GEORGE AND ORS. Vs. ELIAMMA AND ORS.

JUDGEMENT

(1.) Revision is directed against the decree and judgment of the learned Principal Munsiff, Thrissur in a suit for recovery of possession filed under Section 6 of the Specific Relief Act, for short, the 'Act'. Defendants 1 to 3 and 5 to 7 in the suit are the petitioners. Respondents 1 to 4 are plaintiffs 2 to 5, and among them, respondents 1, 2 and 4 have been recorded as the legal heirs of the 1st plaintiff who had passed away. 5th respondent is the 4th defendant in the suit. Parties are hereinafter referred to as the 'plaintiffs' and 'defendants' for the sake of convenience. The defendants excluding 4th defendant have filed the revision challenging the decree granted in favour of plaintiffs allowing them to recover plaint 'B' schedule property on the strength of their previous possession and also restraining the defendants by a permanent prohibitory injunction from trespassing upon or committing any waste in plaint properties. The case of plaintiffs, in short, is that the 1st plaintiff obtained plaint 'A' schedule property under Ext.A1 patta. Subsequently, he assigned portions of that property to his children, who are also impleaded among the plaintiffs. Defendants are residing close to 'A' schedule property and they used to walk through the northern side of 6th defendant's properties which is separated from plaint 'A' schedule property by a compound wall. According to plaintiffs, the property of the 6th defendant is situated on the western side of plaint 'A' schedule property and he had put up a kayyala on the eastern and northern boundaries of his property. The entire extent of the property beyond the kayyala of 6th defendant forms part of plaint 'A' schedule property situated in the east was the case of plaintiffs after an amendment, to plaint, which was earlier stated as separated by a chal from the kayyala of the 6th defendant. The extent of plaint 'A' schedule property was initially shown as having 833/4 cents comprised in Sy.No. 1033/1, and 'B' schedule, a portion of 'A' schedule, alleged to have been trespassed upon by defendants having an extent of 10 cents. Later, after a report and plan of the Commissioner taken disclosing that 'B' schedule formed part of a puramboke comprised in Sy.No. 1033/2 plaint 'A' schedule was amended as having an extent of 933/4 cents and comprised in Sy.No. 1033/1, 2, 3, 4 and 5 of Madakkathara Village. 'B' schedule too was amended with its extent shown as 11 cents comprised in Sy.No. 1033/2 and 5. The defendants had filed two caveat applications before the court stating that they apprehended of a suit from plaintiffs to obtain ex parte orders against them. After the filing of the second caveat petition almost on the expiry of period of operation of the first caveat petition, according to plaintiffs, the defendants cut down various trees, pepper vines etc. planted and cultivated by plaintiffs in 'B' schedule property forming part of 'A' schedule and converted 'B' schedule into a pathway. Suit was laid for recovery of possession of 'B' schedule property on the basis of previous possession of plaintiffs, for a decree of damages of Rs. 60,000/- towards the loss caused by cutting down of trees, for permanent prohibitory injunction and mesne profits from the defendants. Suit was resisted by the defendants filing a joint written statement, in which, challenging maintainability of the suit, they contended that 'B' schedule all along continued as a pathway and it formed part of government puramboke and the plaintiffs are not entitled to recover possession of that property or to claim any other reliefs canvassed of. The learned Munsiff on the materials placed accepting the case of plaintiffs decreed the suit allowing them to recover 'B' schedule property and also restrained the defendants by a permanent prohibitory injunction from trespassing upon and committing waste in plaint properties. Suit was decreed with costs, but, declining the reliefs canvassed over damages, mesne profits etc. Aggrieved by the decree granted to plaintiffs and contending that the findings and conclusions suffered from jurisdictional infirmity and are thoroughly unsustainable under law, the defendants have filed the above revision.

