Ram Prasanna Sharma, J
1. This appeal is preferred under Section 96 of the Code of Civil Procedure, 1908 against the judgment/decree dated 8-4- 2005 passed by the 2nd
Additional District Judge, (FTC), Mungeli CG in Civil Suit No. 1-A/2004 wherein the said court decreed the suit filed by the respondent/plaintiff for
possession of land and house constructed upon Khasra No. 543/2 area 0.03 acres situated at village Mohbhata Patwari Halka No. 47, Tahsil Mungeli,
Dist. Bilaspur now District Mungeli.
2. The suit bearing registration 1-A/2004 is filed by the respondent/plaintiff against the appellants/defendants for recovery of possession of suit land
and house on the ground that he purchased the same from one Balram who was father of the appellant No.2 Rajkumari. Appellant No.2 Rajkumari is
wife of the appellant No.1 Mannu Ram and by registered sale deed dated 15-7-2003 he took possession of the suit land and since then he was residing
in the suit property. Balram died on 21-7- 2003. Last rite of Balram was performed in the suit house as requested by the wife and other daughters of
late Balram. Accordingly the suit land and house were given to the said persons for performing of the last rites. On 3-8-2003 in absence of respondent
the appellants forcibly entered into the suit land/house and unauthorisedly occupied the property in question. They did not vacate even after request of
the respondent that is why he lodged a report in concerned Police Station and he was advised to go to the Court by the Police Authorities, that is why
suit under Sections 5 & 6 of the Specific Relief Act, 1963 (for short, ""the Act, 1963"") was filed before the trial Court.
3. As per version of the appellants they are legal heirs of deceased Balram, therefore, they are entitled to retain possession of the suit house. The
appellants never dispossessed the plaintiff because they are having possession on the suit land and house during the life time of deceased Balram. Sale
deed was executed by playing fraud and same is void. The trial Court after marshalling of the oral and documentary evidence recorded finding that
respondent/plaintiff is owner of the suit land by virtue of registered sale deed dated 15-7-2003 and appellants forcibly entered into house and
unauthorizedly holding the possession of the suit land and house.
4. Learned counsel for the appellants submits as under:
I) The trial Court decided the tittle of the plaintiff in the suit though question of title cannot be adjudicated in the suit filed under Sections 5 & 6 of the
Act, 1963.
ii) The trial Court wrongly came to the conclusion that the appellants have wrongly dispossessed the respondent from the suit land and house, but
failed to consider Ex.D/1 to D/4 in which continuous possession of the appellants is shown, therefore, finding of the trial Court is not proper.
Iii) The respondent has wrongly filed the suit under Sections 5 & 6 of the Act, 1963 because both Sections of the Act are different in nature,
therefore, suit was not maintainable.
iv) The trial Court passed a decree on the basis of title under Section 5 of the Act, 1963. The suit is valued at Rs.51,000/-, but court fees was fixed as
per norms of Section 6 of the said Act, therefore, the trial Court ought to have directed the respondent to affix deficit court fees. Hence, being
insufficiency of court fees, impugned judgment is bad-in-law.
v) 1. Proceeding under Sections 5 & 6 of the Act, 1963 is in nature of summary proceeding, hence title cannot be considered in the nature of
proceeding, therefore, finding of the trial Court is liable to be set aside.
5. On the other hand, learned counsel for the respondent submits that the finding of the trial Court is based on proper marshaling of the evidence and
same is not liable to be interfered while invoking jurisdiction of the appeal.
6. I have heard learned counsel for the parties and perused the impugned judgment/decree passed by the trial Court.
7. PW/2 Ramkhilawan and PW/4 Urmila Bai deposed before the trial Court that property in question was owned by one Shyamlal as per record of the
right (Ex.P/1) who executed will in favour of Balram for the said property. On the basis of will, Balram was recorded owner of the property in
question as per Ex.P/2. There is nothing on record to rebut both documents and appellants were also saying that Balram was owner of the property in
question. Looking to the evidence of both sides,it is established that Balram was owner of the property in question. From the evidence of
Ramkhilawan (PW/1), he purchased the property from Balram as per Ex.P/4 dated 15-7-2003 through registered sale deed. PW/2 Ramkhilawan
Kurmi who is attesting witness of the sale deed (Ex.P/4) executed by Balram in favour of respondent deposed before the trial Court that the sale deed
was executed by Balram in favour of respondent in his presence and he signed in the said document. PW/1 Ramkhilawan deposed before the trial
Court that after registration possession was delivered to him and he was in possession of the land/house in question which is supported by
Ramkhilawan Kurmi (PW/2), Faguva Sahu (PW/3) and Urmila Bai (PW/4) who is wife of late Balram. Exhibit P/4 reveals that property in question
was sold for cash consideration of Rs.1,10,000/-. Looking to the entire evidence the trial Court opined that after execution of the sale deed respondent
was in possession of the property in question.
8. Witnesses Mannulal (DW/1), Sevakram (DW/2), Parmanand (DW/3) and Manharan (DW/4) deposed that appellants were in possession of the
property during life time of Balram and respondent did not possess the property, but version of these witnesses is not acceptable because wife of
Balram namely Urmila Bai (PW/4) clearly deposed that Balram handed over possession of the house and land in question to respondent. The suit is
filed on the ground that the appellants possessed the property illegally while the same was handed over to wife of Balram namely Urmila Bai (PW/4)
for last rite of Balram. This version is supported by version of wife of Balram namely Urmila Bai (PW/4).
9. From the evidence of Urmila Bai (PW/4), it is clearly established that after execution of sale deed respondent was in possession of the property and
he handed over the house to her for last rites of her husband Balram, but after last rites, the appellant did not deliver possession of the property and
illegally possessed the same house. This witness is firm to her statement during cross examination. Looking to the entire evidence, the trial court
recorded a finding that respondent was earlier in possession of the property in question after execution of sale deed and he handed over the property
to wife of Balram for some days to perform last rites of Balram but after last rites the appellants possessed the property illegally and did not hand over
the property to respondent No.1. Looking to the evidence of respondent side, the finding arrived at by the trial court is based on probability and this
court has no reason to substitute the contrary finding. The respondent not only proved his title before the trial court but also proved his earlier
possession before illegal possession of the appellant.
10. Sections 5 & 6 of the Act, 1963 embodied in the Act to recover possession if one is illegally dispossessed other than in due course of law. As per
Section 6(iv) of the said Act, 1963, nothing in these sections shall bar any person of showing to establish his title to such property and to recover
possession thereof. If person enables to show dispossession he can succeed on the strength of title.
11. In the present case, property in question was admittedly property of Balram and is not ancestral property. Balram was sole owner of the property
and he executed sale deed in favour of respondent during his life time. The right of inheritance opened on the date of death of Balram, but on the said
date property in question was already alienated and it was not left for inheritance, therefore, version of the appellants regarding inheritance is without
substance. As the possession of the respondent is supported by title while possession of the appellant is not legally founded and respondent was in
possession of the property earlier, therefore, finding of the trial Court is not liable to be disturbed.
12. Accordingly, judgment and decree is passed against the appellants and in favour of the respondent No.1as under:
 (i) The appeal is dismissed with cost.
 (ii) Appellants to bear the cost of respondent No.1 through out.
 (iii) Pleader's fee., if certified, be calculated as per Schedule or as per certificate whichever is less.
 (iv) A decree be drawn up accordingly.