Kerala High Court
Abdul Rahiman vs Nalakath Muhammed Haji on 14 June, 1996
Equivalent citations: AIR1997KER23, AIR 1997 KERALA 23, ILR(KER) 1996 (3) KER 409, (1996) 2 CIVILCOURTC 205, (1996) 2 KER LJ 126, (1996) 2 KER LT 185, (1996) 3 CIVLJ 884
Author: J.B. Koshy
Bench: J.B. Koshy
ORDER J.B. Koshy, J.
1. Revision petitioner was the plaintiff in O.S. No. 323 of 1990 on the file of the Munsiff's Court, Tirur. According to him, plaint schedule property was set apart to the share of his brother Ahammadunni as per an oral partition. Since Ahammadunni was a Pakistan citizen, he had to depart from India in 1949 and he handed over his properties which was set apart to him as per the oral partition to the plaintiff/petitioner for management and maintenance. But subsequently, those properties were taken into custody by custodian to evacuee property as per the provisions of Administration of Evacuee Property Act. 195.0. But the custodian entrusted all such properties to the petitioner/plaintiff himself. While petitioner/ plaintiff was in possession and management of the properties, Ahammadunni came to India with the permission of the Government on 30-6-1990 and wanted to get back those properties from the petitioner/ plaintiff. Since plaintiff did not oblige him, Ahammadunni created an assignment deed in favour of the defendant and defendant on the basis of the assignment deed and with the help of another brother of the plaintiff/petitioner Bappu Haji, who is in enmity towards the plaintiff, trespassed into the property on 13-9-1990 and defendant is in unlawful possession. Therefore, the suit was filed by the plaintiff under Section 6 of the Specific Relief Act to get a decree for recovery of possession: The above case was considered by the learned Munsiff and learned Munsiff found that plaintiff did not prove his possession of the property for six months prior to the filing of the suit, and therefore, he is not entitled to get a decree as prayed for on the basis of Section 6 of the Specific Relief Act.
2. It is contended by the revision petitioner herein that the learned Munsiff did not consider the evidence in the right perspective. It is also contended that there was another suit, O.S. No. 280 of 1990 with respect to Ahammadunni's other properties for which similar title was claimed, even though defendants were different. Petitioner has produced Exts.A1 to A13 in that suit. It was decreed in his favour. Learned Munsiff dismissed petitions for reopening the case and for producing the photocopies of the relevant documents which were produced in O.S. No. 290 of 1990 or to call for the documents produeed in that suit. This resulted in miscarriage of justice.
3. Section 6 of the Specific Relief Act provides as follows:
"6. (1) If any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit. (2) No suit under this section shall be brought-
(a) after the expiry of six months from the date of dispossession;
(b) against the Government.
(3) No appeal shall lie from any order or decree passed in any suit instituted under this section, nor shall any review of any such order or decree be allowed. (4) Nothing in this section shall bar any person from suing to establish his title to such property and to recover possession thereof."
It is clear from the wordings of the above section that the above section provides a summary, cheap and useful remedy to a person dispossessed of immovable property otherwise than in due course of law. The object of the section is to discourage people from taking the law into their own hands, however good their title may be. It provides a summary remedy to a person who has without his consent been dispossessed of immovable property otherwise than in due course of law, for recovery of possession without establishing title. The above section is also an illustration of the fact that a person is entitled to protect his possession except against a true owner and a true owner must also initiate legal proceedings for the purpose and cannot throw him out by show of sheer force except under special circumstances where the law gives him a right of private defence or self help. A person who is in possession of the property cannot be dispossessed without his consent or in any manner otherwise that in due course of law. Question of title is irrelevant in this suit. It is the question of possession. Plaintiff must prove his previous possession and dispossession by the defendants otherwise than in due course of law, within six months of the suit. The court need not go into the nature of parties' possession. However, it is the person who claims under Section 6 should prove his possession and also the fact that he was dispossessed, within six months from the filing of the suit. The burden of proof is on the plaintiff to prove that he was dispossessed and that the suit was filed within six months from the date of dispossession.
4. The property belonged to the share of his brother Ahammadunni as per oral partition. This is not disputed by the parties. The case of the petitioner is that since Ahammadunni was a Pakistan citizen he had to depart from India in 1949 and at that time he handed over his properties to the plaintiff/petitioner. Subsequently those properties were taken into custody by the custodian of evacuee properties. Ahammadunni came back to India on 30-6-1990 and demanded back the property and that was refused. According to the petitioner, defendant was given the assignment deed by his brother Ahammadunni and on the basis of the assignment deed on 13-9-1990 defendant trespassed into the plaint schedule property and he was dispossessed.
