IMPORTANT POINT
Possession is the key issue in suits under Section 6 of the Specific Relief Act, and the burden of proof lies on the petitioner to establish prior lawful possession.

ORDER :

Manoj Kumar Garg, J.

1. The present revision petition has been filed by the petitioner against the judgment and decree dated 11.05.2011 passed by learned Additional Civil Judge (J.D), Jodhpur Metropolitan No. 3 passed in Civil Suit No. 109/2001 whereby, the suit filed by the petitioner for possession and recovery of mesne profit has been rejected.

2. Brief facts of the case are that petitioner filed a suit against the respondents for possession of Plot No.105 situated at Chopasani Road, Kachhi Basti, Jodhpur so also seeking mesne profits under Section 6 of the Specific Relief Act.

3. Upon service of notice, the respondents filed written statement and denied the facts stated in the suit. On the basis of the pleadings of the parties, the trial court framed as many as five issues. The plaintiff and the defendants produced their respective evidence and also exhibited various documents.

4. The trial court after taking into consideration the arguments of both the parties, dismissed the suit by way of judgment and decree dated 11.05.2011. Hence, this revision petition.

5. Learned counsel for the petitioner argued that the learned trial court has committed grave error of law in passing the judgment impugned as it disbelieved the oral and documentary evidence adduced by the petitioner and instead relied on the testimony of two interested witnesses i.e. DW2 and DW3 produced by the respondents. It was further argued that the lower court relied on a survey report that does not bear the date of survey, plot number or accurate size/area of the property mentioned. The counsel stressed upon the error committed by the learned trial court by stating that the present petitioner was entitled to mesne profits for illegal use and occupation of the property by the respondents. It was further submitted that all the documents produced by the petitioner (Ex.1 to Ex.4) were proved except for Ex.5 i.e. the allotment letter dated 20.05.1980 being inadmissible in evidence as the same was held to be not registered in accordance with provision of Section 17(1)(b) and Section 49 of the Indian Registration Act, 1908. Thus, the impugned order dated 11.05.2011 passed by the Additional Civil Judge (J.D), Jodhpur Metropolitan No. 3 has caused serious miscarriage of justice and irreparable loss to the petitioner which deserves to be quashed and set aside.

6. Learned counsel for the respondent vehemently opposed the submissions made by the counsel for the petitioner and submits that in order to reap the benefits of the relief provided under Section 6 of the Specific Relief Act, 1963 (hereinafter referred to as “SRA”), the essential ingredients provided under the relevant Section need to be fulfilled. The petitioner in order to support his suit did not produce any concrete witnesses and relevant documents. It is further argued that PW1 Abu Khan (present petitioner) during his cross examination had stated that he used to live at another location situated at Siwanchi Gate, Jodhpur which goes on to show that he did not have possession over the disputed property. So far as grant of mesne profits is concerned, it is well settled that in a suit under Section 6 of SRA, mesne profits cannot be granted. It is further argued that the defendants had produced witnesses and documents viz. allotment letter, survey report etc. which categorically prove that the defendant is in possession of the suit property which was renumbered as Plot No.69 from Plot No.105 after survey. Thus, the suit is one and not different properties. The counsel placed reliance on the Judgment passed by the Hon’ble Apex Court in the case of Sanjay Kumar Pandey vs. Gulbahar Sheikh 2004 (SC) 399, Bhanwaru Khan @ Rashul Khan vs. Mumtaj 2013 (Raj) 1146 passed by the coordinate Bench of this Court and Laxman Singh & Anr. Vs. Kan Singh & Ors. 2001 (Raj) 1304 passed by Rajasthan High Court. Therefore, the order passed by the learned trial court is valid, legal and in line with the provisions of law.

7. I have heard