The main legal point established in the judgment is the requirement for the plaintiff to prove prior possession over the disputed property when seeking relief under Section 6 of the Specific Relief Act.

JAYANT NATH, J.

1. By the present Revision Petition the petitioner seeks to impugn the judgment of the trial court dated 30.6.2015 dismissing the suit filed by the petitioner under Section 6 of the Specific Relief Act for possession.

2. The petitioner filed a suit for recovery of possession, mesne profit and damages claiming to be absolute owner of immovable property and also having possession over Schedule A property. Schedule B is stated to be a part and parcel of Schedule A comprising two rooms at the first floor of the dwelling house of the petitioner. It is averred in the plaint that the petitioner had erected a small jhuggi on the open ground of land adjacent to his parental house i.e. Schedule A. This construction took place as the petitioner is stated to have been thrown out by his parents, defendant and brothers from the parental house. The defendant/respondent is one of the brothers of the petitioner.

3. It is further stated in the plaint that after living for about 20 years in a jhuggi, the petitioner desired to construct a pakka building. He started construction work in 2009 and completed the same in 2010. On 7.9.2010 it is stated that the respondent forcibly entered into the dwelling house of the petitioner with the help of local gundas and police and locked the doors of the two rooms at first floor i.e. Schdule B. It is stated that a complaint was made to the police they came to the spot but did not take any action.

4. The respondent filed his written statement stating that even schedule A of the property is ancestral property. It is further stated that the respondent and petitioners are brothers and there are two brothers also. They all i.e. all four are the sons of Shri Ram Singh and the parents are alive and the family members are residing in the same property in separate accommodation. According to the respondents, the property consists of two floors. A division/bifurcation was made by father of the parties with consent of all family members. The entire property was divided horizontally in two parts. Half part was given to the petitioner and the respondent. Ground floor of this half part comprising of three rooms was given to the petitioner and the first floor comprising three rooms was given to the respondent. Parents it is said are residing with the respondent on the first floor. It was the petitioner it is alleged who tried to forcibly dispossess the respondent from the first floor and called the PCR on 4.4.2010.

5. The trial court framed the following issues:-

“(i) Whether the suit is not maintainable in its present form? OPD

(ii) Whether the plaintiff is entitled to relief of possession of the suit property as prayed for? OPP

(iii) Whether the plaintiff is entitled for mesne profits and damages against the defendant as prayed for? OPP

(iv) Whether the plaintiff is entitled to a relief of permanent injunction as prayed for? OPP

(v) Relief.”

6. The petitioner led the evidence of two witnesses, namely, PW-1 Suresh Kumar and PW-2 himself. Respondent did not lead any evidence.

7. A perusal of the impugned order shows that the trial court did not believe the testimony of both the witnesses PW-1 and PW-2. PW-1 had filed his affidavit by way of evidence and stated that he did the work of steel, iron gates, window, doors etc. in the house of the petitioner and was paid Rs.35,000/- as full and final settlement. The trial court noted that in his cross-examination he has said that there is only one room constructed on the ground floor and one room on the first floor though it is the case of the parties that there are three rooms on the ground floor and three rooms on the first floor. PW-1 also admitted in his cross-examination that he is unable to give the complete location of the respondent’s house. He has also in his examination-in-chief exhibited Ex.PW1/1 an alleged agreement between the petitioner and him. In his cross-examination he submitted that during the last 12 years he has entered into written contracts wit