IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 24TH MARCH 2010 / 3RD CHAITHRA 1932 CRP.No. 802 of 2007() --------------------- OS.215/1997 of MUNSIFF COURT,HARIPAD .................... REVN. PETITIONER(S): DEFENDANTS ------------------------------- 1. KUMARAN, AGED 80 YEARS, S/O.KRISHNAN, SURALAYATHIL, KANDALLOOR THEKKUM MURI, ARATTUPUZHA VILLAGE. 2. REGHU, AGED 36 YEARS, S/O.BALARAMAN, SON-IN-LAW OF IST DEFENDANT, ANANDASWARAM VEETTIL, KANDALLOOR VADAKKUM MURI, ARATTUPUZHA VILLAGE. 3. SUSEELA, AGED 42 YEARS, D/O.IST DEFENDANT, SURALAYATHIL, KANDALLOOR THEKKUM MURI, ARATTUPUZHA VILLAGE. 4. JAMEELA, AGED 41 YEARS, -DO- -DO- 5. JAYAMALA, AGED 39 YEARS, -DO- -DO- 6. JAYASREE, AGED 36 YEARS, -DO- -DO- BY ADV. SRI.S.MOHANAN RESPONDENT(S): PLAINTIFF ------------------------ DEVARAJAN, AGED 62 YEARS, VELANGATTUKUNNEL VEETTIL, KANDALLOOR THEKKUM MURI, KANDALLOOR VILLAGE. ADV. SRI.S.SANAL KUMAR FOR R1 SMT.BHAVANA VELAYUDHAN FOR R1 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 24/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN, J ------------------------------------- C.R.P No.802 OF 2007 -------------------------------- Dated this the 24th day of March 2010 ORDER Revision is directed against the judgment dated 31.1.2007 in O.S No.215 of 1997 on the file of Munsiff Court, Harippad. The above suit was one filed by the respondent, hereinafter referred to as the plaintiff, under Section 6 of the Specific Relief Act. The case of the plaintiff in brief was that while he was in possession of the plaint 'A' schedule property having an extent of 1.27 ares in resurvey No.274/27/1 of Arattupuzha village from 1993 onwards and making use of such property, which is stated to be a waterlogged area, for the purpose of retting husk, he obtained title over that property under Ext.A1 sale deed dated 02.06.1997. The revision petitioner, hereinafter referred to as the defendant, has some property on the western side of plaint 'A' schedule property. On 14.06.1997 the defendant made an attempt to trespass upon the plaint 'A' schedule property on which the plaintiff preferred a complaint before the police. However on the night of 15.06.1997, the sand and gravel stored by the plaintiff beside his property were made use of by the defendant to fill up a portion of the waterlogged area close to his property and reduce that portion into his possession. The defendant also replaced a shed situated in his property in the C.R.P No.802 OF 2007 Page numbers area trespassed upon and reduced it into his possession, which is separately described as 'B' schedule as having an extent of 60 squaremetre. Recovery of the 'B' schedule property and also a decree of injunction from reclaiming that property and making any construction was sought for in the suit. The defendants resisted that suit contending that all along 'B' schedule property continued in his possession and the rest of the property on the east of 'B' schedule is separated by a fence. Claim of prior possession by the plaintiff over 'B' schedule was challenged and disputed by the defendants in their written statement. Both sides let in evidence in support of their respective case. On the side of the plaintiff, PW1 to PW4 were exaimined and Exts.A1 to A6 were exhibited. The defendants examined two witnesses as DW1 and DW2 and got marked Exts.B1 to B4. An advocate commissioner deputed by the court had prepared Exts.C1 to C3 series reports and plans. The learned Munsiff after appreciating the materials produced and hearing the counsel on both sides found merit in the case canvassed by the plaintiff for the relief claimed and, accordingly, the impugned judgment was passed allowing the plaintiff to recover possession of 'B' schedule property from the defendants, and also an injunction restraining the defendants from reclaiming 'B' schedule property and making any C.R.P No.802 OF 2007 Page numbers construction in that property. Legality, propriety and correctness of that decision is impeached in the revision by the defendants. 2. I heard the counsel on both sides. The learned counsel for the defendants submitted that even before the disposal of the suit, a suit filed by the defendants seeking a decree of prohibitory injunction against the plaintiff in the present suit in respect of the very same subject matter had been decreed in their favour. Though the trial court dismissed that suit, the appellate court passed a decree in favour of the plaintiff and the decree and judgment by the appellate court were produced and exhibited as Exts.B3 and B4 in the present case. Ignoring that decree which recognised the legal possession of the defendants over the 'B' schedule property, the court below has passed the impugned judgment is the submission of the counsel. It is further submitted that the material circumstances involved in the case as borne out by the records produced have not been appreciated by the court below in the proper perspective and that has resulted in forming wrong conclusions leading to miscarriage of justice. Innocuous circumstances that some coconut shells were scattered around 'A' and 'B' schedule properties as reported by the commissioner in his report were given much significance by the court to conclude that the plaintiff had prior possession over C.R.P No.802 OF 2007 Page numbers the property and he was dispossessed as claimed by him in his suit, according to the counsel. Another circumstance which weighed by the court, it is submitted, was the level difference between the properties described as 'B' schedule with that of the defendants situate on the western side. The shed was one month old with no traces indicating its removal from the property of the defendants, as represented by commissioner was not taken into account by the court below while granting a decree in favour of the plaintiff under the impugned judgment, submits the counsel. The relief granted to the plaintiff was based on total misappreciation of the evidence ignoring the true facts and circumstances involved and it is liable to be set aside, is the submission of the counsel. On the other hand, the learned counsel for the plaintiff submitted that having regard to the scope and ambit of Section 6 of the Specific Relief Act the judgment rendered by the court below assailed in revision can be interfered with only if the court is satisfied that there are glaring infirmities in the decision of the court below rendering it unsustainable under law and facts. There is no such serious infirmity leave alone worthmentioning infirmity warranting interference with the decision of the court below which is based on the evidence