ORDER
M.R. Hariharan Nair, J.
1. The challenge in the revision is with regard to the decree passed in O.S. No. 1573 of 1997, which is a suit brought by the present first respondent under S.6 of the Specific Relief Act. The said decree directs that the defendants in the suit, including the 5th defendant, who is the present revision petitioner, should surrender vacant possession of the plaint A schedule property to the plaintiff within a month from the date of the decree.
2. Facts of the case. The plaintiff had executed Ext. B3 Sale Deed in favour of the first defendant on 4.10.1996. The plaintiff’s contention is that eventhough the document stated that possession was given to the transferee/defendant, actually no such possession passed and that the plaintiff continued to be in possession of the property. While so, a creditor of the plaintiff brought O.S. No. 158 of 1997 against the plaintiff and sought attachment of the present plaint schedule property. The first defendant, who was the transferee under Ext. B3, was not impleaded in the said suit. The court allowed attachment before judgment.
3. In the meantime, the present revision petitioner, who is the 5th defendant in the suit involved in this revision, got assignment of the rights of the first defendant as per document executed on 18.11.1997 and on that basis staked a claim under O. 21 R.58 of the CPC before the Sub Court, Irinjalakuda, which was dealing with O.S. No. 158 of 1997. The Court, after due enquiry, upheld the claim raised by the present revision petitioner. Thereafter the present plaintiff filed O.S. No. 320 of 1999 before the aforesaid Sub Court seeking cancellation of Ext. B3 Sale Deed, which had been executed in favour of the first defendant. The said suit is still pending. It was in the above factual scenario that the trial court considered the contention with regard to dispossession on 1.11.1997 raised by the plaintiff.
4. After taking elaborate evidence, the trial court upheld the contentions of the plaintiff. The main reasons given by the trial court in support of the above finding are the following:
(1) PW3, who is the wife of the plaintiff and PW4, who is her immediate neighbour, both deposed in detail regarding the atrocious acts done by defendants 1, 2 and 4 and their henchmen. Their evidence is to the effect that at about 11.30 a.m. on 1.11.1997 they encroached into the building and drove the inmates out. The plaintiff had gone elsewhere on that day and he returned only on the 6th. In the mean time complaint had been made before the local police with regard to the acts of the defendants, though a case was actually registered only two days thereafter by the police. The said case is still pending.
(2) This is a case where the plaintiff’s categoric assertion is that when Ext. B3 document was executed for a sum of Rs. 1,50,000/-, which the plaintiff had borrowed from the first defendant and as security, the understanding was that when the amount was repaid re-conveyance would be effected and there was no agreement that possession would be transferred to the purchaser, me first defendant,
(3) There is overwhelming evidence available in the case to show that Telephone No. 851047 granted in favour of the plaintiff was working in the premises in question until 1.11.1997. Ext. A4 series are the telephone bills issued in the name of the plaintiff during the period 6.10.1996 to 5.10.1997. Exts.A5(a) to A5(f) receipts show that the plaintiff had been making the payments with respect to the above telephone bills.
(4) There was nothing to support the case of the first defendant that for fear of creditors the plaintiff had left the house as early as on 4.10.1996 and shifted to Ollukara.
(5) PW5, who is the co-brother of the plaintiff, had deposed that he used to call the plaintiff over telephone till 1.11.1997 to contact him in the building in the plaint schedule property. That was an added assurance that the plaintiff and his family were residing in the building situated in the property.
(6) Ext. A7 invoice card issued by the K.S.E.Board and Ext. A7 series and A9 series bills issued in the name of the plaintiff for the period from 4.10.1996 to 1.11.1997 showed that the plaintiff was getting bills in respect of the electric connection for the building in me property and was also making the payments. If he was not actually occupying the building, there was no possibility of such payment.
(7) Ext. A10 series letters bearing postal marks showed that the plaintiff was continuously receiving letters addressed to him in the building in the schedule property. In fact Exts. A10(c), A10(e), A 10(f) and A10(r) letters bearing postal seals immediately prior to the date of the alleged dispossession, viz., 1.11.1997.
(8) Exts. A11 and A11(a) are acknowledgement receipts for receipt of Money Orders actually disbursed to the plaintiffs family members in the address with respect to the building situated in the plaint schedule property. They were seen received by PW3 and by the mother of the plaintiff on 28.10.1997. This probabalised that the plaint schedule building was occupied by his family members.
