342 and saf povet its rights and when thc qucstion comes for 1997(Suppl.) .rest of thc pctitioncr and lin my considercd opinion no party should be pcr ircc to sct up ashamand illusory plcathatthe party hadcompliance or absopiolNutieoln,y CXCC" no informns Ardingthe cN partc procccdings As allcgcd in this case. In my the law helps the Vigilant and not the indolent as is so well scttled 7 The lcarmodcounscl for the petitioner has vehemently contended at the Ra. that the learned Appellatee Court had rejectedthe appeal without considering tthe of the case and that the delay doscrves to be condoncd by the Appellate Court merits opinion, this contention of the learncd Counsel is not tenable since the In my petitioner cxhaustod allthe remedics right upto the Apex Court and thereafer nothing surviehas for onsideration of this Court in this revision petitionparticularly when the petitioner had avaled yet another remedy of preferring an appeal before the learned District Judos after loosing the Special Leave Petition before the Apex Court. I am further of the opinion that it willbe wholly improper for this Court to sit over the judgment of the Apex Court by extending the time as it will be beyond the purview and jurisdiction of this Cout.
8. As a result of the above discussion there is nomerit in thisrevision petition
and the same is accordingly rejected. The petitioner is directed to hand-over vacant and peaceful possession of the suit premises to the respondents without any delay. The decree shall be executed forthwith and the respondents would be restored with peacful and vacant possession of the suit premises immediately. At this stage Mr.Garg, learned Counsel for the petitioner states that he may be granted some time to go in appeal against this order to the Apex Court. The aforesaid request of Mr.Garg is declined. No order as to costsS.
Petition disiissed.
1997 (Suppl.) CIVIL COURT CASES 342 (A.P)
ANDHRA PRADESH HIGH COURT B.K.SOMASEKHARAJ. C.RP.No.3485 of 1996,D/5.11.1996. Mohammed Baig Vs Ismail Begh &Ors. Specific Relief Act, 1963,S.6-- Enquiry regarding title cannot be held in a suit under Section 6of the Act. (Para 6) Specific Relief Act, 1963, S.6-Mesne profits - Relief cannot be granted in &uit under S.6 of the Act. (Para 6) Specific Relief Act,1963, S.6-Scope -Scope of suit filed under S.6 of the Act is limited to holding an enquiry into the question whether the person alleging dispossession was in posession of the property within six months prior to the date of suit and neither the question of title nor the possession based on title can be gone into. (Para 6) Cases referred: AIR 1980 Mad.222 Para 6); AIR 1951 Mad.938 (Para 6). 1997Suppl) CIVIL COURT CASES 343
Smt.A,Sushanti, for the petitioncr
Mr.Shyam Sundar, for the respondcnts ORDER
oK Somasckhara, J, -Thc udgmcnt and Decrce of the learned District Munsif.
RodhaninOS)No..213 of 1981 dated 30-7-199% are sought to be revised in this Revision Petiton. , The P'citioner is thc defcndant in the suit whcrcas the respondents were the The suit was filed under Sec.6 ofthe Specific Relicf Act, 1963 allegingthat ainufls wCre disposscsscd of the suit schcdule property by the defendant without ihep. thet conscntand forcibly. On a contest, the learned District Munsif found that the plaintifts were in possession ofthe suit propcrty within six months prior tothe date of suit and:accordingly directcdthat thcy be put in possession of the same. Smt. A. Sushanti, the learned counsel for the petitioner has contended that the omed District Munsif has excecded his jurisdiction in deciding the question of title d also awarding mesne profits in aproceeding under Sec. 6 of the Specific Relief Act. 4 Mr.Shyam Sundar, the learned Counsel for the respondents/plaintiffs has incidentaly ontended that allquestions leading to the final decision were to be decided tn know whether the plaintiffs had been dispossessed within six months prior to any the date of the suit and whether they should be restored to the possession and therefore Such expression cannot be taken as exceeding the jurisdiction. Court 5.On going through the Judgment of the learned District Munsif, this The only finds no exercise of excess jurisdiction or illegality in passing the decree. plaintiffs question involved in the suit (was) covered by issue No. 1, was whether the prior to the suit. Based on