ROSILY Vs. ANNAM
LAWS(KER)-2003-7-67
HIGH COURT OF KERALA
Decided on July 04,2003

ROSILY Appellant
VERSUS
ANNAM Respondents

JUDGEMENT

- (1.) I will refer to the parties as they were before the trial court. According to the plaintiffs, 'b' schedule property is part of 'a' schedule property having a total extent of 2 acres and 12. 540 cents. 'a' schedule is described as comprised of 2. 09 acres in Survey Nos. 214 and 3. 280 cents in Survey No. 228/5 and 0. 260 cents in Survey No. 228/3. 'a' schedule property is also described as property covered by Will No. 71/89 executed by vareed and described in the commission report in O. S. 715/97, a previous suit between the parties. According to the plaintiffs, 'a' schedule property stood separated from the defendants' property on its south by well-defined boundaries and the first plaintiff's father had maintained a retaining wall with jungle stones on its southern boundary. According to the plaintiffs, a portion of this retaining wall was destroyed by the defendants and O. S. 715/97 was instituted by the plaintiffs against the defendants seeking mandatory and prohibitory injunction. The case of the plaintiffs is that the Commissioner appointed in that suit has reported about the nature of the retaining wall. The plaintiffs state that in violation of the order of temporary injunction passed against the defendants in the suit - O. S. 715/97, the defendants destroyed the retaining wall completely and thereafter lodged a counter claim in O. S. 715/97 seeking fixation of boundaries. The Advocate Commissioner in that suit measured the property with the assistance of the surveyor and such measurement revealed that
(2.) 540 cents of land situated on the northern side of the retaining wall in survey Nos. 228/5 and 228/3 was under the possession of the plaintiffs. The court dismissed the counter claim on 7. 4. 2000. During the night of 9. 5. 2000 and early morning of 10. 5. 2000 while the plaintiffs were away, the defendants, it is alleged, trespassed into the aforementioned 'b' schedule property having an extent of 3. 540 cents and reduced the same into their possession by putting up a fence. Apart from putting up the fence, the defendants tilled the 'b' schedule property so as to make it appear that the 'b' schedule property lies contiguously to the properties of the defendants. The plaintiffs allege that the decree dismissing the counter claim lodged by the defendants in O. S. 715/97 has become final and that what the defendants did, instead of preferring an appeal against the dismissal of the counter claim, was to file a fresh suit for injunction-O. S. 736/00 without disclosing the true facts. Thus the suit is instituted seeking recovery under S. 6 of the Specific Relief Act on the premise that the plaintiffs who were in possession have been dispossessed within six months other than through legal process. The prominent contentions raised by the defendants were that the plaintiffs are entitled to only 2. 09 acres of land in Survey No. 228/1 and that at no point of time, the plaintiffs had any land in Survey No. 228/3 or 228/5; that in O. S. 715/97, the plaintiffs had raised claims only over properties in Survey No. 228; that the 'b' schedule property is part of the property which was obtained by the defendants under document No. 1075/84; that there never existed a jungle stone boundary wall as alleged by the plaintiffs; that a bund had been constructed by the predecessor-in-interest of the defendants years ago along the southern side of the defendants' property for the purpose of preventing soil erosion; that the defendants were having properties even on the northern side of that bund; that O. S. 715/97 which was filed by the plaintiffs on a foisted cause of action was dismissed by the Court; that the commission report and plan in O. S. 715/97 are incorrect; that the defendants never violated the injunction orders passed in that case; that when the Commissioner conducted the measurement, no wall was available on the property; that the alleged trespass on 9. 5. 2000 and 10. 5. 2000 are absolutely incorrect and equally incorrect is the allegation regarding tilling of the 'b' schedule property. The remedy of the plaintiffs is to prefer an appeal against O. S. 715/97 and not to file the instant suit for recovery of possession and also that the suit is barred by limitation. The learned Munsiff relied mainly on Ext. A2 certified copy of the plaint in O. S. 715/97, Ext. A4 counter claim in that suit, Ext. A5-the judgment in that suit, Ext. A8 and Ext. A8 (a) -commission report and plan respectively in that suit to hold the points in favour of the plaintiffs. Ext. B1- certified copy of a petition filed by the plaintiffs in O. S. 715/97 and ext. B2 certified copy of the plaintiffs' own deposition in O. S. 715/97 the only two items of documentary defence evidence relied on by the defendants were not accepted by the Court below. The Court below found that the evidence of the plaintiffs that prior to O. S. 715/97 and during the pendency of O. S. 715/97, the plaintiffs were in possession of the 'b' schedule property stood well established due to the findings in O. S. 715/97 dismissing the counter claim of the defendants which had attained finality. The Court below noticed that the version of PW1 that the defendants put up the disputed fencing prior to the disposal of O. S. 715/97 and tilled the 'b' schedule property and extended the compound wall on the western side by about one metre to the north was well corroborated by Ext. A6 commission report and Ext. A6 (a) plan submitted by the Advocate commissioner in O. S. 736/00 on 19. 