KUMAR KALYAN PRASAD & ANOTHER Vs. KULANAND VAIDIK & OTHERS

JUDGEMENT

(1.) Whether the dispossession envisaged in Sec. 6 of the Specific Relief Act, 1963, includes its sweep the flagrant and contumacious violation of symbolical possession of immovable property duty delivered in the course of law - -has come to be the spinal issue in this civil revision. The facts herein call for a somewhat brief notice and indeed highlight how the vagaries of law can lead to grave delays and thus virtual injustice for a suitor seeking relief through its processes. The petitioners herein are members of a joint Hindu Mitakshara family of Which Kumar Kalyan Prasad (petitioner No. 1) is the Karta and manager and the suit under Ss. 6 of the Specific Relief Act (hereinafter referred to as "the Act") for the recovery of possession of the suit property had been filed in a representative capacity. It is unnecessary to recount the somewhat tangled facts and it suffices to mention that way back in the year, 1956 the petitioners had filed Title Suit No. 130 seeking eviction of the opposite party and securing the possession of the suit property. Though the suit was dismissed by the Munsif Ist Court, Darbhanga, and the lower appellate court upheld the dismissal, the High Court in Second Appeal No. 125 of 1961, decided on the 5th of April, 1963, decreed me suit in favour of the petitioners for recovery of possession with regard to the suit and by ejecting the defendants as also for recovery of arrears of rental. The decree of the High Court was duly executed in Execution Case No. 113 of 1963 and actual possession was secured on the 10th of November, 1965.

(2.) It is the petitioners' case that having got delivery of possession they locked the house and deputed two of the servants to keep a watch over the same. However, on the very night of the 10th November, 1965, the opposite party with the help of other associates forcibly entered the house and took possession of the same by ousting the plaintiffs' servants and also assaulted them. A criminal case was then filed by Jageshwar Enandari, one of the petitioners' servants, under Ss. 147, 448, 452 and 323 of the Indian Penal Code in. which the accused persons were convicted and sentenced by the trial court. The conviction had been maintained up to the highest level by the High Court. The opposite party, however clung to the property and despite repeated demands refused to give up their illegal possession and indeed started erecting new structures over the suit property and putting down the old ones. The petitioners then instituted the suit under Sec. 6 of the Act giving rise to the present revision.

(3.) The suit was contested by the defendants on a variety of grounds and on the pleadings of the parties as many as eight issues were framed of which the material ones are issue Nos. 5 and 6 in the terms following: