IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN SATURDAY, THE 3RD DECEMBER 2011 / 12TH AGRAHAYANA 1933 SA.No. 280 of 1998(G) ------------------------------ AS.149/1996 of SUB COURT, NEDUMANGAD OS.239/1986 of PRL.MUNSIFF COURT,NEDUMANGAD .................... APPELLANT(S): IST RESPONDENT/PLAINTIFF ----------------------------------------------------------------- *RAJESWARY DEVI ANTHARJENAM, W/O.NEELAKANTARU PANDARATHIL, EDAVOOR MADAM, KALATHARA, VELLANAD VILLAGE, NEDUMANGAD TALUK FROM KARAMAN MADAM, OTTOOR DESOM, OTTOOR CHIRAYINKEEZHU, THIRUVANANTHAPURAM. (DIED) ADDL.A2 TO A8 IMPLEADED. **2. N.N.PANDARATHIL, EX.M.L.A., EDAVOOR MADOM, KALATHARA, ARUVIKKARA (HUSBAND AS THE APPELLANT).(DIED) 3. R.SUSEELA DEVI, DO. DO. D/O. APPELLANT. 4. N.CHANDRA MOHAN, DO. DO. S/O. APPELLANT. 5. R.SASIKALA, DO. DO D/O. APPELLANT. 6. M.R.RAJ MOHAN, DO. DO. S/O. APPELLANT. 7. N.SURESH MOHAN, DO. DO. S/O. APPELLANT. 8. N.SATHEESH MOHAN, DO. DO. S/O. APPELLANT. *ADDL. APPELLANTS 2 TO 8 ARE IMPLEADED AS LEGAL REPRESENTATIVES OF THE DECEASED SOLE APPELLANT AS PER ORDER DTD. 28.10.99 ON CMP. 1356/99. ** IT IS RECORDED THAT APPELLANTS 3 TO 8 ARE THE LR'S OF DECEASED ADDL. A2 VIDE ORDER DTD. 5.11.08 IN MEMO BEARING C.F. 5656/08. BY SRI.V.N.ACHUTHA KURUP, SENIOR ADVOCATE BY ADV. SRI.B.S.SWATHIKUMAR tss S.A. NO.280/198 RESPONDENT(S): 2ND RESPONDENT & APPELLANT/IST AND 2ND DEFENDANT ------------------------------------------------------------------------------------------------------------------ 1. GOPALAKRISHNAN PANDARATHIL, S/O.NARAYANARU PANDARATHIL, AMUNTHURATHI MADAM, MANAMPOOR VILLAGE, FOR MARAMAN MADAM, OTTOOR DESOM, OTTOOR PAKUTHI. 2. RAGHAVAN NAIR ALSO KNOWN AS RAGHAVAN PILLAI, S/O.NEELAKANTA PILLAI, MECHERI VEEDU, THEKKUMARA MURI, NEDUMANGAD VILLAGE, THIRUVANANTHAPURAM. R2 BY ADVS. SRI.S.V.RAJAN SRI.SAJAN SREERAJ THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 03/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss P.BHAVADASAN, J. ------------------------------------- SA No.280 of 1998 ------------------------------------- Dated this the 3rd day of December 2011 Judgment Aggrieved by the decree passed by the lower appellate court in AS No.149/96, the plaintiff in OS No.239/86 has come up in appeal. 2. Though the suit was initially for injunction, it was later converted into one for recovery of possession on the allegation that during the pendency of the suit, the second defendant trespassed into the property and reduced it into his possession. 3. The plaintiff and the first defendant are members of a Namboothiri Illom. The first defendant is the younger brother of the plaintiff's husband and the second defendant is a stranger. The plaint schedule property was outstanding on a mortgage of the years 1082, 1083 and 1087 ME. It was claimed by the plaintiff that the mortgage was redeemed utilising her funds as per document SA 280/98 2 nos.6773 and 6775 of the year 1122 ME. Eversince then, the plaintiff has been enjoying special rights over the suit property and therefore, the suit property was excluded from partition. The plaintiff also claims that after 1122 ME, she has been in absolute possession and enjoyment of the suit property. The plaint schedule property is a paddy field and while it was lying vacant, the second defendant attempted to trespass into it on 26.03.1986, but the timely intervention of the plaintiff prevented the second defendant from being successful in doing so. Thereafter, it was revealed that the first defendant had executed a sale deed in favour of the second defendant in respect of the suit property. Therefore, the suit was laid on the basis of prior possession for recovery of possession. 4. The defendants resisted the suit. They filed a joint written statement. According to them, the plaint schedule property is in the possession of the second defendant. It is contended that the property originally belonged to the father of the plaintiff's husband and the first SA 280/98 3 defendant. It is claimed that the suit property was outstanding with one Raghavan Pillai from whom the first defendant obtained it as per a release deed No.3943 in 1962. Thereafter, in 1986, the first defendant executed a sale deed in favour of the second defendant and presently, the second defendant is in possession of the suit property. Claiming that the plaintiff has no manner of right over the suit property, they prayed for dismissal of the suit. 5. Based on the above pleadings, issues were raised. Evidence consists of the testimony of PW1 and documents marked as Exts.A1 to A4 from the side of the plaintiff. The defendants had DWs 1 and 2 examined and Exts.B1 to B6 marked. 