IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 11TH AUGUST 2011 / 20TH SRAVANA 1933 AS.No. 337 of 1999() -------------------- OS.322/1995 of SUB COURT,KATTAPPANA .................... APPELLANT/PLAINTIFF IN OS ------------------------------------------- THOMAS, SO/KURIAN KADUVANAL HOUSE VELLAYAMKUDY KARA KATTAPPANA, IDUKKI DIST BY ADV. SRI.K.GEORGE VARGHESE KANNANTHANAM SRI.TONY GEORGE RESPONDENTS/DEFENDANTS 1, 2, 4 TO 7 IN OS ------------------------------------------------------------------- 1.SANKARAN, S/O.SANKARANKUTTY THOTTAKKATTU HOUSE RAJAPURAM PO, PERIYARVALLEY KAA, VATHUKUDY VILLAGE 2. RAMAN, S/O.SANKARANKUTTY, -DO- 3. MOHANAN, S/O.SANKARANKUTTY-DO- 4. CHEERAMMA, W/O.SANKARANKUTTY -DO- 5. SARASAMMA, W.O.KESAVAN KUDIKKAYATHU, RAJAPURAM PO PERIYAR VALLEY KARA, VATHIKUDY VILLAGE 6. SOMAN, S/O.NARAYANAN, VELAYIL HOUSE RAJAPURAM PO, PERIYAR VALLEY KARA VATHUKUDY VILLAGE ADV. SRI.GRACIOUS KURIAKOSE THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 11/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.BHAVADASAN, J. ------------------------------------- AS No.337 of 1999-F ------------------------------------- Dated this the 11th day of August 2011 Judgment The non-suited plaintiff is the appellant. 2. Based on a document which the plaintiff alleges to be an agreement for sale, he claimed that he was put in possession of one acre of land by the 6th defendant. The 6th defendant is the daughter of one Sankaran Kutty, who admittedly owned the property. On his death, it is claimed that the property devolved on defendants 1 to 6. It is alleged that there was an oral partition between the legal heirs of Sankaran Kutty and the plaint schedule property was set apart to the 6th defendant. Alleging that defendants 1 to 5 trespassed into the plaint schedule property, reduced it into their possession and started tapping the rubber trees standing thereon, the suit was laid under S.6 of the Specific Reliefs Act. 3. The first defendant resisted the suit by filing a written statement. He disputed the right of the 6th defendant AS 337/99 2 to execute a deed as claimed by the plaintiff and pointed out that neither the 6th defendant nor the plaintiff has ever been in possession of the suit property. According to him, the plaint schedule property forms part of a larger extent of 6 acres, which was encroached upon by him and his father and they had effected improvements in the property. He would say that after the death of his father, there was an oral agreement between the members of the family and the plaint schedule property was in fact allotted to him which is comprised in RS No.76/2 of Konnathady village. He is residing in the property. Pointing out that the plaintiff has no manner of right in the suit property, he prayed for dismissal of the suit. 4. On the above pleadings, issues were raised by the trial court. Evidence consists of the testimony of PWs 1 to 5 from the side of the plaintiff. The defendants had Dws 1 and 2 examined and Exts.B1 to B5 marked. Ext.C1 commissioner's report was also marked. AS 337/99 3 5. The trial court found that the plaintiff has not been able to establish his possession over the suit property. The court also found that the identity of the suit property has not been established. Accordingly, the suit was dismissed. 6. The question that arises for consideration is whether the court below was justified in dismissing the suit on the ground that the plaintiff has not proved his possession and the identify of the property is not established. The learned counsel for the appellant pointed out that lower court was not justified in dismissing the suit since the property could be identified going by the description shown in the plaint. It is also pointed out that there was sufficient evidence adduced by the plaintiff to show that he had been in possession of the plaint schedule property. The evidence of PWs 2 to 5, according to the learned counsel, have not been properly appreciated. 7. There is no merit in the above contention at all. Even though the plaintiff relied on an agreement for AS 337/99 4 sale, he did not choose to produce the document on the basis of which he claimed possession. The oral evidence of PWs 2 to 5, according to the learned counsel, have not been properly appreciated. 8. There is no merit in the above contention at all. Even though the plaintiff relied on an agreement for sale, he did not choose to produce the document on the basis of which he claimed possession. The court below found the evidence adduced by him, namely, PWs 2 to 5 to be insufficient to come to the conclusion that the plaintiff is in possession of the property. Of course, a document was produced before the trial court, but the court found that it was in fact, a sale deed which had necessarily to be registered in view of S.17 of the Registration Act. The document is not seen marked. The result is that the suit document is not seen produced in the case. 9. The commissioner, who was deputed by the trial court to ascertain certain facts, says that he has identified the property with reference to the plaint AS 337/99 5 description and also as shown by the plaintiff. 10. It is interesting to note that though the plaint description shows the boundaries on the entire field of land which is said to be owned by the father of defendants 1 to 6, there is no attempt from the side of the plaintiff to have a sketch produced through the commissioner so as to properly identify the property. The commissioner's report also discloses that the first defendant is residing in the plaint schedule property. The plaintiff had no case that the first defendant had trespassed into the property, had put up a structure therein and is residing there illegally. His only case is that defendants 1 to 5 had illegally trespassed into the property and are tapping the rubber trees standing there. The commissioner's report does not come to the aid of the plaintiff. In the absence of any evidence to show that the plaintiff was put in possession of the property in pursuance of the agreement for sale, which the court below has found is not correct and also in the absence of any evidence to show that the plaint schedule property has AS 337/99 6 been properly identified, the lower court was perfectly justified in declining to grant reliefs to the plaintiff under S.6 of the Specific Reliefs Act. As is trite and in order to succeed in a suit under Section 6 of the Specific Reliefs Act, the plaintiff has necessarily to show that he had been in possession within six months prior to the institution of the suit. The oral evidence of PWs 2 to 5 are insufficient to draw a conclusion that the plaintiff had possession of the property . It also needs to be noticed that the plaintiff claims to be in possession from 1980 onwards. At least, he could have produced some tax receipts which would show that he was in possession. He has not produced any documents in support of his claim. 11. Under the above circumstances, there is no justification to take a different view from the one taken by the trial court. Moreover, the trial court has safeguarded the interest of the plaintiff by making an observation that the dismissal of the present suit will not be a bar for a comprehensive suit based on title. No grounds are made AS 337/99 7 out to interfere with the judgment and decree of the court below. The appeal is without any merits and it is accordingly dismissed. No order as to costs. P.Bhavadasan, Judge sta AS 337/99 8