were dispossessed from the suit property within six monthsaffirmative. Both oral and evidence, the finding on such an issue is given in the defendant'scase was documentary evidence in thecase supported such a finding. The identity of the found to be not probable. Although controversy was raised regarding the property can be property, the Court was able to find that the possessiön of the suit incidentally by restored to the plaintiffs. Although there are certain expressionsmade question, whether the learned District Munsif, ultimately the matter is decided on the main suit. This Court, in the plaintifis were dispossessed within such a period with prior to the Tevisional jurisdiction, finds no justification to interfere such a finding or the decree. District Munsif could not 6. Regarding the other contention that the learned appears to be some force. nave ordered recovery of mesne profits in such a suit, there into the question whether the Ine scope of such a suit is limited to holding an enquiry within six months prior Peson alleging dispossession was in possession of the property the possession based on title an e date of suit and neither the question of title nor AIR 1980 Mad.222, and gone into. Therefore, in D.Natarajan V. Balabai Ammal, the rule applies only to Dasavayya V. Gursyawa. AIR 1951 Mad.938, it was held that possession without title cases for ejectment or recovery of possession fromapersonin The rule so discharged implies SGr with a claim for mesne profits, past or future. of possession ne relief of mesne profits can be passed only in case of recovery Personwho has no title to be in possession, the enquiry regarding which cannot bo 'mesne profits' in Sec.2(12) of the CoSuch a suit. Moreover, the definition of of Code of Civil Procedure implies that the Court will find that a personin possession wrongful such property would be in wrongful possession and makes profit from such 344 CIVIL COURT CASES 1997(Suppl) possessioi which isgoing tobe cnquircd under O.20.R. 12 of CPCtogive a finding as such. In that vicw of the mnttcr, the rclicfof nmesncprolits given is anexcess exercise of jurisdiction and illcgal anddcscrves to bc sct asidc. 7. In the resull, the Revision Petition is allowcd in part. Thc Judgment and decree of the lcarned District Munsif arc confirncd except to the cxtent of awarding mesne profits regarding which the respondcnts/plaintiffs shall bc cntitlcd to seck any other remedy available to them in law including thcir cross-claim, if any suit is filed by the revision pctitioncr inaccordance with law. 8. As prayed bv thc lcarncd Counscl for the Pctitioncr toenable the petitioner to scek any other legal remcdy, the cxccutionof the dccrcc is ordcred to be postponed for aperiod of 15 days from today. There shall bc no ordcr as to costs in this petitíon. Petition allowed in part. ***k *
1997 (Suppl.) CIVIL COURT CASES 344 (KARNATAKA)
KARNATAKA HIGH COURT
HARI NATH TILHARI,J.
R.S.A.No. 101 of 1985,D/5.9.1995. Hutchegowda Vs Smt.Jayamma & Anr. Transfer of Property Act, 1882, Ss.122, 123 -- Gift deed - Providing that transfer willbe effective on happening of future event - When that event does not happea deed does not become effective. (Para 12) Transfer of PropertyAct, 1882, S.122 «I have gifted" -Meaning -I have executed the gift deed gifting the property for transfer to take effect in future and not in present. (Para 12) Cases referred: AIR 1985 SC 1293 (Para 9); AIR 1954 SC 345 (Para 9): AIR 1979 SC 1628 (Para 12). Counsels: Mr.Venkatachala, for the appellant Mr.G.S.Visweswara, for the respondents. JUDGMENT
Hari Nath Tilhari, J. -This is a plaintiff's second appeal from the judgment and decree dated 11th September, 1984. passed by the Principal Civil Judge, Mandya. in Civil Regular Appeal No.90/1978, Mari Hutchamma and another V.Hutchegowda, arising,out of judgment and decree dated 30th September., 1978 passed by Munsifi, Malavalli in 0.S.138/1975, decrecing the plaintirsclaim for partition and possession of 1/2 share in the schedule suit property, allowing the defendant's appeal and seting aside the judgment and decree of the trial Court on O.S.No. 138/1975 anddismissing the plaintiff suit in entirety. 2. The facts of the case in brief are that the plaintiff-respondent filed this sut giving rise to this appeal for partition and separate possession 1/2 share of the propeity
