Decided on October 30,2002

K.M.KANIKARI Respondents


- (1.)One Kochan Kani was the owner of the property in dispute. In the year 1956 after his death, his nephews (Shankaran Kani and Ors. ) brought a suit being original suit no. 74 of 1956 praying to set aside the revenue proceedings. They also filed a second suit no. 78 of 1959 for declaration that they are the legal heirs of Kochan Kani. It appears that both the suits were consolidated and a receiver was appointed by the court. Original suit no. 74 of 1956 was dismissed. However, original suit no. 78 of 1959 was decreed. Against the aforesaid judgment, the appeals were filed. While these aforesaid proceedings were pending, the property which was the subject matter of the suit was sold through an auction sale for satisfaction of arrears of agricultural income tax dues against Kochan Kani. One israil Nadar purchased the said property at the said auction. Subsequently, one portion of the property described as item no. 1 of B schedule property to the suit was sold to the predecessor in interest of the appellant whereas item no. 2 of the schedule was purchased by Israil Titus from the heirs of israil Nadar. It appears that after original suit no. 78 of 1959 was decreed, the decree was put in execution and in the execution proceedings the plaintiff obtained possession of the property. Subsequently, the appeal filed by Kunjuraman Kani was dismissed. However, this Court in civil appeal No. 925 of 1966 set aside the judgment and decree of the trial court as well as of the appellate court and Kunjuraman Kani was declared to be the legal heir of Kochan Kani. After the aforesaid decision Kunjuraman Kani applied for restitution of the possession of the property from the plaintiff in suit no. 78 of 1959. In that proceedings the possession of the property was delivered to Kunjuraman kani. Subsequently, the appellant herein and one Israil Titus filed original suit no. 556 of 1977 before the principal munsif neyyattinkara for recovery of possession of the property purchased by them from Israil nadar. The trial court decreed the suit. However, the first appellate court set aside the decree and dismissed the suit. The second appeal filed by the plaintiff was dismissed by the High Court. It is against the said judgment, the appellant is in appeal before us.
(2.)Learned counsel appearing for the appellant urged that since the predecessor in interest of the appellant, on the basis of the auction sale, was put in possession over the property and thereafter the appellant was in possession over the property and restitution was not directed against them and, therefore, there was no occasion for either the predecessor in interest of the appellant or the appellant to offer any resistance when the restitution proceedings were taken and, therefore, the view taken by the first appellate court and the High Court is erroneous. We do not find any merit in this submission. In fact, it has been found by the first appellate court as well as by the High Court that neither the original auction purchaser nor the plaintiff- appellant ever came in possession over the disputed land. The first appellate court found that in case the appellant had been in possession, they would have offered resistance when they were sought to be dispossessed in proceedings under section 144 of the Code of Civil Procedure. Since the plaintiff did not offer any resistance nor filed any objection, it was not open to the plaintiff to bring the suit for recovery of possession.
(3.)In that view of the matter we do not find any merit in this appeal. It fails and is, accordingly, dismissed. There shall be no order as to costs.

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