IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO. 1235 OF 2001 CIVIL REVISION APPLICATION NO. 1235 OF 2001 CIVIL REVISION APPLICATION NO. 1235 OF 2001 Shri Sadashiv Shyama Sawant ) Age 57 years, Occupation Business ) 1A) Smt. Satyabhama Sadashiv Sawant ) 1B) Shri Sudhakar Sadashiv Sawant ) 1C) Shri Kamalakar Sadashiv Sawant ) 1D) Shri Rajendra Sadashiv Sawant ) 1E) Smt. Vidya Sadashiv Sawant ) All adults, and residing at ) Ambet, Tal. Mhasala, Dist. Raigad. ) 2. Smt. Satyabhama Sadashiv Sawant ) Age 45 Yrs. Occ: Household. ) 3. Smt. Tatibai Shyama Sawant ) since deceased through her heirs ) and legal representatives namely ) 3(1) Shri Sadashiv Shyama Sawant ) i.e. Petitioner No.1 3(2) Shri Vithoba Shyma Sawant ) 2 Age adult, R/o. Secgtor No.7, ) Bldg. No.45, R.No.1719 C.G.S. ) Colony, Antkop Hill, Bombay - 37. ) 4. Smt. Nanibai Shankar Sawant, ) since deceased through her heirs ) and legal representatives namely ) 4(1) Sugandha Gopinath Ghosalkar ) Age adult, Occu. Household. ) R/o. Shivajinagar Vakola Bridge, ) Chawl No. 37, room No.14, ) Santacruz (E), Mumbai. ) 4(2) Malati Narayan Rane ) Age adult, Occu: Household ) R/o. Panchanadi, Post Burugi, ) Tal. Dapoli, Dist. Ratnagiri. ) 4(3) Shubhangi Atmaram Vichare, ) Age - Adult Occ: Household ) R/o. Ealsap, Tal. Mhasala ) Dist. Raigad. ) 4(4) Sulochana Atmaram Vichare ) Age - Adult Oxccu: Household, ) R/o. Malbar Wadi, Shivaji Nagar, ) Thane (w). ) 3 5. Shri Sudhakar Sadashiv Sawant ) Age 38 Yrs. Occup: Business ) Power of Attorney holder of ) Petitioner No.1 & 2 and 391) & ) 3(2) are R/o. Ambe, Tal. Mhasala ) Dist. Raigad. ).. Petitioners/ Ori. Defendants (Petitoners No. 4(1) to 4(4) deleted as per the order passed by the Hon’ble Court in C.A. No.44/03 on 30.6.2003.) Versus 1. Smt. Anita Anant Sawant ) Age - 31 yrs. Occu: Household ) R/o. Ambet, Tal. Mhasala, Dist. ) Raigad through her Power of ) Attorney, Shri Anant Shivram ) Sawant Age 39 yrs. Occu: Service ) R/o. Ambet, Tal. Mhasala, Dist. ) Raigad, At present at Spring ) Mills Chawl No.3/26, G.D.Ambedkar ) Marg, Bombay 400 014. ) 2. Smt. Nanibai Shankar Sawant ) 4 since Deceased through her heirs ) & legal representatives namely: ) 2(1) Sugandha Gopinath Ghosalkar, ) Age: Adult, Occ: Household, ) R/o. Shivajinagar Vakola Bridge, ) Santacruz (E), Mumbai. ) 2(2) Malati Narayan Rane, ) Age : Adult, Occ: Household, ) R/o. Panchanadi, Post Burui, ) Tal. Dapoli, Dist. Ratnagiri. ) 2(3) Shubhangi Atmaram Vichare, ) Age Adult, Occ: Household, ) R/o. Falsap, Tal. Mhasala, ) Dist. Raigad. ) 2(4) Sulochana Atmaram More ) Age - Adult, Occ: Household, )..Respondent Naikwadi, Naupada, Thane (W). (Respondents Nos. 2(1) & 2(2) are deleted as per the Registrar (Judicial-i) order dated 23.3.07 passed in C.A. No.61/07 in CRA No.1235/01. Matter stand dismissed as against 5 R.No.2(3) & 2(4) as per Court’s order dated 2.2.05.) Mr. Rajeev L. Patil, Senior Counsel, a/w. Mr. M.D.Parab, Advocate, for the applicants. Mr. A.S.Khandeparkar, Advocate, a/w Mr. Mohan Tekavade, Advocate for the respondent. CORAM: J.H.BHATIA,J. CORAM: J.H.BHATIA,J. CORAM: J.H.BHATIA,J. DATE : 28th March, 2008. DATE : 28th March, 2008. DATE : 28th March, 2008. JUDGMENT JUDGMENT JUDGMENT 1. This Revision Application is filed by the original defendant Nos. 1 to 3 and 5 or legal representatives of some of them. 2. To state in brief, the plaintiff-respondent filed Regular Civil Suit No.11 of 1989 under Section 6 of the Specific Relief Act,1963 for possession of the suit property on the ground that the contesting defendants had forcibly taken possession of the suit property by throwing away the articles of her tenant P.V.Varik from the suit property on 1.10.1981. According to the plaintiff, she had purchased the house 6 No.97 from defendant No.4 Nanibai Sawant on 1.10.1981 for consideration of Rs.5,000/- under the registered sale and she was put in possession of the suit house by defendant no.4. At that time, one Pandurang Vichare was occupying a part of the suit premises as a tenant. After the house was vacated by Pandurang, the plaintiff had inducted another tenant P.V.Varik in a part of the said house. According to her, the House No.97 as described in the plaint had an open Padvi, wfacing the open Padvi, there was a room and a hall. This portion of the property was in possession of the tenant Varik and this is the suit property. The remaining