IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 25TH FEBRUARY 2011 / 6TH PHALGUNA 1932 CRP.No. 1062 of 2005(T) ----------------------- OS.443/2003 of PRINCIPAL MUNSIFF'S COURT, CHERTHALA .................... PETITIONER(S): PLAINTIFF: ------------------------------------------- C.P. VIJAYAKUMAR, S/O. PETER, CHIRAYIL, ERAMALLOORE, EZHUPUNNA VILLAGE, CHERTHALA. BY ADV. SRI.J.OM PRAKASH RESPONDENT(S): DEFENDANT: ------------------------------------------------ SIVARAMAN NAIR, S/O.KRISHNAN NAIR, USHA BHAVAN, CHELATTUBHAGAM, PANAVALLY P.O., CHERTHALA. BY ADV. SRI.SHAJI THANKAPPAN THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 25/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss S.S.SATHEESACHANDRAN, J. ----------------------------------------- C.R.P NO. 1062 OF 2005 ---------------------------------------- Dated this the 25th day of February, 2011. JUDGMENT Plaintiff in a suit for possession filed under Section 6 of the Specific Relief Act, is the revision petitioner. The learned Principal Munsiff, Cherthala, after trial, non suited the plaintiff. Feeling aggrieved, he has filed this revision. 2. In brief the case of the plaintiff was thus: The defendant handed over to him two rooms and the adjacent shed, wherein he operated a printing press, namely, 'Sreekrishna Press', on execution of Ext.A1 agreement between them, which among other conditions entitled the plaintiff to continue the operation of the press for a period of 5 years with liability to pay 25% of the profits received to the defendant. A sum of Rs.16,200/- was paid when Ext.A1 agreement was entered into, by which he was put in possession of the building comprising the press. Later, the operation of the press could not be continued and it was closed. While the building continued in his possession the defendant unlawfully trespassed upon the plaint schedule property and reduced it into his possession, was the case of the plaintiff to seek its recovery instituting the aforesaid suit. Resisting the suit C.R.P NO. 1062 OF 2005 2 claim the defendant contended that there was only an agreement to have a partnership between the parties for running of press, and exclusive possession over any portion of the building comprising the press was not at all handed over to the plaintiff. It was further contended that the plaintiff had operated a chitty business, and his wife was a subscriber to a chitty conducted by the plaintiff. It was the further case of the defendant that he was compelled to execute an agreement for sale over the line building comprising the press in favour of the plaintiff, on his demand, as the income derived by operation of the press was stated to be insufficient, and, therefore, to secure the amount of Rs.16,200/- which had been paid under Ext.A1 agreement. The plaintiff had filed another suit on the basis of that agreement for sale and that was pending before the court, was also raised as a material circumstance by the defendant to contend that the claim of exclusive possession, pursuant to Ext.A1 agreement and, later, the plaintiff being deprived of such possession by trespass, is factually incorrect. He disputed also the allegation of forcible taking over possession of the press. 3. On the materials placed by both sides which consisted of PW1 and Ext.A1 for the plaintiff, DW1 to DW3 and Exts.B1 to B6 C.R.P NO. 1062 OF 2005 3 for the defendant, and, a report prepared by Advocate Commissioner as Ext.C1 the learned Munsiff found that the plaintiff was not entitled to the discretionary relief for restoration of possession under Section 6 of the Specific Relief Act, the relief canvased in the suit. The operation of the press on the basis of Ext.A1 agreement between the parties was found to be a joint business; and, the absence of any term in that agreement as to handing over of exclusive possession of the premises covered by the press in favour of the plaintiff was considered to be decisive, to conclude that he did not gain possession of the property of the building as alleged in the suit. Material discrepancy over the premises handed over in an application filed in the suit for Specific Performance, which then was pending, as different from the description stated in the present suit, was also found decisive by the learned Munsiff as detrimental to the decree claimed by him in the suit. In short, it was concluded that the plaintiff had not discharged his burden that he had anterior possession over the suit property and also his dispossession from such property by the defendants. 4. I heard the learned counsel for the revision petitioner. Adverting to the defence taken by the defendant in the written C.R.P NO. 1062 OF 2005 4 statement it was contended by the learned counsel that no challenge was raised over the legal possession obtained by the plaintiff over the building portion where the press was operated pursuant to execution of Ext.A1 agreement between the parties, and that being so the finding of the court below holding that the plaintiff had not discharged the burden as to his prior possession over the subject matter involved in the suit is clearly unsustainable. The discrepancy in the application moved in the suit for specific performance which was taken serious note of by the court below related only to the 'lean-to' as part of the press conducted in the building and it was not of much significance, is the submission of the counsel. Having regard to the submissions made by the counsel, I have perused the records of the case to see whether the judgment rendered by the court below suffers from any jurisdictional infirmity warranting interference in exercising the revisional jurisdiction vested by this Court. There is no dispute that Ext.A1 agreement was made for operating a press on mutual arrangement on the terms specified by the parties. Under such agreement there is no divesting of possession of the building portion where the press was operated in favour of the plaintiff. At the most the agreement would only show that C.R.P NO. 1062 OF 2005 5 the press was handed over to the plaintiff with liability to pay 25% of the profit per month to the owner, the defendant. True, without having physical possession of the premises covered by the press the plaintiff would not be able to operate the press. But on the admitted facts presented in the case the operation of the press had ceased long before the suit was filed to claim recovery of possession under Section 6 of the Specific Relief Act. It is also to be noted that at least 5 years before the institution of the present suit the plaintiff had filed another suit, a suit for specific performance, on the basis of an agreement of sale purported to have been executed by the defendant. Normally, if he was having physical possession over the building otherwise than under an agreement of sale, over and above Ext.A1 agreement the plaintiff could have produced some other documents evidencing such possession, but, not a scrap of paper was produced, other than Ext.A1 agreement, to show that he had exclusive possession over the premises occupied by the press till the date of alleged forcible taking over of possession by the defendant. In such circumstances, where the dispute in the case required to be appreciated on the basis of oath against oath of the parties, in the backdrop of admitted facts that a previous suit C.R.P NO. 1062 OF 2005 6 based on an agreement of sale had been instituted 5 years ago and it was pending, the conclusion formed by the court below, which had the opportunity to watch the demeanor of the witnesses examined before the court, in the absence of sufficient reason to differ that the finding entered there to, is not liable to be interfered with by this Court in exercise of the revisional jurisdiction. I do not find any impropriety or illegality,87 even any infirmity, in the conclusion formed by the court below that the plaintiff has failed to prove his prior legal possession over the building and also his dispossession from such building as alleged in the suit, entitling him to seek the relief set up in the suit. Revision lacks merits, and is dismissed. S.S.SATHEESACHANDRAN, JUDGE mns