MOHAR SINGH Vs. VIDYA DEVI

JUDGEMENT

(1.) The revision petition is against the order passed under Section 6 of the Specific Relief Act by the plaintiff claiming that the defendant took forcible possession of the property on 15.07.1999. The plaintiff's contention was founded on an averment that the defendant was a tenant through a document dated 17.01.1992 and that he had voluntarily surrendered the property in October, 1998. When the plaintiff took possession and constructed a new building, the defendant had wrongfully entered upon the building again that necessitated the plaintiff's suit for recovery of possession.

(2.) The contention in defence was that he had not executed any document in favour of the plaintiff but that he was a tenant only under the plaintiff's husband, who had inducted him in possession of the property from the year 1985 itself. It was his further contention that the plaintiff's husband and the defendant entered into an agreement on 23.12.1998 under the terms of which the plaintiff's husband offered to put up new construction and allow for the property to be re-let again to the defendant on fresh terms. Under the said document, the plaintiff's husband had undertaken that he would not transfer or let out the property to any one else. It was further contention of the defendant that after the new construction was done, the defendant was put possession of the property and he had also paid a rent of Rs. 15,000/- as per the agreement between the parties through cheque issued in favour of the plaintiff's husband on 15.07.1999. His contention was, therefore, that his re-entry into possession was through an independent transaction from the plaintiff's husband and the possession was not unlawful and the plaintiff cannot seek for ejectment. At the time of trial, the plaintiff introduced another case that there was a family settlement under the terms of which the plaintiff's husband had transferred the property to her on 15.01.1999. It was denied that there was any document executed by the plaintiff's husband in favour of defendant and that any undertaking was given by him to allow for the property to be handed over to him after a new construction was made.

(3.) I find that the Court has framed the necessary issue whether the defendant came to be in possession of the property in the manner alleged by the petitioner and that whether the plaintiff was entitled to possession under Section 6 of the Specific Relief Act as alleged. There is no specific issue relating to a claim for possession by the defendant setting up his tenancy only with the plaintiff's husband and there was no transaction between the plaintiff and himself. At the trial, the defendant had relied on the document dated 23.12.1998 that sought to establish that the document of lease had been in favour of the plaintiff's husband and not with the plaintiff. There is definitely no averment in the plaint that the property had been let out by the plaintiff's husband to the defendant and that she had become owner of the property subsequently and the defendant had attorned to the plaintiff any time. The Court has granted the decree for recovery of possession on a singular consideration that the defendant, who had been a tenant could not be heard to deny his jural relationship of landlord and tenant and that his own entry into possession was unlawful. During the trial the document dated 23.12.1998 propounded by the defendant had been the subject of dispute and the plaintiff's husband examined himself as witness and gave evidence against the same. The plaintiff had also examined a handwriting expert who reported that the document did not contain the signature of plaintiff's husband but the defendant on his part gave evidence with reference to the very same document and also examined an expert to say that the document contained the signature of the plaintiff's husband only. The Court has not given any finding with reference to the document dated 23.12.1998. The Court has also not framed an appropriate issue relating to the document whether the defendant's possession was relatable to any other document, which, if true, would show that his own re-entry into the possession was not forcible but it was pursuant to an understanding between the plaintiff's husband and the defendant that a new construction will be put up in the place where he was originally a tenant and he would be allowed to re-enter the property on fresh terms. Significantly in this case there was a vital evidence relating to the payment of Rs. 15,000/- by cheque by the defendant to the plaintiff's husband that vindicated his stand that his entry into possession was not unlawful and that he had entered possession of the property only through the document pursuant to the agreement entered into between the parties on 23.12.1998. In my view, the Court has failed to examine what was most relevant, namely the genuineness or otherwise of the document dated 23.12.1998 and the effect of admission of the plaintiff's husband relating to receipt of Rs. 15,000/- through a cheque dated 15.07.1999. The suit filed under Section 6 of the Specific Relief Act is summary in nature and when extensive evidence had been relied on by parties, it was incumbent on the Court below to enter adjudication on all the relevant facts which are brought before it. It cannot be left to the revisional jurisdiction to examine the facts. There has been a failure of justice by the trial Court in not framing appropriate issues and not giving proper justification on most vital areas of controversy between the parties. The additional issues which were required to be framed and on the basis of which judgment to be given would be as follows:-