(9) Exts. A17 and A17(a) show that summons and order of conditional attachment issued in O.S. No. 158 of 1997 brought against the plaintiff by his creditor was served at a time when the present plaintiff was available within the building situated in the plaint schedule property on 14.10.1997.
(10) As against the evidence aforementioned, there was no reliable evidence adduced by the first defendant to show that he was actually occupying the building or was in possession of the property. He relied on Exts. B10, B11 and B13 receipts for payment of electricity charges and cost of domestic gas supplied in his name; but none of these related to the periods prior to 1.11.1997. Exts. B8 and B9 receipts relating to payment of property tax and building tax for the properly were insufficient to indicate that the actual possession was held by the first defendant.
(11) Though there was two days’ delay in the registration of the criminal complaint, Ext. A12 order showed that there was possibility of non-co-operation from the local police in the matter of registration of the crime since the said order was passed against the local Sub Inspector in an Original Petition filed by the present plaintiff along with another.
5. This being a revision, this Court will not be justified in making a complete reappraisal of the evidence. What can be looked into is whether the findings of the trial court suffers from any material illegality, irregularity or impropriety and whether the conclusions arrived at by the trial court were such that no reasonable judicial forum could have come to such decisions. Viewed from that perspective, I am of the view that there is nothing warranting interference with the conclusions arrived at by the trial court.
6. During hearing the thrust of the argument of the learned counsel for the revision petitioner was on the fact that the civil court has already upheld his title and possession over the plaint schedule property in the claim petition filed by him in O.S.No.158 of 1997. No doubt, Ext. B14 shows that the said claim filed on 28.7.1998 was allowed on 18.6.1999. During hearing today, learned counsel for the petitioner made available to me a copy of the affidavit supporting the claim petition, which shows that he had averred, inter alia, that he was in possession, enjoyment and looking after the property and that nobody except him has any manner of right over the property and that the property was hence not liable to be attached for the debts of the second respondent therein, who was none other than the present plaintiff. At first blush one would be impressed by the argument that Ext. B14 finding, which apparently has become final, would stand in the way of the contentions in the present suit; but on a deeper consideration I am of the view that the said contention based on O.21 R.58(4) of CPC has no merit.
7. What O. 21 R. 58(2) provides is that all questions including questions relating to right, title or interest arising between the parties to a proceedings and relevant to the adjudication of the claim or objection should be determined by the Court dealing with the claim or objection and not by a separate suit. Sub-r. (4) provides that where such adjudication has taken place, the order made thereon shall have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree. Ext. B14 therefore operates as a decree with regard to aspect of title as also possessory interest claimed by the revision petitioner.
8. The contention of the first respondent that the question of title is open to be decided in Ext. B15 suit notwithstanding findings in Ext. B14 may not have much merit. O. 21, R. 58(5) contemplates a suit at the instance of the person whose claim is disallowed by the court only. In the instant case Ext. B14 claim stands upheld and there was no need for the claimant to resort to sub-cl. (5). Even a plain reading of sub-cl. (5) makes it clear that it docs not give any right to file fresh suit to the person against whom the claim is upheld. As far as such person is concerned, his right, under sub-r. (4) is only by way of appeal. Whatever that be, the fact that Ext. B14 finding is in favour of the revision petitioner does not appear to be sufficient to disallow the relief sought for under S. 6 of the Specific Relief Act; the reason being that even the title set up by the revision petitioner in the claim petition was obtained only on 18.11.1997, which is after the filing of the present suit alleging dispossession on 1.11.1997. At the most, what can be said about Ext. B14 is that the Court has approved the fact that the revision petitioner was in possession at the time when he filed the claim petition on 28.7.1998 or even on 15.7.1997 when the attachment was made. Even if it is so, if the plaintiff succeeds in establishing the alleged dispossession on 1.11.1997 aimed against the first defendant, the revision petitioner, who is a transferee pendente lite under the first defendant, would certainly be liable to surrender possession to the plaintiff as sought for in the suit. As against such liability Ext. B14 cannot be successfully raised, as a shield.
9. The revision petitioner cannot have any better right than what can be claimed by his vendor. As far as the said vendor is concerned, the trial court has already found that he had forcefully dispossessed the plaintiff and that the plaintiff is entitled to get possession restored. Viewed from this perspective, I am of the view that the revision petitioner is not entitled to get any relief in the present revision.
10. The revision is without merit and it is accordingly dismissed.