THE HON’BLE SRI JUSTICE K.C.BHANU CIVIL REVISION PETITION No. 3959 OF 2009 ORDER: 1. The Civil Revision Petition, under Section 115 of the Code of Civil Procedure, 1908 (for short, ‘CPC’), is directed against the judgment and decree dated 14.10.2008 in Original Suit No.401 of 2005 on the file of the Additional Senior Civil Judge, Eluru, whereunder and whereby the suit filed by the respondent/plaintiff for recovery of possession of the plaint schedule property and to grant mandatory injunction directing the petitioners/defendants to remove wall constructed in between B-D points shown in plaint sketch, was decreed. 2. The petitioners herein are defendants, and the respondent herein is the plaintiff, in the suit. For better appreciation of facts, the parties are hereinafter referred to, as arrayed in the trial court. 3. The averments of plaint, in brief, may be stated as follows: The plaintiff was in occupation of one room i.e., Simhadwaram property in ground floor and 3 rooms in first floor of the building bearing Door No.7A-8-4/3 situated in main bazaar, Eluru. He had been in possession of that property for more than 3 decades and carrying on photo studio business under the name and style of ‘Madhu photo studio’. The first defendant is brother of the plaintiff. The defendants 2 and 3 are the wife and son respectively, of the first defendant. Late Pilli Apayamma is the mother of the plaintiff and the first defendant. The said Apayamma filed Rent Control Case No. 2/1986 on the file of Rent Controller, Eluru seeking eviction of the plaintiff from the plaint schedule property and other property alleging that he was her tenant. The schedule property in Rent Control Case No.2/10986 is shown in red colour in the plaint sketch. The plaintiff is co-owner of ABCD property. After elaborate enquiry, the Rent Control Case was dismissed on 07.09.1990 holding that there was no relationship of landlord and tenant between the parties therein. Aggrieved by the same, his mother filed appeal in Civil Miscellaneous Appeal No.26/1990 and it was also dismissed on 19.09.1994. His mother filed another Rent Control Case No.36/2001 for fixation of fair rent and it was also dismissed on 08.07.2005. In both the above Rent Control Cases, the first defendant herein was examined as P.W.2. The plaintiff filed Original Suit No.680 of 2000 on the file of the Principal Senior Civil Judge, Eluru against his mother Apayamma, his brothers the first defendant, P.Ramachandra Rao and P.Rangachary, for partition of joint family properties, and the said suit was decreed on 14.2.2005. In all the above proceedings, the first defendant admitted that the plaintiff is in occupation of the plaint schedule property and the other two rooms in upstairs and one room in ground floor. Mother of plaintiff died on 26.6.2005. Thereafter, the first defendant got issued a notice dated 19.9.2005 to the plaintiff stating that he became owner of the schedule property after death of his mother and called upon the plaintiff to vacate and deliver possession of the same to him. The plaintiff sent reply on 1.10.2005 to the first defendant. The plaintiff had been in occupation of the plaint schedule premises since 1975 carrying on photo studio business. While so, on 15.10.2005, the defendants and their men wrongfully and forcibly entered into the studio premises and threatened him to vacate the shop, else they would see his end. They also abused him in filthy language. On that, the plaintiff gave a complaint to police on 16.10.2005 and also sent copies of the same to various authorities, but no action was taken. Again, on 2.11.2005, the defendants and their men high-handedly, illegally, forcibly and unauthorisedly broke open the doors of his studio premises and committed theft of studio equipments and caused damage to the property to a tune of Rs.80,000/-. They also wrongfully and forcefully occupied the schedule premises and constructed a wall overnight. On 3.11.2005, the plaintiff noticed the criminal trespass and mischief committed by the defendants and reported the matter to the I Town police, Eluru. But, no action was taken by the police. The defendants high- handedly and illegally removed wooden partition between B-D points and constructed a wall in that place. Hence, the suit. 4. The first defendant filed written statement, which was adopted by the defendants 2 and 3, denying the material allegations in the plaint, exclusive possession of the plaintiff over the plaint schedule premises and the alleged forceful dispossession on 2.11.2005, and stating as follows: The plaint schedule property originally belonged to Smt. Yarlagadda Mahalakshmamma, who is grand mother of plaintiff and the first defendant. She executed a will on 17.7.1972 in favour of her daughter Pilli Apayamma, who is their mother, providing her limited interest to collect rents from the schedule property for her maintenance. She died on 5.3.1975 and as such the will came into force. As per the recitals of will, after life time of their mother, the plaint schedule property has to be divided among her four sons viz. the plaintiff, the first defendant, Pilli Ramachandra Rao and Pilli Prabhakara Rao. The said Prabhakara Rao died unmarried. Their mother died on 2.6.2005. Hence, the other three persons are entitled for equal shares in the property. Plaintiff also admitted execution of the will dated 17.7.1972 and sale deed dated 25.10.1993 by him in favour of