In a suit under Section 6 of the Specific Relief Act, proof of prior possession and unlawful dispossession is sufficient for relief, irrespective of title or partition issues.

ORDER :

REKHA BORANA, J.

1. The present revision petition has been filed against judgment and decree dated 05.08.2006 passed by the Civil Judge (Jr. Div.), Jodhpur in Civil Original Suit No. 17/2002 whereby the suit under Section 6 of the Specific Relief Act, 1963 (hereinafter referred to as ‘Act of 1963’) and for permanent injunction as filed on behalf of the plaintiff, stood dismissed.

2. Plaintiff Bhera Ram filed the suit against his brother Bhanwar Lal (defendant No.1) and sons of Bhanwar Lal (defendants No.2 & 3) with a submission that the land in question was in possession of the plaintiff since the life time of their father as their father Rupa Ram had already partitioned the property in his life time. As per the said partition, the defendants were residing in their portion after constructing their houses on the same. One of their brothers Heera Ram was even issued a patta (dated 01.10.1981) by the Gram Panchayat on basis of the long possession of the land which fell into his share.

3. It was further averred in the plaint that the plaintiff being of old age, was residing with his son at Prathvi Pura, Rasala Road, Jodhpur but frequently visited the disputed plot. He had visited the plot a month ago when it was vacant. However, when his son visited the plot on 19.04.2022, he found a wall of four feet height constructed on the said plot. The said construction was a fresh one and upon enquiry it was found that the same was raised by the defendants. The defendants were then requested to remove their illegal construction on the land in question but they declined to do so. Therefore, the present suit in terms of Section 6 of the Act of 1963 was filed within a period of six months from 19.04.2002.

4. Per contra the case of the defendants was that plaintiff Bhera Ram was never in possession of the property in question. The property being in possession of their father since years, was admitted but the fact of any partition been made by their father, was specifically denied. It was averred that the defendants too had equal right on the property in question as that of the plaintiff, the property being ancestral and no partition having been made till the said date. It was further averred that the construction over the plot in question was raised by the defendants almost ten years ago and no new construction on 19.04.2002, as alleged by the plaintiff, was made. It was lastly averred that the plaintiff was not entitled for any relief without first getting the property in question partitioned.

5. On basis of the pleadings as made, the learned trial Court framed the following issues:

6. Banshi Lal (PW1), the son of plaintiff Bhera Ram and Pukhraj (PW2), son of Heera Ram entered the witness box and three documents were got exhibited: copy of the patta issued in favour of Heera Ram (Exhibit-1A); the charge-sheet as filed in the FIR lodged by the plaintiff (Exhibit 2); order-sheet dated 18.07.2002 whereby congnizance was taken by the competent court in the criminal proceedings (Exhibit 3). On behalf of the defendants, Bhanwar Lal (DW1), Jagdish (DW 2), Narayan Singh (DW3) and Bhanwar Singh (DW4) were examined.

7. The learned trial Court, after hearing the counsels and analysing the evidence as led on behalf of both the parties, decided issues No. 1, 2, 3 & 4 against the plaintiff; Issue No.5 in favour of the defendants; and issues No. 6, 7 and 8 against the defendants. As a consequence of Issues No. 1 to 4 having be