PRAKASH HARISING BHADORIYA Vs. DADA JAGO CHAHANDE

JUDGEMENT

(1.) BY invoking the jurisdiction of this Court under section 100 of the Code of Civil Procedure, the unsuccessful original plaintiffs have filed this second appeal being aggrieved by the judgment dated 5-9-1989 passed by the Additional District Judge in Regular Civil Appeal No. 393 of 1994, whereby the appeal came to be allowed and the judgment and decree dated 19-12-1983 passed by the trial Court granting decree for possession of the portion of the land marked by letters ABCD and YRLV in the map annexed with the plaint and directing the defendants to remove their huts from the land, has been set aside and the suit is dismissed.

(2.) BRIEF facts are required to be stated as under: the appellants/plaintiffs filed suit for possession of the land on the contentions that the father of plaintiff No. 1 and the husband of plaintiff No. 2 owned ancestral house and open land shown in the map at village Daini. Harising, the father of plaintiff No. 1, died in the year 1977 and after his death the plaintiffs became the owners of the house described in the map and the defendants have no right, title or interest in the said open land. Both the defendants in the month of May 1979 committed encroachment on their land and constructed the huts forcibly and, therefore, the plaintiffs filed suit for possession and mandatory injunction. The defendants resisted the claim of the plaintiffs by filing their written statement and contended that the suit land was allotted to them by the Gram Panchayat and they did not make any encroachment on the suit land and the suit is liable to be dismissed. On the aforesaid pleadings, the trial Court framed the issues and thereafter the parties adduced the evidence in support of their contentions. The trial Court on considering the oral as well as documentary evidence recorded the finding that the defendants have made encroachment on the suit land. Consistent with this finding the trial Court granted the decree for possession and consequent relief of mandatory injunction by directing the defendants to remove the huts constructed by them on the plaintiffs land. Being aggrieved by this judgment and decree passed by the trial Court, the defendants carried appeal to the District Court. The learned Additional District Judge on hearing the learned Counsel for the parties allowed the appeal and set aside the judgment and decree passed by the trial court. This judgment of the Appellate Court is under challenge in this appeal.

(3.) MR. Dubey, learned Counsel for the plaintiffs, contended that the Appellate Court has committed an error in relying on the provision of section 6 of the Specific Relief Act, 1963. He contended that the plaintiffs witness as a sarpanch of the Gram Panchayat has proved the payment of taxes by the plaintiffs and the tax receipts Exs. 24, 33 and 34 were also duly proved. He contended that the plaintiffs' possession over the suit land for the last 50 years has been proved and the defendants are the trespassers. He contended that the finding of the Appellate Court that the suit has not been brought within the period of six months from the date of dispossession and, therefore, it is barred by the period of limitation in view of section 6 (2) (a) of the Specific relief Act, is totally erroneous and cannot be sustained in law. He contended that the suit for promissory title must be distinguished from a suit filed under section 6 of Specific Relief Act within six months of dispossession. The latter type of suit cannot be resisted on the ground of title so that the suit can be maintained even against the true owner if he has dispossessed him otherwise then in due course of law. A suit on possessory title, on the other hand, can be filed within 12 years of dispossession under Article 64 of the Limitation Act and the plaintiff can maintain it against any person who has no better title. In support of these submissions, he relied on the decision of this Court in the case of (Mariumbi Aslam Khan v. Vithoba Yeshwanta), 1970 Mh. L. J. 355.