IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 23RD FEBRUARY 2010 / 4TH PHALGUNA 1931 CRP.No. 303 of 2006() --------------------- OS.635/2001 of MUNSIFF COURT, THALASSERY .................... REVN. PETITIONER(S)/IIND DEFENDANT: --------------------- T.K.SHANTHAKUMARI, W/O.VASU, AGED 54 YEARS, OLACHERYKKAVU ROAD, TALAP, KANNUR. BY ADV. SRI.A.MOHAMED MUSTAQUE SRI.M.K.SUMOD RESPONDENT(S)/PLAINTIFF/1ST DEFENDANT: --------------- 1. M.ABDUL SALAM, S/O.EBRAHIM, AGED 43 YEARS, PROPRIETOR MARGIN FREE MARKET, TALAP, KANNUR. 2. T.K.LAKSHMANAN, AGED 66 YEARS, S/O.VASU, `VEENA' NR. BEFI OFFICE, YOGASALA ROAD, KANNUR. ADV. SRI.T.A.RAMADASAN FOR R1 SRI.CIBI THOMAS FOR R1 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 23/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER IN I.A.NO.1380/06 IN C.R.P.NO.303/06 DISMISSED. 23.2.2010 SD/- S.S.SATHEESACHANDRAN, JUDGE /TRUE COPY/ P.A. TO JUDGE S.S.SATHEESACHANDRAN, J. ------------------------------- C.R.P.NO.303 OF 2006 (B) ----------------------------------- Dated this the 23rd day of February, 2010 O R D E R The 2nd defendant in O.S.No.635 of 2001 on the file of the Munsiff Court, Kannur has filed this revision. The above suit was instituted by the 1st respondent as plaintiff under Section 6 of the Specific Relief Act for recovery of possession and mandatory injunction. He was forcibly evicted from the plaint schedule building which was under his enjoyment as a lessee under a lease arrangement entered with the 1st defendant, the brother of the 2nd defendant, paying an advance rent of Rs.6,000/- and agreeing to pay a monthly rent of Rs.3,000/-, was his case. The building was taken on lease for accommodating sales girls working in the Margin Free market of the plaintiff. About ten months after the commencement of the lease and while he continued in occupation of the building, the defendants took forcible possession of the building and while doing so, they assaulted his cook, a lady engaged in the house, was the basis of the suit CRP.303/06 2 claim for recovery of possession. A complaint was filed before the police over the incident, and later, the suit was laid before the court for recovery of possession and mandatory injunction, under Section 6 of the Specific Relief Act. The 1st defendant remained ex parte, the 2nd defendant, the present revision petitioner resisted the claim. Disputing the lease arrangement, it is contended that the building was never in the occupation of the plaintiff and no rent was received from him at any point of time. The building being old was demolished and reconstruction already started, was the case of the defendants. On the materials placed in the suit, the court below found merit in the case of the plaintiff that he had been forcibly evicted from the building during the continuance of lease agreement over the building in his favour. The prayer of mandatory injunction was not pressed by the plaintiff as the building had been demolished and reconstructed by the defendants. The learned Munsiff allowed recovery of possession of the plaint schedule building from the defendants to the plaintiff on the basis of his previous possession as a tenant granting a decree under Section 6 of the Specific Relief CRP.303/06 3 Act. Correctness of that decision is challenged in the revision. 2. The learned counsel who appeared for the 1st respondent/plaintiff submitted that he had relinquished his engagement for that respondent long back. I heard the learned counsel for the revision petitioner/2nd defendant. Revision petitioner was the owner of the building and she had no tenancy arrangement with the plaintiff and he was never in possession of the building as a tenant or otherwise, is the submission of the learned counsel. The case canvassed by the plaintiff that he was in occupation of the building as a tenant from the 1st defendant, the brother of the 2nd defendant, according to the learned counsel, cannot be pressed into service as against the true owner of the land, and she was not bound by any arrangement between the plaintiff and the first defendant. No document was produced to prove the tenancy arrangement canvassed other than some receipts purported to have been issued by the 1st defendant which had been denied by him when examined as a witness in the case, submits the counsel. Emphasising that a trespasser has no right to seek CRP.303/06 4 an order of injunction against the true owner of the land, the learned counsel contended that by setting up tenancy right over the building with some one other than the owner, the plaintiff is incompetent to seek for a decree of recovery of possession as against the owner on the allegation that he was forcibly evicted from the building. It is further contended that the plaintiff has not established his possession over the building within a period of six months prior to the alleged dispossession to seek recovery on the case set up that he had been forcibly evicted from the building. Even on the allegations canvassed he continued as a tenant only for a very short period from 6.1.2001 to 6.10.2001, the date of alleged dispossession and that according to the counsel, is not sufficient to show that he was in settled possession of the building to claim recovery of possession. The court below, without adverting to the facts and circumstances involved and the materials produced, has granted a decree in favour of the plaintiff and it is liable to be interfered with and set aside, is the submission of the counsel. CRP.303/06 5 3. I have perused the impugned judgment passed by the court below with reference to the submissions made by the counsel. It is seen that on the materials placed, the court below found that the case canvassed by the plaintiff as to his occupation of the building as a tenant and his forcible eviction has been proved. The 1st defendant is none other than the brother of the 2nd defendant, the owner of the building. The 1st defendant remained ex parte. He was summoned and examined as a witness by the plaintiff. Though he had disputed the receipts Exts.A2 to A5 series, which are purported to have been issued by him towards collection of the rent over the building from the plaintiff, the court below on a comparison of the signatures appearing in the receipts with his signatures found in his deposition statement found them to be similar. His admission that the signatures appearing in the receipts were similar to his admitted signatures was also taken by the court to conclude that those receipts were in fact issued by him. He had put his signature in the summons issued by the court in a different way also weighed with the court in holding that his denial of tenancy CRP.303/06 6 arrangement over the building with the plaintiff was not true. Plaintiff has also examined the doctor who attended on the cook employed in his house, who is alleged to have been assaulted when the incident of forcible eviction occurred. That cook was also examined in the case. Her evidence taken along with that of the doctor who attended her and the wound certificate proved through him added trustworthiness to the case of the plaintiff. The evidence of the plaintiff was found fully corroborated by the other evidence let in the case to conclude that he was in occupation of the plaint schedule building as a tenant and that he was forcibly evicted by the defendant and their men. The finding so entered by the court on the materials placed cannot be interfered with in exercise of revisional jurisdiction. No jurisdictional infirmity has been pointed out to discard the reasoning and conclusion formed by the court below on the materials placed in the case. Challenge canvassed that the plaintiff was not in settled position and that he had no tenancy arrangement under the 2nd defendant, the owner of the building, has no merit in the proved facts and circumstances of the case. The decree CRP.303/06 7 granted by the court below directing recovery of possession of the building to the plaintiff finding that he had been forcibly evicted during his occupation as a tenant in such building, does not call for any interference. Revision lacks merit, and it is dismissed. S.S.SATHEESACHANDRAN JUDGE prp