KHANDU BAJABA GAWANDE (DECEASED) THR. LRS. SHAKUNTALA KHANDU GAWANDE v. DEORAM BAJABA GAWANDE AND ORS.
Requirements of Settled Possession and Factual Enquiry under Section 6 of the Specific Relief Act - Reversal of Restoration Order due to Failure to Prove Possession on the Date of Dispossession.
Court: Bombay High Court
Citation: 2026:BHC-AS:10832
Decision Date: 05-03-2026
List of Laws
Specific Relief Act, 1963; Code of Civil Procedure, 1908; Possession and Dispossession; Revisional Jurisdiction
- Facts: Plaintiff No.1 claimed to have purchased the suit premises in the name of his brother (the Defendant) under a family arrangement to run a dispensary. The Plaintiffs alleged that on 28 November 2011, the Defendant forcibly dispossessed them by breaking open the locks of the dispensary. Conversely, the Defendant contended that the Plaintiffs had long abandoned the property and handed it over to a developer (Cosmos), who was in possession since 2009. The Defendant claimed he merely re-secured possession on 3 October 2011 after finding the premises unlocked and unattended by the developer.
- Procedural Posture: The Plaintiffs filed a summary suit under Section 6 of the Specific Relief Act, 1963. The City Civil Court at Greater Bombay decreed the suit in favor of the Plaintiffs, directing restoration of possession. The legal heirs of the deceased Defendant challenged this decree before the Bombay High Court via a Civil Revision Application under Section 115 of the Code of Civil Procedure, 1908.
- Issue: Whether the Trial Court was justified in decreeing the suit under Section 6 of the Specific Relief Act without recording a definitive finding on the Plaintiffs' actual possession on the specific date of alleged dispossession, and whether it erred in ignoring the Defendant's specific plea regarding third-party possession.
- Holding: No, the Trial Court's judgment was found to be patently perverse and was set aside.
- Reasoning: The High Court reasoned that a suit under Section 6 requires strict proof of three ingredients: previous possession, dispossession without consent/due process, and filing within six months. The Trial Court committed a jurisdictional error by erroneously assuming the Defendant had "admitted" the Plaintiffs' possession. While the Defendant admitted the Plaintiffs were licensees in 2009, he specifically pleaded they lost possession to a third-party developer well before the 2011 incident. The High Court noted that the Plaintiffs failed to lead direct evidence proving they were running the dispensary on 28 November 2011. Since the Plaintiffs failed to prove the primary requirement of "settled possession" on the date of dispossession, the summary remedy of restoration could not be granted.
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