IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD WEDNESDAY, THE TWENTYSEVENTH DAY OF OCTOBER TWO THOUSAND AND TEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD Civil Revision Petition No.5224 of 2007 Between: Gude Shankar Rao .. Petitioner AND Sankar Singh .. Respondent ORDER: The Civil Revision Petition is directed against the judgment and decree in O.S.No.104 of 1999 on the file of the Principal Senior Civil Judge’s Court, Kothagudem, dated 31-08-2007. The factual background for the appeal is that the suit under Section 6 of the Specific Relief Act, 1963 was filed seeking possession of the suit schedule house site by demolishing the structures raised therein and for future mesne profits of Rs.25,000/- per annum and costs. The plaintiff claimed to have purchased the suit site on 10-05-1969 from Goka Ramulu for Rs.584/- since when he was in possession and enjoyment by raising a thatched hut therein. He claimed to have let out the suit schedule property to the District Social Welfare Officer, Kothagudem and the suit house to have collapsed subsequently after the Social Welfare Boys hostel vacated the premises. The plaintiff further claimed that on 20-06-1999, the defendant encroached upon the suit property and started construction of structures thereon in spite of protest by him and efforts to settle the matter through elders and a legal notice dated 01-11-1999. The defendant gave a false reply and hence the suit. The defendant claimed that he has a site at Ramanagaram, Kothagudem Town, Chundupalli adjacent to the house of Moki Mariyamma and Mariyamma sold her house to the defendant for Rs.60,000/- under an agreement of sale dated 20-06-1997 attested by a Notary. Father of Mariyamma in turn purchased the property from Gannee Muthyam under an agreement dated 03-04-1983 and after purchase, the defendant got the site levelled by spending Rs.1,00,000/- and constructed a big building in the site. He also purchased Ac.1.35 cents from G. Laxman on the east of the subject site and the defendant claimed to be living in the house since one and half years without any objection from anybody. He claimed that the plaintiff was never in possession never had any title over the suit schedule property and desired the suit to be dismissed. The trial Court framed issues on the purchase of the property by the defendant, the suit being vitiated due to non-joinder of M. Mariyamma and G. Mutyala Rao and the entitlement of the plaintiff to the possession? PWs.1 to 3 and DWs.1 to 5 were examined and Exs.A.1 to A.17 and B.1 and B.2 were marked. The trial Court rendered the impugned judgment firstly, concluding that the defendant failed to prove that he got title over the suit property or his vendor ever got title to the suit property. The trial Court also concluded that the suit is not bad for non- joinder of Mariyamma and Mutyam and further came to the conclusion that the documents Exs.A.1 to A.14 safely probablised the purchase of the suit site by the plaintiff under Ex.A.1 and his constructions made in the said site apart from letting out the premises to the Social Welfare Department. The trial Court also concluded that the defendant did not state the date of construction of his building in the suit property, due to which an adverse inference has to be drawn against him and the suit has to be considered within limitation due to the encroachment being stated to be on 20-06-1999. Consequently, the trial Court decreed the suit directing delivery of possession within three months, while dismissing the suit for the relief of future mesne profits. The defendant challenged the said judgment and decree in this revision contending that none of the ingredients of Section 6 of the Specific Relief Act, 1963 were made out by the plaintiff to deserve a judgment and decree in his favour. Possession within six months prior to the suit was not established and the plaintiff himself admitted that he had been asking the defendant to vacate the suit schedule property even before June, 1998. He further stated as PW.1 that he informed the defendant about the property belonging to him 6 to 8 months prior to the defendant’s construction. The admissions of PW.1 thus make the suit liable to be dismissed and PW.2 does not know about the properties since 20 years and PW.3, who does not know what happened subsequent to 1972, could not have been considered as corroborating PW.1. Therefore, the defendant desired that the plaintiff, who has no right, title or interest in or possession of the suit property, should fail. Heard Sri M. Rajamalla Reddy, learned counsel for the revision petitioner and Sri P. Satyaraja Babu, learned counsel for the respondent. The thrust of the arguments of the learned counsel for the revision petitioner is about the suit being barred due to the alleged dispossession of the plaintiff not having been proved to be within six months prior to the institution of the suit and without going into the merits of the rival contentions on other aspects, the Civil Revision Petition is being decided solely on that question. In Section 6 of the Specific Relief Act, 1963, sub-section 2 thereof bars any suit under Section 6 being brought after the expiry of six months from the date of dispossession. Sub-section 4 