Prasenjit Mandal, J. - (1.) THIS application is at the instance of the plaintiff and is directed against the Order No.25 dated April 18, 2009 passed by the learned Civil Judge (Junior Division), 1st Court, Alipore in Title Suit No.235 of 2005 thereby dismissing an application under Section 6 of the Specific Relief Act.
(2.) THE short fact necessary for the purpose of this application is that the plaintiff is the owner of the property as described in the Schedule of the plaint and her name has been duly mutated with the Kolkata Municipal Corporation. She has been paying taxes to the Municipality. Upon an agreement between the parties, the plaintiff decided to sell the suit property to the defendant no.4 at a consideration of Rs.17,50,000/- only and the parties signed the deed of agreement accordingly on March 4, 2005. As per agreement, the defendant no.4 paid a sum of Rs.1,00,000/- only in cash and three cheques amounting to Rs.2,50,000/- only to be encashed after one month from the dated of issue of the cheques were issued in favour of the plaintiff. On March 4, 2005, the plaintiff kept the suit property under lock and key and her father-in-law visited the property next time on April 6, 2005 when he found to his utter surprise that the defendants were occupying the suit property after breaking open the Padlock of the Main Entrance Door and displayed a sign board in the name of opposite party no.2, namely, Sayannya. The defendants took forcible possession of the said suit property on March 5, 2005 and on a request, they refused to vacate the suit property. Under the compelling circumstances, the plaintiff went to lodge a complaint to the police, but the police did not take his complaint as the defendants have already lodged a complaint against the plaintiff. Under the circumstances, the plaintiff has filed the suit for recovery of possession under Section 6 of the said Act. That suit was dismissed ex parte. Being aggrieved, this application has been preferred.
(3.) NOW, the question is whether the impugned order should be sustained. Upon hearing the learned advocate for the petitioner and on perusal of the materials on record, I find that the impugned order cannot be supported. The learned Trial Judge has dismissed the suit ex parte. The defendants / opposite parties did not contest the suit and so, the learned Trial Judge was to consider the ex parte evidence. Unless, the evidence is denied or if the evidence is totally improbable, there is no ground to discard the evidence on behalf of the plaintiff. What I find is that the learned Trial Judge has recorded that the plaintiff has not proved her title to the suit property. In a suit for recovery of possession under Section 6 of the Specific Relief Act, the plaintiff is not required to prove the title to the suit property. What is required is that the plaintiff must prove her legal possession to the suit property and that she has been dispossessed on a particular date and that the suit for recovery of possession has been filed within a period of six months from the date of dispossession. Such a proceeding is a summary in nature and that is why no appeal is provided against the decree under Section 6 of the Act. So, the learned Trial Judge is to consider whether the essential ingredients of Section 6 have been fulfilled or not and then he shall pass orders accordingly.;