5. 2000. The court below also noticed the report of the Advocate Commissioner in Ext. A6 that the extended portion had been newly plastered and found that the explanation of the defendants regarding plastering as part of the routine work is not acceptable. So also the court below found that the defendants' version of there having been a bund put up by the defendants' predecessor for preventing soil erosion and that about 11/2 metre outside the bund there stood a natural boundary formed of boundary trees is not acceptable since such a stand runs contrary to the defence version in o. S. 715/97 as could be noticed from the written statement in O. S. 715/97. The court below practically accepted the defence version that the plaintiffs do not have title over the 'b' Schedule property. However, observing that in a suit under S. 6 of the Specific Relief Act, the question of title is not relevant proceeded to pass a positive decree for recovery in favour of the plaintiffs.
(3.) HEARD Sri. T. A. Shaji, learned counsel for the revision petitioners and Sri. R. D. Shenoi, learned counsel for the respondents. The learned counsel supplied me with copies of relevant papers for perusal. As regards the merits of the claim for recovery, Sri. T. A. Shaji submitted that it is absolutely incorrect to say that in O. S. 715/97 the plaintiff's possession over the 'b' Schedule property was established. Inviting my attention to paragraph 6 of Ext. A5 judgment in O. S. 715/97, the learned counsel submitted that the finding in Ext. A5 judgment was that the plaintiffs therein have not taken any steps to establish that the plaintiffs are having possession over the 2 acres and 9 cents of land extending upto the southern wall of the defendants' property. The learned counsel pointed out that as regards the 'b' schedule property comprised in Survey Nos. 228/5 and 228/3 it had been practically conceded that the defendants were the owners and the plaintiffs had only a very vague version that the same was no man's land. Learned counsel would severally criticise the learned Munsiff for having relied on Exts. A8 and A8 (a), the commission report and plan in O. S. 715/97 - the two documents not relied on by the court which decided O. S. 715/97 to accept the plaintiffs' claim for possession in that suit in support of its conclusion in the present suit that the plaintiffs are in possession of 'b' schedule property. The admissibility and relevancy of the judgment in O. S. 715/97 can only be to the extent provided under S. 43 of the Indian Evidence Act, the learned counsel forcefully submitted. The point which Mr. T. A. Shaji tried to make more seriously was that the suit filed under S. 6 of the Specific Relief act by a plaintiff on the strength of previous possession within six months of the commencement of the suit will not be maintainable against the true owner. Learned counsel placed strong reliance on the decision of this Court in damayanthi v. Theyyan & Ors. , 1979 KLT 85 for the above proposition. The learned counsel relied very much on the first headnote which reads as follows: Specific Relief Act, 1963, S. 6 - Suit for possession based on prior possession - Maintainability-Applicability when right of third party is affected. That no one can take a profit out of its own wrong is a well-known maxim. 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 he does not acquire any advantage or profit by doing this wrong. As owner he is entitled to exercise his pre-existing right to possess and the fact that he exercises that right by himself without resort to a court of law will not disentitle him to retain possession. He may be liable for any damage for forcible entry alone if claimed. So far as others are concerned they benefit out of the wrong. So they must give back the advantage. That is the rationale of the principle that a possessory suit will not lie against the true owner. The plaintiff has claimed relief against all the defendants. The fact that besides the owners a third person is also impleaded does not alter the nature of the relief asked for. The plaintiff's suit is essentially a suit for possession on the basis of prior possession and that against the owners and the persons claiming possession. Therefore the view taken by the lower court is clearly wrong and the order of remand cannot be sustained".;


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