thereof clarifies that no person is barred from suing to establish his title to the disputed property and recover possession thereof by Section-6. If so, the evidence on record does not support the conclusion of the trial Court that the dispossession was proved or probablised to be on 20-06-1999. Even in his chief-examination affidavit, the plaintiff as PW.1 stated that he came to know about the encroachment by the defendant on 20-06-1999 and the defendant raising structures in the said house in spite of his protest. It is thus evident from the unambiguous language in the chief-examination affidavit that the encroachment by the defendant allegedly on 20-06-1999 is not a matter within the personal knowledge of the plaintiff, while it was only at the time of the defendant raising structures in the house site that the plaintiff protested in person. When it came to the cross-examination, the plaintiff admitted that he asked the defendant to vacate the suit schedule site even before June, 1998 and he further stated that 6 to 8 months earlier to the constructions by the defendant, he informed the defendant that the schedule property belonged to him. These two statements may signify that the possession of the defendant in the suit site was since much prior to 20-06-1999 and might be from even before June, 1998, while the suit was filed only on 22-11-1999. The evidence of the plaintiff as PW.1 further showed that he was unaware of the purchase of the property by the defendant from Mariyamma or the purchase of property by Mariyamma from Mutyalu. He also admitted to be not knowing the boundaries of the land purchased by the defendant. He was obviously employed at some other place till his retirement in June, 1998. These admissions of PW.1 run contrary to the claim that the dispossession was within six months prior to the suit. When it came to the evidence of PW.2, he stated that since 20 years he had no knowledge about the suit property and he never went to that side. Similarly, PW.3 admitted that it is true that in the suit site, the defendant constructed a building and he does not know how long back the building was constructed. He further admitted that he does not know what happened subsequent to 1972. Thus, the evidence of PWs.2 and 3 is of no assistance in determining the probable date of the defendant coming into possession of this property and insofar as the evidence of DWs.1 to 5 is concerned, there is no admission express or implied to indicate the date of dispossession of the plaintiff or the date of entry into possession by the defendant to be 20-06-1999 as claimed by the plaintiff. On such evidence, it could not have been said that it was probablised that the defendant’s entry into possession was on 20- 06-1999. The impugned judgment of the trial Court is obviously influenced by its initial conclusion about the failure of the defendant to prove his title and the entire thrust of the judgment is placing the burden of proof squarely on the defendant on all the aspects and it was on the weakness of the case of the defendant that the plaintiff succeeded in the impugned judgment and decree. The omissions in the written statement and the evidence of the defendant were considered to draw an adverse inference against the defendant and the trial Court was opining that the date of construction of the building in the suit property ought to be specified and proved by the defendant himself. The placing of burden of proof on the defendant is obviously in opposition to the established principles of law of evidence and the plaintiff ought to have succeeded or failed only on the strength of his own case. When the evidence on record is not clear as to when the defendant came into possession of the suit property and when the evidence of PW.1 himself probablises the defendant coming into possession of the suit property to be much beyond six months before institution of the suit, the bar under Sub-section 2 of Section 6 of the Specific Relief Act should operate and even in exercise of the restricted revisional jurisdiction of this Court, the impugned judgment and decree have to be reversed. However, as saved by Sub-section 4 of Section 6 of the Specific Relief Act, the parties will be at liberty to establish their title, rights and interests in the property through appropriate proceedings under law to which they can have recourse to and in any such proceedings, the observations in the impugned judgment or in this order should not have any effect as the trial Court proceeded to give findings on title and possession without first examining whether the suit itself is maintainable or not and as this order is confined to consideration of the maintainability of the suit vis-à-vis the dispossession within six months prior to the suit. Therefore, any proceedings to which the parties may take recourse to in respect of this property shall be determined uninfluenced by the proceedings in the suit and in this revision. Subject to the said observation, the Civil Revision Petition is allowed. The impugned judgment and decree are set aside and O.S.No.104 of 1999 on the file of the Principal Senior Civil Judge’s Court, Kothagudem is dismissed without costs. _____________________ G. BHAVANI PRASAD, J Date: 27-10-2010 Ksn