others Respondents Rajesh Parab for petitioners Miss S.A.Vaidya for respondents. CORAM : A.S.OKA, J. DATE : 15th February 2010 PC :- 1. Heard learned counsel for the petitioners. By this writ petition under Article 227 of the Constitution of India the petitioners have taken an exception to the judgement and decree passed by the Trial Court by which a suit filed by the petitioner under section 6 of the Specific Relief Act, 1963 (hereinafter referred to as "the said Act") has been dismissed. 2. The case made out by the petitioners in the suit is that the respondents/defendants have dispossessed them from a room 2 admeasuring 6x8 feet in a chawl known as Mansukh Sukur chawl constructed by the original plaintiff on the land admeasuring 10x10 feet situated at Tulaskar Wadi, M.G.Cross Road No.1, Kandivali (West), Mumbai 400 067. The case of the petitioners is that earlier they had filed a suit in the Court of Small Causes against Mansukh Sukur Dubli for possession of the land admeasuring 10x10 feet. The said suit was ultimately decreed. The case is that on 23rd October 1986 when the bailiff visited the property subject matter of the suit filed in the Court of Small Causes, it was found that there were seven rooms erected on the land in question. It is alleged that two rooms were in occupation of heirs of Mansukh Dubli who refused to hand over the possession. It is stated that the first defendant, however, vacated the room which is subject matter of the suit in the said suit. The allegation in the suit is that on 19th November 1986 the petitioners were dispossessed of the suit room. Therefore, the present suit under section 6 was filed by the petitioners. 3. The first respondent contested the suit and denied the allegations of dispossession. 4. The learned Trial Judge held that original plaintiff has failed to prove that he was in possession of the suit premises (suit room) with effect from 23rd October 1986. He, therefore, proceeded to dismiss 3 the suit. 5. The learned counsel for the petitioners submitted that there is evidence on record to show that in execution of the decree passed in the earlier suit, the Court bailiff took possession of the suit room on 23rd October 1986. He invited my attention to the oral testimony of the original plaintiff. He submitted that in the cross examination the fact that the Court bailiff took over possession of the suit room on 23rd October 1986 has not been disputed. He submitted that whether the suit room was subject matter of the suit filed in the Small Causes Court is altogether a different matter. In the present case what is relevant is that on 23rd October 1986 the original plaintiff was placed in possession of the suit room and before expiry of period of six months, the first respondent dispossessed him without following due process of law. He submitted that the decree for possession ought to have followed under section 6 of the said Act. 6. I have carefully considered the submissions. It is not in dispute that the decree was passed by the Court of Small Causes in favour of the original plaintiff in respect of land admeasuring 10x10 feet bearing survey No.164-B, Hissa No.1 situated at Tulaskar Wadi, M.,G.Cross Road No.1, Kandivali (West), Mumbai 400 067. The report of the Court bailiff is on record.; The report does not specifically disclose 4 that what was taken over by him was the suit room along with land admeasuring 10x10 feet. The report of the Court bailiff is silent on this aspect. The entire foundation of the case of the original plaintiff was that the Court bailiff took over possession of the suit room on 23rd October 1986. Apart from the fact that the report of the bailiff does not indicate that possession of the suit room was taken by him, the concerned bailiff was not examined as a witness in the suit. The only contention raised is that the Court bailiff took over possession of the suit room. However, the finding of fact is that the said case has not been established. The finding is consistent with the report of bailiff. Only on the basis of allegation that the bailiff took over the possession of the suit room on 23rd October 1986, the original plaintiff contended that he was in possession of the suit room within a period of six months prior to the date of institution of the suit. 7. As the petitioners failed to prove that the bailiff handed over possession of the suit room in execution of the decree passed in earlier suit, it is difficult to find fault with the finding recorded by the Trial Court. The suit is under section 6 of the said Act. Notwithstanding the decision in the suit, the remedy of the plaintiff in such a suit of filing a suit on title for possession is not taken away and the said remedy remains intact. 5 8. Subject to what is observed above, no case is made out for interference in the writ jurisdiction. The writ petition is rejected. (A.S.OKA, J.)