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 is 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 plant, 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 upon 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 either 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 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.) THE contention based on the authorities cited above is not easy for acceptance, especially since those decisions are distinguishable on facts of this case. In a case where the title of the property is in dispute, a finding regarding title will certainly help the court in deciding as to the rightful owner to whom the property shall be returned by the receiver. But in a case where there is no dispute regarding title, but the dispute is only regarding possession of the property, it is doubtful whether the aforesaid authorities can be of assistance in deciding as to the party entitled to return of such property. To circumvent the hurdle, learned counsel contended that possession of immovable property cannot be used as a shield against its true owner although such possession is a shield as against all others. According to the learned counsel, defendants' possession of the suit properties is wrongful since the competent Land Tribunal has repelled his contention based on a claim of tenancy under the plaintiff, for, no one can take profit out of his own wrong is the maxim on which such possession cannot be protected as against the true owner. To support the contention learned counsel relied on the following observations of Viswanatha Iyer, J. in Damayanthi v. THEyyan (1979 KLT. 85 ). "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. 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. Why is it that an exception is made in the case of a true owner? the principle seems to be this: In the case of true owner be does not acquire any advantage or profit by doing this wrong. As owner be is entitled to exercise his pre existing right to possess and the fact that be exercises that right by himself without resort to a court of law will not disentitle him to retain possession".