REGHVARAN Vs. MURALI

JUDGEMENT

(1.) The petitioners are the defendants in O.S. No. 435/2007 on the files of the Principal Munsiff's Court, Ernakulam. The above O.S. was filed under S. 6 of the Specific Relief Act (for short 'the Act') alleging dispossession of the property from the plaintiff. According to the plaintiff, he obtained the plaint schedule property on the basis of a Will allegedly executed by the father of the plaintiff and defendants 1 and 4. By virtue of the Will, he is in exclusive possession of the said property and building therein. He further alleged that, on 8.2.2007, the defendants trespassed into one room and the charthu in the building situated in the plaint schedule property after breaking open the lock and occupying the same. With these allegations, he filed the suit and prayed for a decree directing the defendants to give vacant possession of the charthu and the room described in the schedule, remove their articles and if they do not surrender the vacant possession after removing their goods, he may be allowed to take possession of the same with the help of the police. A mandatory injunction directing the defendants to do as stated above and a prohibitory injunction restraining the defendants from trespassing into the other portion of the building in the plaint schedule property is also sought for. The defendants resisted the suit contending that the plaintiff has no exclusive right or possession over the said property and the said property originally belonged to Plakudiyil family. The plaintiff, defendants 1 to 4 and their sisters and their parents were in joint possession of the property as kudikidappukars under Plakudiyil family. On behalf of the plaintiff and defendants also, the father late Sri Kesavan got right of kudikidapu as the senior most member of the family consisting of his wife, Bhargavi and their children. The defendants disputed the genuineness of the Will contending that the deceased Kesavan has not executed such a Will in favour of the plaintiff and the Will is a fabricated document created by the plaintiff with a view to snatch away the plaint schedule property exclusively for himself. From 1981 onwards, Sri Kesavan was laid up due to various ailments and he had no mental capacity to understand things properly. Therefore, the alleged Will is the result of undue influence, coercion and misrepresentation. On the death of Sri Kesavan, the property devolved upon all the legal heirs and on the death of Bhargavi, the plaint schedule property further devolved upon the plaintiff, defendants 1 and 4, Ramani and Bindu, who are the children of the deceased Kesavan and Bhargavi. In short, the plaintiff and the defendants are the co-owners of the plaint schedule property and building thereon. The plaintiff is residing along with his family at Karingachira and not in the plaint schedule property. The lean to portion of the building with one room are under the occupation of the defendants 1 and 4 and their family. The remaining portion of the building was let out to one Thankamma. It is not correct to say that the plaintiff effected repairs and electrical wiring works in the lean-to portion recently. The said repair works were done by all the co-owners. They denied the contention that the 4th defendant demanded Rs. 1,00,000/- and when the plaintiff rejected that demand, he was not happy with the plaintiff. They emphatically denied the contention that the 4th defendant colluded with other defendants and trespassed into the petition schedule building in the midnight of 8.2.2007. The further allegation that the defendants locked the door and illegally occupied the building is not correct. The complaint said to have been filed before the police is false which sans bona fides. There was no opportunity to dispossess the plaintiff as the plaintiff was not residing in the plaint schedule property and defendant Nos. 1 and 4 were in occupation of the plaint schedule property as co-owners of the property.

(2.) On the above pleadings, PWs. 1 and 2 were examined for the plaintiff and Exts. A1 to A5 were marked. 4th defendant was examined as DW 1 and Ext. B1 was marked for the defendants. Ext. C1 commission report and Ext. C1(a) rough sketch were marked as court exhibits. After considering the evidence on record, the learned Munsiff decreed the suit as prayed for. Feeling aggrieved, this Revision Petition is filed challenging the legality and propriety of the findings under which the suit has been decreed as prayed for.

(3.) The learned counsel for the revision petitioners vehemently contended that the suit for recovery of possession under S. 6 of the Act is not maintainable against one co-owner by another co-owner as both are having equal right over the property, i.e., one co-owner cannot eject another co-owner. Therefore, no relief can be granted for recovery of possession from one co-owner and putting the other in possession. According to the learned counsel, there is no evidence to prove the exclusive right and possession of the plaintiff over the plaint schedule property. The defendants are also co-owners of the property and they can never be dispossessed by the plaintiff, unless his exclusive right and possession are proved beyond doubt by valid document which shows transfer of others' right. A co-owner is always presumed to be in joint possession of the property.