Case Note & Summary
This case arose from a dispute over possession of a dispensary premises in Mumbai between family members. The plaintiffs claimed that they were in settled possession and were forcibly dispossessed on 28 November 2011 by the defendant, and therefore filed a suit under Section 6 of the Specific Relief Act for restoration of possession.
The defendant, however, contended that the plaintiffs were not in possession at all, and that a third party (developer) had already occupied the premises long before. He claimed that he took possession when the premises were found vacant.
The Trial Court decreed the suit in favour of the plaintiffs, holding that they were dispossessed without due process.
However, the Bombay High Court (Justice Sandeep V. Marne) set aside this decree, holding that:
The core requirement under Section 6 is proof of possession on the date of dispossession
The Trial Court failed to properly examine this crucial issue
Plaintiffs did not produce reliable evidence showing possession on 28 November 2011
The Trial Court wrongly assumed possession instead of conducting proper factual inquiry
The High Court found the Trial Court’s findings perverse and unsustainable, especially since it ignored the defendant’s consistent case that a third party was in possession.
Headnote
A: In a suit under Section 6 of the Specific Relief Act, the plaintiff must strictly prove actual possession on the date of dispossession and dispossession without due process within 6 months. Title is irrelevant, but possession is sine qua non.
B: Where the Trial Court decrees restoration of possession without properly examining whether the plaintiff was in possession on the alleged date, and ignores the defendant’s consistent plea of third-party possession, such findings are perverse and liable to be set aside in revision under Section 115 CPC.
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Issue of Consideration: Whether the Trial Court committed jurisdictional error in decreeing the suit under Section 6 of the Specific Relief Act, 1963, warranting interference under Section 115 of the Code of Civil Procedure, 1908
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Final Decision
High Court allowed the revision, set aside the Trial Court decree, and dismissed the suit due to failure of plaintiffs to prove possession on the date of alleged dispossession.
2026 LawText (BOM) (03) 45
Civil Revision Application No. 185 of 2023
Mr. Rohit Joshi, Mr. Vishwajit N. Sagare
Khandu Bajaba Gawande (since deceased through legal heirs)
Deoram Bajaba Gawande (since deceased through legal heirs) and Ors.
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Nature of Litigation: Civil revision application challenging decree in suit for restoration of possession under Section 6 of Specific Relief Act, 1963
Remedy Sought
Applicants seek setting aside of Trial Court's judgment and order dated 9 December 2022
Filing Reason
Alleged jurisdictional error by Trial Court in decreeing suit without proper findings on possession and limitation
Previous Decisions
Trial Court decreed suit on 9 December 2022, directing restoration of possession to plaintiffs; High Court stayed impugned judgment on 10 January 2023
Issues
Whether the Trial Court committed jurisdictional error in decreeing the suit under Section 6 of Specific Relief Act, 1963
Whether the suit was barred by limitation
Submissions/Arguments
Applicants argued Trial Court erred in not considering defence evidence on possession and failed to frame issue of limitation
Respondents argued Trial Court's findings were evidence-based and no jurisdictional error existed for interference under Section 115 CPC
Ratio Decidendi
In a suit under Section 6 of the Specific Relief Act, proof of settled possession on the exact date of alleged dispossession is a mandatory condition, and failure to establish this essential ingredient renders the decree for restoration of possession unsustainable.
Judgment Excerpts
On Scope of Section 6
“In a suit under Section 6, the only question that has to be determined is whether the plaintiff was in possession of the disputed property and had been illegally dispossessed within six months prior to the filing of the suit.”
On Nature of Remedy
“The remedy under Section 6 is summary and special. The Court is not required to go into the question of title but only possession and dispossession.”
On Essential Ingredients
“The plaintiff must establish: (i) possession on the date of dispossession, (ii) dispossession without consent or due process, and (iii) that the suit is filed within six months.”
On Trial Court Error
“The Trial Court has failed to conduct the necessary factual enquiry and has erroneously assumed that the Defendant never disputed the Plaintiffs’ possession.”
On Perverse Finding
“The finding that possession of the Plaintiffs was not in dispute is contrary to pleadings and evidence and is patently perverse.”
On Proof of Possession
“Plaintiffs were required to prove their possession on 28 November 2011. There is no direct evidence to establish such possession.”
On Evidence (Hearsay Issue)
“Most witnesses deposed only about gaining knowledge of dispossession, which is hearsay and insufficient to prove possession.”
On Burden of Proof
“In a Section 6 suit, the burden to prove possession on the date of dispossession lies heavily on the plaintiff.”
On Failure of Plaintiffs’ Case
“Plaintiffs have thoroughly failed to prove their possession as on the date of alleged dispossession.”
On Result
“Since the prime ingredient of Section 6 is not fulfilled, the Trial Court ought to have dismissed the suit.”
Final Operative Order
“The impugned judgment and order is set aside and the suit is dismissed.”
Procedural History
Plaintiffs filed Suit No. 1017/2012 under Section 6 of Specific Relief Act on 9 April 2012; suit transferred to City Civil Court and renumbered as S.C. Suit no. 3192 of 2012; Trial Court decreed suit on 9 December 2022; Applicants filed Civil Revision Application No. 185 of 2023; High Court stayed impugned judgment on 10 January 2023; Revision Application heard and disposed on 5 March 2026
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