K.Rathnamala. But, with a view to grab the entire property, the present suit is filed by the plaintiff. Injunction against a co-owner is unwarranted. After death of their mother, the first defendant and his elder brother Ramachandra Rao approached the plaintiff with caste elders and demanded for partition of the schedule property. On 4.10.2005, a mediation was held in the presence of above persons and accordingly, oral partition of plaint schedule property was held on 7.10.2005 and the first defendant took possession of his share in the ground floor i.e. one room on northern side of the plaint schedule property in the presence of caste elders. The plaintiff and P.Ramachandra Rao and the first defendant agreed to take one room each in the first floor. The plaintiff also agreed to deliver possession of 1/3rd share in Simhadwaram to his brother Ramachandra Rao and Koteswara Rao within two days. But, with a selfish motive to grab the entire property, he filed the present suit. The plaintiff was not dispossessed by the defendants and so he is not entitled for the relief as prayed. Hence, they prayed to dismiss the suit. 5. Basing on the above pleadings, the trial court framed the following issues for trial. 1) Considering the nature of reliefs prayed for, whether this suit under Section 6 of the Specific Relief Act, is maintainable ? 2) Whether the suit shall be tried along with O.S. No.17/2006 pending before this court ? 3) Whether the plaintiff was in possession of the plaint schedule property till the night of 02.11.2005 as alleged in the plaint ? 4) whether the plaintiff is entitled for restoration of possession of the plaint schedule property ? 5) Whether the plaintiff is entitled to seek a direction to defendants to remove B-D mentioned wall of the plaint sketch before restoration of possession of plaintiff over the plaint schedule property? 6) Whether the suit is bad for non-joinder of necessary parties as contended in the written statement ? 7) Whether the plaint schedule property is joint family property and therefore this suit is not maintainable as contended in the written statement ? 8) Whether the property was partitioned on 04.10.2005 and therefore this suit is not maintainable as contended in the written statement ? 9) To what relief, the plaintiff is entitled to ? 6. During trial, P.Ws. 1 to 3 were examined and Exs.A1 to A43 were marked, on behalf of the plaintiff, and D.Ws. 1 to 4 were examined and Exs.B1 to B9 were marked, on behalf of the defendants. 7. The trial Court, upon appreciation of the evidence of the oral and documentary evidence, came to the conclusion that the plaintiff was dispossessed and the suit was filed within six months from the date of the dispossession and therefore claim of the plaintiff under Section 6 of the Specific Relief Act, 1963 has been proved, and accordingly decreed the suit with costs ordering for restoration of possession. Since, against the judgment and decree passed in a suit filed under Section 6 of the Specific Relief Act, 1963, no appeal is maintainable, the present revision petition is filed challenging the same. 8. Now, the points for consideration are whether the plaintiff is entitled for the relief under Section 6 of the Specific Relief Act, 1963 and for removal of wall shown as B-D in the plaint sketch ? 9. The learned counsel for the petitioners/defendants contended that in view of the oral understanding between the parties, the respondent has voluntarily surrendered the possession of the plaint schedule property and that he was not dispossessed forcibly and hence, Section 6 of the Specific Relief Act, 1963 has no application to the facts of the present case, and hence, he prays to set aside the impugned judgment and decree. 10. On the other hand, the learned counsel for the respondent/ plaintiff contended that the defendants themselves admitted that the plaintiff had been in possession of the property for the last four decades by running a photo studio and so the question of voluntarily surrendering the possession of the schedule premises to the defendants does not arise; that, prior to filing of the suit, there were disputes between the plaintiff and the defendants and in such circumstances, the contention of the defendants that the plaintiff voluntarily surrendered the possession of the schedule premises to them cannot be accepted; that, after consideration of the evidence on record in right perspective, the trial court rightly decreed the suit, and there are no grounds to interfere with the impugned judgment and decree. 11. Revisional jurisdiction of this court is residual and supervisory jurisdiction. Ordinarily, it can be exercised by this Court when the findings of the courts below are perverse or admissible evidence has not been taken into consideration or inadmissible evidence was taken into consideration or the evidence has been misread. In nut shell, in appreciating the evidence, there must be perverse findings given by the court below or total miscarriage of justice has occasioned, so as to call for interference by this court exercising the revisional powers. 