portion being a room and back side padvi is still in possession of the plaintiff. According to her, on 1.10.1981, at about 9 a.m. all the defendants came to the suit house and told P.V.Varik that there was a judgment in their favour and they were entitled to be put in possession. Saying so, they threw away household articles of P.V.Varik from the suit house and took forcible possession of the said padvi, hall and one room. On the same day, the tenant Varik informed the plaintiff about his dispossession by the defendants and the plaintiff lodged a report with the police. She also filed the suit for possession under Section 6 contending that the defendants had no legal right, title or interest and 7 they had forcibly dispossessed her from the house without following due process of law. 3. Initially, defendant Nos. 2 and 4 filed written statement, Exhibit 16, denying the contentions of the plaintiffs about purchase of the house as well as possession of the tenant P.V.Varik and taking forcible possession by the defendants. They also contended that defendant No.4 Nanibai had not received the consideration for sale of the said house NO.97. It was contended that one Vithoba Shama, who was defendant No.3, had filed Regular Civil Suit No.3/86 claiming partition and separate possession of the property including the suit house and that suit was pending. Defendant Nos. 1, 3 and 5 filed Pursis Exhibit 21 and adopted written statement filed by the defendant Nos. 2 and 4. It is material to note that after the death of the defendant No.4 Nanibai, her L.Rs. did not stick up to her stand and they supported the claim of the plaintiff. 4. On the basis of the pleadings of the parties, the learned trial Court framed the issues. The plaintiff examined herself and P.W.2 Pandurang who was the tenant in the suit house when she had purchased in 1981. On behalf of the contesting defendants, defendant 8 no.5 Sudhakar was examined as a witness. Some documents were also placed on record. After hearing the parties, the learned trial Court came to the conclusion that the plaintiff is the owner of the suit premises on the basis of the sale deed executed by defendant no.4 Nanibai on 1.10.1981 and the plaintiff was put in possession of the suit house on the basis of the said sale deed. The learned trial court also came to the conclusion that the contesting defendants had taken forcible possession of the suit house on 1.10.1988. The said suit was filed within six months from the date of dispossession. The learned trial Court passed the decree in favour of the plaintiff under Section 6 of the Specific Relief Act. The said judgment and decree have been challenged in the present Revision Application. 5. Heard the learned Counsel for the parties. Perused the impugned judgment and their evidence. 6. The learned Counsel for the revision applicants/contesting defendants vehemently contended that the issue no.1 was wrongly framed by the trial Court. Issue no.1 reads as follows :- "1) Does Plaintiff proves her title to the suit property ?" 9 The trial Court gave finding in the affirmative. According to the learned Counsel for the defendants, this was the suit under Section 6 of the Specific Relief Act based on dispossession within six months and it was not necessary to frame issue about title of the plaintiff. According to him, the trial Court decidedw the suit as if it was a title suit. It is true that in the suit under Section 6, it was not necessary to frame this issue. Possibly, the trial Court framed this issue just to find out whether the plaintiff had any right or interest in the property. Merely because of the technical defect in framing of the issue, the impugned judgment cannot be set aside. If the whole of the record is perused, it was a contention of the plaintiff that she had purchased House No.97 from defendant No.4 Nanibai for consideration of Rs.5,000/- under a registered sale deed dated 1.10.81. It was the contention of the defendants that Nanibai had no authority to sell because it was a joint family property of all the defendants and one of them viz. Vithoba had filed Regular Civil Suit No.3/1986 for partition and separate possession of the property, including the suit house. The learned trial Court noted that before this suit came up for trial and final disposal, Regular Civil Suit No.3/1986 was already dismissed. Not only