IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 14TH JUNE 2011 / 24TH JYAISHTA 1933 RSA.No. 275 of 2004() --------------------- AS.60/2001 of SUB COURT, THALASSERY OS.13/1996 of MUNSIFF COURT, THALASSERY .................... APPELLANT/APPELLANT/PLAINTIFF. --------------------------------------------------------- KELAMBATH NANI, D/O.KANNAN, COOLI WORKER, PATTONDAVIDA HOUSE, MUZHAPPILANGAD AMSOM DESOM, KANNUR TALUK, KANNUR DISTRICT. BY ADV. SRI.A.K. ALEX. RESPONDENT: RESPONDENT/DEFENDANT. ------------------------------------------------------------- T.K.MAHAMMOD, S/O.ABDULLA, RESIDING IN LAKSHAM VEEDU, FISHERMAN, MUZHAPPILANGAD AMSOM DESOM, KANNUR TALUK. KANNUR DISTRICT. BY ADV. SRI.GRASHIOUS KURIAKOSE FOR R1 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 14/ 6/ 2011 THE COURT ON 14/06/2011 PASSED THE FOLLOWING:- M.SASIDHARAN NAMBIAR,J. =========================== R.S.A. No. 275 OF 2004 =========================== Dated this the 14th day of June,2011 JUDGMENT Plaintiff in O.S.13/1996 on the file of Munsiff Court, Thalassery is the appellant. Defendant is the respondent. Suit was filed for recovery of possession of the plaint schedule property from the possession of the respondent on the strength of title. The title set up is under Ext.A1. Appellant contended that as she was not having any house or land, on an application filed by her, for constructing a house the plaint schedule property was allotted to her under Ext.A1 on 28.7.1980 and pursuant to that order, she constructed a hut therein and started residing. But due to rain, the hut fell down and she shifted her residence to the house of her sister Rohini. It is alleged that subsequently R.S.A.No.275/2004 2 she applied to the District Collector for a loan to construct a house and Rs.2000/- was allowed and while she was making preparations to construct a house, on 3.2.1990 respondent with the help of CPI (M) workers trespassed into the property without her consent and reduced the property into his possession and constructed a hut. It is alleged that a police case was registered and the respondent was tried in C.C.270/90 for the offence under section 447 of Indian Penal Code and he was convicted and the appeal filed challenging the conviction was also dismissed and the respondent has no right to the property and therefore appellant is entitled to recover possession of the property. 2. Respondent resisted the suit contending that appellant has no title and she is not entitled to the decree sought for. Learned Munsiff on the evidence of PWs.1 and 2, DW1 and Exts.A1 to A4, C1 and C2(a) dismissed the suit holding that Ext.A1 is not a title deed and it is only a consent given to R.S.A.No.275/2004 3 the appellant to construct a house and even according to the appellant she had left the house after residing therein for some months and was not residing there for more than ten years and as she has no title, she is not entitled to recover possession of the property. Learned Munsiff also found that if at all the appellant could seek recovery of possession as provided under section 6 of the Specific Relief Act, as the appellant was allegedly dispossessed in 1990 and the suit was filed only in 1996, she is not entitled to claim possession under section 6 of the Specific Relief Act also. Appellant challenged the judgment before Sub Court, Thalassery in A.S.60/2001. Learned Sub Judge on reappreciation of evidence found that Ext.A1 will not confer title on the appellant and based on Ext.A1 plaint schedule property cannot be identified and appellant is therefore not entitled to the decree for recovery of possession. It is challenged in the second appeal. 3. Second appeal was admitted formulating the R.S.A.No.275/2004 4 following substantial question of law. Whether the courts below were correct in law in holding that Sec.6 of the Specific Relief Act is applicable to the facts of the case and hence the right if any of the plaintiff is barred. 4. Learned counsel appearing for the appellant and respondent were heard. 5. The suit is one for recovery of possession on the strength of title. Appellant could succeed only on establishing her title. The title set up is on the strength of Ext.A1. As rightly found by the courts below Ext.A1 is only a consent letter and by Ext.A1 appellant did not obtain title to the property. Ext.A1 shows that she was permitted to construct a building and reside therein, providing that she has no right to alienate and if she discontinue the residence, the property is to be R.S.A.No.275/2004 5 returned to the Government. Admittedly no purchase certificate was issued pursuant to Ext.A1 and therefore finding of the courts below that appellant has no title under Ext.A1 is perfectly correct. 6. The argument of the learned counsel is that even if appellant has no title, as she has possessory title, she is entitled to a decree for recovery of possession. First of all, there is no claim, even alternatively, that appellant is entitled to recover possession of the plaint schedule property based on the possessory title. Without pleading appellant is not entitled to contend that she is entitled to recover possession of the property based on her previous possession. Even if it is taken that suit is one based on possessory title, as provided under Article 64 of the Limitation Act, appellant has necessarily to prove that she has been in possession of the property within a period of 12 years prior to the institution of the suit. Even if it is taken that R.S.A.No.275/2004 6 appellant claimed possessory title also, it is also based on Ext.A1. If so the question is what is the property covered by Ext.A1. 7. The plaint schedule property as demarcated by the Commissioner in Ext.C2 plan is in Sy.No.118/5B. The property which lies to the east of 118/5B is R.S. No.118/6. Ext.A1 shows that permission granted to the appellant therein is in respect of 4 cents comprised in Sy.No.118/5B and 118/6. Therefore if appellant claims that she has been in possession of that property, it could never be the property in the middle of 118/5B, as demarcated by the Commissioner, but could only be touching the survey boundary of Sy.No.115/5B and 118/6. If that be so the property covered under Ext.A1 cannot be the plaint schedule property as identified by the Commissioner. The property as identified must be shifted further to the east of the property demarcated by the Commissioner. Therefore Ext.A1 will not establish even possession of the plaint schedule property by the appellant. R.S.A.No.275/2004 7 Though the Commissioner has identified the plaint schedule property in Ext.C2 plan and demarcated it in R.S.118/5B, it was based on the description of the property given in the plaint. The plaint shows that the property claimed by the appellant lies to the east of the property allotted to Sankaran and west of the property allotted to Bhaskaran. But Ext.A1 does not give any such indication to identify the property. In such circumstance, based on Ext.A1 the property cannot be fixed and therefore appellant is not entitled to a decree for recovery of possession either on the strength of Ext.A1 or the alleged possessory title. Though a substantial question of law was formulated as if the courts below found that section 6 of the Specific Relief Act applies and the right of the plaintiff has been barred, there is no such finding by the trial court or the first appellate court. Both the courts considered the question whether appellant would be entitled to recover possession based on previous possession and held that to R.S.A.No.275/2004 8 maintain such a suit, it could be under section 6 of the Specific Relief Act and if so the suit is to be filed within six months from the date of dispossession. That does not mean that courts have found that this is a suit filed under section 6 of the Specific Relief Act or that the right of the plaintiff is barred. As there is no such finding substantial question of law as formulated does not arise for consideration. Appeal is dismissed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006