In proceedings under Section 6 of the Specific Relief Act, the court's role is limited to determining dispossession within six months prior to the suit, without delving into ownership issues.

ORDER :

REKHA BORANA, J.

1. The present revision petition has been filed against the judgment and decree dated 26.10.2007 passed by Additional District Judge (Fast Track) No.4, Jodhpur in Civil Original Suit No.69/2006 whereby the suit under Section 6 of the Specific Relief Act, 1963 (hereinafter referred to as ‘the Act of 1963’) as filed on behalf of the plaintiff was decreed.

2. Vide the impugned judgment, the defendants were directed to handover the possession of the area marked in green in the map as annexed alongwith the plaint, to the plaintiff.

The defendants were further restrained from interfering with the possession of the plaintiff on the first floor of the property in question (marked as red in the map).

3. The facts are that a suit under Section 6 of the Act of 1963 was filed by plaintiff Mahesh Lal with a specific averment that the property in question was of the ownership of his maternal grand- mother and he resided with her since his childhood. Vide will dated 22.09.1998, his maternal grand-mother bequeathed the property to him and he was in sole possession of the property in question. However, the defendants i.e. his maternal uncles served notice dated 07.07.2004 calling upon him to vacate the room situated on the first floor of the premise in question with an averment that he was permitted to use the said room on a temporary basis but he had malafidely taken possession of the same.

4. On the said notice being served, he preferred Civil Suit No.79/2004 for ‘Permanent Injunction’ wherein a Commissioner was appointed by the learned Trial Court. However, before the Commissioner could visit the site to inspect the property, he was dispossessed from the property on 28.07.2004 by the defendants. Therefore, the present suit in terms of Section 6 of Act of 1963 was filed on 17.11.2004.

5. The case of the defendants was that the alleged will dated 22.09.1998 was a forged one and further that the plaintiff was never in possession of the complete property in question. He was in permissive possession of only one room of the first floor of the premise and he having refused to handover the possession to defendants, he was served with notice dated 07.07.2004.

It was therefore pleaded that the plaintiff was never in possession of the complete premise and hence, total story of his eviction on 28.07.2004 is a made up story as he was not evicted on the said date.

6. On the basis of pleadings as made, the learned Trial Court framed nine issues but then, proceeded on to delete Issue No.1 and 3 pertaining to the will in question.

The learned Court did the same as the present was a suit in terms of Section 6 of the Act of 1963 and hence, issue of ownership or the will could not have been gone into by the Court. As a result, the following seven issues remained for consideration of the Court :-

7. The learned Trial Court proceeded on to decide Issues No.2,4 & 5 in favour of the plaintiff and Issues No.6, 7 & 8 against the defendants.

8. Learned counsel for the petitioners submits that the learned Trial Court erroneously decided Issue Nos.2, 4 & 5 in favour of the plaintiff and Issue Nos.6, 7 & 8 against the defendants solely on basis of the pleadings of the plaintiff without going through the oral evidence which was available on record.

9. Learned counsel submits that in a suit under Section 6 of the Act of 1963 the Court was only required to go into the issue whether the plaintiff was dispossessed from the premise in question prior to a period of six months of the date of filing of the suit. The issue of ownership had nothing to do with the same and in a suit under of the Act of 1963, the issue of ownership could not even have been gone into. Learned counsel further submits that the learned Trial Court erroneously proceeded on to record a finding that the defendants were not in physical possession of the property in question whereas it was not even the case of the defendants that they were residing in the said premise. It was rather