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PAPER-TII-DRAFTING

tion paper.
30 minutes extra time is provided for reading the ques

SECTION-I: Total 40 marks

(DRAFT ANY ONE SLP)

any one of the

Draft complete Special Leave Petition against
(Question No.lI OR
High Court judgments mentioned below
SLP as 30.06.2024.
Question No.2), treating the date of filing of
SLP to include the following :
1. Cover Page
2. Index
3. Synopsis/ List of Dates,
4. Special Leave Petition with affidavit, and
5. Certificate by the Advocate-on-Record
6. Interim applications, if any required
ion is made)
(Mention the Act or Rules under which applicat

SECTION-II: Total 60 marks

(DRAFT ANY THREE OUT OF FIVE)

. All questions carry 20 marks each

Proforma, Memo of
2. Cover Page, Index, Office Report, Listing
ted for any of
Parties and Affidavit are NOT required to be draf
the questions.

. 3 .
Duration of the exam was increased by one hour and the exam was conducted
pm (including 30 min utes extra t i i . Noti
between 11 am and 3.30
-
dated 10 and 11 June, 2024) atims forireading)i(Refotices
 SECTION-I
UESTION NO. 1

IN THE GAUHATI HIGH COURT

Civil Revision Petition No. 20 of 2022
Anil Kumar Medhi v. Radhey Shyam Medhi

HON’BLE MR. JUSTICE NANDKUMAR SINGH

Judgement reserved on : 10.05.2024

Judgement pronounced on : 16.05.2024

1. The present Revision Petition arises out of suit filed by

the
respondent under Section 6 of the Specific Relief Act, 1963
for recovery of possession against the petitioner. The
suit
was decreed by the Ld. District Judge vide judgment and
decree dated 09.12.2021. Since Sub-Section (3) of Secti
on 6
of the Specific Relief Act, 1963 prohibits maintainability of
appeal or review against any order/ decree passed
under
Section 6 of the Specific Relief Act, 1963 this revis
ion
petition under Section 115 of CPC has been filed.

2. The suit was filed by the respondent against the petit

ioner,
who is his real brother. Case of plaintiff’s father Om Praka
sh
Medhi was the owner of Plot No. 259 (suit property)
situated
in Fancy Bazar, Guwahati. On death of the fathe
r on
12.06.2018, Plot No.259 came to the share of the
respondent.
Plot no. 259 was let out by the father Om Prakash in
the year
2015 to one Shambhu Nath; and after the death of the father,
Shambhu Nath attorned the respondent as the owner and
he
was receiving rent of the suit property. Plaintiff asser
ted
possession of the property through his tenant.

3. 1tis further case of the plaintiff that Shambhu Nath

vacated
the suit property on 16.05.2018 and he was getting the
 3 S
property repaired. However, on 24.08.2018 the defendants
forcefully dis-possessed the plaintiff. The plaintiff lodged
FIR No.109/2018 on 25.08.2018 with Fancy Bazar police
station. However, police took no action on the FIR.
Subsequently, on 08.09.2018, the present Civil Suit No.
89/2018 was filed.

. The petitioner contested the plaintiffs claim by filing a

written statement and stated that the respondent was never in
possession of the suit property. The suit property was never
partitioned after the death of the father; and both the
petitioner and respondent are joint owners of the property
and the respondent cannot claim sole ownership thereof. He
denied that there was any tenant in possession of the suit
property. Infact, the property was lying vacant after the
demise of the father.

. The respondent in support of his case examined himself as

PW-1 and reiterated the averments made in the plaint. The
tenant Shambhu Nath was examined as PW-2 who stated that
he handed over the possession of the suit property to the
respondent and the rent was paid in cash to the respondent.
Contractor Shiv Lal was produced as PW-3 who deposed
that while he was carrying out white wash and minor repairs,
the petitioner along with 2 others came on 24.08.2018 and
asked him to stop the work and took away paints and brushes
lying there.

. The petitioner examined himself as DW 1 who stated that his

father was the sole owner and after the death of father the
property devolved upon two brothers and their mother
Sonadevi as legal heirs. All the three, i.e. the petitioner,
respondent and mother are the co-owners of the property and
they have right over the suit property. The petitioner claimed
that the suit property was lying vacant after death of the
 4 4_

father and there was no tenant and Shambhu Nath had been
set up by the respondent mischievously.

. The learned trial Judge relied upon testimony of the plaintiff

including the tenant and the contractor decreed the suit for
recovery of possession. The learned trial Judge elaborately
considered the judgement cral and documentary evidence
produced by the plaintiff including copy of patta, rent
receipts showing payment in cash and water bill in the name
of Om Prakash. The learned trial Judge 4 noticed that besides
oral statement of the defendant/ petitioners, no other
evidence was there to support his claim.

. The learned senior counsel for the petitioner vehemently

contended that under section 6 of the Specific Relief Act, the
plaintiff (Respondent) must be in possession of suit property.
Admittedly, the respondent was not in possession of the suit
property, thus, the suit is liable to be dismissed. He also
submitted that since the petitioner is co-owner of the suit
property, no decree for possession can be passed against him.
He submitted that no documentary evidence has been filed to
show that the respondent was in physical possession of the
suit property.

