HARIPADA SEN Vs. RASHA PRAVA DEV BARMAN

JUDGEMENT

(1.) This revision petition under Section 115 of the Code of Civil Procedure, hereinafter referred to as the Code, has been preferred against the judgment and decree dated 31.1.1998 and 4.2.1998 passed respectively by the learned Civil Judge, Junior Division, Dharmanagar, in Title Suit No. 17 of 1985 decreeing the suit for recovery of possession under Section 6 of the Specific Relief Act.

(2.) During the course of argument, Mr.B.Das, learned senior counsel for the revisionists emphasised mainly on the ground that the learned Court below without application of mind to the evidence on record decided the issue of possession illegally and with material irregualrity and thus failed to exercise jurisdiction in proper perspective. According to him, the suit originally filed by the plaintiff- respondents was for perpetual injunction restraining the defendants from entering the suit land. The ad-interim injunction granted at the intial stage prohibiting the defendant- respondents was vacated after hearing both the parties and, only thereafter, the plaintiff- respondents came with a prayer for amendment of the plaint under order 6 Rule 17 of the Code. This petition was filed on 1.12.1985 and by this petition the prayer was inserted for recovery of possession based on previous possession under Section 6 of the Specific Relief Act. In this petition, the planintiff- respondents disclosed that they were dispossessed by the defendant-petitioners on 12.7.1985. According to the learned counsel for the revisionists, this amendment is engineered to revive an otherwise dying case on false grounds. It has been further argued that the petition filed by the plaintiff-respondents under Rule 2A of Order 39 of the Code alleging violation of the prohibitary order on 15.7.1985 is silent about the dispossession.

(3.) I have examined throughly the impugned judgment with reference to the materials made available. It may be mentioned here that the petition dated 15.7.1985 was submitted alleging violation of the prohibitary order imposed upon the defendant-petitioners. Thereafter, the plaintiff-respondents came with the petition for amendment of the plaint. There may be delay of few month, but that does not in any way render the suit as false and vexatious. The amendment permitted to convert the suit for perpetual injunction into a suit for recovery of possession under Section 6 of the Specific Relief Act because of the alleged dispossession during the pendency of the suit cannot be said to have completely changed the nature and character of the suit to the prejudice of the defendant-petitioners. The appreciation of the evidence on record and the finding arrived at by the learned Civil Judge has been pin-pointedly elaborate touching all the material points relevant for deciding the factum of possession. He has evaluted the evidenciary value of the statement of the witnesses and the documents of the pleintiff-respondents, and after comparative analysis with that of the evidence and documents of the defendants, came to a finding that the plaintiff-respondents have been all along in possession of the disputed land till they were dispossessed in 1985. His findings that the documents tendered into evidence by the defendant-petitioners may suggest their possession after 1985 and not prior to that needs no interference. In my considered opinion, there has been no illegality or irregularity committed by the learned Court below resulting into miscarriagE of justice warrenting interference by this Court under Section 115. There is no dispute to the legal position that when some illegal or material irregularity is one committed by the Subordinate Court in the matter of exercise of its jurisdiction, such illegality or material irregularity can be corrected by a Court in exercise of its powers under Section 115 of the Code. In order to succeed in a petition under this section, the revisionists will have also to show that the impugned order has occasioned failure of justice. After a thorough scrutiny of the impugned judgment and decree, I am of l.he opinion that the petitioners have not been able to show that there has been improper or illegal exercise of jurisdiction which has resulted into mis-carriage of justice in the instant case.