BRITTO GOMEZ Vs. XAVIER GOMEZ

JUDGEMENT

(1.) THE revision petitioners are defendants 1 to 3 and 5 to 7 in the suit.

(2.) THE case in brief is as follows: Plaintiffs 1 and 2 are sisters and the 3rd plaintiff is their brother. THE plaintiffs are living together in the suit property. THE defendants are the children of the deceased brother of the plaintiffs. THE suit property originally belonged to the mother of the plaintiffs and she had executed an unregistered Will and bequeathed the property in favour of the plaintiffs. Plaintiffs 1 and 2 are the retired teachers. THE 3rd plaintiff served in the Shipping Corporation and retired and all of them were living in the property after retirement. THE plaintiff's mother died in 1989. THE defendants lived in other places and they forcibly entered into possession of the 2nd schedule of the property on 18.6.2000 and dispossessed the plaintiffs. THEy also gave a complaint to the police, but no action was taken. Hence, the suit is filed under Sec.6 of the Specific Relief Act for recovery of possession of the 2nd schedule of the suit property. THE defendants admitted that the suit property originally belonged to their grand mother. THEy denied the execution of the alleged Will. THE plaintiffs are not in exclusive possession and the alleged Will has not been probated. THE alleged trespass is also false. THE defendants also had right in the property and as such, they are in the nature of co-owners and hence the plaintiffs are not entitled to claim any relief by invoking Sec.6 of the Specific Relief Act. THE trial Court framed 2 issues and on behalf of the plaintiffs, P.Ws.1 to 8 were examined and Exs.A-1 to A-35 were marked and on the side of the defendants, D.Ws.1 and 2 were examined and Exs.B-1 to B-20 and Witness documents 1 to 11 were marked. THE trial Court decreed the suit and aggrieved against this, defendants 1 to 3 and 5 to 7 have preferred this revision petition.

(3.) IT is settled position of law that to succeed in a summary suit for restitution to possession under Sec.6, the plaintiffs have to establish that they were in exclusive possession of the disputed property, that the disputed property is an immovable property, that the plaintiff was dispossessed within six months from the date of the suit, that the dispossession was effected without the consent of the plaintiffs, that the dispossession was effected otherwise than under due course of law and that the dispossession is by one other than the Government. The question of title to the property cannot be gone into in such type of suit. The only question that has to be found out is whether the plaintiffs were in actual possession of the property and they had been dispossessed except in accordance with law. Number of documents have been filed on behalf of the plaintiffs to show that they were in possession and enjoyment of the property. The telephone bills, voters identity card and ration card have been filed to prove their residence. These documents have been considered by the Court below and gave a finding that the plaintiffs were in possession of the property.