- Per contra, Ld. senior counsel for the respondent/ plaintiff

argued that possession of the tenant is the possession of the
landlord, and there is no requirement of actual physical
possession for maintaining the suit under section 6. He
further contended that evidence of PW-2 and PW-3 clearly
establishes that the petitioner has taken forceful possession
of the suit property contrary to law. He further averred that
the water bill though continued in the name of father was
actually paid by him. The Ld. counsel relied upon the
Jjudgement of the Supreme Court in the case of Rame Gowda
v. M. Varadappa Naidu, (2004) 1 SCC 769 which held that
 law comes to the aid of a person in peaceful and settled
possession even against the owner. He further submitted that
this Court in exercise of revisional jurisdiction under section
115 CPC will not interfere so long as the judgement and
decree passed by the Ld. District Judge is a possible view.

10. I have heard the Ld. counsels for the parties. The outcome
depends on the interpretation of section 6 of the Specific
Relief Act, 1963 and the scope of interference by this Court
under section 115 CPC.

Specific Relief Act, 1963 Section 6. Suit by person

dispossessed of immovable property.—(1) If any person
is dispossessed without his consent of immovable
property otherwise than in due course of law, he or any
person through whom he has been in possession or any
person] claiming through him may, by suit, recover |
possession thereof, notwithstanding any other title that |1
!
may be set up in such suit. |
(2) No suit under this section shall be brought—
(a) after the expiry of six months from the date of
dispossession; or
(b) against the Government.

(3) No appeal shall lie from any order or decree passed

in any suit instituted under this section, nor shall any
review of any such order or decree be allowed.

(4) Nothing in this section shall bar any person from

suing to establish his title to such property and to recover
possession thereof.

CPC, 1908 Section 115. Revision.— (1) The High

Court may call for the record of any case which has been
decided by any Court subordinate to such High Court
and in which no appeal lies thereto, and if such
subordinate Court appears—
(a) to have exercised a jurisdiction not vested in it by
law, or
 ¢ G
(b)to have failed to exercise a jurisdiction so vested, or
(c) to have acted in the exercise of its jurisdiction
illegally or with material irregularity

the High Court may make such order in the case as it thinks
fit:
Provided that the High Court shall not, under this
section, vary or reverse any order made, or any order deciding
an issue, in the course of a suit or other proceeding, except
where the order, if it had been made in favour of the party
applying for revision would have finally disposed of the suit or
other proceedings.

11. The law on section 6 of the Specific Relief Act has been laid
down by the Supreme Court in the case of Rama Gowda
(supra) wherein it was held thus :
“8. It is thus clear that so far as the Indian law is
concerned, the person in peaceful possession is entitled
to retain his possession and in order to protect such
possession he may even use reasonable force to keep out
a trespasser. A rightful owner who has been wrongfully
dispossessed of land may retake possession if he can do
so peacefully and without the use of 6 unreasonable
force. If the trespasser is in settled possession of the
property belonging to the rightful owner, the rightful
owner shall have to take recourse to law; he cannot take
the law in his own hands and evict the trespasser or
interfere with his possession. The law will come to the
aid of a person in peaceful and settled possession by
injuncting even a rightful owner from using force or
taking the law in his own hands, and also by restoring
him in possession even from the rightful owner (of
course subject to the law of limitation), if the latter has
dispossessed the prior possessor by use of force. In the
absence of proof of better title, possession or prior
peaceful settled possession is itself evidence of title.
Law presumes the possession to go with the title unless
rebutted. The owner of any property may prevent even
by using reasonable force a trespasser from an attempted
trespass, when it is in the process of being committed, or
 7 7
intermittent, stray
is of a flimsy character, or recurring,
itted, while the
or casual in nature, or has just been comm
time to have
rightful owner did not have enough
possession of
recourse to law. In the last of the cases, the
be called as
the trespasser, just entered into would not
one acquiesced to by the true owner.”

12 So far as the scope of revision under section 115, the

High
Court would be primarily concerned — with the
legality/propriety of the exercise of jurisdiction and cannot
re-appreciate the evidence adduced by the parties. Section
6(3) of the Act specifically bars an appeal from any order or
decree passed under section 6 has to be specifically noted.

18; In view of the settled proposition on scope and limits on

exercise of revisional jurisdiction against judgement and
decree passed under Section 6 of the Specific Relief Act,
High Court jurisdiction is limited to look into the propriety
of the exercise of jurisdiction by the Trial court and not to re-
appreciate of evidence to come to a contrary conclusion.

on 6
14. The impugned judgment and decree passed under Secti
of the Specific Relief Act is not perverse nor suffers from
any judicial impropriety. The Ld. Trial Court has relied upon
the testimony of PW-2 and PW-3 apart from PW-1. PW-2
has stated that he was paying rent to the plaintiff in cash.
but
Though the payment of rent in cash may raise suspicion,
be said
in absence of any other material on record, it cannot
that the reliance on the evidence of PW-2 by the Trial Court
the
is not a possible view. The fact regarding possession of
plaintiff respondent is further corroborated by PW3.

that
15. From the legal position stated above, it is evident
and
physical possession by the plaintiff may not be necessary
.
it may be a symbolic possession or constructive possession
his
Plaintiff has asserted that he was in possession through
 ' ?
tenant. The tenant has come to support the aforesaid fact that
he was inducted in the suit premises by the plaintiff’s father
and after vacating the suit premises, he has handed-over key
to the plaintiff-respondent. Therefore, this Court does not
find any substance in the submission of the petitioner that
since the plaintiff was not in physical possession of the suit
premises, suit under section 6 was not maintainable.

16. Consequently, this Court does not find any merit in this Civil
Revision Petition. Accordingly, it stands dismissed.

Sd/-