AMAR SINGH Vs. GHANSHYAM

JUDGEMENT

(1.) This case is heard today. The learned counsel for the revision-petitioner submits that almost entire evidence of the defendants has not been considered in the case. Hence it is a material irregularity. He also submits that in a suit under Section 6 of the Specific Relief Act mesne profit could not be decreed. The learned counsel for the non-petitioner submits that there is no question of jurisdiction involved in this case and there is no material irregularity committed by lower Court. On the question of mesne profits, he submitted that it is only a consequence of the order for recovery of possession on (sic) the mesne profits have been granted and the Court had jurisdiction to do so.

(2.) There is no doubt on reading the plaint that it was brought for recovery of possession under Section 6 of the Specific Relief Act. The case of the plaintiff was that the disputed premises were in his possession and he was dispossessed forcibly from them on 25-5-92. On the other hand, the petitioner-defendant came with a case that the disputed premises fell within his tenancy and story about forcible dispossession was false. The plaintiff examined as many as 9 witnesses in support of his case that he was forcibly dispossessed from the premises on 25-2-92 (sic). In paragraph 20 of the judgment, the trial Court has discussed the evidence of the defendant and, therefore, it cannot be said that it has totally ignored the defendants' oral evidence. The lower Court has also observed that Rupa Ram, Chhagan Lal, Narayan, Arjun, Prakash, Narendra etc. etc. were the other tenants in the house but were not examined by the other side. The trial Court also observed that the defendant took specific stand that in the disputed premises his wife suffered a fracture because of a fall and Hari Singh, Rupa Ram and Gopal Lal Soni etc. lifted his wife from the same disputed premises and took her to hospital in Ajmer. However, the defendant did not examine Gopal Soni, Hari Singh, Kunti Jhala. The trial Court has also observed that the defendant has examined Ugam Singh a Class IV servant of a school who has nothing to do with the case. The trial Court found him to be a chance witness. The trial Court also considered the statement of Likhma Ram (DW 3) and found that both the DWs Ugam Singh and Likhma Ram were cooked up witnesses. Thus, there is no force in the contention that the defendants evidence was not considered by the trial Court. In revisional jurisdiction, under Section 115 of the Code of Civil Procedure, this Court cannot embark upon appreciation of evidence to come to a different conclusion than which is arrived at by the trial Court. There is, therefore, no force in this revision petition on this count.

(3.) The other contention is that in a suit for recovery of possession under Section 6 of the Specific Relief Act no other relief except possession could be granted and, therefore, grant of mesne profits @ Rs. 80 per month was without jurisdiction. The old Section 9 of the repealed Specific Relief Act of 1877, is not materially different from Section 6 of the present Act of 1963.