Case Note & Summary
The plaintiffs, including Amod Nandkishore Mehra and others, filed a suit under Section 6 of the Specific Relief Act, 1963, seeking restoration of possession of a property bearing CTS No. 69/21 at L.B.S. Marg, Vikhroli (West), Mumbai, from defendant No.1, Ashok Nandkishore Mehra, who is the brother of plaintiff No.1. The suit property was part of a larger property originally owned by an undivided joint Hindu family. The plaintiffs alleged that they were in peaceful possession of the suit property and were dispossessed by defendant No.1 on 1st August 2011 without their consent and otherwise than in due course of law. They also sought appointment of a Court Receiver with powers under Order XL Rule 1 of the Code of Civil Procedure, 1908, to take possession and hand it over to them. Defendant No.1 denied the allegations, claiming that the plaintiffs were never in possession and that he was the lawful owner and in possession. The court examined the pleadings and documents, including affidavits and photographs, and found that the plaintiffs failed to prove prior possession and dispossession within six months. The court noted that the suit under Section 6 is a summary proceeding that does not decide title, and the burden is on the plaintiffs to prove possession and wrongful dispossession. The court held that the plaintiffs' evidence was insufficient and contradictory, and therefore dismissed the notice of motion for appointment of a Court Receiver and also dismissed the suit. The court did not award costs.
Headnote
A) Specific Relief Act, 1963 - Section 6 - Suit for Possession - Summary Suit - The suit under Section 6 is a summary proceeding for recovery of possession based on prior possession and wrongful dispossession, without adjudication of title. The plaintiff must prove that he was in possession within six months prior to the suit and was dispossessed without his consent or otherwise than in due course of law. (Paras 1-3) B) Specific Relief Act, 1963 - Section 6 - Limitation - Six Months - The suit must be filed within six months from the date of dispossession. The plaintiffs alleged dispossession on 1st August 2011 and filed suit on 29th November 2011, which is within limitation. However, the court found that the plaintiffs failed to prove prior possession and dispossession. (Paras 2, 10-12) C) Code of Civil Procedure, 1908 - Order XL Rule 1 - Court Receiver - Appointment - The court declined to appoint a Court Receiver as the plaintiffs failed to make out a prima facie case for possession. The court held that the remedy under Section 6 is summary and does not require appointment of a receiver. (Paras 13-15) D) Evidence - Possession - Burden of Proof - The plaintiffs must prove actual, physical, and peaceful possession of the suit property at the time of dispossession. Mere documentary evidence of title or ownership is insufficient. The court found that the plaintiffs' evidence of possession was weak and contradictory. (Paras 10-12)
Issue of Consideration
Whether the plaintiffs are entitled to restoration of possession under Section 6 of the Specific Relief Act, 1963, and whether a Court Receiver should be appointed pending the suit.
Final Decision
The Notice of Motion is dismissed. The Suit is dismissed. No order as to costs.
Law Points
- Specific Relief Act
- 1963
- Section 6
- Suit for Possession
- Summary Suit
- Prior Possession
- Dispossession
- Limitation
- Title Not Decided
- Court Receiver
- Order XL Rule 1 CPC