12. Section 6 of the Specific Relief Act, 1963 (for short, ‘the Act, 1963’) reads thus: “(1) If any person is dispossessed without his consent of immovable property him, may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit. (2) No suit under this section shall be brought- (a) after the expiry of six months from the date of dispossession; or (b) against the Government. (3) No appeal shall lie from any order or decree passed in any suit instituted under this section, nor shall any review of any such order or decree be allowed. (4) Nothing in this section shall bar any person from suing to establish his title to such property and to recover possession thereof.” As seen from the above provision, two requirements have to be satisfied for invoking the said Section, viz. (1) a person must be dispossessed from the immovable property without his consent; and (2) the suit has to be filed within six months from the date of dispossession. 13. As seen from the record, the case of the plaintiff is that he is in occupation of the petition schedule premises from 1975 onwards carrying on photo studio business; that on 15.10.2005, the defendants and their men forcibly entered into the studio premises and threatened him to vacate the shop; then, he gave a complaint on 16.10.2005 to police; that again on 2.11.2005, the defendants and their men illegally and forcibly broke open the doors of the schedule premises and occupied the same overnight; that, on 3.11.2005, he came to know about the trespass, and then reported the matter to I Town police, but no action was taken. The case of the defendants is that, after the death of their mother, the first defendant and his elder brother approached the plaintiff with caste elders and demanded partition of the schedule property; on 4.10.2005, a mediation for partition of schedule premises was held, and in pursuance of the oral mediation, the plaint schedule property fell to the share of the first defendant on 7.10.2005 and therefore, the first defendant took possession of his share. It is also the specific case of the defendants 1 to 4 that in pursuance of the mediation orally, the first defendant took possession of the schedule premises on 7.10.2005. 14. It is not in dispute that even prior to filing of the present suit also, several other cases were pending between the plaintiff and the defendants. The first defendant as D.W.1, admitted in his cross-examination that the plaintiff was in possession of the plaint schedule property within six months prior to the institution of the suit and was dispossessed from the said property as the first defendant was entitled for restoration of the possession. So, from the evidence of P.W.1, the documents filed on his behalf and the report given by him to police coupled with the admission of D.W.1, it would go to show that the plaintiff was dispossessed from the plaint schedule premises forcibly. 15. The case of the defendants is that in pursuance of a mediation, the plaintiff voluntarily surrendered the plaint schedule premises to him and therefore it is a case of voluntarily delivering the possession to him by the plaintiff. That appears to be an after thought so as to take a defence in the suit. It is not in dispute before this Court that the first defendant filed Original Suit No.1061 of 2005 on the file of the I Additional Junior Civil Judge, Eluru on 18.10.2005 against the plaintiff and another for permanent injunction. Ex.P19 is certified copy of the plaint in the said suit. He also filed Interlocutory Application no.2440 of 2005 in the said suit for temporary injunction. Ex.A20 is certified copy of the petition, affidavit along with docket order in the said application. In both these documents, there is no mention about the mediation or handing over of possession of the plaint schedule property to the first defendant on 7.10.2005 by the plaintiff. If really the case of the first defendant is to be accepted that the plaintiff voluntarily delivered possession in respect of the plaint schedule premises to him on 7.10.2005, certainly, the said fact would have been stated in Exs.A19 and A20. That aspect has not been explained. Therefore, the story of voluntary surrender of the plaint schedule premises to the defendant by the plaintiff appears to be a make believe one and cannot be accepted. That is the reason, the trial court also held that the evidence of D.Ws. 1 to 4 is contradictory to the recitals in Exs.A19 and A20. When there are disputes existing between the parties, no prudent person would expect the terms and conditions of the mediation orally. Either party must insist to reduce the terms of compromise into writing. But, no such steps have been taken in this case. Therefore, the contention of the defendants that the plaintiff voluntarily surrendered the possession of the premises in question to the first defendant, has been rightly disbelieved by the trial court. The trial court, upon considering the oral and documentary evidence on record in right perspective, came to right conclusions. None of the findings of the trial court is shown to be perverse or not based upon the evidence on record. Therefore, there are no go grounds to interfere with the impugned judgment and decree. 16. The Civil Revision Petition is devoid merit and is, accordingly, dismissed, confirming the judgment and decree dated 14.10.2008 in Original Suit No.401 of 2005 on the file of the Additional Senior Civil Judge, Eluru. No costs. --------------------- (K.C.Bhanu, J.) 17.2.2011 DRK THE HON’BLE SRI JUSTICE K.C.BHANU CIVIL REVISION PETITION No. 3959 OF 2009 17.2.2011 THE HON’BLE SRI JUSTICE K.C.BHANU CIVIL REVISION PETITION No. 3959 OF 2009 17.2.2011 Between: Pilli Koteswara Rao & others …Petitioners And Pilli Madhusudhana Rao …Respondent