IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP.No. 804 of 2006()
1. KODIYATH KUNHAMMAD HAJI, S/O.ABDULLA,
... Petitioner
Vs
1. VISWANATHAN NAIR, S/O. OMANA AMMA,
... Respondent
For Petitioner :SRI.B.KRISHNAN
For Respondent :SRI.T.KRISHNAN UNNI (SR.)
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :16/03/2010
O R D E R
S.S.SATHEESACHANDRAN, J
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C.R.P No.804 OF 2006
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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