6. After consideration of the evidence, the trial court decreed the suit. The second defendant carried the matter in appeal as AS No.149/96 before the Sub Court, Nedumangad. The lower appellate court took the view that viewed from any angle, the first defendant is a co-owner of the suit property and therefore, he is entitled to assign his SA 280/98 4 share of property. Holding so, the appeal was dismissed. The said judgment and decree are assailed in this appeal. 7. Notice is seen issued on the following questions of law raised in the second appeal : (A) Is it not correct to say that Exts.A1 and A2 documents will prove that the plaintiff came into possession of the plaint scheduled property ? (B) Will not Exts.A3 and A4 documents prove that the suit property along with other properties covered by Exgs.A1 and A2 were in possession of the plaintiff and the plaintiff was dealing with the property on the basis of the special right she has got over the properties ? (C) Did not the lower appellate court err in finding that the plaintiff has not proved the possession of the suit property and the special right claimed ? (D) Is it not correct to say that Ext.B1 has not conferred any right on the first defendant and hence no right will be conferred on the 2nd defendant as per Ext.B2 ? (E) Is not the appreciation of evidence by the lower SA 280/98 5 appellate court faulty and perverse ? 8. The learned counsel for the appellant pointed out that the suit was for recovery of possession on the strength of previous possession, falling within the ambit of Section 6 of the Specific Reliefs Act and therefore, no appeal is maintainable. It is also contended that going by the documents produced by the plaintiff, it is clear that she is in possession of the suit property and the court below was not justified in accepting the documents produced by the defendants to hold against the plaintiff. It was also pointed out that even if it was found that the first defendant was a co-owner and was entitled to assign his share of property, for avoiding multiplicity of proceedings, the lower appellate court could have passed a preliminary decree for partition. 9. There seems to be considerable force in the submissions of the learned counsel for the respondents. It is seen that a specific contention was raised before the lower appellate court that the appeal is not maintainable SA 280/98 6 because the suit is based on prior possession which falls under Section 6 of the Specific Reliefs Act. The lower appellate court pointed out that elaborate evidence has been taken in the case and so the suit cannot be treated as one under Section 6 of the Specific Reliefs Act. 10. The reasoning given by the trial court does not appear to be very convincing. Merely because elaborate evidence has been taken, it does not mean that the suit falls outside the provisions of the Specific Reliefs Act. The reason given to hold that Section 6 is not applicable, does not seem to be sustainable in law. 11. There is also considerable force in the submission that even assuming it is found that the first defendant is a co-owner, the lower appellate court could have passed a preliminary decree, instead of dismissing the suit, relegating the parties to a fresh suit. The lower appellate court does not appear to be right in its conclusion that possession is with the defendant and that the plaintiff had no possession of the suit property at the relevant time. SA 280/98 7 Therefore, it is felt that the matter needs reconsideration at the hands of the lower appellate court regarding the issues raised for consideration in the appeal. In the result, this appeal is allowed. The impugned judgment and decree are set aside and the matter is remanded to the lower appellate court for fresh consideration in accordance with law and in the light of what is stated above. The parties shall appear before the lower appellate court on 23.01.2012. The lower appellate court may make every endeavour to dispose of the appeal as expeditiously as possible, at any rate, within six months from the date of appearance of parties before court. P.Bhavadasan, Judge sta SA 280/98 8