this, 10 the First and Second Appeals against dismissal the of suit were also dismissed and thus, the defendants had finally failed to prove any right, title or interest in the suit property. The learned trial Court also noted that even though Nanibai was a party in Regular Civil Suit No.3/1986 also, she had not entered into the witness box to depose that she had not executed sale deed of this house in favour of the present plaintiff or that she had not received the consideration amount. As pointed out earlier, even though initially, Nanibai had filed joint written statement along with defendant no.2 contesting the claim of the plaintiff, after her death her L.Rs. filed written statement supporting the claim of the plaintiff. All these circumstances were required to be considered just to find out whether the plaintiff, who was an outsider for this property and the family, could have any right or interest in the property and framing of issue No.1 needs to be looked into from that angle. Taking into consideration the above referred material, it is clear that the contesting defendants had no right, title or interest in the House No.97 nor it was their joint family property and the plaintiff has proved that she had purchased this property from Nanibai under a registered sale deed dated 1.10.1981 and she was also put in possession of the same. 11 7. P.W.2 Pandurang who was occupying the said house as a tenant of Nanibai at the time of sale of the house on 1.10.1981 also supported the claim of the plaintiff and, according to him, after the sale, he continued in possession as a tenant of the plaintiff. It appears that after he vacated the house, the plaintiff had inducted P.V.Varik as a tenant in the suit house. As per her evidence, on 1.10.1988, the defendants forcibly took possession of the suit house by throwing away the household articles of P.V.Varik. He immediately informed the plaintiff and she approached the police and lodged a report about that incident with the police on the same day. On the basis of that report, Criminal Case no.70 of 1988 was registered against the defendants. According to the learned Counsel for the defendants, the accused persons were acquitted in the criminal case. However, in my considered opinion, mere acquittal of the defendants in the criminal case is not sufficient to disbelieve the claim of the plaintiff. In view of the fact that Vithoba had filed Regular Civil Suit No.3/1986 and that suit was dismissed and their contention, that they were in joint possession or were joint owners, was rejected by the trial Court and that decision has become final in view of dismissal of both the appeals against that judgment. In such circumstances, it cannot be believed that the defendants 12 or any of them were in possession of the house before 1.10.1988. From the facts and evidence, I see no reason to differ from the opinion of the trial Court that the defendants had taken forcible possession on 1.10.1988 by removing the tenant of the plaintiff from the suit house. As the suit was filed within six months from the date of dispossession, the plaintiff is entitled to get a decree under Section 6 of the Specific Relief Act. 8. The learned Counsel for the contesting defendants/applicants contended that if the tenant of the plaintiff was forcibly dispossessed from the house, the suit could be filed by the tenant and not by the landlady. In support of this contention, he relied upon Ramamanemma vs. Basavayya AIR 1934 Madras 558 Ramamanemma vs. Basavayya AIR 1934 Madras 558 Ramamanemma vs. Basavayya AIR 1934 Madras 558 wherein the learned Single Judge of the Madras High Court had relied upon an earlier authority of Madras High Court under Section 9 of the then Specific Relief Act and held that only the tenant, who was dispossessed, could file a suit under Section 9 and not the landlord. It is material to note that the view taken by the Madras High Court different from view of taken by the Bombay High Court and the Madras High Court in the case of Ramamanemma had referred to the authority of the Bombay High Court in Ratanlal Ghelabhai vs. Amarsing Rupsang Ratanlal Ghelabhai vs. Amarsing Rupsang Ratanlal Ghelabhai vs. Amarsing Rupsang AIR 1929 Bom 467. In Ratanlal vs. Amarsing AIR 1929 Bom 467. In Ratanlal vs. Amarsing AIR 1929 Bom 467. In Ratanlal vs. Amarsing, the 13 Division Bench of this Court