VIJAY PAL Vs. SHIV DAYAL

JUDGEMENT

(1.) ALTHOUGH this case comes up on stay application but with the consent of the parties, this case is being decided finally. The brief facts of the case are that the respondent plaintiff, Shri Dayal, filed a suit before the learned trial Court; stating inter alia that he is having an ancestral land measuring 25 bighas 5 biswas, in Khasra No. 786, at Village Chak Garbi, Tehsil and District Bikaner, The above said land is situated in Rampura Basti, in front of Sector No. 3 of the Mukta Prasad Colony, Bikaner. It was further averred that the land has come in his share. He had submitted an application before the UIT for regularization of the land and had also submitted a report of the halka patwari and deposited the regularization fees. It was further averred that the appellant -defendant, Vijay Pal, had constructed a pucca house in the western side of the said plot. He had broken the wall constructed by him on 13.01.2008 and had forcefully taken the possession of the land. Therefore, the respondent -plaintiff had filed a FIR before the concerned police station. It was further claimed that he also requested the defendant for vacating the premises of the plot in question but he declined to do so on 05.08.2008. Moreover, the appellant -defendant has encroached over the plot in question, has constructed a house, and has sublet the same on rent.

(2.) THE appellant -defendant submitted his written statement. He claimed that the land in question was vested in the State Government as the same was acquired by the UIT. The UIT proceeded for regularising the land to the persons who were in possession over the land in question. It was further pleaded that the plaintiff has got a forged report from the concerned patwari and he lodged a false complaint against him. The plaintiff did not pay proper Court fees as per the valuation of the land. Lastly, the appellant -defendant submitted that the land in question is in his possession for more than 12 years.

(3.) A preliminary objection has been raised by Mr. S.S. Ladrecha, the learned counsel for the respondent. According to him, the suit was filed by the plaintiff under Sec. 6 of the Specific Relief Act, 1963 ('the Act', for short). Under sub -sec. 3 of Sec. 6 of the Act, a bar has been placed that "no appeal shall lie from any order or decree passed in any suit instituted under this section, nor shall any review of any such order or decree be allowed". According to him, the use of word "shall" clearly indicates that it is a mandatory provision. Since the suit was for recovery of possession of the plot in dispute, since it was based solely on the ground that the plaintiff had been dispossessed from the plot in dispute without his consent, therefore, obviously the suit had been filed under Sec. 6 of the Act. Hence, the appeal is non -maintainable.