5. According to the written statement, Ahammadunni had originally entrusted his properties to his wife and children. Ahammadunni divorced his wife in 1952. It is also stated in the written statement that custodian of evacuee property did not take possession of the properties of Ahammadunni. According to the defendant, plaint schedule property was handed over in possession to him by Ahammadunni in 1980 for which he had paid Rs. 5,000/- as part of consideration. Defendant's case is that from 1980 onwards he was in possession of the property. Defendant claimed that B1 assignment deed was executed by Ahammadunni in his favour and that he was in possession. As already mentioned by me question of title is not at all relevant in a suit under Section 6 of the Specific Relief Act. Plaintiff has to prove the possession. After analysing the evidence, learned Munsiff found that plaintiff did not prove his possession. Exts.A1 to A3 were produced by the plaintiff. A1 shows that a notice under Section 7 of the Administration of Evacuee Property Act, 1950 was issued and subsequently declaration was made under Section 8 of the Act, A1 shows that the plaint schedule property, i.e., properties in R.S. No. 247/8 also contained in the declaration. But Al did not show that property was entrusted by the custodian of evacuee properties to the petitioner/plaintiff. Therefore, it will not prove possession by the petitioner/ plaintiff. A2 is the certified copy of the certificate of purchase issued by the Land Tribunal, but it relates to properties comprised in R.S. No. 156/6C and it has no connection with the plaint schedule property. A3 is another document wherein there is an observation of the Board of Revenue regarding possession of the plaintiff/petitioner of evacuee properties of C. P. Ahamadunni. But, A3 was relating to garden land for which plantation tax was assessed in the name of the plaintiff/petitioner. It is admitted by PW1 that plantation tax is assessed only with regard to the garden land. Admittedly, plaint schedule property is a paddy field. Therefore, A3 is also not helpful to the plaintiff to prove his possession. Further in the plaint itself it is stated that only some of the properties set apart to Ahammadunni were handed over to the plaintiff/petitioner. Even according to the plaint, all the properties of Ahammadunni were not handed over to the plaintiff. If the custodian of evacuee properties had entrusted the property for management to the petitioner/plaintiff there should have been a document. No such document was produced by the petitioner. No evidence was adduced by the petitioner regarding entrustment made by the custodian. Since possession of the plaintiff was not proved, according to me, learned Munsiff rightly held that no relief can be granted to him under Section 6 of the Specific Relief Act. The burden is on the plaintiff to prove his possession. The fact that the defendant did not prove his possession is not material as the initial burden of the plaintiff/ petitioner was not discharged.
6. With regard to the case of the plaintiff that he was not allowed to re-open the evidence or to produce photocopies of the documents produced in another case or to call for the above records has vitiated the case and if those documents were produced there would have been a decree in his favour as in the other case cannot be accepted for various reasons. The property in the other case, i.e., O.S. No. 280 of 1990 is different. Defendants are different. That is a large extent of property for which decree was granted on the basis of the documents produced therein.
7. The petitioner relies on the decision in Government of Andhra Pradesh v. Karri Chinna Venkata Reddy (AIR 1994 SC 591) wherein the Supreme Court held that genuineness of document was a fundamental question hence, copies should have been accepted in evidence only after examining the original records. This will not help the petitioner. He filed the above petition for allowing the photocopies to be produced only after case was posted in the list and after taking evidence. Only after closing the evidence he filed the petition for re-opening the evidence. Original records were not produced for comparison. He could have produced certified copies or should have taken steps to produce the documents in the other case ordered earlier. Calling for the records of the other case was also filed after the evidence was closed in this case. That case relates to different survey numbers and plaintiff did not prove that documents relating to the plaint schedule property in this case were produced in that case. Therefore, there is no infirmity in not allowing the petitioner to re-open the evidence or to produce photocopies or to call for the records of the other case. Tax receipts or other evidence regarding possession of the plaintiff were not produced.
8. In any event, allegation regarding dispossession of the plaintiff from schedule property on 13-9-1990 as alleged was not proved at all. Only if dispossession of the plaintiff within six months of the filing of the suit is proved, relief under Section 6 of the Specific Relief Act can be given. No evidence was given to the allegation that defendant trespassed into the plaint schedule property on 13-9-1990 and dispossessed the petitioner/plaintiff. Apart from the statement in the plaint no evidence to that effect was adduced. Therefore, learned Munsiff correctly found against the plaintiff. I see no ground to remand the matter as requested by the petitioner, to re-open the case and to allow him to adduce further evidence regarding possession and dispossession at this distance of time.
9. As mentioned in Sub-section (3) of Section 6 an order under this section is not appealable and also not open to review. The aggrieved party can further institute a suit on the basis of the title, if any. Interference in revision of a judgment and decree in a suit under Section 6 of the Specific Relief Act has to be declined unless a strong case is made out. In this case, no error of jurisdiction or error of law is pointed out by the revision petitioner. The impugned order was passed on the basis of appreciation of evidence and is not liable to be interfered in this revision.
There is no merit in the civil revision petition and it is accordingly dismissed. No order as to costs.