VIRENDRA KUMAR JAIN Vs. BHANWAR LAL BAJARGAN

JUDGEMENT

(1.) THE present revision petition has been filed by the petitioners -plaintiffs under Sec. 115 of C.P.C., challenging the judgment & order dt. 09.04.2002 passed by the Additional District Judge No. 3, Jaipur City, Jaipur (hereinafter referred to as "the trial Court") in Civil Suit No. 155/1992, whereby the trial Court has dismissed the suit of the petitioners -plaintiffs filed under Sec. 6 of the Specific Relief Act (hereinafter referred to as "the said Act"). The short facts giving rise to the present petition are that the petitioners -plaintiffs had filed the suit seeking possession of the suit land from the respondents -defendants under Sec. 6 of the said Act, alleging inter alia that the plaintiffs had purchased the suit property from one Sanwarmal through two separate sale deeds, and since then they were in possession of the said property. It was further alleged that the legal heirs of one Shri Ganga Sahai had filed two separate suits against the petitioners -plaintiffs alleging that they had illegally encroached upon the lands in question and therefore had sought possession from the petitioners. According to the petitioners -plaintiffs, when the respondents -defendants filed one another suit against the plaintiffs on 23.04.1992, alleging that they had purchased the suit land from the legal heirs of the Ganga Sahai, the petitioners -plaintiffs came to know that the respondents -defendants had taken over the possession of the suit land. It was further alleged by the petitioners -plaintiffs that part of the suit land was given to one Udairam on license basis vide license deed dt. 01.02.1977, however, the defendants had illegally dispossessed the plaintiffs by constructing two cabins in the said open lands on or after 16.01.1992. Hence, the said suit seeking possession under Sec. 6 of the said Act was filed.

(2.) THE said suit was resisted by the respondents -defendants by filing the written statement denying the allegations made in the plaint, and further contending inter alia that the land in question was allotted to the deceased Ganga Sahai by the Collector, and the legal heirs of the deceased Ganga Sahai had executed the sale deed in favour of the defendants on 08.07.1991. It was further contended that the petitioners were not in legal possession of the suit land, and therefore the suit under Sec. 6 of the said Act was not maintainable. It was also contended by the respondents that the Udairam, who was in possession of the suit land, had handed over the possession of the suit land to the respondents -defendants after receiving Rs. 2,50,000/ - from the defendants, and therefore it could not be said that the petitioners -plaintiffs were dispossessed from the suit land without following the due process of law.

(3.) HAVING regard to the submissions made by the learned counsels for the parties, and to the impugned order passed by the trial Court, as well as the evidence on record, it transpires that the petitioners -plaintiffs had examined the petitioner No. 1 Virendra Kumar Jain as PW -1. The said petitioner had not stated in his evidence as to how the petitioners were in actual physical possession of the suit land, and how they were dispossessed. He had also not stated as to on which date the petitioners were dispossessed from the suit land. On the contrary, it was admitted by the petitioner No. 1 in his evidence that the said Udairam was in possession of the part of the land, and that the respondents -defendants had taken away the possession from the said Udairam. As against that, the respondents -defendants had examined the respondent No. 1 Bhanwarlal as DW -1, who stated inter alia that the petitioners were never in possession of the suit land and that they had taken the possession from one Udairam, who was paid Rs. 2,50,000/ -. He had also stated that the respondents -defendants had purchased the suit land from the legal heirs of the Ganga Sahai by executing the sale deed on 08.07.1991. The respondents had also examined other witnesses, who had stated inter alia that the said Udairam was in possession, and the present petitioners -plaintiffs were not in possession of the suit land. Hence, appreciating the said evidence, the trial Court has rightly came to the conclusion that the petitioners -plaintiffs had failed to prove their possession of the suit land. Though, it is true that the suits were filed by the legal heirs of the Ganga Sahai against the petitioners, alleging that the petitioners had encroached upon the said suit land, and had also sought possession in the said suit, which suit was filed in the year 1981, however it is pertinent to note that the petitioners had failed to prove that they had continued to remain in possession since 1981 till 1992, when they were allegedly dispossessed by the respondents -defendants. The respondents also appear to have filed the receipt and the affidavit executed by the said Udairam, which were exhibited as Exhibit A/1 & A/2, in which it was stated that he had peacefully handed over the possession of the suit land to the respondents.