IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 16TH MARCH 2010 / 25TH PHALGUNA 1931 CRP.No. 804 of 2006() --------------------- OS.3/2001 of SUB COURT, QUILANDY .................... REVN. PETITIONER(S): PLAINTIFF: ------------------------------- KODIYATH KUNHAMMAD HAJI, S/O.ABDULLA, VILLIAPPALLY AMSOM, MAYYANNUR DESOM, VADAKARA TALUK. BY ADV. SRI.B.KRISHNAN SRI.R.PARTHASARATHY RESPONDENT(S): DEFENDANT: ------------------------- VISWANATHAN NAIR, S/O. OMANA AMMA, THOTTATHIL HOUSE, KALLODE AMSOM, DESOM, KOYILANDY TALUK. ADV. SRI.T.KRISHNAN UNNI, SENIOR ADVOCATE FOR R SRI.V.G.ARUN FOR R THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 16/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN, J ------------------------------------- C.R.P No.804 OF 2006 -------------------------------- Dated this the 16th day of March 2010 ORDER The revision is directed against the decree and judgment dated 25.03.2006 in O.S No.3 of 2001 passed by the learned Sub Judge, Koilandy. Plaintiff in the above suit is the revision petitioner. Suit was one filed for recovery of possession of plaint 'B' and 'C' schedule properties from the defendant under Section 6 of the Specific Relief Act alleging that trespassing upon those properties the defendant had dispossessed the plaintiff within six months before the institution of the suit. The defendant resisted the suit contending that the plaintiff had no title, right or interest over the property and he has been continuing in possession and enjoyment of the property as a title holder. Plaintiff canvassed his case on the basis of an assignment deed, Ext.A1 executed by the defendant. Pursuant to that assignment deed, title was conveyed to him and he continueed in possession and enjoyment of the property comprising 'B' and 'C' schedule properties was his case. The defendant contended that Ext.A1 styled as an assignment deed was only a deed executed towards security for a loan transaction and no title or possession transferred under such deed. The learned Sub Judge on the C.R.P No.804 OF 2006 Page numbers materials produced and hearing the counsel on both sides concluded that the plaintiff failed to establish that he was in possession within a period of six months prior to the institution of the suit and in that view of the matter, the suit was dismissed. 2. I heard the counsel on both sides. The learned counsel for the revision petitioner submitted that the court below has not taken into consideration the terms covered by Ext.A1 assignment deed which prima facie indicated that title and possession over the property had passed in favour of the assignee, and that being so, according to the learned counsel, the burden shifted on the defendant, the executant, of that document to lead convincing evidence to show that despite Ext.A1 assignment deed executed by him he continued to have possession over that property. The defendant miserably failed to lead any evidence to discharge that burden submits the counsel. It is further submitted, the possession of the plaintiff over the property is corroborated by the evidence given by the plaintiff examined as PW1 and also the revenue receipts evidence the remittance of the revenue charges over the property. On the other hand, the learned counsel appearing for the respondent invited my attention to Ext.A2 judgment rendered in a previous case. A third party on the basis of an assignment deed executed by the plaintiff over a portion of the property covered by Ext.A1 C.R.P No.804 OF 2006 Page numbers claimed a decree of mandatory injunction in the above suit advancing a case that he has title over the property covered by the assignment deed in his favour. That suit in which the present plaintiff and defendant were codefendants after trial was dismissed upholding the contentions taken by the respondent. In appeal, the appellate court also confirmed the dismissal is the submission of the counsel. The finding on the question of title entered by the trial court alone was modified by the appellate court in the appeal preferred against the dismissal of the suit filed, and in considering the merit of the suit claim canvassed in the present suit, the previous suit wherein the parties had raised rival contentions and the decision entered after adjudication in that suit has much significance, is the submission of the counsel. At any rate, the judgment rendered by the court below holding that the plaintiff in the present case (revision petitioner) has failed to prove his anterior possession over the suit property within a period of six months before the institution of the suit does not warrant any interference in exercise of the revisional jurisdiction is the further submission of the counsel. 3. I have considered the rival submissions made by the counsel with reference to the judgment rendered by the learned Sub Judge. Admittedly there was a previous suit filed by a third party in which the plaintiff and defendant were C.R.P No.804 OF 2006 Page numbers codefendants. That third party on the basis of an assignment deed from the plaintiff sought for a decree of mandatory injunction to compel the defendants to produce the prior title deeds of the property conveyed to him under his assignment deed. The present plaintiff who was the 1st defendant in that suit supported him, but, the second defendant, the present defendant, resisted the suit claim contending that Ext.A1 deed executed in favour of the present plaintiff was only a security for a loan transaction and not one conveying title and possession over the property. Over the rival case presented by the parties issues were cast by the court in that suit and ultimately upholding the contentions taken by the present defendant that suit was dismissed. Though the learned counsel for the revision petitioner made a feeble plea that the findings made in the previous suit in which the parties of the present suit were codefendants would not constitute resjudicata having regard to the relief claimed in that suit and the rival case presented by the codefendants, I have no doubt that without deciding the merit of the rival case canvassed by the codefendants, the relief claimed by the plaintiff in that suit could not have been granted by the court. Whatever that be, whether or not the findings on issues arrived on that suit constitute resjudicata that there was a prior suit as indicated above, and the circumstances disclosed, has much C.R.P No.804 OF 2006 Page numbers significance whether the plaintiff is entitled to the equitable relief canvassed in the suit. The previous suit was dismissed in 1999, and after such dismissal, the present suit was instituted by the plaintiff in 2000. Other than Ext.A1 assignment deed and Ext.A2 copy of the judgment rendered in the previous suit, the only other documents produced by the plaintiff are two revenue receipts which relate to periods after the institution of the suit. It has also been brought to my notice that such payments have been made pursuant to orders obtained in an Original Petition before this court directing the revenue officials to collect the revenue charges. Admittedly the defendant on the date of filing of the suit continued in possession of the plaint 'B' and 'C' schedule properties. To claim recovery of possession from the defendant the plaintiff was bound to establish that he had been dispossessed within a period of six months prior to the institution of the suit. Even in the previous suit, the defendant had challenged Ext.A1 deed disputing the assignment in favour of the plaintiff. The title and possession over the property was not conveyed, and it was a document executed to evidence a security for a loan transaction, was his case. The court found merit in that challenge in the previous suit in which the present plaintiff was also a party as a codefendant. Still in the present suit, the plaintiff has not let in any convincing evidence to show C.R.P No.804 OF 2006 Page numbers that he was in possession within a period of six months prior to the institution of the suit and there was a dispossession by the defendant within the above period entitling him to get a decree for recovery of possession as canvassed in the suit. I do not find any impropriety in the findings and conclusions entered by the learned Sub Judge that the plaintiff has failed to prove his prior possession and also dispossession by the defendant as alleged in his suit. Revision lacks merit, and it is dismissed. Sd/- S.S.SATHEESACHANDRAN JUDGE //TRUE COPY// P.A TO JUDGE vdv