had an opportunity to consider whether the landlord could file a suit for possession under Section 9 of the Specific Relief Act, if his tenant was forcibly dispossessed by a third party i.e. the defendant and the Division Bench came to the conclusion that the landlord is in possession of the premises through his tenant and when the tenant is forcibly dispossessed by the defendant, landlord can file the suit for possession under Section 9. The Division Bench observed as follows :- "Section 9, Specific Relief act is in these terms : "If any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit." There is nothing in this section to show that possession is confined to actual physical possession. In the case of a landlord and tenant the landlord is in possession through his tenant and, as pointed out in Nirjivandass 14 Madhvdas v. Mahomed Ali Khan Ibrahim Khan (1), the proper remedy where exclusive occupation of immovable property is given to a tenant is for the tenant to file a suit for possession but the landlord, if he desires to sue immediately on the possessory right, can sue in the name of the tenant and further, for an injury to the reversion, the landlord can sue in his own name. The injury in the present instance consists in a denial of the plaintiff’s title to the land for defendant has taken possession of it claiming it to be his. I think, therefore, that there is an injury to the reversion in respect of which the plaintiff can sue in his own name. The plaintiff as landlord is entitled to recover rent from his tenant and this right is one which comes under the definition of "immovable property" in S.3, Cl.(25), General Clauses Act. ..." " If the landlord were unable to file a suit under S.9, Specific Relief Act, and the tenant were, as has been pointed out in one of the cases, disinclined to take any action under S.9 the landlord to obtain redress would then be in the difficult position of having to file a 15 regular suit for a declaration of his title against the person in possession of the land and, possession being evidence of title, the "onus" would be on the plaintiff; whereas if the suit can be filed under S.9 it will lie on defendant to establish by a regular suit his title to the land." 9. Section 6 of the Specific Relief Act, 1963 reads as follows :- "6. Suit by person dispossessed of immovable property - (1) If any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit. (2) No suit under this section shall be brought- (a) after the expiry of six months from the 16 date of dispossession; or (b) against the Government. (3) No appeal shall lie from any order or decree passed in any suit instituted under this section, nor shall any relief of any such order or decree be allowed.l (4) Nothing in this section shall bar any person from suit to establish his title to such property and to recover possession thereof." 10. The language of Section 9 of the Specific Relief Act, 1877 and the language of sub-section (1) of Section 6 of the Specific Relief Act, 1963 are similar. Section 6(1) and also the earlier Section 9 clearly provided that if any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may recover the possession by filing a suit. In view of the language, either P.V.Varik, the tenant, who was actually dispossessed or his landlady i.e. the present plaintiff, could file the suit. In view of the language of Section as well as the clear Division Bench authority 17 of this High Court, referred above, it must be held that suit filed by the plaintiff under Section 6 is tenable. The authority of the Madras High Court in the case of Ramamanemma (supra) Ramamanemma (supra) Ramamanemma (supra) cannot be relied upon. Therefore, the contention of the learned Counsel about tenability of the suit itself cannot be accepted. 11. In view of the facts and legal position stated above, I do not find any illegality, material irregularity or perversity in the impugned judgment and order. I see no reason to interfere in the impugned order. 12. In the result, the Revision Application stands dismissed. 13. At this stage, the learned Counsel for the contesting defendants/revision applicants makes a request to stay the effect of this judgment for 8 weeks. For the reasons stated in the judgment, I see no justification to accept the request. The request is refused. (J.H.BHATIA,J.) (J.H.BHATIA,J.) (J.H.BHATIA,J.) 18