AVTAR SINGH Vs. SARLA GUPTA

JUDGEMENT

(1.) The question that arises in this Revision is whether the Trial Court was in error in dismissing the Plaintiffs Suit filed under Section 6 of the Specific Relief Act, having arrived at the conclusion that the Plaintiff/Revisionist had "bitterly failed to prove his possession conclusively by any reliable evidence on record." This Section reads thus-

(2.) The Restatement of the law is conveniently available in the perspicuous judgment of the Apex Court authored by Justice Lahoti delivered in Rama Gowda Lrs. Versus M.Varadappa Naidu, 2003 (8) Supreme 934. Although the judgment should be read in its entirety, the following extract calls for reproduction for facility of reference.

(3.) Salmond has taken pains to emphasize that in the absence of provisions such as Section 6 of the Specific Relief Act, 1963, violence, chaos and disorder would become inevitable. It seems to me that generally these comments are made from the viewpoint of the person in possession of the subject immovable property. What cries out to be also underscored is that Section 6 also protects the rightful owner against trespass onto his property, inasmuch as the trespasser is not authorised to take forcible possession and to be entitled to relief, he must be able to disclose that he is in settled possession. This can be established by the trespasser by showing acquiescence on the part of the title holder, as also that the Plaintiff in an action under Section 6 of the Act is not in occupation of the land for a short duration. The duration is incapable of definition and will invariably have to be determined in the facts of each case. For example, if an owner is residing on the land and a trespasser occupies a portion thereof, even after one week the prohibition of Section 6 may come into play against the owner. When the title holder resides at a distance from the land, and he has no reason to visit it for a year or so, such period or duration of trespass would not be indicative of `settled' possession. Assuming, however, that such person has been informed of the trespass and he declines to take immediate action, the rigour of Section 6 would take effect. The preeminent factor is the maintenance of public tranquility. Resting on the documents allegedly executed in his favour, the Plaintiff could have claimed possession through Court. Instead he has taken law into his own hands by attempting to take possession by entering upon the land and constructing boundary walls etc. Close to a century ago the Privy Council had clarified in Midnapur Zamindary Co. Ltd. v. Kumar Naresh Roy and Others, AIR 1924 PC 144 that "in India persons are not permitted to take forcible possession; they must obtain such possession as they are entitled to through a Court". Akin to Section 53A of the Transfer of Property Act, this provision can be employed only as a shield and not a sword. It does not empower the trespasser or rival owner to take forcible possession and thereafter plead insulation from immediate ouster by the real owner who can reasonably prove his previous possession, actual or legal. The other parallel that comes to mind is of ownership rights predicated on adverse possession; these are recognised in law only if the possession is open and hostile. In all situations mayhem will ensue if Courts decline to give protection to the existing title holder illegally and unauthorisidely ousted from possession of immovable property, who acts with immediate despatch.