(2.) I heard the counsel on both sides. Maintainability of the suit challenged by the defendants has not been correctly and properly appreciated by the court below, submits the counsel for defendants. Even Ext.A1 patta, the title deed, on the basis of which previous possession was canvassed by plaintiffs over 'B' schedule property does not take in Sy.No. 1033/2, in which, 'B' schedule property is situated, and only after measurement done revealing that it is a puramboke land, the plaintiffs carrying out amendments in 'A' and 'B' schedules set up claim over such puramboke lands as covered by Ext.A1 patta and that was thoroughly unacceptable, is the submission of the learned counsel for defendants. On mere surmises and conjectures, without appreciating the scope and limit of a claim for recovery of possession based on prior possession under Section 6 of the Act, the learned Munsiff decreed the suit, is the submission of the counsel contending that it is liable to be interfered with and the plaintiffs are to be non-suited. Per contra, learned counsel for plaintiffs submitted that in exercise of revisional jurisdiction, no interference with the decree and judgment passed by the learned Munsiff is called for as there is no infirmity in the findings entered that the plaintiffs have established their prior possession over 'B' schedule property. The reports produced by the Commissioner and other materials, it is submitted, clearly established that plaint 'A' schedule property obtained by the 1st plaintiff under Ext.A1 patta extended upto the boundary property of the 6th defendant wherein he had put up a kayyala. Damages caused by cutting down of various trees cultivated by plaintiffs in 'B' schedule property have been taken note and reported by the Advocate commissioner as evidenced by the reports filed, and that in the given facts of the case with other convincing materials produced clearly established prior possession of plaintiffs over 'B' schedule property, is the submission of the counsel to contend that the challenge against the decree granted is devoid of any merit, and the revision is only to be dismissed. I have perused the records of the case to examine whether within the limited scope of revisional jurisdiction the decree granted in favour of the plaintiffs suffered from any jurisdictional infirmity. Suit has been filed under Section 6 of the Act. In such a suit, plaintiff has to prove that he was in possession, that he has been dispossessed, that is, deprived of actual possession of the land within a period of six months prior to the institution of the suit, that the dispossession took place without his consent and that it was done otherwise than in due process of law. In such a suit, whether the plaintiffs have title over the property is immaterial and what is to be established is his prior possession in the sense that he had settled possession over the property before being unlawfully deprived of such possession by another otherwise than in due course of law. So much so, the crucial question that required to be gone into in the case first of all is whether the plaintiffs have established their prior possession over plaint 'B' schedule property which after dispossession from them has allegedly been converted into a road by the defendants. Suit was laid setting forth a claim of possession over 'B' schedule as part of 'A' schedule having obtained such property on the basis of title obtained by 1st plaintiff under Ext.A1 patta. Ext.A1 patta covered three items of properties in three different survey numbers having a total extent of 973/4 cents. Property described as 'A' schedule was one of the three items, situate in Sy.No. 1033/1 having an extent of 833/4 cents 'B' schedule is described as 10 cents forming part of the above 'A' schedule. However, after measurement of the properties and it being disclosed that the road portion was falling within the puramboke land comprised in Sy.No. 1033/2 the schedule descriptions were amended by plaintiffs to describe 'A' schedule as having an extent of 933/4 cents as comprised in Sy.No. 1033/1, 2, 3, 4 and 5 and 'B' schedule as 11 cents comprised in Sy.No. 1033/2 and 5. Assignment of lands in favour of 1st plaintiff was made in 1971 as seen from Ext.A1. Plaintiffs have no case that when assignment of the lands were made measurement of the property was not done and plan not prepared by the revenue authorities concerned. None of the documents thereof was produced in the case. However, once the measurement carried out in the suit revealed that the road portion formed part of a puramboke not covered by Ext.A1 patta amending the schedules and plaint with respect to the extent, survey numbers etc. the plaintiffs sought for sustaining their claim of prior possession, to seek recovery of possession of 'B' schedule property. Have they established such prior possession over 'B' schedule property has necessarily to be examined with reference to the pleadings made in the plaint and also Ext.A1 patta showing that no portion of the puramboke land comprised in Sy. No. 1033/2 was assigned in favour of the 1st plaintiff. A boundary put up by the 6th defendant situate on the western side of 'A' schedule property separated 'A' schedule from that defendant's property and upto that boundary 'A' schedule property extended was the case banked upon by the plaintiffs to sustain their claim over 'B' schedule property, which, admittedly, is situated in a puramboke land. But the plans produced, particularly Ext.A12 and Ext.B1, would reveal in unmistakable terms the existence of a pathway comprised in Sy. No. 1033/2. When such a pathway situated in puramboke land separated the property assigned in favour of the 1st plaintiff in Sy.No. 1033/1 from that of the property of the 6th defendant it is futile to set up a case that the boundary wall put up by the 6th defendant on the east of his property separated 'A' schedule property, and 'A' schedule extended upto that boundary taking in portions covered by Sy. No. 1033/2, the puramboke land. More than that, what is also noticed is that no piece of convincing evidence has been let in by the plaintiffs to show that they had prior possession over the property described as 'B' schedule. Even the learned Munsiff has taken note that the documents produced by the plaintiffs would not show that they had possession over that property. He has observed thus: