DAMAYANTHI Vs. YYAN

JUDGEMENT

(1.) This Civil Miscellaneous Appeal is filed by the first defendant against an order of remand passed by the first appellate court. The plaintiff claimed to be in possession of the plaint schedule property as a lessee from one Viswanathan the husband of the first defendant and father of the second defendant. According to the plaintiff defendants 1 and 2 along with others trespassed into the property in his possession on 3-5-1970 and committed waste by cutting down trees. According to him he is entitled to be in possession and the defendants have no right to interfere with his possession On these allegations on the basis of his title as a lessee he sued the defendants to recover possession. Defendants 1, 2 and 4 contested the suit. According to defendants 1 and 2 the property belonged to the above mentioned Viswanathan and on his death defendants 1 and 2 came into possession and while so entered into an arrangement for sale of the property to the fourth defendant and on receiving a major part of the consideration allowed him to enter the property. They denied that the plaintiff was ever a lessee of the property and that he was put in possession as alleged by him. After the evidence was let in by both sides when the case was being heard the plaintiff found that the civil court has no jurisdiction to adjudicate upon the question whether he is a tenant and that in view of S.125 of the Kerala Land Reforms Act. Therefore he gave up his case based on title and wanted the relief which he asked for on the basis of his prior possession alone. The Trial Court found that the plaintiff was in possession of the property and the defendants trespassed into the property and reduced it to their possession. But the suit was dismissed on the ground that the suit is not based on S.6 of the Specific Relief Act and the plaintiff has asked for relief on the basis of his title which he gave up at the last moment. On appeal, in the lower appellate court the plaintiff made the position clear even in the appeal memorandum that his suit was not under S.6 of the Specific Relief Act and the Trial Court went wrong in dismissing the suit after having found that he was in possession as alleged by him in the plaint. According to him he was entitled to recover possession of the property on the basis of prior possession alone. The lower appellate court also found that the suit is not under S.6 of the Specific Relief Act, but was of the view that the Trial Court was wrong in dismissing the suit. According to the lower appellate court the suit can essentially be understood to be a suit for recovery of possession on the basis of prior possession and the plaintiff having come to court within 12 years of his alleged dispossession the dismissal of the suit by the Trial Court was not correct. Since the approach made by the Trial Court for disposing of the suit appeared to be not correct the case was remanded to the Trial Court for fresh consideration and disposal. It is this order of remand that is now challenged in appeal.

(2.) Counsel for the appellant contended that the lower appellate court has gone wrong in overlooking the fact that the suit is filed by the plaintiff against defendants 1 and 2 who are the owners of the property and a suit for possession on the ground of prior possession alone cannot be sustained against the true owners. The learned counsel further contended that if the suit is one under S.6 of the Specific Relief Act an appeal to the lower court and the order of remand by that court are unsustainable in view of the prohibition contained in S.6 of the Specific Relief Act, namely that no appeal will lie against a decision under S.6 of the Specific Relief Act. The respondents' counsel did not try to sustain the suit as one under S.6 of the Specific Relief Act and that rightly because otherwise the appeal to the lower appellate court could not be sustained. The respondents' counsel contended that the suit is essentially a suit for possession on the basis of prior possession and the plaintiff is entitled to sustain the suit at least as against the fourth defendant even if it is not maintainable against defendants 1 and 2 who are the owners of the property. It is now well settled that a suit for possession on the basis of prior possession is perfectly maintainable against all except the true owners -- See Narayanan v. Mathai ( 1966 KLT 1 ) and Nair Service Society v. K. C. Alexander ( AIR 1968 SC 1165 ). Why is it that an exception is made in the case of a true owner The principle seems to be this: That no one can take a profit out of his own wrong is a well known maxim. By committing a wrong one shall not take a profit out of it. He should restore that which he has thereby acquired. Otherwise it will be an inducement to commit a wrong again. But in the case of true owner he does not acquire any advantage of profit by doing this wrong. As owner he is entitled to exercise his pre existing right to possess and the fact that he exercises that by himself without resort to a court of law will not disentitle him to retain possession. He may be liable for any damages for forcible entry alone if claimed. So far as others are concerned they benefit out of the wrong. So they must give back the advantage. That is the rationale of the principle that a possessory suit will not lie against the true owner. I am supported in this regard by a dictum of Baron Bramwell in Hooper and another v. Lane and others (6 House of Lords Cases 443 at 460, 461). His Lordship has observed thus:

(3.) In this case as stated earlier defendants 1 and 2 are the owners of the property. There is no conflict between them and the fourth defendant so far as their defence against the plaintiff is concerned. According to defendants 1 and 2 they have allowed the fourth respondent to enter possession of the property in their possession and they support the claim put forward by the fourth defendant. The plaintiff has claimed relief against all the defendants. The fact that besides the owners a third person is also impleaded does not alter the nature of the relief asked for. The plaintiff's suit is essentially a suit for possession on the basis of prior possession and that against the owners and the persons claiming possession. Therefore the view taken by the lower court is clearly wrong and the order of remand cannot be sustained.