KRISHNAN Vs. SANKARAN NAMBOODIRI

JUDGEMENT

(1.) I thought at the first blush, that the question raised in these revision petitions is free from difficulty to answer. But after hearing the arguments of the learned counsel on both sides, I feel that the question requires deeper consideration. The Court below adopted the strategy of subterfuge and advised the parties to file a fresh suit. The broad question is this. Who is to be preferred (or any one of them to be preferred at all) among the rival claimants for returning the property from the receiver, one the defendants who were found to be in possession of it on the date of suit and the other, the plaintiff who has title thereto ? The trial Court preferred neither of them, and hence advised them to seek appropriate remedy in a separate suit. So both of them have come in revision. For the sake of convenience, the first claimants will be described as the defendants and the other as the plaintiff, as they figured in the suit.

(2.) Facts, relevant for these revisions, are the following : Plaintiff filed a suit for a perpetual injunction restraining the defendants from trespassing upon the suit properties. (Though there are more than two items of properties described in the schedule to the plaint the defendants claimed right only in respect of two items and hence those two items are referred to hereinafter as the suit properties). Defendants contended that the suit properties are in their possession as the same were outstanding on lease with them, the lessor being the plaintiff himself. He also claimed fixity of tenure as per the provisions of the Kerala Land Reforms Act. Plaintiff filed an application for a temporary injunction restraining the defendants from trespassing upon the suit properties. Defendants filed another application for a temporary injunction restraining the plaintiff from entering up-on the suit properties. While disposing of the said applications, the trial Court found it difficult to decide upon the possession of either of the parties and hence appointed a receiver for the suit properties, and the receiver so appointed took possession of them. Eventually the suit was dismissed after taking evidence, holding that the suit properties were in the possession of the defendants on the date of suit. The dismissal of the suit was confirmed in appeal and second appeal also. However, no direction was passed regarding return of the suit properties to neither of the parties. In the meanwhile the Land Tribunal, before which defendants filed an application claiming tenancy right under the plaintiff, as per the provisions of the Kerala Land Reforms Act, dismissed the application holding that the defendants have no such tenancy right. Counsel said that the order of the Land Tribunal was confirmed in appeal and an application for revision was also dismissed. It was in the aforesaid background that the two interlocutory applications were filed before the lower Court for getting possession of the suit properties returned from the receiver. I.A. 604/82 is the application filed by the defendants and I.A. 608/82 is the application filed by the plaintiff. The application of the plaintiff was dismissed on the strength of the finding in the judgment that the plaintiff was not in possession of the suit properties. The application of the defendants was dismissed as the lower Court felt it is not safe to handover possession of the suit properties to the defendants since the Land Tribunal and the Appellate Authority have found that the defendants have no tenancy right.

(3.) Three points are not disputed and cannot be disputed in view of the earlier findings. The first is that the defendants were in possession of the suit properties on the date of suit. The second is that the plaintiff has title over the suit properties. The third is that the defendants have no valid tenancy right which they claimed as against the plaintiff.