LAKSHMI Vs. KUNJU

JUDGEMENT

(1.) The plaintiff is the petitioner in revision. O. S. No. 137 of 1963, from which this revision arises, was a suit brought by the plaintiff on the strength of a purchase by him of the properties covered by it, from one Kesavan Nair, for an injunction against the defendants who, according to him, were attempting to trespass into her property. An ad interim injunction had been granted during the pendency of the suit. Her counsel states that the injunction has not been dissolved upto now, and so, as matters stand, the defendants have been restrained from even entering the plaint schedule properties and are therefore out of possession. Nevertheless, the plaintiff, by way of abundant caution, has amended her plaint and prayed, alternatively, for recovery of possession on the strength of her title. She contends that the defend in to have put forward a plea of oral lease under Kesavan Nair, her assignor, by colluding with him and getting certain receipts purporting to have been executed by him during the various years in the past. Her case, as presented before me, appears to be that Kesavan Nair, colluding with the defendants, gave antedated receipts; and so, she took the trouble of Sending Up all these receipts, ten of them, to a handwriting expert in Simla for finding out whether they were all executed at about the same time or during different years as they purport to have been executed. It is represented before me by counsel that the expert's opinion is that all the receipts were got up at about the same time, thus disproving the defendants' case that they had been executed on the several dates they purport to bear.

(2.) The defendants have let in all their evidence, after which the plaintiff has started her evidence. Her husband Has been examined in part as pw. 1 and he has taken steps to summon the handwriting expert. While so, the 2nd defendant filed an application for staying the suit under S.8 of the Kerala Act 12 of 1966. The Court stayed the suit and directed the 12th respondent, the Revenue Divisional Officer, to prepare a Record of Rights in respect of the suit properties. The plaintiff filed a revision against this stay whereupon this Court directed the Munsiff to reconsider the whole matter in the light of the ruling reported in 1968 KLT 23 . Even after reconsidering the case in the light of the principles laid down in the above case the mind of the Munsiff has not changed and he has reached the same conclusion. It is against this stay, a second time, that the plaintiff has come up in revision now.

(3.) It is true that in a suit for eviction if a prima facie case of 'tenancy is made out, the suit must be stayed. But, it must be found as a fact, that there is such a prima facie case. To find whether a case has been made out prima fade, one has to consider the evidence on record and not ignore it. Closing one's eyes to the evidence on record is not coming to a conclusion prima facie, and so, it was the duty of the Munsiff to consider the evidence, oral and documentary already adduced, discuss it briefly and come to a tentative conclusion as to whether there is really a presentable case of tenancy made out by the defendants. This conclusion depends on whether the defendants' oral evidence is at least somewhat reliable, whether the receipts are demonstrably concocted in collusion with Kesavan Nair and whether the plaintiff's evidence is sufficient utterly to destroy the tenancy set up by the defendants. May be, that the expert's opinion may also be considered even without his oral evidence, because we are not at the stage of the trial of the suit, but only arriving at a tentative conclusion.