and true facts and circumstances established in the case is the C.R.P No.802 OF 2007 Page numbers submission of the counsel. Pointing out that a suit under Section 6 of the Specific Relief Act is to be tried summarily and anyone aggrieved by the decision thereto can agitate his right by filing a fresh suit establishing his title over the property, the counsel submitted that no interference with the decision rendered by the court below is called for. The case of the plaintiff is amply proved by the evidence of PW2, one among the executants of Ext.A1 sale deed, PW3, a worker engaged in the retting of husk and also the advocate commissioner examined as PW4 who had filed Exts.C1 to C3 series reports and plan, submits the counsel. After appreciating the materials produced, the court below has come to the conclusion that the plaintiff has established his entitlement to claim the reliefs canvassed in the suit and that decision which is supported by the evidence tendered is not liable to be interfered with, is the submission of the counsel. 3. I have perused the judgment of the court below with reference to the rival submissions made by the counsel. It is noticed that the court below has proceeded with the trial of the case as if it was a title suit in which recovery of possession over an immovable property was sought for. A suit under Section 6 of the Specific Relief Act warranted a summary trial, and whatever be the finding and decision entered therein is only in the nature of C.R.P No.802 OF 2007 Page numbers an interim relief as the parties have liberty to agitate their title in a comprehensive suit. Survey commission for identifying the property covered in the suit, it is seen, was proceeded by the court ignoring the fact that such exercise was not called for in a case of the present nature which is to be tried summarily. The crucial questions to be determined in a suit under Section 6 of the Specific Relief Act are: (i) Whether the plaintiff who seeks the relief of recovery of possession had prior possession over the subject matter – the suit property – within the period of six months before the institution of the suit, and (ii) Whether he had been dispossessed within the above period by the defendant. These two questions alone require to be considered in the suit, and such questions are to be adjudicated in a summary trial. Sub section (4) of Section 6 of Specific Relief Act specifically states that nothing in the Section will bar any person from suing to establish his title to such property and to recover possession thereof irrespective of a decree passed under the above Section. What is noticed in the present case is both these questions have not been considered by the court below while decreeing the suit in favour of the plaintiff. C.R.P No.802 OF 2007 Page numbers 4. The case of the plaintiff is confined to recovery of possession over the property described as 'B' schedule alone. The rest of the property in 'A' schedule still continues to be in his possession was his case. It appears, the defendants have also not set up any right over the property in 'A' schedule other than 'B' schedule. According to the defendants, 'B' schedule continued in their possession and it comprises of a shed put up by them long before the institution of the suit. The commissioner who conducted inspection over the property immediately after the institution of the suit found that the shed situate in 'B' schedule property was, then, at least one month old. There was also no traces of any shifting of shed from the property of the defendants situate on the western side of 'B' schedule, which was the case canvassed by the plaintiff. In that backdrop, the case of the plaintiff that he had prior possession over the property from 1993 onwards has to be examined. The plaintiff has alleged that he was permitted to carry out retting of husk in the waterlogged area described as 'A' schedule in the suit. Ext.A1 would not show his previous possession over the property. The terms of Ext.A1 sale deed would show that possession was handed over to the plaintiff only on conveyance of the property and not before. There is absolutely no whisper in Ext.A1 sale deed that the plaintiff had C.R.P No.802 OF 2007 Page numbers prior possession over the property. The evidence of PW2, one among the executants of Ext.A1 sale deed would also show that possession over the property covered by that deed was handed over to the plaintiff only on execution of that deed. The evidence of PW3, a worker engaged in retting of husk is also not helpful to the plaintiff in establishing his claim of prior possession over the property. PW3, it appears, was a worker engaged by the plaintiff in retting of husk, which would indicate that he has some interest in supporting the case of his employer. In evidence when he was questioned, he would state that he came to know of the trespass of 'B' schedule when he went there with others for filling up the waterlogged area, probably, as directed by the plaintiff. His evidence is of no assistance to the plaintiff to show that he had prior possession over the 'B' schedule property. The materials produced by the plaintiff would only disclose that under Ext.A1 sale deed he had obtained possession over 'A' schedule excluding 'B' schedule. When the plaintiff had failed to prove his prior possession over 'B' schedule, the question whether he had been dispossessed does not arise for consideration at all. The judgment rendered by the court below suffered from serious infirmity as very many material facts and circumstance have not been taken into account and, further, even the procedure followed C.R.P No.802 OF 2007 Page numbers in considering a suit under Section 6 of the Specific Relief Act was vitiated by gross irregularities, which no doubt has resulted in forming of conclusion unsustainable under law. Even the material question whether the plaintiff had prior possession over the property within a period of six months prior to the institution of the suit was not even assessed by the court in considering the question whether the plaintiff was entitled to the relief canvassed. As it is shown from the materials that the plaintiff has failed to show such prior possession, the irresistable. conclusion has to be taken that he is not entitled to any relief under Section 6 of the Special Relief Act. He has to work out his remedy for recovery of 'B' schedule property on the basis of his title, if so advised, as provided by law. The judgment rendered by the court below is set aside. Revision is allowed. Sd/- S.S.SATHEESACHANDRAN JUDGE //TRUE COPY// P.A TO JUDGE vdv